[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]
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