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[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
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