[Federal Register Volume 75, Number 115 (Wednesday, June 16, 2010)]
[Proposed Rules]
[Pages 34088-34092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14550]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 0907211157-0224-02]
RIN 0648-AX76


Fisheries in the Western Pacific; Community Development Program 
Process

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

[[Page 34089]]


ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would establish requirements and procedures 
for soliciting, reviewing, and approving community development plans 
for access to western Pacific fisheries. The intent of this proposed 
rule is to promote the participation of island communities in fisheries 
that they have traditionally depended upon, but may not have the 
capabilities to support continued and substantial participation in, 
possibly due to economic, regulatory, or other constraints.

DATES: Comments on the proposed rule must be received by July 20, 2010.

ADDRESSES: Comments on this proposed rule, identified by 0648-AX76, may 
be sent to either of the following addresses:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov; or
     Mail: Mail written comments to Michael D. Tosatto, Acting 
Regional Administrator, NMFS, Pacific Islands Region (PIR), 1601 
Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700.
    Instructions: Comments must be submitted to one of the above two 
addresses to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent to any other address or individual, 
or received after the end of the comment period, may not be considered. 
All comments received are a part of the public record and will 
generally be posted to www.regulations.gov without change. All personal 
identifying information (e.g., name, address, etc.) submitted 
voluntarily by the sender may be publicly accessible. Do not submit 
confidential business information, or otherwise sensitive or protected 
information. NMFS will accept anonymous comments (enter ``N/A'' in the 
required fields if you wish to remain anonymous). Attachments to 
electronic comments will be accepted in Microsoft Word or Excel, 
WordPerfect, or Adobe PDF file formats only.
    The Western Pacific Fishery Management Council (Council) prepared 
amendments to the fishery ecosystem plans (FEP) for American Samoa, 
Hawaii, Marianas, and western Pacific Pelagics. These amendments 
contain background information on the issue. The amendments and 
proposed regulations, which are identical for all FEPs, are available 
from www.regulations.gov, and from the Council, 1164 Bishop St., Suite 
1400, Honolulu, HI 96813, tel 808-522-8220, fax 808-522-8226, 
www.wpcouncil.org.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to Michael D. Tosatto (see ADDRESSES) 
and by e-mail to [email protected], or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Jarad Makaiau, NMFS PIR, Sustainable 
Fisheries, 808-944-2108.

SUPPLEMENTARY INFORMATION: This document is also accessible at 
www.gpoaccess.gov/fr.
    Section 305(i)(2) of the Magnuson-Stevens Act authorizes the 
Council and the Secretary of Commerce (Secretary), through NMFS, to 
establish a western Pacific community development program for any 
fishery under the authority of the Council and NMFS. The intent of the 
program is to provide western Pacific communities access to fisheries 
that they have traditionally depended upon, but may not have the 
capabilities to support continued and substantial participation in, 
possibly due to economic, regulatory, or other barriers.
    In 2002, NMFS published the eligibility criteria for participating 
in the western Pacific community development program (67 FR 18512; 
April 16, 2002), but did not establish a mechanism to solicit and 
review development plans under the program. To address this issue, the 
Council developed and submitted to NMFS for review, amendments to the 
American Samoa, Hawaii, Marianas, and western Pacific Pelagic FEPs to 
establish this mechanism. The amendments are identical for each FEP.
    This proposed rule would codify the eligibility criteria, as 
previously published (67 FR 18512; April 16, 2002), for participating 
in the program. To be eligible, a community must:
    1. Be located in American Samoa, Guam, Hawaii, or the Northern 
Mariana Islands (collectively, the western Pacific);
     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 individuals 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. Are experiencing economic or other barriers or constraints that 
prevent 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 Council 
and NMFS.
    This proposed rule would require a community development plan to 
contain:
    1. A statement of the purpose and goals of the plan;
    2. A description of, and justification for, the proposed fishing 
activity;
    3. The location of the proposed fishing activity;
    4. The species to be harvested, directly and incidentally;
    5. The gear type(s) to be used;
    6. The frequency and duration of the proposed fishing activity; and
    7. A statement describing the degree of involvement by the 
indigenous community members including the name, address, telephone and 
other contact information of each person who would conduct the proposed 
fishing activity, and a description of how the community and or its 
members meet each of the eligibility criteria.
    If a vessel is to be used by the community to conduct fishing 
activities, the community development plan must include the vessel name 
and official number (USCG documentation, state, territory, or other 
registration number), length, displacement, fish holding capacity, any 
valid federal fishing permit number, and the name and contact 
information of the owner(s) and operator(s).
    The proposed rule would require the Council to review each plan to 
ensure that it meets the intent of Section 305(i)(2) of the Magnuson-
Stevens Act and contains all required information. If the Council finds 
that these requirements are met, the Council would then forward the 
plan to the NMFS Regional Administrator for review.
    This proposed rule would require the Regional Administrator to 
review each plan to ensure the plan is consistent with the FEPs, the 
Magnuson-Stevens Act, and other applicable laws. NMFS would then 
publish a notice in the Federal Register to solicit public comment on 
the community development plan and any associated environmental review 
documents.
    Within 90 days after the close of the public comment period for the 
plan, the Regional Administrator would be required to notify the 
applicant in writing of the decision to approve or disapprove the plan. 
If the plan is

[[Page 34090]]

approved, the NMFS Regional Administrator would publish a notice in the 
Federal Register describing the plan's authorized activities. The 
Regional Administrator may attach limiting terms and conditions to the 
authorization to ensure proper management and monitoring of the fishing 
activity, including, but not limited to, catch and trip limits, times 
and places where fishing may or may not be conducted, vessel monitoring 
system, observers, and/or reporting requirements.
    To be considered, comments on this proposed rule must be received 
by July 20, 2010, not postmarked or otherwise transmitted by that date.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the fishery ecosystem plans for American Samoa, Hawaii, 
the Marianas, and western Pacific pelagic fisheries, other provisions 
of the Magnuson-Stevens Act, and other applicable laws, subject to 
further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for 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 analysis follows:
    The Council has proposed to amend the FEPs for American Samoa, 
Hawaii, Marianas, and western Pacific pelagics to establish a 
process to solicit, review, and implement community development 
plans submitted by eligible western Pacific communities. The Council 
and NMFS would review each plan and, if it meets all requirements, 
NMFS would authorize the plan. The proposed action is intended to 
promote participation in fisheries that communities have 
traditionally depended upon, but may not have capabilities to 
support continued and substantial participation in, possibly due to 
economic, regulatory, or other constraints. A description of the 
action, why it is being considered, and the legal basis for this 
action are contained in the preamble to this proposed rule. This 
proposed rule does not duplicate, overlap, or conflict with other 
Federal rules. The proposed rule would only establish a procedure 
for the solicitation, review, and implementation of plans under the 
western Pacific community development program. This procedure is not 
expected to result in any significant economic impact on any western 
Pacific community. If subsequent rulemaking to implement approved 
plans directly impacts the economic profitability, or proxy thereof, 
of a community with an approved community development plan, NMFS 
will prepare an IRFA for that specific action.
    As a result, an initial regulatory flexibility analysis is not 
required and none has been prepared.
    This proposed rule contains a new collection-of-information 
requirement subject to review and approval by the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act (PRA). This 
requirement has been submitted to OMB for approval.
    Public reporting burden for developing and submitting a development 
plan is estimated to average six hours per response, including the time 
for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
collection information.
    Public comment is sought regarding whether the proposed collection 
of information is necessary for the proper performance of the functions 
of the agency, including whether the information shall have practical 
utility, the accuracy of the burden estimate, ways to enhance the 
quality, utility, and clarity of the information collected, and ways to 
minimize the burden of the collection of information including through 
the use of automated collection techniques or other forms of 
information technology. Send comments on these or any other aspects of 
the collection of information to Michael D. Tosatto (see ADDRESSES), 
and by email to [email protected] or by fax to 202-395-7285.
    Because approved plans may be subject to additional conditions, 
this proposed rule also contains collection-of-information requirements 
subject to the PRA that have been previously approved by OMB. NMFS 
estimates that it may receive and process up to five (5) community 
development plan proposals each year. Therefore, the additional 
estimated burden on western Pacific community development plan 
respondents would not exceed the currently-approved burden estimates 
for the existing PRA collections listed below:
    (1) Approved under 0648-0214, 0648-0577, 0648-0584, 0648-0586, and 
0649-0589. (a) PIR logbook family of forms estimated at 5 minutes (min) 
per reporting action; (b) pre-trip and post-landing notifications 
estimated at 5 min per reporting action; (c) experimental fishing 
reports estimated at 4 hours (hr) per reporting action; (d) sales and 
transshipment reports estimated at 5 min per reporting action; (e) 
report on gear left at sea estimated at 5 min per reporting action; (f) 
claims for reimbursement for lost fishing time estimated at 4 hr per 
claim; (g) request for pelagics area closure exemption estimated at 1 
hr per request; and (h) observer placement meetings estimated at 1 hr 
per reporting action. (Sec. Sec.  665.14, 665.17, 665.105, 665.144, 
665.145, 665.205, 665.207, 665.244, 665.247, 665.407, 665.444, 665.445, 
665.606, 665.644, 665.645, 665.803, and 665.808.)
    (2) Approved under 0648-0360, 0648-0361, 0648-0584, 0648-0586, and 
0648-0589. PIR gear marking and vessel identification (a) estimated at 
45 min to 1 hr 15 min per vessel for vessel identification, and (b) 
estimated at 2 min for each gear marking. (Sec. Sec.  665.16, 665.128, 
665.228, 665.246, 665.428, 665.628, and 665.804.)
    (3) Approved under 0648-0441, 0648-0519, and 0648-0584. PIR vessel 
monitoring system (a) installation, estimated at 4 hr per reporting 
action; (b) repair and maintenance, estimated at 2 hr per reporting 
action; and (c) hourly automated position reports, estimated at 24 sec 
per day. (Sec.  665.19.)
    (4) Approved under 0648-0456. PIR seabird interaction reporting (a) 
at-sea notification, estimated at 1 hr per reporting action; (b) 
reporting on recovery data form, estimated at 1 hr per reporting 
action; and (c) specimen tagging, estimated at 30 min per reporting 
action. (Sec.  665.815.)
    (5) Approved under 0648-0462. PIR coral reef logbook reporting (a) 
at-sea notification, estimated at 3 min per reporting action; (b) 
logbook reporting, estimated at 30 min hr per reporting action; and (c) 
transshipment reports, estimated at 15 min per reporting action. 
(Sec. Sec.  665.14, 665.126, 665.226, and 665.426.)
    (6) Approved under 0648-0463. PIR coral reef special permit (a) 
application, estimated at 2 hr per application; and (b) special permit 
appeals, estimated at 3 hr per appeal. (Sec. Sec.  665.124, 665.224, 
665.424, and 665.624.)
    (7) Approved under 0648-0490, 0648-0577, 0648-0584, 0648-0586, and 
0649-0589: (a) PIR permit family of forms estimated at 30 min hr per 
permit action; (b) experimental fishing permits, estimated at 2 hr per 
application; and (c) appeals from permit actions estimated at 2 hr per 
permit appeal. (Sec. Sec.  665.13, 665.17, 665.142, 665.162, 665.203, 
665.242, 665.262, 665.404, 665.442, 665.462, 665.603, 665.642, 665.662, 
665.801, and 665.807.)
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless

[[Page 34091]]

that collection of information displays a currently valid OMB Control 
Number.

List of Subjects in 50 CFR Part 665

    Community Development, Fisheries, Fishing, Western and central 
Pacific.

    Dated: June 9, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 665 is 
proposed to be amended as follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

    l. The authority citation for part 665 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.
    2. In part 665, add a new Sec.  665.20 to subpart A read as 
follows:


Sec.  665.20  Western Pacific community development program.

    (a) General. In accordance with the criteria and procedures 
specified in this section, the Regional Administrator may authorize the 
direct or incidental harvest of management unit species that would 
otherwise be prohibited by this part.
    (b) Eligibility. To be eligible to participate in the Western 
Pacific community development program, a community must meet the 
following criteria:
    (1) Be located in American Samoa, Guam, Hawaii, or the Northern 
Mariana Islands (collectively, the western Pacific);
    (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 individuals 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) Are currently experiencing economic or other constraints 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 Council 
and the NMFS that meets the requirements in paragraph (c) of this 
section.
    (c) Community development plan. An eligible community seeking 
access to a fishery under the authority of the Council and NMFS must 
submit to the Council a community development plan that includes, but 
is not limited to, the following information:
    (1) A statement of the purposes and goals of the plan.
    (2) A description and justification for the specific fishing 
activity being proposed, including:
    (i) Location of the proposed fishing activity.
    (ii) Management unit species to be harvested, and any potential 
bycatch.
    (iii) Gear type(s) to be used.
    (iv) Frequency and duration of the proposed fishing activity.
    (3) A statement describing the degree of involvement by the 
indigenous community members, including the name, address, telephone 
and other contact information of each individual conducting the 
proposed fishing activity.
    (4) A description of how the community and or its members meet each 
of the eligibility criteria in paragraph (b) of this section.
    (5) If a vessel is to be used by the community to conduct fishing 
activities, for each vessel:
    (i) Vessel name and official number (USCG documentation, state, 
territory, or other registration number).
    (ii) Vessel length overall, displacement, and fish holding 
capacity.
    (iii) Any valid federal fishing permit number(s).
    (iv) Name, address, and telephone number of the vessel owner(s) and 
operator(s).
    (d) Council review. The Council will review each community 
development plan to ensure that it meets the intent of the Magnuson-
Stevens Act and contains all required information. The Council may 
consider advice of its advisory panels in conducting this review. If 
the Council finds the community development plan is complete, it will 
transmit the plan to the Regional Administrator for review.
    (e) Agency review and approval. (1) Upon receipt of a community 
development plan from the Council, the Regional Administrator will 
review the plan for consistency with the FEPs, Magnuson-Stevens Act, 
and other applicable laws. The Regional Administrator may request from 
the applicant additional information necessary to make the 
determinations pursuant to this section and other applicable laws 
before proceeding with the review pursuant to paragraph (e)(2) of this 
section.
    (2) If the Regional Administrator determines that a plan contains 
the required information and is consistent with the FEPs, Magnuson-
Stevens Act, and other applicable laws, NMFS will publish a notice in 
the Federal Register to solicit public comment on the proposed plan and 
any associated environmental review documents. The notice will include 
the following:
    (i) A description of the fishing activity to be conducted.
    (ii) The current utilization of domestic annual harvesting and 
processing capacity (including existing experimental harvesting, if 
any) of the target, incidental, and bycatch species.
    (iii) A summary of any regulations that would otherwise prohibit 
the proposed fishing activity.
    (iv) Biological and environmental information relevant to the plan, 
including appropriate statements of environmental impacts on target and 
non-target stocks, marine mammals, and threatened or endangered 
species.
    (3) Within 90 days from the end of the comment period on the plan, 
the Regional Administrator will notify the applicant in writing of the 
decision to approve or disapprove the plan.
    (4) If disapproved, the Regional Administrator will provide the 
reasons for the plan's disapproval and provide the community with the 
opportunity to modify the plan and resubmit it for review. Reasons for 
disapproval may include, but are not limited to, the following:
    (i) The applicant failed to disclose material information or made 
false statements related to the plan.
    (ii) The harvest would contribute to overfishing or would hinder 
the recovery of an overfished stock, according to the best scientific 
information available.
    (iii) The activity would be inconsistent with an FEP or other 
applicable law.
    (iv) The activity would create a significant enforcement, 
monitoring, or administrative problem, as determined by the Regional 
Administrator.
    (5) If approved, the Regional Administrator will publish a notice 
of the authorization in the Federal Register, and may attach limiting 
terms and conditions to the authorization including, but not limited 
to, the following:
    (i) The maximum amount of each management unit species and 
potential bycatch species that may be harvested and landed during the 
term of the authorization.
    (ii) The number, sizes, names, identification numbers, and federal 
permit numbers of the vessels authorized to conduct fishing activities.

[[Page 34092]]

    (iii) Type, size, and amount of gear used by each vessel, including 
trip limits.
    (iv) The times and places where fishing may or may not be 
conducted.
    (v) Notification, observer, vessel monitoring, and reporting 
requirements.
    (f) Duration. Unless otherwise specified, and unless revoked, 
suspended, or modified, a plan may be effective for no longer than five 
years.
    (g) Transfer. Plans authorized under this section are not 
transferable or assignable.
    (h) Sanctions. The Regional Administrator may revoke, suspend or 
modify a community development plan in the case of failure to comply 
with the terms and conditions of the plan, any other applicable 
provision of this part, the Magnuson-Stevens Act, or other applicable 
laws.
    (i) Program review. NMFS and the Council will periodically review 
and assess each plan. If fishery, environmental, or other conditions 
have changed such that the plan's goals or requirements are not being 
met, or the fishery has become in an overfished state or overfishing is 
occurring, the Regional Administrator may revoke, suspend, or modify 
the plan.
[FR Doc. 2010-14550 Filed 6-15-10; 8:45 am]
BILLING CODE 3510-22-S