[Federal Register Volume 75, Number 230 (Wednesday, December 1, 2010)]
[Rules and Regulations]
[Pages 74640-74648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30240]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 100507218-0325-02]
RIN 0648-AY91
International Fisheries; South Pacific Tuna Fisheries; Procedures
To Request Licenses and a System To Allocate Licenses
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: Pursuant to its authority under the South Pacific Tuna Act of
1988 (SPTA), NMFS issues regulations to modify the procedures that U.S.
purse seine vessels use to request fishing licenses to fish in areas
managed under the SPTA. This rule also establishes a system for
allocating licenses in the event more applications are received than
there are licenses available. Such an allocation system is needed
because the number of applications is approaching the number of
available licenses, and may exceed that number. The license allocation
system includes objective criteria to be used by NMFS in prioritizing
among license applicants. The license application procedures are
modified in accordance with the allocation system, and are designed to
provide license holders and prospective license applicants with a clear
and certain regulatory process. The regulations for vessels licensed
under the SPTA are also modified to require that the vessel monitoring
system units (VMS units), also known as mobile transmitting units,
installed and carried on the vessels are a type that is NMFS-approved.
DATES: This final rule is effective January 3, 2011.
ADDRESSES: Copies of supporting documents that were prepared for this
final rule, including the regulatory impact review (RIR), as well as
the proposed rule, are available via the Federal e-Rulemaking portal,
at http://www.regulations.gov. Those documents are also available from
the Regional Administrator, NMFS, Pacific Islands Regional Office, 1601
Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to NMFS, Pacific Islands Regional Office
(see contact information above), and by e-mail to [email protected] or fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Tom Graham, NMFS, Pacific Islands
Regional Office, 808-944-2219.
SUPPLEMENTARY INFORMATION:
Electronic Access
This final rule is also accessible at http://www.gpoaccess.gov/fr.
Background
On June 28, 2010, NMFS published a proposed rule in the Federal
Register (75 FR 36619) that would modify the regulations at 50 CFR part
300, subpart D. Those regulations are issued under the authority of the
South Pacific Tuna Act of 1988 (SPTA) (16 U.S.C. 973-973r), which was
enacted to implement the Treaty on Fisheries between the Governments of
Certain Pacific Island States and the Government of the United States
of America and its annexes, schedules, and implementing agreements, as
amended (``the Treaty''). The SPTA authorizes the Secretary of Commerce
(Secretary), with the concurrence of the Secretary of State and after
consultation with the Secretary of the Department in which the United
States Coast Guard is operating (currently the Department of Homeland
Security), to issue regulations as may be necessary to carry out the
purposes and objectives of the Treaty and the SPTA. The authority to
issue regulations has been delegated to NMFS.
The Treaty governs the conduct of U.S. fishing vessel operations in
the Treaty Area, as defined at 50 CFR 300.31, and which encompasses
approximately 10 million square miles (26 million square kilometers) of
the western and central Pacific Ocean (WCPO). The Treaty allows U.S.
purse seine vessels access to a large portion of the WCPO by
authorizing, and regulating through a licensing system, U.S. purse
seine vessels operations within all or part of the exclusive economic
zones (EEZs) of the 16 Pacific Island Parties (PIPs) to the Treaty.
Licenses to operate in the Licensing Area under the Treaty are issued
by the Pacific Islands Forum Fisheries Agency (FFA), based in Honiara,
Solomon Islands, which acts as the Treaty Administrator on behalf of
the PIPs. Licenses are issued on an annual basis, with the licensing
period starting June 15th of each year. U.S. purse seine vessels
licensed under the Treaty are used to target skipjack tuna and
yellowfin tuna.
Currently, the Treaty allows for a maximum of 45 licenses to U.S.
purse seine fishing vessels to fish in the Licensing Area of the
Treaty. Of the 45 licenses, 5 are reserved for U.S. vessels engaged in
``joint venture'' arrangements designed to maximize the benefits
generated for the PIPs. The Licensing Area comprises the entire Treaty
Area, with the exception of areas subject to the jurisdiction of the
United States and areas closed to fishing under the Treaty. It thus
includes all or part of the EEZs of the following countries: Australia,
Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall
Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa,
Solomon Islands, Tonga, Tuvalu, and Vanuatu.
[[Page 74641]]
Treaty licenses are issued by the FFA, but license applications for
U.S. vessels are first submitted to, and must be approved by, NMFS, on
behalf of the Secretary, before being forwarded to the FFA. Under
current practices, NMFS ensures that applications are complete, and
forwards them to the FFA on a first-come, first-served basis.
Under section 973g of the SPTA, the Secretary may establish a
system of allocating Treaty licenses in the event more applications are
received than there are licenses available. NMFS is now establishing
such a system through this final rule. Section 973g of the SPTA also
authorizes the Secretary to establish procedures for vessel operators
(``operator'' is defined under the SPTA to mean any person who is in
charge of, directs, or controls a vessel, including the owner,
charterer, and master) to request licenses from the Secretary to fish
in the Treaty's Licensing Area. Such procedures have been established
by NMFS, on behalf of the Secretary, at 50 CFR 300.32. In order to
accommodate the allocation system that this final rule establishes,
this rule also modifies the procedures used by applicants to request
licenses along with the procedures used by NMFS to process those
requests. The modifications to the procedures are designed in part to
provide license holders and prospective license applicants with a clear
and certain regulatory process.
The proposed rule provides additional background information on the
SPTA, the Treaty, and the basis for the proposed regulations. The
proposed rule also includes information about an advance notice of
proposed rulemaking (ANPR) that was issued on March 28, 2008 (73 FR
16619). The ANPR established a control date of March 28, 2008, for
participation in the U.S. purse seine fishery managed under the SPTA
(hereafter, ``WCPO purse seine fishery''). The control date is the date
after which vessel owners and operators attempting to enter the WCPO
purse seine fishery are not assured of being granted entry into or
future participation in the fishery if all available licenses have been
issued, or if NMFS limits the number of available licenses or imposes
other management measures in the fishery. The ANPR also solicited
comments and input on possible criteria and procedures that NMFS could
use to review, order, and process license applications. The public
comments made in response to the ANPR are summarized in the proposed
rule.
New Requirements
The main elements of this final rule are described below, starting
with the license application and review procedures, followed by the
license allocation system (including transferability provisions), and
closing with the VMS-related requirements.
License Application and Review Procedures
(1) The distinction between joint venture licenses (licenses for
fishing activities designed to maximize the benefits generated for the
PIPs, of which there are five available) and ``general licenses'' (the
remaining licenses, of which there are 40 available) is clarified, and
separate application procedures are established for the two license
types.
(2) To obtain approval from NMFS for a joint venture license, in
addition to submitting a complete application, as for a general
license, an applicant is required to obtain initial approval from the
FFA, as Treaty Administrator, as well as documentation from the
relevant PIP or PIPs providing concurrence for the issuance of a joint
venture license for the vessel. Upon receipt of a complete application
for a joint venture license, NMFS will process and approve the
application as it would for a general license, except that it will not
issue pre-approvals, as described below for general licenses. NMFS will
approve applications for joint venture licenses on a first-come, first-
served basis, based on the date of initial approval by the FFA.
(3) To provide an opportunity for applicants to receive earlier and
greater certainty on the status of their general license applications
for a given licensing period, applicants will be allowed to seek and
receive pre-approval of their applications. They may do so by
submitting expressions of interest earlier than the submission of
complete applications. A pre-approval will serve to temporarily reserve
an application approval spot until the time that complete applications
are due. Whether a pre-approval is issued for a given application will
depend on the outcome of the allocation process, described below.
Because of time constraints associated with implementing this rule,
pre-approvals will not be issued for the 2011-2012 licensing period.
(4) For a given licensing period--with the exception of the 2011-
2012 licensing period, for which pre-approvals will not be issued--the
due date for submitting expressions of interest for general licenses is
June 1st of the year preceding the year in which the licensing period
begins. The due date for submitting complete applications for general
licenses is February 5th of the year in which the licensing period
begins. Complete applications may be submitted after this date, but
they will be considered for approval only if licenses remain available
after giving preference to expressions of interest and complete
applications that were received by their respective due dates. License
approvals for such late applications will be considered on a first-
come, first-served basis. Due dates are also established for
applications for general licenses that become available after the
initial issuance of license approvals.
(5) With the exception of the 2011-2012 licensing period, for which
pre-approvals will not be issued, NMFS will pre-approve applications
for general licenses by July 16th of the year preceding the year in
which the licensing period begins, and notify applicants of its
decisions by July 26th of that preceding year. NMFS will approve
applications for general licenses by March 7th of the year in which the
licensing period begins, and notify applicants of its decisions by
March 17th of the same year.
(6) A process to appeal NMFS' pre-approval and approval decisions
is established. Appeals will be required to be submitted in writing
within 14 days of the notice of NMFS' decision. The initial decision on
an appeal will be made by a designee of the NMFS Pacific Islands
Regional Administrator within 30 days of the appeal. Within 10 days of
notice of the initial decision, the applicant may request a review of
the initial decision. The final decision on an appeal will be made by
the Assistant Administrator for Fisheries, NOAA, or a designee, within
30 days of the request for review. The final decision will constitute
the final administrative action of the Department of Commerce.
(7) Interim procedures are established through these regulations
for the 2011-2012 licensing period, as the final rule will not become
effective in time for the new procedures to be fully applied for that
licensing period. These procedures do not include any provisions
regarding pre-approvals. Instead, the application process starts with
the February 5, 2011, due date for submitting complete applications.
License Allocation System
(1) The following criteria will be used to prioritize applicants
for general licenses. Based on this prioritization, NMFS will issue
pre-approvals for up to 40 applications for general licenses. However,
for the 2011-2012 licensing period only, for which NMFS will not issue
pre-approvals, NMFS will use
[[Page 74642]]
these same prioritization criteria to issue approvals.
First priority will be given to applications for license renewals,
but not all renewing applicants will necessarily receive first
priority. Specifically, an application will receive first priority if
NMFS has approved a license application for that vessel not later than
fourteen (14) days prior to the start of the preceding licensing
period. Also included in the first priority pool are applications for
vessels licensed in the current or previous two licensing periods, but
that were lost or were destroyed. In the event that a licensed vessel
is lost or destroyed, the applicant will be reserved an approval spot
for the licensing period in which the vessel was lost, and for the two
subsequent licensing periods, provided that the ownership of the
replacement vessel is identical to the ownership of the lost vessel.
Second priority will be given to applicants according to a ranking
system in which points are assigned to an applicant as follows: (a) 15
points will be assigned if the vessel has been issued, or will be
issued by the time application approvals are issued, in accordance with
applicable U.S. Coast Guard regulations, a valid U.S. Coast Guard
Certificate of Documentation with a fishery endorsement (among the
eligibility criteria for receiving a fishery endorsement are that the
vessel must have been built in the United States, and if rebuilt, it
must have been rebuilt in the United States); (b) one point will be
assigned for each licensing period, starting with the 1988-1989
licensing period, in which a Treaty license has been issued for the
vessel, for a total of no more than 10 points; (c) one point will be
assigned for each calendar year in which at least 3,000 metric tons of
fish were landed or transshipped from the vessel in U.S. ports
(including ports located in any of the U.S. States, commonwealths,
territories, or possessions) starting in 1988 and ending in the year
prior to the year in which the applied-for licensing period starts, for
a total of no more than 5 points; and (d) if application of the
foregoing criteria results in a tie, priority will be given to the
vessel from which the greatest amount of fish, by weight, was landed or
transshipped in U.S. ports (including ports located in any of the U.S.
States, commonwealths, territories, or possessions) starting in 1988
and ending in the year prior to the year in which the applied-for
licensing period starts. If there is still a tie, priority will be
given by a lottery conducted by the NMFS Pacific Islands Regional
Administrator.
(2) With respect to joint venture licenses, NMFS will not pre-
approve applications or prioritize applications using the system
established for general licenses. Instead, NMFS will approve joint
venture license applications on a first-come, first-served basis, based
on the date of initial approval by the FFA.
(3) With respect to the interim procedures that are established for
the 2011-2012 licensing period, NMFS will apply the same prioritization
system and criteria as it would for subsequent licensing periods, but
it will do so only after receiving the complete applications that will
be due February 5, 2011.
(4) The final rule clarifies that application approvals from NMFS
are not transferable among vessel owners or operators or applicants. It
does, however, allow limited transferability of application approvals
among vessels. Specifically, if a general or joint venture license has
been issued to a vessel, and has been valid for at least 365
consecutive days, and all required fees to the FFA for the vessel have
been paid, the vessel operators will be able to request that the
license be transferred to a different vessel. Such a transfer will only
be allowed if the ownership of the transferee vessel is identical to
that of the licensed vessel, and the transferee vessel otherwise meets
the requirements for licensing under 50 CFR part 300 and the SPTA.
VMS-Related Requirements
This final rule modifies the regulations at 50 CFR 300.45, which
relate to the installation, carrying, and operation of VMS units on
vessels licensed under the SPTA. Prior to this final rule, the
regulations required that the VMS units installed and carried on board
vessels consist of hardware and software that are type-approved by the
Treaty Administrator. Those requirements were consistent with the terms
of the Treaty, which mandates that the VMS units used on licensed
vessels be of a type approved by the Treaty Administrator. The
regulations are now modified to require that the hardware and software
that constitute the VMS units be type-approved by both the Treaty
Administrator and NMFS. The purpose of this change is to ensure that
the VMS units used on licensed vessels are compatible with, and meet
the technical standards of, the vessel monitoring system administered
by NMFS, as well as the vessel monitoring system administered by the
Treaty Administrator.
NMFS publishes separately lists of the VMS units that it has type-
approved. The current type-approval lists can be obtained from the NOAA
Office of Law Enforcement, 8484 Georgia Avenue, Suite 415, Silver
Spring, MD 20910; by telephone at 888-210-9288; or by fax at 301-427-
0049.
Comments and Responses
NFMS received one public comment on the proposed rule. It is
summarized below, followed by a response from NMFS.
Comment: The regulations should have an allowance for a vessel
owner to submit a complete license application after the February 5th
deadline and to be able to receive a license if the allowable number of
licenses has not been allocated to vessels that met the February 5th
deadline. This procedure provides a process for the allocation of
licenses up to the limit allowed under the treaty. Freezing the number
of licenses to those submitted only by the February 5th deadline could
cause a restriction to a level below the allowed limit, and it could
take away an opportunity or opportunities for allocating licenses to
owners who were not in a position to submit a complete application by
the February 5th deadline.
Response: The commenter is correct that as written, the proposed
rule would not allow a prospective license holder to receive a license
if the application is received by NMFS after the specified due dates,
even if a license is available. NMFS agrees that such a system could
effectively limit the number of available licenses in any given
licensing period to fewer than the number allowed under the Treaty, and
thereby may unduly restrict opportunities to participate in the
fishery. Consequently, the licensing procedures of the final rule have
been clarified to allow an applicant to apply for a license for a given
licensing period at any time up to May 15th within the licensing period
(i.e., 30 days before the end of the licensing period). That is, in
order to be assured that an application will be considered for
approval, a complete application must still be received by NMFS by the
due date specified in this final rule. However, NMFS will consider for
approval all applications received after the applicable due date
established in this final rule if and as long as licenses remain
available. Such applications will be considered on a first-come, first-
served basis, based on the day of receipt. In the event that two or
more complete applications are received on the same day, priority for
approval will be given by lottery.
[[Page 74643]]
Changes From the Proposed Rule
As described above in NMFS' response to the public comment on the
proposed rule, changes have been made in this final rule in order to
provide for application approvals to be issued for ``late
applications'' (i.e., applications submitted after the due dates used
for the purpose of allocating application approvals in the event that
more applications are received than there are licenses available). The
change allows NMFS to approve such ``late applications'' on a first-
come, first-served basis, and only after giving preference to
applicants that submitted their applications within the due dates, and
only in the event that licenses remain available after the expiration
of the application approval deadline.
Specifically, clarifications have been made to paragraphs (h) and
(k) of Sec. 300.32 to provide that an application submitted as late as
May 15th within a given licensing period may be considered for approval
if there are licenses remaining. However, in order to be considered for
approval in the event that more applications are received than there
are licenses available, the complete application must be received by
NMFS by February 5th of the year in which the licensing period begins,
or, in the case of the license approval becoming available after the
initial issuance of approvals, at a specified later date. Paragraph (k)
of Sec. 300.32 has been clarified to provide for NMFS to consider
``late applications'' received no later than May 15th within the
licensing period for approval on a first-come, first-served basis, and
only after giving preference to expressions of interest and complete
applications that were received within their respective due dates.
Paragraph (k) of Sec. 300.32 goes on to state that in the event that
two or more ``late applications'' are received on the same day,
priority will be given by lottery, which will be conducted by the NMFS
Pacific Islands Regional Administrator.
A correction was made to the criteria specified in paragraph (k) of
Sec. 300.32 that would be used to determine first priority for pre-
approvals. Under the proposed rule, first priority would be given to
applications for vessels with valid licenses as of June 1st of the year
preceding the year in which the subject licensing period begins; that
is, to vessels with licenses for the licensing period two periods
previous to the subject licensing period. However, an unintended effect
of this lag is that a vessel that enters the fishery for the first time
in the 2011-2012 licensing period would not receive first priority
(i.e., as a license renewal) for the 2012-2013 licensing period.
Consequently, a correction was made to paragraph (k)(4)(i) of Sec.
300.32 such that first priority for pre-approvals for a given licensing
period will be given to vessels for which, as of June 1st of the year
preceding the year in which the subject licensing period begins,
application approvals have been issued by NMFS for the licensing period
that precedes the subject licensing period. Because paragraph (n) of
Sec. 300.32, which specifies exceptional procedures to be used for the
2011-2012 licensing period, makes reference to paragraph (k)(4)(i) of
Sec. 300.32, appropriate technical corrections have been made to
paragraph (n) of Sec. 300.32 so that its meaning does not change.
Specifically, it now states that for the 2011-2012 licensing period
only, first priority will be given to vessels that, as of February 5,
2011, have valid licenses for the 2010-2011 licensing period.
A change has been made to the definition of ``Regional
Administrator'' in Sec. 300.31; the definition now includes a
facsimile number that may be used for the purpose of submitting
information and materials required under 50 CFR part 300, subpart D.
In addition to the substantive changes described above, a number of
minor changes have been made in the regulations in order to clarify
their meaning.
Classification
The NOAA Assistant Administrator for Fisheries has determined that
this final rule is consistent with the SPTA and other applicable laws.
Executive Order 12866
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. NMFS received no comments
disputing the basis for this certification.
Paperwork Reduction Act
This final rule contains a collection-of-information requirement
subject to the Paperwork Reduction Act (PRA) and which has been
approved by the Office of Management and Budget (OMB) under control
number 0648-0218. Public reporting burden for this collection of
information, called ``South Pacific Tuna Act,'' is estimated to
average: (a) For the optional expressions of interest in vessel
licenses, 15 minutes per response for license renewals and 120 minutes
per response for initial licenses (with one optional response per
year); (b) for the license application forms, 60 minutes per response
(with one response per year); (c) for the FFA Regional Register
applications/VMS registration forms, 45 minutes per response (with 1
response per year); (d) for the catch report forms, 60 minutes per
response (with 5 responses per year); and (e) for the unloading
logsheet, 30 minutes per response (with 6 responses per year). These
estimates include the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Send comments
regarding these burden estimates or any other aspect of this data
collection, including suggestions for reducing the burden, to NMFS (see
ADDRESSES) and by e-mail to [email protected] or fax to 202-
395-7285.
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 that collection of information displays
a currently valid OMB control number.
List of Subjects in 50 CFR Part 300
Administrative practice and procedure, Fish, Fisheries, Fishing,
Marine resources, Reporting and recordkeeping requirements, Treaties.
Dated: November 26, 2010.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 300 is amended as
follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart D--South Pacific Tuna Fisheries
0
1. The authority citation for 50 CFR part 300, subpart D continues to
read as follows:
Authority: 16 U.S.C. 973-973r.
0
2. In Sec. 300.31, the definitions for ``Regional Administrator'' and
``Vessel Monitoring System Unit or VMS unit''
[[Page 74644]]
are revised and a new definition for ``State'' is added, to read as
follows:
Sec. 300.31 Definitions.
* * * * *
Regional Administrator means the Regional Administrator, Pacific
Islands Region, NMFS, 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI
96814, facsimile: 808-973-2941, or a designee.
State means each of the several States of the United States, the
District of Columbia, the Commonwealths of Puerto Rico and the Northern
Mariana Islands, American Samoa, the Virgin Islands, Guam, and any
other commonwealth, territory, or possession of the United States.
* * * * *
Vessel Monitoring System Unit or VMS unit, sometimes known as a
``mobile transmitting unit,'' means Administrator-approved and NMFS-
approved VMS unit hardware and software that is installed on a vessel
pursuant to Sec. 300.45. The VMS units are a component of the regional
vessel monitoring system administered by the FFA, as well as of the
vessel monitoring system administered by NMFS, and as such are used to
transmit information between the vessel and the Administrator and NMFS
and/or other reporting points designated by NMFS.
0
3. Sec. 300.32 is revised to read as follows:
Sec. 300.32 Vessel licenses.
(a) Each vessel fishing in the Licensing Area must have a license
issued by the Administrator for the licensing period being fished,
unless exempted by Sec. 300.39. Each licensing period begins on June
15 and ends on June 14 of the following year.
(b) Upon receipt, the license or a copy or facsimile thereof must
be carried on board the vessel when in the Licensing Area or Closed
Areas, and must be produced at the request of authorized officers,
authorized party officers, or authorized inspectors. A vessel may be
used to fish in the Licensing Area if the license has been issued but
not yet received, provided that the license number is available on
board.
(c) The total number of licenses that may be issued and valid at
any point in time is 45, five of which shall be reserved for fishing
vessels of the United States engaged in joint venture arrangements.
(1) For the purpose of this section, the licenses reserved for
vessels engaged in joint venture arrangements are referred to as
``joint venture licenses,'' and the remaining licenses are referred to
as ``general licenses.''
(2) A joint venture arrangement is one in which the subject vessel
and its operators are engaged in fishing-related activities designed to
maximize the benefits generated for the Pacific Island Parties from the
operations of fishing vessels licensed pursuant to the Treaty, as
determined by the Administrator. Such activities can include the use of
canning, transshipment, vessel slipping and repair facilities located
in the Pacific Island Parties; the purchase of equipment and supplies,
including fuel supplies, from suppliers located in the Pacific Island
Parties; and the employment of nationals of the Pacific Island Parties
on board such vessels.
(d) Licenses are issued by the Administrator. The Administrator
will issue licenses only for applications that have been approved by
the Regional Administrator. The Regional Administrator's approval is
indicated by the signature of the Regional Administrator on the part of
the application form labeled ``Schedule 1.'' Upon approval by the
Regional Administrator of a license application, the complete
application will be forwarded to the Administrator for consideration.
Except as provided in paragraph (n) of this section, prior to approving
license applications for a given licensing period, the Regional
Administrator will issue pre-approvals of license applications that
serve the purpose of temporarily reserving approvals up until the time
complete applications are due to be received by the Regional
Administrator.
(e) The Regional Administrator, in his or her sole discretion, may
approve fewer license applications than there are licenses available
for any given licensing period or at any given time.
(f) A pre-approval or approval issued by the Regional Administrator
pursuant to this section:
(1) Shall not confer any right of compensation to the recipient of
such pre-approval or approval;
(2) Shall not create, or be construed to create, any right, title,
or interest in or to a license or any fish; and
(3) Shall be considered a grant of permission to the recipient of
the pre-approval or approval to proceed with the process of seeking a
license from the Administrator.
(g) A pre-approval or approval issued by the Regional Administrator
pursuant to this section is subject to being rescinded at any time if
the Regional Administrator determines that an administrative error has
been made in its granting, false information has been provided by the
applicant, circumstances have changed such that the information
provided by the applicant is no longer accurate, true or valid, or if
the applicant or vessel no longer meets the requirements for licensing
under this subpart or under the Act or other applicable law. NMFS will
notify the applicant of its rescission of a pre-approval or approval
within 14 days of the rescission. In the event that the Regional
Administrator rescinds an approval after the license has been issued,
NMFS will notify the Administrator of such, and request that the
Administrator immediately revoke the license.
(h) Application process for general licenses.
(1) A vessel operator who satisfies the requirements for licensing
under the Act and under this subpart may apply for a general license.
(2) In order for a general license to be issued for a vessel, an
applicant must submit a complete application to, and obtain an
application approval from, the Regional Administrator.
(3) Except for the 2011-2012 licensing period, prior to submitting
a complete application, an applicant may request pre-approval of an
application by the Regional Administrator by submitting an expression
of interest. A pre-approval of an application establishes that the
applicant is eligible to be considered for one of the available
licenses following timely submission of a complete application.
Although submission of an expression of interest is entirely voluntary,
applications that have not been pre-approved might not be eligible for
approval if the number of applications exceeds the number of available
licenses for a given licensing period. A pre-approval will be deemed to
be void if the applicant fails to submit a complete application by the
date established in paragraph (h)(6) of this section.
(4) Except as provided in paragraph (n) of this section, in order
to obtain a pre-approval for a given licensing period, either an
expression of interest or a complete application must be submitted to
and received by the Regional Administrator no later than June 1st of
the year preceding the year in which the licensing period begins.
(5) An expression of interest must include the information listed
below, which may be submitted by electronic or hard-copy correspondence
following instructions provided by the Regional Administrator.
(i) If the expression of interest is for a vessel for which, as of
the June 1st due date for submitting such expression of interest, NMFS
has issued an application approval for the licensing period that starts
that year (i.e., a
[[Page 74645]]
renewal of the license is being sought), the expression of interest
shall include:
(A) The licensing period for which the license is being sought.
(B) The current name, IRCS, and annual USCG Certificate of
Documentation number of the vessel.
(ii) For all other expressions of interest that do not meet the
criteria in paragraph (h)(5)(i) of this section, the expression of
interest shall include:
(A) The licensing period for which the license is being sought.
(B) The full name and address of each person who is, or who is
anticipated to be, an operator of the vessel for which a license is
sought, and for each such person, a statement of whether the person is,
or is anticipated to be, owner, charterer, and/or master of the vessel.
(C) A statement of whether or not the vessel to be licensed is
known, and if it is known, the current name, IRCS, and annual USCG
Certificate of Documentation number, if any, of the vessel.
(D) A copy of the vessel's current USCG Certificate of
Documentation. If the vessel has not been issued such a document, then
a statement of whether application has been or will be made for a USCG
Certificate of Documentation, including identification of all
endorsements sought in such application.
(E) If the vessel is known, a list of the licensing periods, if
any, during which a license for the vessel was issued under this
section.
(F) If the vessel is known, a statement of the total amount, in
metric tons, of any tuna species landed or transshipped from the vessel
at United States ports, including ports located in any of the States,
for each of the calendar years 1988 through the current year.
(6) A complete application for a given licensing period may be
submitted to the Regional Administrator at any time up to May 15th
within the licensing period, but in order to be considered for approval
in the event that more applications are received by the Regional
Administrator than there are licenses available, a complete application
must be received by the Regional Administrator as follows:
(i) No later than February 5th of the year in which the licensing
period begins; or
(ii) If a pre-approval of the application was issued in accordance
with paragraphs (k)(8) or (k)(9) of this section, not later than the
date specified by NMFS in the notification of such pre-approval (which
will be calculated by NMFS to be no later than 194 days from the date
of mailing of the notification of the pre-approval).
(7) License application forms, which include the ``Schedule 1''
form and the FFA Vessel Register application form, are available from
the Regional Administrator. The complete application must be received
by the Regional Administrator as specified in paragraph (h)(6) of this
section. An application shall not be complete, and shall not be subject
to processing, unless it contains all of the information specified on
the ``Schedule 1'' form and all the items listed in paragraphs
(h)(7)(i) through (h)(7)(x) of this section, as follows:
(i) The licensing period for which the license is requested.
(ii) The name of an agent, located in Port Moresby, Papua New
Guinea, who, on behalf of the license holder, will receive and respond
to any legal process issued in accordance with the Treaty.
(iii) Documentation from an insurance company showing that the
vessel will be fully insured for the licensing period against all risks
and liabilities normally covered by maritime liability insurance.
(iv) If the owner or charterer is the subject of proceedings under
the bankruptcy laws of the United States, a statement that the owner or
charterer will be financially able to fulfill any and all
responsibilities under the Treaty, Act, and regulations, including the
payment of any penalties or fines.
(v) A copy of the vessel's current annual USCG Certificate of
Documentation.
(vi) Electronic versions of full color photographs of the vessel in
its current form and appearance, including a bow-to-stern side-view
photograph of the vessel that clearly and legibly shows the vessel
markings, and a photograph of every area of the vessel that is marked
with the IRCS assigned to the vessel.
(vii) A schematic stowage/well plan for the vessel.
(viii) A copy of the VMS unit installation certificate, issued by
the Administrator-authorized person who installed the VMS unit, for the
VMS unit installed on the vessel in accordance with Sec. 300.45.
(ix) An FFA Vessel Register application form that includes all the
applicable information specified in the form.
(x) In the case of an application for a vessel that does not meet
the criteria in paragraph (h)(5)(i) of this section, any information
under paragraph (h)(5)(ii) of this section that has not already been
provided or that has changed since it was previously submitted.
(i) Application process for joint venture licenses.
(1) A vessel operator who satisfies the requirements for licensing
under the Act and under this subpart may apply for a joint venture
license.
(2) The applicant, in coordination with one or more Pacific Island
Parties, shall contact the Administrator to determine the specific
information and documents that are required by the Administrator in
order to obtain an initial approval from the Administrator for a joint
venture license. The applicant shall submit such required information
and documents directly to the Administrator. Once an initial approval
is obtained from the Administrator, the applicant shall submit a
complete application package, as described in paragraph (h)(7) of this
section, to the Regional Administrator, along with dated documentation
of the Administrator's initial approval, and a letter or other
documentation from the relevant national authority or authorities of
the Pacific Island Party or Parties identifying the joint venture
partner or partners and indicating the Party's or Parties' approval of
the joint venture arrangement and its or their concurrence that a joint
venture license may be issued for the vessel.
(j) Appeals.
(1) Eligibility. Any applicant who is denied a pre-approval or an
approval under this section may appeal the denial. The appeal must be
made in writing and must clearly state the basis for the appeal and the
nature of the relief that is requested. The appeal must be received by
the Regional Administrator not later than 14 days after the date that
the notice of denial is postmarked.
(2) Appeal review. Upon receipt of an appeal, the Regional
Administrator will appoint a designee who will review the basis of the
appeal and issue an initial written decision. The written decision will
be mailed to the applicant within 30 days of receipt of the appeal. If
the appellant does not request a review within 10 days of mailing of
the initial decision, the initial decision is the final administrative
action of the Department of Commerce. If, within 10 days of mailing of
the initial decision, the Regional Administrator receives from the
appellant a written request for review of the initial decision, the
Assistant Administrator or a designee will review the basis of the
appeal and issue a final written decision. The final decision will be
made within 30 days of receipt of the request for review of the initial
decision. The decision of the Assistant Administrator or designee
constitutes the final administrative action of the Department of
Commerce.
(k) Procedures used by the Secretary to review and process
applications for general licenses. The procedures in this
[[Page 74646]]
paragraph apply to the process used by NMFS, on behalf of the Secretary
and in consultation with the Secretary of State, to review expressions
of interest and complete applications, and to approve applications. For
the purpose of this section, NMFS' approval of an application means the
signing by the Regional Administrator of the ``Schedule 1'' part of the
application form, indicating that the application is complete and that
it meets the requirements of the Act and of this subpart for forwarding
to the Administrator. For the purpose of this section, NMFS' pre-
approval of an application means that the Regional Administrator has
initially determined that the applicant is eligible for a general
license, but that the application has not yet been approved for
forwarding to the Administrator.
(1) NMFS will pre-approve no more applications for a given
licensing period than there are licenses available for that licensing
period. A pre-approval will be deemed to be void if the applicant fails
to submit a complete application by the date established in paragraph
(h)(6) of this section.
(2) NMFS will approve no more applications for a given licensing
period than there are licenses available for that licensing period.
(3) NMFS will not approve a license application if it determines
that:
(i) The application is not in accord with the Treaty, Act, or
regulations;
(ii) The owner or charterer is the subject of proceedings under the
bankruptcy laws of the United States, and reasonable financial
assurances have not been provided to the Secretary that the owner or
charterer will be financially able to fulfill any and all
responsibilities under the Treaty, Act, and regulations, including the
payment of any penalties or fines;
(iii) The owner or charterer has not established to the
satisfaction of the Secretary that the vessel will be fully insured for
the licensing period against all risks and liabilities normally covered
by maritime liability insurance; or
(iv) The owner or charterer has not paid any final penalty assessed
by the Secretary in accordance with the Act.
(4) Except as provided in paragraph (n) of this section, no later
than July 16th of each year, NMFS will pre-approve applications from
among the expressions of interest and complete applications that were
received by June 1st of the current year for the licensing period that
starts the following year as provided in this paragraph. If the number
of expressions of interest and complete applications does not exceed
the number of licenses available, all applications that meet the
requirements of paragraphs (h)(4) and (h)(5) of this section and that
satisfy the relevant requirements for licensing under the Act and this
subpart will be pre-approved. If the number of expressions of interest
and complete applications exceeds the number of licenses available,
those that meet the requirements of paragraphs (h)(4) and (h)(5) of
this section and that satisfy the relevant requirements for licensing
under the Act and this subpart will be prioritized for pre-approval as
follows:
(i) First priority will be given to expressions of interest and
complete applications for vessels for which, as of June 1st of that
year, application approvals have been issued by NMFS for the licensing
period that starts that year (i.e., anticipated license renewal
applications), provided that such vessels continue to satisfy the
requirements for licensing under the Act and this subpart, and provided
such vessels have no unsatisfied civil penalties or fines assessed by
the Secretary under the Act that have become final.
(ii) Second priority will be given to expressions of interest and
complete applications scored using the following system, in descending
order of the sum of the points assigned:
(A) 15 points will be assigned for a vessel that has been issued,
or will be issued by the date complete applications are due to be
received by the Regional Administrator under paragraph (h)(6) of this
section, a valid USCG Certificate of Documentation with a fishery
endorsement.
(B) 1 point will be assigned for each licensing period, starting
with the 1988-1989 licensing period, in which a license had been issued
for the vessel pursuant to the Act, for a total of no more than 10
points.
(C) 1 point will be assigned for each calendar year in which at
least 3,000 metric tons of fish were landed or transshipped from the
vessel in United States ports, including ports located in any of the
States, as determined by the Regional Administrator. The applicable
period shall run from 1988 through the last calendar year prior to the
year in which the applied-for licensing period starts, and the total
number of points assigned shall be no more than 5.
(D) In the event that two or more vessels receive the same sum
number of points under paragraphs (k)(4)(ii)(A) through (k)(4)(ii)(C)
of this section, priority will be given to the vessel from which the
greatest amount of fish, by weight, was landed or transshipped in
United States ports, including ports located in any of the States,
starting in calendar year 1988 and ending in the year prior to the year
in which the applied-for licensing period starts, as determined by the
Regional Administrator. In the event that that does not resolve the
tie, priority will be given by lottery, which will be conducted by the
Regional Administrator.
(5) Except as provided in paragraph (n) of this section, no later
than July 26th of each year, NMFS will send notifications by mail to
all applicants that submitted expressions of interest or complete
applications by June 1st of that year, indicating whether their
applications (for the licensing period that starts the following year)
have been pre-approved.
(6) No later than March 7th of each year, NMFS will approve
applications (for the licensing period that starts that year) that
satisfy all of the following conditions:
(i) The application was pre-approved;
(ii) The information associated with the application has not
changed since the point of pre-approval in a way such that pre-approval
would not have been made using the updated information;
(iii) The complete application was received by February 5th of the
same year; and
(iv) The applicant satisfies the requirements for licensing under
the Act and this subpart.
(7) No later than March 17th of each year, NMFS will notify all
applicants (for the licensing period that starts that year) who
submitted complete applications by February 5th of that year, whether
their applications have been approved under paragraph (k)(6) of this
section, and in cases where they have not, whether their applications
are being considered for approval under paragraph (k)(8) of this
section.
(8) In the event that additional licenses for a given licensing
period are available after issuing the approvals under paragraph (k)(6)
of this section, NMFS will, after final administrative action by the
Department of Commerce on any appeals made under paragraph (j) of this
section, do the following:
(i) If the number of outstanding expressions of interest (i.e.,
expressions of interest that have not been pre-approved) received by
June 1st of the year preceding the year in which the licensing period
begins, plus the number of outstanding complete applications (i.e.,
complete applications that have not been approved) received by February
5th of the year in which the licensing period begins, exceeds the
number of licenses available, NMFS will review all such outstanding
expressions of interest and complete applications
[[Page 74647]]
and apply the process described in paragraphs (k)(9)(i)(A) through
(k)(9)(i)(C) of this section to pre-approve and approve applications
from among that pool of applicants;
(ii) If the number of outstanding expressions of interest received
by June 1st of the year preceding the year in which the licensing
period begins, plus the number of outstanding complete applications
received by February 5th of the year in which the licensing period
begins, does not exceed the number of licenses available:
(A) No later than June 15th of the year in which the licensing
period begins, NMFS will pre-approve all such outstanding expressions
of interest and complete applications that satisfy the relevant
requirements for licensing under the Act and this subpart;
(B) No later than June 25th of the year in which the licensing
period begins, NMFS will notify all such outstanding applicants of the
pre-approvals, and for those applicants that submitted expressions of
interest but not complete applications, also notify them of the date by
which a complete application must be received in order to be issued an
application approval (which will be calculated by NMFS to be no later
than 194 days from the date of mailing of the notification of the pre-
approval);
(C) NMFS will review all complete applications received by the
required date from applicants pre-approved under paragraph (8)(ii)(A)
of this section, and within 30 days of such receipt, approve the
application, if and as appropriate and if the applicant satisfies the
requirements for licensing under the Act and this subpart; and
(D) If and as long as the number of approvals plus outstanding (not
voided) pre-approvals does not exceed the total number of licenses
available under paragraph (c) of this section, NMFS will review all
complete applications received after February 5th of the year in which
the licensing period begins and before May 16th within the licensing
period and, as they are received and in the order they are received
(based on the day of receipt), will approve those applications that
satisfy the requirements for licensing under the Act and this subpart
until no more approvals are available. In the event that two or more
complete applications are received on the same day, priority for
approval will be given by lottery, which will be conducted by the
Regional Administrator.
(iii) Within 10 days of approving an application, NMFS will notify
the applicant.
(9) If a license or application approval that has been issued for a
given licensing period becomes available before or during that
licensing period, NMFS will do the following:
(i) If there are any outstanding expressions of interest received
by June 1st of the year preceding the year in which the licensing
period begins or outstanding complete applications received by February
5th of the year in which the licensing period begins, NMFS will review
all such outstanding expressions of interest and complete applications
and pre-approve and approve applications for that license from among
that pool as follows:
(A) Within 45 days of NMFS becoming aware of the availability of
the license, NMFS will pre-approve an application using the
prioritization criteria and point-assigning system described in
paragraphs (k)(4)(i) and (k)(4)(ii) of this section;
(B) Within 55 days of NMFS becoming aware of the availability of
the license NMFS will notify all active applicants as to whether their
applications have been pre-approved, and for those applications that
have been pre-approved, notify each applicant of the date by which a
complete application, if not already received, must be received (which
will be calculated by NMFS to be no later than 194 days from the date
of mailing of the notification of the pre-approval); and
(C) Within 30 days of receiving a complete application that had
been pre-approved, NMFS will approve the application, if and as
appropriate and if the applicant satisfies the requirements of this
subpart.
(ii) If there are no outstanding expressions of interest received
by June 1st of the year preceding the year in which the licensing
period begins and no outstanding complete applications received by
February 5th of the year in which the licensing period begins, if and
as long as the number of approvals plus outstanding (not voided) pre-
approvals does not exceed the number of licenses available, NMFS will
review all complete applications received after February 5th of the
year in which the licensing period begins and before May 16th within
the licensing period and, in the order they are received (based on the
day of receipt), will approve those applications that satisfy the
requirements for licensing under the Act and this subpart until no more
approvals are available. In the event that two or more complete
applications are received on the same day, priority for approval will
be given by lottery, which will be conducted by the Regional
Administrator.
(iii) Within 10 days of approving an application, NMFS will notify
the applicant.
(l) Procedures used by the Secretary to review and process
applications for joint venture licenses. NMFS, on behalf of the
Secretary and in consultation with the Secretary of State, will review
and approve applications for joint venture licenses as described in
paragraph (k) of this section for general licenses, except that NMFS
will not consider expressions of interest for joint venture licenses or
pre-approve applications for joint venture licenses. In the event that
NMFS receives for a given licensing period more applications for joint
venture licenses than there are licenses available, it will approve the
applications in the chronological order that the Administrator has
provided its initial approval.
(m) Transferability of application approvals. Application approvals
from NMFS are not transferable among vessel owners or operators or
license applicants. Application approvals are transferable among
vessels, subject to the following requirements:
(1) A vessel operator may seek to transfer a general or joint
venture license to another vessel that meets the requirements for
licensing under this subpart and the Act, only if the license has been
valid for the vessel for at least 365 consecutive days and all the fees
required by the Administrator for the current licensing period have
been paid to the Administrator. The vessel operator may seek to
transfer the license by submitting a written request to the Regional
Administrator along with a complete application for the other vessel as
described in paragraph (h)(7) of this section. Any such transfer may be
subject to additional fees for the registration of the vessel on the
FFA Vessel Register, as specified in paragraph (b) of Sec. 300.45.
(2) Upon receipt of a request and complete application under
paragraph (m)(1) of this section, the Regional Administrator, after
determining that all the fees required for the vessel by the
Administrator for the current licensing period have been paid, that the
ownership of the licensed vessel and the ownership of the vessel to
which the application approval would be transferred are identical, and
that the transferee vessel meets the requirements for licensing under
this subpart and the Act, will approve the application and notify the
applicant of such within 10 days of the determination.
(3) If a licensed vessel is lost or destroyed, and the operators of
the vessel apply for a license for another vessel for the licensing
period during
[[Page 74648]]
which the vessel was lost, or for either of the two subsequent
licensing periods, NMFS will consider the replacement vessel to have
the license application approval status and history of the lost or
destroyed vessel for the purpose of applying the prioritization
criteria of paragraph (k)(4) of this section, provided that the
ownership of the lost or destroyed vessel and the ownership of the
replacement vessel, as determined by the Regional Administrator, are
identical, and the replacement vessel meets the requirements for
licensing under this subpart and the Act.
(n) Procedures for 2011-2012 licensing period. For the licensing
period that starts June 15, 2011, and for that licensing period only,
pre-approvals may not be sought and will not be issued by NMFS. NMFS
will rank order those applications received by February 5, 2011, for
the 2011-2012 licensing period by applying the criteria in paragraphs
(k)(4)(i) and (k)(4)(ii) of this section, except that in lieu of using
the criteria in (k)(4)(i), first priority will be given to applications
for vessels that as of February 5, 2011, have valid licenses for the
2010-2011 licensing period.
0
4. In Sec. 300.45, paragraph (d) is revised to read as follows:
Sec. 300.45 Vessel monitoring system.
* * * * *
(d) Hardware and software specifications. The VMS unit installed
and carried on board a vessel to comply with the requirements of this
section must consist of hardware and software that is approved by the
Administrator and approved by NMFS. A current list of hardware and
software approved by the Administrator may be obtained from the
Administrator. A current list of hardware and software approved by NMFS
may be obtained from NMFS.
* * * * *
[FR Doc. 2010-30240 Filed 11-30-10; 8:45 am]
BILLING CODE 3510-22-P