[Federal Register Volume 75, Number 171 (Friday, September 3, 2010)]
[Rules and Regulations]
[Pages 54044-54047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22077]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 665

[Docket No. 0907211157-0327-03]
RIN 0648-AX76


Fisheries in the Western Pacific; Community Development Program 
Process

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

ACTION: Final rule.

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SUMMARY: This final rule establishes eligibility requirements and 
procedures for reviewing and approving community development plans for 
western Pacific fisheries. The intent of this final rule is to promote 
the participation of island communities in fisheries that they have 
traditionally depended upon, but in which they may not have the 
capabilities to support continued and substantial participation.

DATES: This rule is effective October 4, 2010, except for Sec.  
665.20(c), which contains information collection requirements that have 
not yet been approved by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act (PRA). When OMB approval is received, 
the control number and the effective date for that information 
collection will be published in the Federal Register.

ADDRESSES: The background and details of the community development plan 
process are described in Amendment 1 to the fishery ecosystem plans for 
American Samoa, Hawaii, the Mariana Archipelago, and western Pacific 
pelagic fisheries (the amendment is identical for each plan), which is 
available from the Western Pacific Fishery Management Council 
(Council), 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-
522-8220, fax 808-522-8226, or www.wpcouncil.org.
    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, attention Michael D. Tosatto, 1601 
Kapiolani

[[Page 54045]]

Blvd., Honolulu, HI 96814, and by e-mail to <a href="/cdn-cgi/l/email-protection#713e3823302e2204131c180202181e1f311e1c135f141e015f161e07"><span class="__cf_email__" data-cfemail="1956504b58464a6c7b74706a6a7076775976747b377c7669377e766f">[email protected]</span></a>, or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Jarad Makaiau, NMFS Pacific Islands 
Region (PIR), Sustainable Fisheries, tel 808-944-2108.

SUPPLEMENTARY INFORMATION: This document is also accessible at 
www.gpoaccess.gov/fr.
    Section 305(i)(2) of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) authorizes the Council and the 
Secretary of Commerce (Secretary), through NMFS, to establish a western 
Pacific community development program for any fishery under the 
authority of the Council and NMFS. The intent of the program is to 
provide western Pacific communities access to fisheries that they have 
traditionally depended upon, but may not have the capabilities to 
support continued and substantial participation in, possibly due to 
economic, regulatory, or other barriers.
    In 2002, NMFS published the eligibility criteria for participating 
in the western Pacific community development program (67 FR 18512; 
April 16, 2002), but did not establish a mechanism to solicit and 
review development plans under the program. To address this, the 
Council prepared, and the Secretary approved, Amendment 1 to the 
American Samoa, Hawaii, Marianas, and western Pacific pelagic fishery 
ecosystem plans (FEPs) to establish this process.
    This final rule codifies the eligibility criteria for participating 
in the program, and the required content of each community development 
plan. The Council will review each plan to ensure that it meets the 
intent of Section 305(i)(2) of the Magnuson-Stevens Act, and that it 
contains all required information. If the requirements are met, the 
Council will forward the plan to the NMFS Regional Administrator for 
review. NMFS will then publish a notice in the Federal Register to 
solicit public review of, and comment on, the community development 
plan and any associated environmental review documents. If the plan is 
approved, NMFS will publish a notice in the Federal Register, 
describing the plan's authorized activities, and any limiting terms and 
conditions to ensure proper management and monitoring of the fishing 
activity.
    Additional background information on this final rule may be found 
in the preamble to the proposed rule published on June 16, 2010 (75 FR 
34088), and is not repeated here.
    The public comment period for the proposed rule (75 FR 34088, June 
16, 2010) ended on July 20, 2010. NMFS received one comment and 
responds as follows:
    Comment: The U.S. Department of the Interior, Fish and Wildlife 
Service (FWS), Pacific Reefs National Wildlife Refuge Complex, 
commented that the FWS has regulatory authority within eight national 
wildlife refuges in the Pacific Remote Island Areas (PRIA), which are 
closed to commercial fishing. In 2002, NMFS and the FWS agreed that 
fishing managed through a NMFS fishery management plan would not be 
allowed within a national wildlife refuge unless specifically 
authorized by FWS, regardless of whether the refuge was established by 
action of the President or Secretary of the Interior. The agreement 
came about as a result of FWS concerns associated with the Fishery 
Management Plan for Coral Reef Ecosystems of the Western Pacific Region 
and its final Environmental Impact Statement. As part of this 
agreement, NMFS published regulations in 50 CFR 660.601. The FWS 
recommends clarifying that fishing is not allowed within the boundary 
of a national wildlife refuge unless specifically authorized by the 
FWS.
    Response: The referenced 2002 agreement was limited in scope to the 
Coral Reef Ecosystems Fishery Management Plan and was codified at 50 
CFR 600.601. In a final rule published on January 14, 2010 (75 FR 
2198), NMFS redesignated the fishing regulations for coral reef 
ecosystem species in national wildlife refuges from 50 CFR 600.601 to 
50 CFR 665.123 (American Samoa), 50 CFR 665.223 (Hawaii), 50 CFR 
665.423 (Marianas), and 50 CFR 665.623 (PRIA). The prohibition on 
fishing for coral reef ecosystem species without FWS permission remains 
in the regulations. Under the FEP amendments, this final rule 
establishes only community development program procedures and 
administration as described in the proposed rule, and does not alter or 
amend existing agency authorities.

Changes from the Proposed Rule

    In Sec.  665.20(e)(1), (2), and (4), regarding the review and 
approval process, the regulatory language is clarified for internal 
consistency.

Classification

    The Regional Administrator, PIR, NMFS, determined that this final 
rule is necessary for the conservation and management of western 
Pacific fisheries, and that it is consistent with the Magnuson-Stevens 
Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration 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. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required, and none was prepared.
    This final rule contains collection-of-information requirements 
subject to the PRA. These requirements have not yet been approved by 
OMB, but such approval is expected in the near future. NMFS will 
publish a notice when these requirements are cleared by OMB and are, 
therefore, effective (see DATES).
    The public reporting burden for developing and submitting a 
development plan is estimated to average six hours per response, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection information. 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 <a href="/cdn-cgi/l/email-protection#85caccd7c4dad6f0e7e8ecf6f6eceaebc5eae8e7abe0eaf5abe2eaf3"><span class="__cf_email__" data-cfemail="226d6b70637d7157404f4b51514b4d4c624d4f400c474d520c454d54">[email protected]</span></a>, or fax to 202-395-7285.
    Because approved plans may be subject to additional conditions, 
this final rule also contains collection-of-information requirements 
subject to the PRA that have been previously approved by OMB. NMFS 
estimates that it may receive and process up to five (5) community 
development plan proposals each year. Therefore, the additional 
estimated burden on western Pacific community development plan 
respondents would not exceed the currently-approved burden estimates 
for the existing PRA collections listed below:
    (1) Approved under 0648-0214, 0648-0577, 0648-0584, 0648-0586, and 
0649-0589. (a) PIR logbook family of forms estimated at 5 minutes (min) 
per reporting action; (b) pre-trip and post-landing notifications 
estimated at 5 min per reporting action; (c) experimental fishing 
reports estimated at 4 hours (hr) per reporting action; (d) sales and 
transshipment reports estimated at 5

[[Page 54046]]

min per reporting action; (e) report on gear left at sea estimated at 5 
min per reporting action; (f) claims for reimbursement for lost fishing 
time estimated at 4 hr per claim; (g) request for pelagics area closure 
exemption estimated at 1 hr per request; and (h) observer placement 
meetings estimated at 1 hr per reporting action. (Sec. Sec.  665.14, 
665.17, 665.105, 665.144, 665.145, 665.205, 665.207, 665.244, 665.247, 
665.407, 665.444, 665.445, 665.606, 665.644, 665.645, 665.803, and 
665.808.)
    (2) Approved under 0648-0360, 0648-0361, 0648-0584, 0648-0586, and 
0648-0589. PIR gear marking and vessel identification (a) estimated at 
45 min to 1 hr 15 min per vessel for vessel identification, and (b) 
estimated at 2 min for each gear marking. (Sec. Sec.  665.16, 665.128, 
665.228, 665.246, 665.428, 665.628, and 665.804.)
    (3) Approved under 0648-0441, 0648-0519, and 0648-0584. PIR vessel 
monitoring system (a) installation, estimated at 4 hr per reporting 
action; (b) repair and maintenance, estimated at 2 hr per reporting 
action; and (c) hourly automated position reports, estimated at 24 sec 
per day. (Sec.  665.19.)
    (4) Approved under 0648-0456. PIR seabird interaction reporting (a) 
at-sea notification, estimated at 1 hr per reporting action; (b) 
reporting on recovery data form, estimated at 1 hr per reporting 
action; and (c) specimen tagging, estimated at 30 min per reporting 
action. (Sec.  665.815.)
    (5) Approved under 0648-0462. PIR coral reef logbook reporting (a) 
at-sea notification, estimated at 3 min per reporting action; (b) 
logbook reporting, estimated at 30 min per reporting action; and (c) 
transshipment reports, estimated at 15 min per reporting action. 
(Sec. Sec.  665.14, 665.126, 665.226, and 665.426.)
    (6) Approved under 0648-0463. PIR coral reef special permit (a) 
application, estimated at 2 hr per application; and (b) special permit 
appeals, estimated at 3 hr per appeal. (Sec. Sec.  665.124, 665.224, 
665.424, and 665.624.)
    (7) Approved under 0648-0490, 0648-0577, 0648-0584, 0648-0586, and 
0649-0589: (a) PIR permit family of forms estimated at 30 min per 
permit action; (b) experimental fishing permits, estimated at 2 hr per 
application; and (c) appeals from permit actions estimated at 2 hr per 
permit appeal. (Sec. Sec.  665.13, 665.17, 665.142, 665.162, 665.203, 
665.242, 665.262, 665.404, 665.442, 665.462, 665.603, 665.642, 665.662, 
665.801, and 665.807.)
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 665

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

    Dated: August 30, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries,National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 665 is amended as 
follows:

PART 665--FISHERIES IN THE WESTERN PACIFIC

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

    Authority: 16 U.S.C. 1801 et seq.

0
2. In part 665, add a new Sec.  665.20 to subpart A read as follows:


Sec.  665.20  Western Pacific Community Development Program.

    (a) General. In accordance with the criteria and procedures 
specified in this section, the Regional Administrator may authorize the 
direct or incidental harvest of management unit species that would 
otherwise be prohibited by this part.
    (b) Eligibility. To be eligible to participate in the western 
Pacific community development program, a community must meet the 
following criteria:
    (1) Be located in American Samoa, Guam, Hawaii, or the Northern 
Mariana Islands (collectively, the western Pacific);
    (2) Consist of community residents descended from aboriginal people 
indigenous to the western Pacific who conducted commercial or 
subsistence fishing using traditional fishing practices in the waters 
of the western Pacific;
    (3) Consist of individuals who reside in their ancestral homeland;
    (4) Have knowledge of customary practices relevant to fisheries of 
the western Pacific;
    (5) Have a traditional dependence on fisheries of the western 
Pacific;
    (6) Are currently experiencing economic or other constraints that 
have prevented full participation in the western Pacific fisheries and, 
in recent years, have not had harvesting, processing or marketing 
capability sufficient to support substantial participation in fisheries 
in the area; and
    (7) Develop and submit a community development plan to the Council 
and the NMFS that meets the requirements in paragraph (c) of this 
section.
    (c) Community development plan. An eligible community seeking 
access to a fishery under the authority of the Council and NMFS must 
submit to the Council a community development plan that includes, but 
is not limited to, the following information:
    (1) A statement of the purposes and goals of the plan.
    (2) A description and justification for the specific fishing 
activity being proposed, including:
    (i) Location of the proposed fishing activity.
    (ii) Management unit species to be harvested, and any potential 
bycatch.
    (iii) Gear type(s) to be used.
    (iv) Frequency and duration of the proposed fishing activity.
    (3) A statement describing the degree of involvement by the 
indigenous community members, including the name, address, telephone 
and other contact information of each individual conducting the 
proposed fishing activity.
    (4) A description of how the community and or its members meet each 
of the eligibility criteria in paragraph (b) of this section.
    (5) If a vessel is to be used by the community to conduct fishing 
activities, for each vessel:
    (i) Vessel name and official number (USCG documentation, state, 
territory, or other registration number).
    (ii) Vessel length overall, displacement, and fish holding 
capacity.
    (iii) Any valid federal fishing permit number(s).
    (iv) Name, address, and telephone number of the vessel owner(s) and 
operator(s).
    (d) Council review. The Council will review each community 
development plan to ensure that it meets the intent of the Magnuson-
Stevens Act and contains all required information. The Council may 
consider advice of its advisory panels in conducting this review. If 
the Council finds the community development plan is complete, it will 
transmit the plan to the Regional Administrator for review.
    (e) Agency review and approval. (1) Upon receipt of a community 
development plan from the Council, the Regional Administrator will 
review the

[[Page 54047]]

plan for consistency with paragraphs (b), (c), and (d) of this section, 
and other applicable laws. The Regional Administrator may request from 
the applicant additional information necessary to make the 
determinations pursuant to this section and other applicable laws 
before proceeding with the review pursuant to paragraph (e)(2) of this 
section.
    (2) If the Regional Administrator determines that a plan contains 
the required information and is consistent with paragraphs (b), (c), 
and (d) of this section, and other applicable laws, NMFS will publish a 
notice in the Federal Register to solicit public comment on the 
proposed plan and any associated environmental review documents. The 
notice will include the following:
    (i) A description of the fishing activity to be conducted.
    (ii) The current utilization of domestic annual harvesting and 
processing capacity (including existing experimental harvesting, if 
any) of the target, incidental, and bycatch species.
    (iii) A summary of any regulations that would otherwise prohibit 
the proposed fishing activity.
    (iv) Biological and environmental information relevant to the plan, 
including appropriate statements of environmental impacts on target and 
non-target stocks, marine mammals, and threatened or endangered 
species.
    (3) Within 90 days from the end of the comment period on the plan, 
the Regional Administrator will notify the applicant in writing of the 
decision to approve or disapprove the plan.
    (4) If disapproved, the Regional Administrator will provide the 
reasons for the plan's disapproval and provide the community with the 
opportunity to modify the plan and resubmit it for review. Reasons for 
disapproval may include, but are not limited to, the following:
    (i) The applicant failed to disclose material information or made 
false statements related to the plan.
    (ii) The harvest would contribute to overfishing or would hinder 
the recovery of an overfished stock, according to the best scientific 
information available.
    (iii) The activity would be inconsistent with an applicable law.
    (iv) The activity would create a significant enforcement, 
monitoring, or administrative problem, as determined by the Regional 
Administrator.
    (5) If approved, the Regional Administrator will publish a notice 
of the authorization in the Federal Register, and may attach limiting 
terms and conditions to the authorization including, but not limited 
to, the following:
    (i) The maximum amount of each management unit species and 
potential bycatch species that may be harvested and landed during the 
term of the authorization.
    (ii) The number, sizes, names, identification numbers, and federal 
permit numbers of the vessels authorized to conduct fishing activities.
    (iii) Type, size, and amount of gear used by each vessel, including 
trip limits.
    (iv) The times and places where fishing may or may not be 
conducted.
    (v) Notification, observer, vessel monitoring, and reporting 
requirements.
    (f) Duration. Unless otherwise specified, and unless revoked, 
suspended, or modified, a plan may be effective for no longer than five 
years.
    (g) Transfer. Plans authorized under this section are not 
transferable or assignable.
    (h) Sanctions. The Regional Administrator may revoke, suspend or 
modify a community development plan in the case of failure to comply 
with the terms and conditions of the plan, any other applicable 
provision of this part, the Magnuson-Stevens Act, or other applicable 
laws.
    (i) Program review. NMFS and the Council will periodically review 
and assess each plan. If fishery, environmental, or other conditions 
have changed such that the plan's goals or requirements are not being 
met, or the fishery has become in an overfished state or overfishing is 
occurring, the Regional Administrator may revoke, suspend, or modify 
the plan.
[FR Doc. 2010-22077 Filed 9-2-10; 8:45 am]
BILLING CODE 3510-22-S


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