[Federal Register Volume 67, Number 73 (Tuesday, April 16, 2002)]
[Rules and Regulations]
[Pages 18512-18516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9202]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 010712174-2072-02; I.D. 062701D]


Eligibility Criteria and Application Process for the Western 
Pacific Community Development Program and Western Pacific Demonstration 
Projects

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

ACTION: Final rule; solicitation for demonstration project proposals.

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SUMMARY: NMFS issues this final rule to publish definitions, developed 
with the Council, for certain terms appearing in the criteria used to 
determine which western Pacific communities may participate in western 
Pacific community development programs and western Pacific 
demonstration projects (Projects). NMFS also publishes criteria 
developed by the Council to determine which western Pacific communities 
will be eligible to participate in western Pacific community 
development programs and Projects under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). Finally, NMFS 
and the Council solicit pre-application proposals for Projects from 
communities in the western Pacific region to foster and promote the 
involvement of such communities in Projects related to western Pacific 
fisheries.

DATES: This final rule is effective May 16, 2002. Proposals for 
Projects must be received by 5 p.m. Hawaii Standard Time on June 17, 
2002.

ADDRESSES: Proposals should be sent to: Western Pacific Demonstration 
Projects, Pacific Islands Area Office, National Marine Fisheries 
Service, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, Hawaii 96814. 
Proposals should include a cover letter signed by a responsible party 
representing the respective western Pacific community.

FOR FURTHER INFORMATION CONTACT: Kelvin Char (NMFS), phone 808-973-
2937, e-mail [email protected]; or Charles Ka`ai`ai (Council), 808-
522-8220 or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    This Federal Register document is available through the NMFS 
Pacific Island Area Office (PIAO) Home Page at: http://swr.nmfs.noaa.gov/piao/index.htm, the Council's Home Page at: http://www.wpcouncil.org, and the Grants information page at: http://www.rdc.noaa.gov/grants.

I. Background

    This final rule publishes eligibility criteria that will be used 
for both Community Development Programs and submission of Project 
proposals. This document solicits Project proposals only. The 
solicitation of Community Development Plans will be a separate 
announcement in accordance with a program to be developed by the 
Council.
    Under the authority of section 305(i)(2) of the Magnuson-Stevens 
Act, 16 U.S.C. 1855(i)(2), the Council and the Secretary of Commerce 
(Secretary) may establish western Pacific community development 
programs for any fishery under the authority of the Council to provide 
access to such fishery for western Pacific communities. Section 
305(i)(2)(B) specifies that to be eligible to participate in western 
Pacific community development programs, a community must:
    1. Be located within the Western Pacific Regional Fishery 
Management Area;
    2. Meet criteria developed by the Council, approved by the 
Secretary and published in the Federal Register;
    3. Consist of community residents who are descended from the 
aboriginal people indigenous to the area who conducted commercial or 
subsistence fishing using traditional fishing

[[Page 18513]]

practices in the waters of the Western Pacific region;
    4. Not have previously developed harvesting or processing 
capability sufficient to support substantial participation in fisheries 
in the Western Pacific Regional Fishery Management Area; and
    5. Develop and submit a Community Development Plan to the Council 
and the Secretary. For purposes of eligibility to receive a Project 
grant, only, a Project proposal submitted under section 305 note of the 
Magnuson-Stevens Act (Section 111(b) of the Sustainable Fisheries Act, 
Pub. L. 104-297) will be deemed to be a Community Development Plan.
    Section 305(i)(2)(D) of the Magnuson-Stevens Act defines the 
``Western Pacific Regional Fishery Management Area'' as the area under 
the jurisdiction of the Council or an island within such area.
    Under section 305 note of the Magnuson-Stevens Act (Section 111(b) 
of the Sustainable Fisheries Act, Pub. L. 104-297) western Pacific 
communities eligible to participate in western Pacific community 
development programs are eligible to apply for and receive grants for 
related Projects. Such communities must submit a proposal to NMFS for 
Projects that foster and promote the use of traditional indigenous 
fishing practices of western Pacific communities found on American 
Samoa, Guam, Hawaii or the Northern Mariana Islands. A Project may 
identify and apply traditional indigenous fishing practices; develop or 
enhance western Pacific community-based fishing opportunities; and 
involve research, community education, or the acquisition of materials 
and equipment necessary to carry out any such Project.
    The Council developed criteria, which were approved by NMFS, to 
determine which communities are eligible to participate in western 
Pacific community development programs. NMFS and the Council also 
developed definitions for certain terms used in the criteria for 
community development programs and Projects. Both the criteria and 
definitions were published for comment in a proposed rule at 66 FR 
39131 (July 27, 2001).
    A proposal for a Project must be submitted by a responsible party 
representing non-transient people descended from the aboriginal people 
indigenous to the area. A responsible party must be an organization of 
indigenous peoples or organization representing indigenous peoples 
including but not limited to Institutions of Higher Education, non-
profit organizations, commercial organizations, state, local or 
indigenous community governments. The responsible party must reside in 
the Western Pacific Regional Fishery Management Area. The request must 
address the requirements of section 305 (i)(2)(B) outlined in section 
I. Background.

II. Comments and Responses

    NMFS received one letter containing five comments on the proposed 
rule for the western Pacific community development program and Projects 
eligibility criteria and definitions (66 FR 39131, July 27, 2001).
    Comment 1: The traditional indigenous fishing practices of ancient 
Hawaiian people utilized both paddle and sail canoes, navigation by 
stars, woven fishing lines and hooks made out of marine mammal bones. 
Based on the qualification criteria ``To be eligible for funding, a 
Project must foster and promote the use of traditional indigenous 
fishing practices of western Pacific communities found on American 
Samoa, Guam, Hawaii or the Northern Mariana Islands'' please clarify if 
the use of modern marine boats, fishing equipment and electronic 
technology would qualify under the eligibility criteria.
    Response: Yes, modern equipment such as motors, manufactured boats, 
steel hooks or compasses can be used as long as they foster and promote 
traditional indigenous fishing practices.
    Comment 2: The traditional indigenous fishing practices of ancient 
Hawaiian people did not utilize ice to prolong the shelf life of hooked 
fish. Would the construction of a modern ice manufacturing plant to 
provide ice to indigenous fishermen qualify under the eligibility 
criteria?
    Response: Yes, construction of facilities that enhance traditional 
indigenous fishing practices would qualify, provided the proposed 
facility, its siting, and its construction meet all the requirements 
and conditions set out by other Federal or state laws and regulations.
    Comment 3: Did the aboriginal indigenous people conduct 
``commercial fishing'' as defined in today's society?
    Response: We cannot answer this question, which is why the 
criterion states ``commercial or subsistence''. Historically 
communities that fished were probably either doing so for commercial 
purposes or subsistence, therefore, this criterion will probably not 
exclude any traditional fishing communities.
    Comment 4: Would a modern fishing business owned by indigenous 
aboriginal people qualify to participate in the Community Development 
Program?
    Response: A modern fishing business owned by people descended from 
the aboriginal people indigenous to the area and employing traditional 
fishing methods would be eligible to participate in a Community 
Development Program provided it meets all of the eligibility criteria.
    Comment 5: Does the definition of ``community'' (Community-Means a 
population of non-transient people descended from the aboriginal people 
indigenous to the area who share a common history based on social, 
cultural and economic interactions and a functional relationship 
sustained by participation in fishing and fishing related activities) 
mean that all facets of accomplishing the traditional fishing must be 
conducted solely by indigenous aboriginal people? For example, can non-
aboriginal people be used to provide services necessary to maintain the 
aboriginal fishing?
    Response: A community may consist of people from different 
ancestries, however, the responsible party for a Community Development 
Program or grant recipient for a Project must represent non-transient 
people descended from the aboriginal people indigenous to the area. 
Anyone can provide services to maintain a Project.

III. Definitions and Eligibility Criteria

A. Definitions

    The following definitions developed by NMFS and the Council will 
apply to terms used in the eligibility criteria recommended by the 
Council and to the terms used in requirements found at section 
305(i)(2)(B) of the Magnuson-Stevens Act.
    Community means a population of non-transient people descended from 
the aboriginal people indigenous to the area who share a common history 
based on social, cultural and economic interactions and a functional 
relationship sustained by participation in fishing and fishing related 
activities.
    Economic barriers means barriers which add to the difficulty and 
cost of participation in a fishery by descendants of the aboriginal 
people of each area. They include, but are not limited to, the 
degradation of marine habitat, localized depletion of harvested stocks, 
and loss of access to long-fished grounds because of closure and/or 
lack of access to capital and expertise to compete for marine 
resources.
    Subsistence fishing means harvesting of marine resources for 
personal, family or community use or for gifts of food to

[[Page 18514]]

extended family members and friends that perpetuate community 
relationships and identities.
    Traditional fishing practices and traditional indigenous fishing 
practices means methods of fishing and fishery utilization developed 
from aboriginal customary and traditional uses and practices that can 
be conducted within existing regulations.
    The cultural and social framework relevant to the fishery, means 
for each community, the accumulation and perpetuation of ancestral 
knowledge and participation that have resulted from historical 
dependence on marine resources as a principal source of food for the 
aboriginal people indigenous to the area.

B. Eligibility Criteria

    The following criteria will be used for determining which 
communities may participate in Projects. They incorporate all of the 
eligibility criteria set forth in section 305(i)(2)(B) of the Magnuson-
Stevens Act. Any community meeting these criteria is also eligible to 
participate in a western Pacific community development program and 
submit a Project proposal.
    1. Be located in American Samoa, the Northern Mariana Islands, Guam 
or Hawaii (Western Pacific Area);
    2. Consist of community residents descended from aboriginal people 
indigenous to the western Pacific area who conducted commercial or 
subsistence fishing using traditional fishing practices in the waters 
of the western Pacific;
    3. Consist of community residents who reside in their ancestral 
homeland;
    4. Have knowledge of customary practices relevant to fisheries of 
the western Pacific;
    5. Have a traditional dependence on fisheries of the western 
Pacific;
    6. Experience economic or other barriers that have prevented full 
participation in the western Pacific fisheries and, in recent years, 
have not had harvesting, processing or marketing capability sufficient 
to support substantial participation in fisheries in the area; and
    7. Develop and submit a Community Development Plan to the Western 
Pacific Council and the National Marine Fisheries Service.

III. Western Pacific Demonstration Projects

Funding

    NMFS is now soliciting proposals for Projects. However, NMFS cannot 
guarantee that sufficient funds will be available to make awards for 
all proposals submitted for this program. The total U.S. dollar amount 
of grants awarded through this solicitation will not exceed $500,000 
for 3 to 5 Projects. Another solicitation may occur in calendar year 
2002.
    The Advisory Panel, through the Councils designee, will recommend 
to NMFS proposals to be considered for Federal funding. The authority 
for approving a grant award for Projects rests solely with NOAA, based 
upon its review and evaluation of a western Pacific community's 
Application for Federal Assistance, a review of the Advisory Panel's 
ranking and the Council designee's official submission.
    The Advisory Panel, Council and NMFS will adhere to the principles 
of fair and open competition in the selection of proposals and the 
distribution of available funds under this authority.

Duration and Terms

    Grants will be awarded for a maximum period of 2 years. The award 
period depends upon the duration of the funding requested in the 
application and the pre-award review of the application by NOAA and 
Department of Commerce officials. Normally, each Project budget period 
is 12 months in duration. If an application is approved for funding, 
the Secretary has no obligation to provide any additional funding in 
connection with that award in subsequent years. After an award is made 
by NOAA, any subsequent application to continue work on an existing 
Project must be submitted for consideration as a new proposal and will 
not receive preferential treatment in the Advisory Panel's selection 
process or by NOAA in its review of a new grant application. Renewal of 
an award to increase funding or to extend the period of performance is 
at NOAA's discretion.

III. Catalogue of Federal Domestic Assistance

    The Western Pacific Demonstration Projects are covered in the 
``Catalog of Federal Domestic Assistance'' under number 11.452, 
Unallied Industries Projects.

IV. Project Proposal and Grants Application Information

    The process for the selection and Federal funding for Projects is 
comprised of two steps:
    (A) Responsible parties (organizations of indigenous peoples or 
organizations representing indigenous peoples including Institutions of 
higher education, non-profit organizations, commercial organizations, 
state, local or indigenous community governments) desiring to 
participate in Projects should submit a proposal to NMFS PIAO (see 
ADDRESSES).
    All pages must be double-spaced, in a minimum 12-point font size 
and printed on 8-1/2" x 11" paper. Proposals may not exceed 20 pages 
and all information needed for review of the proposal should be 
included in the main text; no appendices are permitted. NMFS will 
strictly enforce the 20-page limit.
    Proposals shall include the following information in this order:
    A. Name of Responsible Party.
    B. Address.
    C. Telephone number.
    D. Fax number if available.
    E. E-mail address, if available.
    F. Introduction or Background section- explain the purpose and need 
for the Project.
    G. Project Description-describe the Project, its goals and who will 
be managing the Project.
    H. Methods section-provide a detailed description of all methods 
and equipment that will be used or tested.
    I. Anticipated Benefits-describe the anticipated benefits and the 
relation to traditional indigenous fishing practices.
    J. Proposed Budget-include relevant budget items and justification 
for each item. Proposals must contain cost estimates showing total 
Project costs. Cost-sharing is not required. However, if cost-sharing 
occurs it must be indicated as Federal and non-Federal shares, divided 
into cash and in-kind contributions. Direct costs, including the 
information regarding the rate of and total compensation received by 
Project personnel must be specified in categories to the extent 
practicable. This accounting also needs to itemize the costs and rate 
of compensation received for services that will be provided by people 
not descended from the aboriginal people indigenous to the area. 
Indirect costs are anticipated and should be identified. (If the 
applicant has not previously established an indirect cost rate with a 
Federal agency and their proposal is recommended for funding, the 
negotiation and approval of a rate will be subject to the procedures in 
the application cost principles and section B.5. of the Department of 
Commerce Pre-Award Notification Requirements for Grants and Cooperative 
Agreements contained in the Federal Register notice of October 1, 2001 
(66 FR 49917).) Fees or profits are not allowable categories.
    Any one individual may participate in more than one Project. 
However, the cumulative time by an individual in all Projects shall not 
exceed 100 percent of what is considered a normal work day

[[Page 18515]]

in the community. These situations will be dealt with on a case-by-case 
basis depending on the complexity of the Projects.
    NMFS' PIAO will conduct an initial review for completeness and 
compliance with the information described above. Copies of proposals 
that pass the initial review will be provided to the Council's designee 
for Advisory Panel merit review and technical evaluation. Proposals not 
following the format or not including the information described above 
will be returned to the applicant.
    An Advisory Panel, consisting of no more than eight individuals who 
are knowledgeable or experienced in traditional indigenous fishery 
practices of western Pacific communities and who are not members or 
employees of the Council, will review and rank the proposals. 
(Magnuson-Stevens Act, section 305 note, Section 111(b)(3)(A) of the 
Sustainable Fisheries Act, Pub. L. 104-297).
    After the Advisory Panel has evaluated and ranked the proposals on 
technical merit, the Advisory Panel will develop recommendations for 
the fair and equitable allocation of available funding based on 
geographic distribution or diversity of the Projects. The Advisory 
Panel will submit these rankings and recommendations to the Council's 
designee. The Council's designee shall, within 45 days of receipt, 
officially forward the Advisory Panel's rankings and recommended 
project proposals to the PIAO Federal Program Officer for action. 
Proposals that the Advisory panel has not recommended for consideration 
for Federal funding will also be transmitted to the Federal Program 
Officer with an explanation of why the proposal was not recommended, 
for the record related to this solicitation. Proposals not recommended 
for funding will be retained by the PIAO for at least 24 months and a 
letter with a brief explanation as to why the proposal was not 
recommended for funding will be sent to the Responsible Party.
    (B) If a proposal is recommended by the Advisory Panel, through the 
Council's designee, for consideration for Federal funding, the selected 
party will be required to submit, to NMFS PIAO, a grant application 
with all the required documentation necessary to complete the NOAA 
grants process. Copies of appropriate forms will be provided to the 
responsible parties whose Projects are recommended for consideration 
for Federal funding.
    However, please note that, as discussed below, this is not the end 
of the review process. Therefore, projects should not be initiated in 
expectation of Federal funding until receipt of an award duly executed 
by the Grants Officer.
    If applicants incur any costs prior to an award being made, they do 
so at the risk of not being reimbursed by the Federal Government. 
Notwithstanding any verbal or written assurance, there is no obligation 
on the part of the Department of Commerce to cover pre-award costs.
    If the Assistant Administrator for Fisheries accepts a proposal 
and/or a grant application for a Project not in accordance with the 
rank given to such Project or the recommendation of the Advisory Panel, 
NMFS will consult with the Council's designee and provide a detailed 
written explanation of the reasons for the action based on geographical 
distribution or diversity in the nature of the Projects.

V. Obligation of Responsible Parties

    A responsible party must provide information necessary for the 
evaluation of the Project and accompanying grant application. The 
application must include one signed original and two copies of the 
signed application. The responsible party must also be available, upon 
request, to respond to questions during all phases of review and 
evaluation of applications.

VI. Project Evaluation Standards

    Evaluation of Project proposals - The Advisory Panel will review 
the merits of and rank proposals. The Advisory Panel can assign a 
maximum of 40 points to any one proposal based on the following 
selection standards.
    1. Benefit to the community - Proposals will be evaluated on the 
short-term and long-term goal(s) addressed by the Project and how they 
address the Funding Priorities (section VII). (10 points)
    2. Project design and approach - Proposals will be evaluated on the 
strengths and/or weaknesses of the Project design relative to the 
degree of involvement by the indigenous community members and to 
securing productive results. The design and approach should be 
appropriate to the aims of the Project. (10 points)
    3. Experience and qualifications of personnel - The merits of each 
proposal will also be based on past activities and accomplishments of 
the responsible party in relation to the proposed Project as well as 
their technical, managerial and organizational skills. (5 points)
    4. Project evaluation - The effectiveness of the proposed 
procedures and criteria to monitor and evaluate the success or failure 
of the Project in terms of meeting its objectives will be examined. (5 
points)
    5. Project budget - Allocation and justification of the budget will 
be evaluated. Costs should be reasonable and commensurate with the 
proposed statement of work. (10 points)

VII. Funding Priorities

    Responsible parties should ensure that their proposals address one 
or more of the following priorities, which are listed alphabetically 
with no one area carrying a higher priority than any other. If more 
than one priority is selected, the responsible party should list first 
the priority that most closely reflects the objectives of the proposed 
Project.
    A. Promote Economic Growth and Stability in Indigenous Communities-
Maintain lifestyles within communities by promoting fisheries-related 
activities that increase employment and household income and/or enhance 
economic self-sufficiency through reduced dependency on a cash economy.
    B. Promote Fishery Resource Stewardship by Indigenous Communities-
Encourage responsible and sustainable use of the marine environment by 
indigenous communities through revitalization or preservation of 
traditional marine resource use values, knowledge and practices 
appropriate for contemporary fisheries management.
    C. Promote Self-Determination in Indigenous Communities-Improve 
opportunities for economic self-determination by indigenous communities 
through training and vocational education in fish harvesting, storage, 
processing, distribution and marketing.
    D. Promote Solidarity in Indigenous Communities-Develop approaches 
to strengthening cultural identity and enhancing cooperation and 
cohesiveness in indigenous communities through utilization and 
management of fishery resources.

VIII. Obligations of Successful Responsible Parties

    A recipient (successful responsible party) of a grant award must: 
(1) manage the day-to-day operations of the Project, take 
responsibility for the performance of all activities for which the 
funds are granted, and take responsibility for all administrative and 
managerial conditions of the award; (2) keep records sufficient to 
document any costs incurred under the award and make them available for 
audit and examination by the Secretary, the Comptroller General of the 
United

[[Page 18516]]

States, or their authorized representatives; (3) submit Project status 
reports on the use of funds and progress of the Project to NOAA within 
30 days after the end of each 6-month period, (these reports will be 
submitted to the office specified in the grant award); and (4) submit a 
final report within 90 days of completion of the Project or the end of 
the grant period to NOAA. The final report must describe the Project, 
provide an evaluation of the work performed, including the results and 
benefits of the Project at a sufficient level of detail to enable NOAA 
to determine the overall success of the completed Project. Reports 
should be submitted in electronic format, if possible, so they can be 
distributed in a timely fashion to as wide an audience as possible.
    The responsible party has the obligation of obtaining any necessary 
permits or authorizations required to carry out the Project as 
proposed. The release of funds for certain tasks may be conditioned to 
a grant recipient's meeting specific performance standards established 
in a grant's Special Award Conditions.
    The Department of Commerce Pre-Award Notification of Requirements 
for Grants and Cooperative Agreements contained in the Federal Register 
notice of October 1, 2001 (66 FR 49917), are applicable to this 
solicitation. However, please note that the Department of Commerce will 
not implement the requirements of Executive Order 13202 (66 FR 49921), 
pursuant to guidance issued by the Office of Management and Budget in 
light of a court opinion which found that the Executive Order was not 
legally authorized. See Building and Construction Trades Department v. 
Allbaugh, 172 F. Supp. 2d 138 (D.D.C. 2001). This decision is currently 
on appeal. When the case is finally resolved, the Department of 
Commerce will provide further information on implementation of 
Executive Order 13202. To obtain a copy of this notice and the 
Executive Orders either go to the ``Federal Register Online via GPO 
Access'' at: http://www.access.gpo.gov/su_docs/aces/aces140.html or 
contact either party in FOR FURTHER INFORMATION CONTACT.

Classification

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this final rule will not have a significant 
economic impact on a substantial number of small entities. No comments 
were received regarding the economic impact of this action. As a 
result, a Regulatory Flexibility Analysis was not prepared. This action 
is anticipated to lead to economic and social benefits for qualifying 
communities. This action will allow the distribution of funds through 
grants to eligible communities to establish Projects. It is anticipated 
that the economic and social benefits of approved Projects will 
outweigh their associated costs.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    It has been determined that this notice does not contain policies 
with Federalism implications as that term is defined in Executive Order 
13132.
    Applications under this program are subject to Executive Order 
12372, ``Intergovernmental Review of Federal Programs.''
    This notice refers to collection-of-information requirements 
subject to the Paperwork Reduction Act. The use of Standard Forms 424, 
424A, and SF-LLL have been approved by the Office of Management and 
Budget under the respective control numbers 0348-0043,0348-0044, and 
0348-0046.
    A solicitation for applications will also appear in the ``Commerce 
Business Daily.''

    Dated: April 10, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 02-9202 Filed 4-15-02; 8:45 am]
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