Title 50—Wildlife and Fisheries--Volume 1
PART 600—MAGNUSON-STEVENS ACT PROVISIONS
§ 600.1108   Longline catcher processor subsector of the Bering Sea and Aleutian Islands (BSAI) non-pollock groundfish fishery program.
(a) Purpose. This section implements the capacity reduction program that Title II, section 219(e) of Public Law 108-447 established for the longline catcher processor subsector of the Bering Sea and Aleutian Islands (BSAI) non-pollock groundfish fishery.
(b) Definitions. Unless otherwise defined in this section, the terms defined in § 600.1000 of subpart L and § 600.1105 of subpart M of this part expressly apply to this section. The following terms have the following meanings for the purpose of this section:
Reduction fishery means the Hook & Line, Catcher Processor (Longline Subsector); sometimes referred to as the “H&LCP Subsector) portion of the BSAI Pacific cod ITAC (in metric tons) set by the North Pacific Fishery Management Council (NPFMC) in December of each year multiplied by 2,205 (i.e., the rounded number of pounds in a metric ton)or the Longline Subsector of the BSAI non-pollock groundfish fishery that § 679.2 of this chapter defined as groundfish area/species endorsement.
(c) Capacity Reduction Program. As a result of the completion of the Selection Process, written notification from the FLCC to NMFS identifying the selected offeror, and submission of the reduction plan, the capacity reduction program is implemented as follows:
(1) Loan repayment —(i) Term. As authorized by section 219(B)(2) of the Appropriations Act, the capacity reduction loan (the Reduction Loan) shall be amortized over a thirty (30) year term. The Reduction Loan's original principal amount may not exceed the amount approved by the subsector. The subsector has currently approved a loan of two million seven hundred thousand dollars ($2,700,000). Subsector Members acknowledge that in the event payments made under the Reduction Plan are insufficient to repay the actual loan, the term of repayment shall be extended by NMFS until the loan is paid in full. Repayment calculations and records will be kept separately for each program.
(ii) Interest. The Reduction Loan's interest rate will be the U.S. Treasury's cost of borrowing equivalent maturity funds plus 2 percent. NMFS will determine the Reduction Loan's initial interest rate when NMFS borrows from the U.S. Treasury the funds with which to disburse reduction payments. The initial interest rate will change to a final interest rate at the end of the Federal fiscal year in which NMFS borrows the funds from the U.S. Treasury. The final interest rate will be 2 percent plus a weighted average, throughout that fiscal year, of the U.S. Treasury's cost of borrowing equivalent maturity funds. The final interest rate will be fixed, and will not vary over the remainder of the reduction loan's 30-year term. The Reduction loan will be subject to a level debt amortization. There is no prepayment penalty.
(iii) Fees. The Reduction Loan shall be repaid by fees collected from the Longline Subsector. The fee amount will be based upon: The principal and interest due over the next twelve months divided by the product of the Longline Subsector. In the event that the Longline Subsector portion for the ensuing year is not available, the Longline Subsector portion forecast from the preceding year will be used to calculate the fee.
(A) The fee will be expressed in cents per pound rounded up to the next one-tenth of a cent. For example: If the principal and interest due equal $2,900,000 and the Longline Subsector portion equals 100,000 metric tons, then the fee per round weight pound of Pacific cod will equal 1.4 cents per pound. [2,900,000/(100,000 × 2,205) = .01315]. The fee will be assessed and collected on Pacific cod to the extent possible and if not, will be assessed and collected as provided for in paragraph (c)(1)(iii)(B) of this section.
(B) Fees must be assessed and collected on Pacific cod used for bait or discarded. Although the fee could be up to 5 percent of the ex-vessel production value of all post-reduction Longline Subsector landings, the fee will be less than 5 percent if NMFS projects that a lesser rate can amortize the fishery's reduction loan over the reduction loan's 30-year term. In the event that the total principal and interest due exceeds 5 percent of the ex-vessel Pacific cod revenues, a standardized additional fee will be assessed. The additional fee shall be one cent per pound round weight, which is calculated based on the latest available revenue records and NMFS conversion factors for pollock, arrowtooth flounder, Greenland turbot, skate, yellowfin sole and rock sole.
(C) To verify that the fees collected do not exceed 5 percent of the fishery revenues, the annual total of principal and interest due will be compared to the latest available annual Longline Subsector revenues. In the event that any of the components necessary to calculate the next year's fee are not available, or for any other reason NMFS believes the calculation must be postponed, the fee will remain at the previous year's amount until such a time that new calculations are made and communicated to the post-reduction fishery participants.
(D) It is possible that the fishery may not open during some years and no Longline Subsector portion of the ITAC is granted. Consequently, the fishery will not produce fee revenue with which to service the reduction loan during those years. However, interest will continue to accrue on the principal balance. When this happens, if the fee rate is not already at the maximum 5 percent, NMFS will increase the fishery's fee rate to the maximum 5 percent of revenue for Pacific cod, apply all subsequent fee revenue first to the payment of accrued interest, and continue the maximum fee rates until all principal and interest payments become current. Once all principal and interest payments are current, NMFS will make a determination about adjusting the fee rate.
(iv) Reduction loan. NMFS has promulgated framework regulations generally applicable to all fishing capacity reduction programs in subpart L of this part. The reduction loan shall be subject to the provisions of § 600.1012, except that: the subsector members' obligation to repay the reduction loan shall be discharged by the owner of the Longline Subsector license regardless of which vessel catches fish under this license and regardless of who processes the fish in the reduction fishery in accordance with § 600.1013. Longline Subsector license owners in the reduction fishery shall be obligated to collect the fee in accordance with § 600.1013.
(v) Collection. The LLP License holders of vessels harvesting in the post-capacity reduction plan Longline Subsector shall be responsible for self-collecting the repayment fees owed by the LLP License holder. Fees shall be submitted to NMFS monthly and shall be due no later than fifteen (15) calendar days following the end of each calendar month.
(vi) Recordkeeping and reporting. The holder of the LLP Licenses on which vessels harvesting in the post-capacity reduction plan Longline Subsector is designated shall be responsible for compliance with the applicable recordkeeping and reporting requirements.
(2) Agreement with Secretary. The Selected Offeror shall complete and deliver to the FLCC for inclusion in the Reduction Plan submitted to NMFS, designee for the Secretary, a completed and fully executed Reduction Contract. The LLP License set forth on the Selected Offer shall be included as Reduction Fishing Interests in such Reduction Contract.
(d) Decisions of the Auditor and the FLCC. Time was of the essence in developing and implementing a Reduction Plan and, accordingly, the Offeror is limited to, and bound by, the decisions of the Auditor and the FLCC.
(1) The Auditor's examination of submitted applications, Offers, Prequalification Offers and Rankings was solely ministerial in nature. That is, the Auditor verified whether the documents submitted by Subsector Members were, on their face, consistent with each other and the Database, in compliance with the requirements set forth in the Reduction Agreement, and signed by an Authorized Party. The Auditor presumed the validity of all signatures on documents submitted. The Auditor made no substantive decisions as to compliance (e.g., whether an interim LLP License satisfies the requirements of the Act, or whether a discrepancy in the name appearing on LLP Licenses and other documents was material).
(2) [Reserved]
(e) Specific performance. The parties to the Reduction Agreement have agreed that the opportunity to develop and submit a capacity reduction program for the Longline Subsector under the terms of the Appropriations Act is both unique and finite and that failure of the Selected Offeror to perform the obligations provided by the Reduction Agreement will result in irreparable damage to the FLCC and the Subsector Members. Accordingly, the parties to the Reduction Agreement expressly acknowledge that money damages are an inadequate means of redress and agree that upon the failure of the Selected Offeror to fulfill their obligations under the Reduction Agreement that specific performance of those obligations may be obtained by suit in equity brought by the FLCC in any court of competent jurisdiction without obligation to arbitrate such action.
(f) Miscellaneous — (1) Termination. The Reduction Agreement may be terminated at any time prior to approval of the Reduction Plan by NMFS, on behalf of the Secretary, by written notice from 50 percent of Subsector Members.
(2) Choice of law/venue. The Reduction Agreement shall be construed and enforced in accordance with the laws of the State of Washington without regard to its choice of law provisions. The parties submit to the exclusive personal jurisdiction of the United States District Court located in Seattle, Washington, with respect to any litigation arising out of or relating to the Reduction Agreement or out of the performance of services hereunder.
(3) Incorporation. All executed counterparts of the Reduction Agreement, Application Forms and Offers constitute the agreement between the parties with respect to the subject matter of the Reduction Agreement and are incorporated into the Reduction Agreement as if fully written.
(4) Counterparts. The Reduction Agreement may be executed in multiple counterparts and will be effective as to signatories on the Effective Date. The Reduction Agreement may be executed in duplicate originals, each of which shall be deemed to be an original instrument. All such counterparts and duplicate originals together shall constitute the same agreement, whether or not all parties execute each counterpart.
(i) The facsimile signature of any party to the Reduction Agreement shall constitute the duly authorized, irrevocable execution and delivery of the Reduction Agreement as fully as if the Reduction Agreement contained the original ink signatures of the party or parties supplying a facsimile signature.
(ii) [Reserved]
(g) Amendment. All Subsector Members acknowledge that the Reduction Agreement, the Reduction Contract, and the Reduction Plan may be subject to amendment to conform to the requirements for approval of the Reduction Plan by NMFS on behalf of the Secretary. The Auditor shall distribute to each Subsector Member in electronic format the amended form of the Reduction Agreement, the Reduction Contract, and the Reduction Plan, which amended documents in the form distributed by the Auditor and identified by the Auditor by date and version, the version of each such document then in effect at the time of any dispute arising or action taken shall be deemed binding upon the parties with respect to such dispute and/or action.
(h) Warranties. The Offeror must expressly warrant and represent in the Reduction Agreement that:
(1) The Offeror has had an opportunity to consult with an attorney or other advisors with respect to the Reduction Agreement, the Reduction Contract, and the Act and the ramifications of the ratification of the Reduction Plan contemplated therein;
(2) The Offeror has full understanding and appreciation of the ramifications of executing and delivering the Reduction Agreement and, free from coercion of any kind by the FLCC or any of its members, officers, agents and/or employees, executes and delivers the Reduction Agreement as the free and voluntary act of the Offeror;
(3) The execution and delivery of the Reduction Agreement, does not and will not conflict with any provisions of the governing documents of the Offeror;
(4) The person executing the Reduction Agreement has been duly authorized by the Offeror to execute and deliver the Reduction Agreement and to undertake and perform the actions contemplated herein; and
(5) The Offeror has taken all actions necessary for the Reduction Agreement to constitute a valid and binding obligation, enforceable in accordance with its terms.
(i) Approval of the Reduction Plan. Acceptance of the Offer is at the sole discretion of NMFS on behalf of the Secretary of Commerce. To be approved by NMFS, on behalf of the Secretary, any Reduction Plan developed and submitted in accordance with this section and subpart M of this part must be found by the Assistant Administrator of NMFS, to:
(1) Be consistent with the requirements of section 219(e) of the FY 2005 Appropriations Act (Pub. L. 108-447);
(2) Be consistent with the requirements of section 312(b) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1861(a)) except for the requirement that a Council or Governor of a State request such a program (as set out in section 312(b)(1)) and for the requirements of section 312(b)(4);
(3) Contain provisions for a fee system that provides for full and timely repayment of the capacity reduction loan by the Longline Subsector and that it provide for the assessment of such fees;
(4) Not require a bidding or auction process;
(5) Result in the maximum sustained reduction in fishing capacity at the least cost and in the minimum amount of time; and
(6) Permit vessels in the Longline Subsector to be upgraded to achieve efficiencies in fishing operations provided that such upgrades do not result in the vessel exceeding the applicable length, tonnage, or horsepower limitations set out in Federal law or regulation.
(j) Referendum. The following provisions apply to the Reduction Plan of this section to the extent that they do not conflict with subpart L of this part including §§ 600.1009, 600.1010, 600.1013, and 600.1014 or 16 U.S.C. 1861a; except where the referendum is successful if a majority of all permit holders within the fishery vote in favor of the Reduction Program is accordance with 18 U.S.C. 1861a(d)(1)(B).
(k)(1) Fee payment and collection system. Upon successful completion of the Referendum discussed above as authorized by Public Law 108-447 and in accordance with 16 U.S.C. 1861a and § 600.1012 this fee collection system establishes:
(i) The subsector members' obligation to repay the reduction loan, and
(ii) The loan's principal amount, interest rate, and repayment term; and
(iii) In accordance with §§ 600.1013 through 600.1016, implements an industry fee system for the reduction fishery.
(2) Reduction loan amount. The reduction loan's original principal amount is $2,700,000.
(3) Interest accrual from inception. Interest begins accruing on the reduction loan from the date which NMFS disburses such loan.
(4) Interest rate. The reduction loan's interest rate shall be the applicable rate which the U.S. Treasury determines at the end of fiscal year in which loan is disbursed plus 2 percent.
(5) Repayment terms. For the purpose of determining fee rates, the reduction loan's repayment term is 30 years from the date NMFS disburses the loan. However, fee collections shall continue indefinitely until the loan is fully repaid.
(6) Reduction loan repayment. The subsector members shall repay the reduction loan in accordance with § 600.1012. Both fish buyers and fish sellers are considered subsector members for purposes of fee collection, deposit, disbursement, and accounting in accordance with § 600.1013.
(i) Subsector members in the reduction fishery shall collect and pay the fee amount in accordance with § 600.1105;
(ii) Subsector members in the reduction fishery shall deposit and disburse, as well as keep records for and submit reports about, the applicable fees in accordance with § 600.1014, except the requirements under paragraphs (c) and (e) of this section. All collected fee revenue a fish buyer collects to repay the loan identified in paragraph (c) of this section shall be made to NMFS no later than fifteen (15) calendar days following the end of each calendar month. The annual reports identified in paragraph (e) of this section shall be submitted to NMFS by February 1 of each calendar year.
(iii) The reduction loan is, in all other respects, subject to the provisions of §§ 600.1012 through 600.1017.
(l) Enforcement for failure to pay fees. The provisions and requirements of § 600.1016 (Enforcement) shall also apply to fish sellers and fish buyers subject to this fishery.
§ 600.1200   Purpose and scope.
The regulations in this subpart implement the Shark Conservation Act of 2010.
§ 600.1201   Relation to other laws.
(a) Regulations pertaining to conservation and management (including record keeping and reporting) for certain shark fisheries are also set forth in parts 635 (for Federal Atlantic Ocean, Gulf of Mexico, and Caribbean shark fisheries), 648 (for spiny dogfish fisheries), 660 (for fisheries off West Coast states), and 665 (for fisheries in the western Pacific) of this chapter.
(b) This subpart does not apply to an individual engaged in commercial fishing for smooth dogfish ( Mustelus canis ) when the conditions in § 635.30(c)(5) have been met.
(c) This subpart does not supersede state laws or regulations governing conservation and management of state shark fisheries in state waters.
§ 600.1202   Definitions.
(a) In addition to the definitions in the Magnuson-Stevens Act and in § 600.10, the terms used in this subpart have the following meanings:
Fin means any of the fins of a shark (including the tail) or a portion thereof.
Land or landing means offloading fish, or causing fish to be offloaded, from a fishing vessel, either to another vessel or to a shore side location or facility, or arriving in port, or at a dock, berth, beach, seawall, or ramp to begin offloading fish.
Naturally attached, with respect to a shark fin, means attached to the corresponding shark carcass through some portion of uncut skin.
(b) If there is any difference between a definition in this section and in § 600.10, the definition in this section is the operative definition for the purposes of this subpart.
§ 600.1203   Prohibitions.
(a) It is unlawful for any person to do, or attempt to do, any of the following:
(1) Remove a fin at sea.
(2) To have custody, control, or possession of a fin, aboard a fishing vessel, unless the fin is naturally attached.
(3) Transfer a fin from one vessel to another vessel at sea unless the fin is naturally attached.
(4) Receive a fin in a transfer from one vessel to another vessel at sea unless the fin is naturally attached.
(5) Land a fin unless the fin is naturally attached.
(6) Land a shark carcass without all of its fins naturally attached.
(7) Possess, purchase, offer to sell, or sell fins or shark carcasses taken, transferred, landed, or possessed in violation of this section.
(8) When requested, fail to allow an authorized officer or any employee of NMFS designated by a Regional Administrator, or by the Director of the Office of Sustainable Fisheries in the case of the Atlantic Highly Migratory Species, access to or inspection or copying of any records pertaining to the landing, sale, transfer, purchase, or other disposition of fins or shark carcasses.
(b) For purposes of this section, it is a rebuttable presumption that:
(1) If a fin is found aboard a vessel, other than a fishing vessel, without being naturally attached, such fin was transferred in violation of this section.
(2) If, after landing, the total weight of fins landed from any vessel exceeds five percent of the total weight of shark carcasses landed, such fins were taken, held, or landed in violation of this section.
§§ 600.1300-600.1309   [Reserved]
§ 600.1310   New England and Gulf of Mexico Individual Fishing Quota Referenda.
(a) Purpose and scope. This section establishes procedures and guidelines for referenda to be conducted on Individual Fishing Quota (IFQ) program proposals developed by the New England Fishery Management Council (NEFMC) and the Gulf of Mexico Fishery Management Council (GMFMC). These procedures and guidelines also apply to IFQ program proposals developed by NMFS for fisheries under the jurisdiction of the NEFMC or GMFMC, except for certain provisions that only apply to a fishery management council. This section provides guidance on developing voter eligibility and vote weighting, and establishes general procedures to ensure referenda are conducted in a fair and equitable manner.
(b) Initiating IFQ referenda. (1) The NEFMC and the GMFMC shall not submit, and the Secretary shall not approve, an FMP or FMP amendment that would create an IFQ program until the IFQ program proposal, as ultimately developed, has been approved by a referendum of eligible voters. Paragraph (h) of this section provides criteria for determining the outcome of IFQ referenda.
(2) To initiate a referendum on a proposed IFQ program:
(i) The relevant Council must have held public hearings on the FMP or FMP amendment in which the IFQ program is proposed;
(ii) The relevant Council must have considered public comments on the proposed IFQ program;
(iii) The relevant Council must have selected preferred alternatives for the proposed IFQ program;
(iv) The chair of the Council with jurisdiction over such proposed IFQ fishery must request a referendum on the proposed IFQ program in a letter to the appropriate NMFS Regional Administrator;
(v) The letter requesting initiation of a referendum must recommend voter eligibility criteria that are consistent with the applicable requirements of paragraph (c)(1) of this section and may also include recommended criteria for vote weighting. The letter must provide the rationale supporting the Council's recommendation, as well as such additional information and analyses as needed, consistent with applicable law and provisions of this section. If a Council recommends vote weighting criteria, the letter should fully describe the rationale for and the expected effects of such weighting on the referendum;
(vi) NEFMC referenda initiation letters must: recommend criteria that are consistent with paragraph (c)(2)(iii) of this section for NMFS to use in determining the eligibility of other fishery participants to vote in the referendum; include the minimum percentage of a crew member's total income that must have been earned during the eligibility periods in the proposed IFQ fishery as discussed in paragraph (c)(2)(ii) of this section; and include criteria for “referendum eligible vessels” as described in paragraph (c)(2)(i) of this section; and
(vii) GMFMC letters initiating referenda of multispecies permit holders in the Gulf of Mexico must include recommended criteria to be used in identifying those permit holders who have substantially fished the species to be included in the proposed IFQ program, along with alternatives to the recommendation, and supporting analyses. Guidelines for developing such recommendations are provided at paragraph (c)(3) of this section.
(3) Following a referendum that has failed to approve the IFQ proposal, any request from a Council for a new referendum in the same fishery must include an explanation of the substantive changes to the proposed IFQ program or the changes of circumstances in the fishery that would warrant initiation of an additional referendum.
(c) Referenda voter eligibility —(1) Permit holders and other fishery participants. (i) To be eligible to vote in IFQ referenda, permit holders and other fishery participants must meet voter eligibility criteria.
(ii) Holders of multispecies permits in the Gulf of Mexico must have substantially fished the species proposed to be included in the IFQ program to be eligible to vote in a referendum on the proposed program.
(iii) When developing eligibility criteria for permit holders in an IFQ program referendum, the relevant Council or Secretary must consider, but is not limited to considering:
(A) The full range of entities likely to be eligible to receive initial quota allocation under the proposed IFQ program;
(B) Current and historical harvest and participation in the fishery; and
(C) Other factors as may be determined by the Council with jurisdiction over the fishery for which an IFQ program is proposed to be relevant to the fishery and to the proposed IFQ program.
(2) Crew member eligibility in NEFMC IFQ referenda. (i) For the purposes of this section, “referendum-eligible vessel” means a vessel, the permit holder or owner of which has been determined to be eligible to vote in the referendum on the basis of such vessel's history or other characteristics.
(ii) To be eligible to vote in an NEFMC IFQ referendum, crew members must meet the following requirements:
(A) The crew member must have worked aboard a referendum-eligible vessel at sea, during the qualifying period(s), while the vessel was engaged in fishing;
(B) If requested, the crew member must produce documentary proof of employment or service as a crew member and income during the qualifying periods. Documents that may be required include, but are not limited to, signed crew contracts, records of payment, settlement sheets, income tax records, a signed statement from the permit holder, and other documentary evidence of the period of employment and the vessel upon which the crew member worked;
(C) During the qualifying period(s), the crew member must have derived a percentage of his/her total income from the fishery under the proposed IFQ program that is equal to or greater than the percentage determined to be significant relative to the economic value and employment practices of the fishery; and
(D) Any additional eligibility criteria promulgated by the NMFS.
(iii) When developing criteria for determining whether other fishery participants, including crew members, may participate in a NEFMC IFQ referendum, the Council or Secretary must consider, but is not limited to considering:
(A) The full range of entities likely to be eligible to receive initial quota under the proposed IFQ program;
(B) A crew member's current and historical participation in the fishery aboard a referendum-eligible vessel;
(C) The economic value of the proposed IFQ fishery, employment practices in the proposed IFQ fishery, and other economic and social factors that would bear on a determination of what percentage of a crew member's total income from the fishery should be considered significant for the purposes of this section;
(D) The availability of documentary proof of employment and income to validate eligibility; and
(E) Any other factors as may be determined by the Council to be relevant to the fishery and the proposed IFQ program.
(3) GMFMC's substantially fished criterion. When developing criteria for identifying those multispecies permit holders who have substantially fished the species to be included in the IFQ program proposal, the Council or Secretary must consider, but is not limited to considering:
(i) Current and historical harvest and participation in the fishery;
(ii) The economic value of and employment practices in the fishery; and
(iii) Any other factors determined by the Council with jurisdiction over the fishery for which an IFQ program is proposed to be relevant to the fishery and the proposed IFQ program.
(d) Council-recommended criteria under paragraph (c) of this section may include, but are not limited to, levels of participation or reliance on the fishery as represented by landings, sales, expenditures, or other considerations. A Council may also apply the same criteria for weighting eligible referendum votes.
(e) Actions by NMFS: Review of Council referendum criteria and Secretarial IFQ plans. (1) NMFS shall determine whether Council recommended referendum criteria will provide for a fair and equitable referendum and will be consistent with national standards and other provisions of the Magnuson-Stevens Act, and other applicable legal standards. The Secretary's considerations shall include, but shall not be limited to:
(i) Whether the criteria are rationally connected to or further the objectives of the proposed IFQ program;
(ii) Whether the criteria are designed in such a way to prevent any person or single entity from obtaining an excessive share of voting privileges;
(iii) Whether the criteria are reasonable relative to the availability of documentary evidence and the possibility of validating a participant's eligibility; and
(iv) Whether the referendum can be administered and executed in a fair and equitable manner, in a reasonable time, and without subjecting industry members, the Council, or NMFS to administrative burdens, costs or other requirements that would be considered onerous.
(2) If NMFS determines that referendum criteria would not provide for a fair and equitable referendum; would not be consistent with national standards and other provisions of the Magnuson-Stevens Act, and other applicable legal standards; or, in the case of a referendum request subsequent to a failed referendum in the same fishery, that the Council has not substantively amended the IFQ proposal or circumstances have not changed sufficiently to warrant initiation of a new referendum, NMFS shall inform the Council of the Agency's decision to deny the referendum request and of the reasons for the decision.
(3) If NMFS determines that referendum criteria would provide for a fair and equitable referendum and would be consistent with national standards and other provisions of the Magnuson-Stevens Act, and other applicable legal standards; then NMFS shall conduct the referendum in accordance with procedures and guidelines provided in paragraph (f) of this section.
(4) In accordance with paragraphs (c)(2) and (3) of this section, NMFS may initiate a referendum and promulgate referendum criteria for any IFQ program proposal advanced through a Secretarial fishery management plan (FMP) or FMP amendment under the authority of section 304(c) of the Magnuson-Stevens Act for a New England or Gulf of Mexico fishery. Such criteria must provide for a fair and equitable referendum and NMFS shall conduct the referendum in accordance with procedures and guidelines provided in paragraph (f) of this section.
(f) Conducting IFQ referenda. (1) NMFS shall promulgate specific referenda procedural requirements, voter eligibility requirements, and any vote weighting criteria through appropriate rulemaking.
(i) Proposed rule. A proposed rule shall seek public comment on the specific schedule, procedures, and other requirements for the referendum process.
(A) For NEFMC IFQ program referenda, the proposed rule shall establish procedures for documenting or certifying that other fishery participants, including crew members, meet the proposed voter eligibility criteria.
(B) For GMFMC IFQ program referenda for multispecies permit holders, the proposed rule shall include criteria to be used in identifying those permit holders who have substantially fished the species that are the subject of the proposed IFQ program.
(ii) Final rule. (A) If NMFS decides to proceed with the referendum after reviewing public comments, NMFS shall publish implementing regulations through a final rule in the Federal Register as soon as practicable after the Council determines the IFQ program proposal and supporting analyses are complete and ready for Secretarial review. Otherwise, NMFS shall publish a notice in the Federal Register to inform the Council and the public of its decision not to conduct the referendum, as proposed, including reasons for the Agency's decision.
(B) Upon implementation of the referendum through a final rule, NMFS shall provide eligible voters referenda ballots and shall make available information about the schedule, procedures, and eligibility requirements for the referendum process and the proposed IFQ program.
(2) NMFS shall notify the public in the region of the subject fishery of the referendum eligibility criteria.
(3) Individuals who wish to vote as other fishery participants in a NEFMC IFQ referendum, based on criteria established by the NEFMC under (c)(2), must contact NMFS and produce all required documentation and certifications to receive a ballot. NMFS shall provide sufficient time in the referendum process to allow for crew members to request, receive, and submit referendum ballots.
(g) Referenda ballots. (1) Ballots shall be composed such that voters will indicate approval or disapproval of the preferred IFQ program proposal.
(2) NMFS may require voters to self-certify on referenda ballots that they meet voter eligibility criteria. To be considered valid, ballots must be signed by the eligible voter.
(3) Referenda ballots shall be numbered serially or otherwise designed to guard against submission of duplicate ballots.
(4) If votes are weighted, the value of weighted votes shall be indicated on the ballot. The weighted vote must be cast as a single unit. Its value may not be split. The full value must be applied to the selection made on the ballot.
(5) NMFS shall allow at least 30 days for eligible voters to receive and return their ballots and shall specify a deadline by which ballots must be received. Ballots received after the deadline shall not be considered valid.
(h) Determining the outcome of an IFQ referendum. (1) NMFS shall tally and announce the results of the referendum within 90 days of the deadline by which completed ballots must be received. NMFS may declare a referendum invalid if the Agency can demonstrate the referendum was not conducted in accordance with the procedures established in the final rule implementing the referendum.
(2) A NEFMC IFQ program referendum shall be considered approved only if more than 2/3 of the votes submitted on valid ballots are in favor of the referendum question.
(3) A GMFMC IFQ program referendum shall be considered approved only if a majority of the votes submitted on valid ballots are in favor of the referendum question.
(i) Council actions. (1) If NMFS notifies a Council that an IFQ program proposal has been approved through a referendum, then the Council may submit the associated FMP or FMP amendment for Secretarial review and implementation.
(2) Any changes that would modify an IFQ program proposal that was reviewed by referenda voters may invalidate the results of the referendum and require the modified program proposal to be approved through a new referendum before it can be submitted to the Secretary for review and implementation.
(3) If NMFS notifies a Council that an IFQ referendum has failed, then the Council may modify its IFQ program proposal and request a new referendum pursuant to paragraph (b) of this section.
§ 600.1400   Definitions.
In addition to the definitions in the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and in § 600.10 of this title, the terms used in this subpart have the following meanings. For purposes of this subpart, if applicable, the terms used in this subpart supersede those used in § 600.10.
Anadromous species means the following:
Angler means a person who is angling (see 50 CFR 600.10) in tidal waters.
Authorized officer has the same meaning as in 50 CFR 600.10.
Combination license means either:
(1) A single state fishing license that permits fishing in fresh waters and tidal waters at one price; or
(2) A single state license that permits a group of fishing and hunting activities, including fishing in tidal waters, at a price that is less than the sum of the cost of the individual licenses.
Commercial fishing has the same meaning as in 16 U.S.C. 1802.
Continental shelf fishery resources has the same meaning as in 16 U.S.C. 1802.
Exempted state means a state that has been designated as an exempted state by NMFS pursuant to § 600.1415.
For-hire fishing vessel means a vessel on which passengers are carried to engage in angling or spear fishing, from whom a consideration is contributed as a condition of such carriage, whether directly or indirectly flowing to the owner, charterer, operator, agent or any other person having an interest in the vessel.
Indigenous people means persons who are documented members of a federally recognized tribe or Alaskan Native Corporation or persons who reside in the western Pacific who are descended from the aboriginal people indigenous to the region who conducted commercial or subsistence fishing using traditional fishing methods, including angling.
Spearfishing means fishing for, attempting to fish for, catching or attempting to catch fish in tidal waters by any person with a spear or a powerhead (see 50 CFR 600.10).
State has the same meaning as in 16 U.S.C. 1802.
Tidal waters means waters that lie below mean high water and seaward of the first upstream obstruction or barrier to tidal action and that are subject to the ebb and flow of the astronomical tides under ordinary conditions.
§ 600.1405   Angler registration.
(a) Effective January 1, 2010, the requirements of this section apply to any person who does any of the following:
(1) Engages in angling or spearfishing for:
(i) Fish in the EEZ;
(ii) Anadromous species in any tidal waters; or
(iii) Continental Shelf fishery resources beyond the EEZ.
(2) Operates a for-hire fishing vessel in the EEZ.
(3) Operates a for-hire fishing vessel that engages in angling or spearfishing for:
(i) Anadromous species in any tidal waters; or
(ii) Continental shelf fishery resources beyond the EEZ.
(4) Possesses equipment used for angling or spearfishing and also possesses:
(i) Fish in the EEZ;
(ii) Anadromous species in any tidal waters; or
(iii) Continental shelf fishery resources beyond the EEZ.
(b) No person may engage in the activities listed in paragraph (a) of this section unless that person:
(1) Has registered annually with NMFS in accordance with § 600.1410 of this part;
(2) Holds a valid fishing license issued by, or is registered by, an exempted state;
(3) Is a resident of an exempted state, but is not required to hold a fishing license, or to be registered to fish, under the laws of that state;
(4) Holds a permit issued by NMFS for for-hire fishing under 50 CFR 622.4(a)(1), 635.4(b), 648.4(a), or 660.707(a)(1);
(5) Is under the age of 16;
(6) Is angling aboard a for-hire fishing vessel that is in compliance with NMFS and state for-hire vessel permit, license or registration requirements;
(7) Holds a commercial fishing license or permit issued by NMFS or a state and is lawfully fishing or in possession of fish taken under the terms and conditions of such license or permit;
(8) Holds an HMS Angling permit under 50 CFR 635.4(c) or a MHI Non-commercial Bottomfish permit under 50 CFR 665.203(a)(2);
(9) Holds a subsistence fishing license or permit issued by NMFS or a state and is lawfully fishing or in possession of fish taken under the terms and conditions of such license or permit; or
(10) Is angling or spearfishing for, or operating a for-hire fishing vessel that engages in fishing for, anadromous species or Continental Shelf fishery resources, in waters under the control of a foreign nation.
(c) Any angler or spear fisher or operator of a for-hire vessel must, on request of an authorized officer, produce the NMFS registration number and certificate or evidence that such person or for-hire vessel operator is exempt from the registration requirement pursuant to § 600.1405(b)(2) through § 600.1405(b)(10).
§ 600.1410   Registry process.
(a) A person may register through the NMFS web site at www.nmfs.noaa.gov or by calling a toll-free telephone number available by contacting NMFS or at the NMFS website.
(b) Individuals must submit their name; address; telephone number; date of birth; region(s) of the country in which they intend to fish in the upcoming year; and additional information necessary for the issuance or administration of the registration.
(c) To register a for-hire fishing vessel, the vessel owner or operator must submit vessel owner name, address, date of birth, and telephone number; vessel operator (if different) name, address, date of birth and telephone number; vessel name; vessel's state registration or U.S. Coast Guard documentation number; home port or principal area of operation; and additional information necessary for the issuance or administration of the registration.
(d) NMFS will issue a registration number and certificate to registrants. A registration number and certificate will be valid for one year from the date on which it is issued.
(e) It shall be unlawful for any person to submit false, inaccurate or misleading information in connection with any registration request.
(f) Fees. Effective January 1, 2011, persons registering with NMFS must pay an annual fee. The annual schedule for such fees will be published in the Federal Register. Indigenous people engaging in angling or spear fishing must register, but are not required to pay a fee.
§ 600.1415   Procedures for designating exempted states-general provisions.
(a) States with an exempted state designation must:
(1) Submit state angler and for-hire vessel license holder data to NMFS for inclusion in a national or regional registry database; or
(2) Participate in regional surveys of recreational catch and effort and make the data from those surveys available to NMFS.
(b) Process for getting an exempted state designation:
(1) To apply for exempted state designation, a state must submit:
(i) A complete description of the data it intends to submit to NMFS;
(ii) An assessment of how the data conforms to the requirements of §§ 600.1416 or 600. 1417;
(iii) A description of the database in which the data exists and will be transmitted; and
(iv) The proposed process, schedule and frequency of submission of the data.
(2) If NMFS determines the submitted material meets the requirements of §§ 600.1416 or 600.1417, NMFS will initiate negotiations with the state on a Memorandum of Agreement. The Memorandum of Agreement must include the terms and conditions of the data-sharing program. The Memorandum of Agreement and state designation may be limited to data-sharing related to only anglers or only for-hire fishing vessels.
(3) Following execution of a Memorandum of Agreement, NMFS will publish a notice of the exempted state designation in the Federal Register.
§ 600.1416   Requirements for exempted state designation based on submission of state license holder data.
(a) A state must annually update and submit to NMFS, in a format consistent with NMFS guidelines, the name, address and, to the extent available in the state's database, telephone number and date of birth, of all persons and for-hire vessel operators, and the name and state registration number or U.S. Coast Guard documentation number of for-hire vessels that are licensed to fish, or are registered as fishing, in the EEZ, in the tidal waters of the state, or for anadromous species. The Memorandum of Agreement developed in accordance with § 600.1415(b)(2) will specify the timetable for a state to compile and submit complete information telephone numbers and dates of birth for its license holders/registrants. The waters of the state for which such license-holder data must be submitted will be specified in the Memorandum of Agreement.
(b) A state is eligible to be designated as an exempted state even if its licensing program excludes anglers who are:
(1) Under 17 years of age;
(2) Over age 59 (see § 600.1416(d)(1));
(3) Customers on licensed for-hire vessels;
(4) Customers on state-licensed fishing piers, provided that the pier license holder provides to the state complete angler contact information or angler effort information for users of the pier;
(5) On active military duty while on furlough; or
(6) Disabled or a disabled Veteran as defined by the state.
(7) Fishing on days designated as “free fishing days” by states. “ Free fishing days” means fishing promotion programs by which states allow new anglers to fish for a specified day without a license or registration.
(c) Unless the state can demonstrate that a given category of anglers is so small it has no significant probability of biasing estimates of fishing effort if these anglers are not included in a representative sample, a state may not be designated as an exempted state if its licensing or registration program excludes anglers in any category other than those listed in paragraph (b) of this section.
(d) Required enhancements to exempted state license-holder data. An exempted state must submit the following angler identification data by Jan. 1, 2012, or within two years of the effective date of the Memorandum of Agreement, whichever is later, and thereafter in accordance with the Memorandum of Agreement. States that provide NMFS with notice that they are required to enact legislation or to enter into formal memoranda of agreement or contracts with other state agencies to comply with this requirement must submit the data within three years of the effective date of the Memorandum of Agreement:
(1) Name, address and telephone number, updated annually, of excluded anglers over age 59, unless the state can demonstrate that the number of anglers excluded from the license or registration requirement based on having a date of birth before June 1, 1940 is so small it has no significant probability of biasing estimates of fishing effort if these anglers are not included in a representative sample;
(2) Name, address and telephone number, updated annually, of holders of state lifetime and multi-year licenses;
(3) Name, address and telephone number of state combination license holders who fished in tidal waters in the prior year, or who intend to fish in tidal waters. The Memorandum of Agreement will define the boundaries of the state's tidal waters for this purpose.
§ 600.1417   Requirements for exempted state designation based on submission of recreational survey data.
(a) To be designated as an exempted state based on the state's participation in a regional survey of marine and anadromous recreational fishing catch and effort, a state may submit to NMFS a proposal that fully describes the state's participation in a qualifying regional survey, and the survey's sample design, data collection and availability.
(b) A qualifying regional survey must:
(1) Include all of the states within each region as follows:
(i) Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia and Florida (Atlantic coast);
(ii) Florida (Gulf of Mexico coast), Alabama, Mississippi, Louisiana, and Texas;
(iii) Puerto Rico;
(iv) U.S. Virgin Islands;
(v) California, Oregon and Washington;
(vi) Alaska;
(vii) Hawaii; or
(viii) American Samoa, Guam and the Commonwealth of the Northern Mariana Islands.
(2) Utilize angler registry data, or direct field counts to obtain angler effort, or other appropriate statistical means to obtain fishing effort;
(3) Utilize angler registry data to identify individuals to be surveyed by telephone, mail or Internet if such regional survey includes a telephone survey component; and
(4) Meet NMFS survey design and data collection standards.
§ 600.1500   Definitions and acronyms.
In addition to the definitions in the Magnuson-Stevens Act and in § 600.10, and the acronyms in § 600.15, the terms and acronyms in this subpart have the following meanings:
Authorized entity means a person, defined at 16 U.S.C. 1802(36), authorized to receive data transmitted by a VMS unit.
Bench configuration means the configuration of a VMS unit after it has been customized to meet the Federal VMS requirements.
Bundle means a mobile communications service and VMS unit sold as a package and considered one product. If a bundle is type-approved, the requestor will be the type-approval holder for the bundled MCS and VMS unit.
Cellular communication means the wireless transmission of VMS data via a cellular network.
Communication class means the satellite or cellular communications operator from which communications services originate.
Electronic form means a pre-formatted message transmitted by a VMS unit that is required for the collection of data for a specific fishery program ( e.g., declaration system, catch effort reporting).
Enhanced Mobile Transceiver Unit (EMTU) means a type of MTU that is capable of supporting two-way communication, messaging, and electronic forms transmission via satellite. An EMTU is a transceiver or communications device, including an antenna, and dedicated message terminal and display which can support a dedicated input device such as a tablet or keyboard, installed on fishing vessels participating in fisheries with a VMS requirement.
Enhanced Mobile Transceiver Unit, Cellular Based (EMTU-C) means an EMTU that transmits and receives data via cellular communications, except that it may not need a dedicated message terminal and display component at the time of approval as explained at § 600.1502(a)(6). An EMTU-C only needs to be capable of transmission and reception when in the range of a cellular network.
Latency means the state of untimely delivery of Global Positioning System position reports and electronic forms to NMFS ( i.e., information is not delivered to NMFS consistent with timing requirements of this subpart).
Mobile Communications Service (MCS) means the satellite and/or cellular communications services used with particular VMS units.
Mobile Communications Service Provider (MCSP) means an entity that sells VMS satellite and/or cellular communications services to end users.
Mobile Transmitter Unit (MTU) means a VMS unit capable of transmitting Global Positioning System position reports via satellite. (MTUs are no longer approved for new installations on VMS vessels).
Notification Letter means a letter issued by NMFS to a type-approval holder identifying an alleged failure of a VMS unit, MCS, or the type-approval holder to comply with the requirements of this subpart.
Position report means the unique global positioning system (GPS) report generated by a vessel's VMS unit, which identifies the vessel's latitude/longitude position at a point in time. Position reports are sent from the VMS unit via the MCS, to authorized entities.
Requestor means a vendor seeking type-approval.
Service life means the length of time during which a VMS unit remains fully operational with reasonable repairs.
Sniffing means the unauthorized and illegitimate monitoring and capture, through use of a computer program or device, of data being transmitted over a network.
Spoofing means the reporting of a false Global Positioning System position and/or vessel identity.
Time stamp means the time, in hours, minutes, and seconds in a position report. Each position report is time stamped.
Type-approval holder means an applicant whose type-approval request has been approved pursuant to this subpart.
Vendor means a commercial provider of VMS hardware, software, and/or mobile communications services.
Vessel Monitoring System (VMS) means, for purposes of this subpart, a satellite and/or cellular based system designed to monitor the location and movement of vessels using onboard VMS units that send Global Positioning System position reports to an authorized entity.
Vessel Monitoring System (VMS) data means the data transmitted to authorized entities from a VMS unit.
Vessel Monitoring System Program means the Federal program that manages the vessel monitoring system, data, and associated program-components, nationally and in each NMFS region; it is housed in the Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service's Office of Law Enforcement.
Vessel Monitoring System (VMS) Unit means MTU, EMTU or EMTU-C, as well as the units that can operate as both an EMTU and an EMTU-C.
Vessel Monitoring System (VMS) Vessels means vessels that operate in federally managed fisheries with a requirement to carry and operate a VMS unit.
§ 600.1501   Vessel Monitoring System type-approval process.
(a) Applicability. Unless otherwise specified, this section applies to EMTUs, EMTU-Cs, units that operate as both an EMTU and EMTU-C, and MCSs. Units that can operate as both an EMTU and EMTU-C must meet the requirements for both an EMTU and an EMTU-C in order to gain type-approval as both. MTUs are no longer eligible for type-approval.
(b) Application submission. A requestor must submit a written type-approval request and electronic copies of supporting materials that include the information required under this section to the NMFS Office of Law Enforcement (OLE) at: U.S. Department of Commerce; National Oceanic and Atmospheric Administration; National Marine Fisheries Service; Office of Law Enforcement; Attention: Vessel Monitoring System Office; 1315 East-West Highway, SSMC3, Suite 3301, Silver Spring, Maryland 20910.
(c) Application requirements. (1) EMTU, EMTU-C, and MCS Identifying Information: In a type-approval request, the requestor should indicate whether the requestor is seeking approval for an EMTU, EMTU-C, MCS, or bundle and must specify identifying characteristics, as applicable: Communication class; manufacturer; brand name; model name; model number; software version and date; firmware version number and date; hardware version number and date; antenna type; antenna model number and date; tablet, monitor or terminal model number and date; MCS to be used in conjunction with the EMTU/EMTU-C; entity providing MCS to the end user; and current global and regional coverage of the MCS.
(2) Requestor-approved third party business entities: The requestor must provide the business name, address, phone number, contact name(s), email address, specific services provided, and geographic region covered for the following third party business entities:
(i) Entities providing bench configuration for the EMTU/EMTU-C at the warehouse or point of supply.
(ii) Entities distributing/selling the EMTU/EMTU-C to end users.
(iii) Entities currently approved by the requestor to install the EMTU/EMTU-C onboard vessels.
(iv) Entities currently approved by the requestor to offer a limited warranty.
(v) Entities approved by the requestor to offer a maintenance service agreement.
(vi) Entities approved by the requestor to repair or install new software on the EMTU/EMTU-C.
(vii) Entities approved by the requestor to train end users.
(viii) Entities approved by the requestor to advertise the EMTU/EMTU-C.
(ix) Entities approved by the requestor to provide other customer services.
(3) Regulatory Requirements and Documentation: In a type-approval request, a requestor must:
(i) Identify the NMFS region(s) and/or Federal fisheries for which the requestor seeks type-approval.
(ii) Include copies of, or citation to, applicable VMS regulations and requirements in effect for the region(s) and Federal fisheries identified under paragraph (c)(3)(i) of this section that require use of VMS.
(iii) Provide a table with the type-approval request that lists in one column each requirement set out in §§ 600.1502 through 600.1509 and regulations described under paragraph (c)(3)(ii) of this section. NMFS OLE will provide a template for the table upon request. The requestor must indicate in subsequent columns in the table:
(A) Whether the requirement applies to the type-approval; and
(B) Whether the EMTU, EMTU-C, MCS, or bundle meets the requirement.
(iv) Certify that the features, components, configuration and services of the requestor's EMTU/EMTU-C, MCS, or bundle comply with each requirement set out in §§ 600.1502 through 600.1509 and the regulations described under paragraph (c)(3)(ii) of this section.
(v) Certify that, if the request is approved, the requestor agrees to be responsible for ensuring compliance with each requirement set out in §§ 600.1502 through 600.1509 and the regulations described under paragraph (c)(3)(ii) of this section over the course of the type-approval period.
(vi) Provide NMFS OLE with two EMTU/EMTU-Cs loaded with forms and software, if applicable, for each NMFS region or Federal fishery, with activated MCS, for which a type-approval request is submitted for a minimum of 90 calendar days for testing and evaluation. For EMTU-Cs, the forms and software may be loaded onto a dedicated message terminal and display component to which the EMTU-C can connect. Copies of forms currently used by NMFS are available upon request. As part of its review, NMFS OLE may perform field tests and at-sea trials that involve demonstrating every aspect of EMTU/EMTU-C and communications operation. The requestor is responsible for all associated costs including paying for: Shipping of the EMTU/EMTU-C to the required NMFS regional offices and/or headquarters for testing; the MCS during the testing period; and shipping of the EMTU/EMTU-C back to the vendor.
(vii) Provide thorough documentation for the EMTU/EMTU-C and MCS, including: EMTU/EMTU-C fact sheets; installation guides; user manuals; any necessary interfacing software; MCS global and regional coverage; performance specifications; and technical support information.
(d) Certification. A requestor seeking type-approval of an EMTU/EMTU-C to operate with a class or type of communications, as opposed to type-approval for use with a specific MCS, shall certify that the EMTU/EMTU-C meets requirements under this subpart when using at least one MCSP within that class or type of communications.
(e) Notification. Unless additional time is required for EMTU/EMTU-C testing, NMFS OLE will notify the requestor within 90 days after receipt of a complete type-approval request as follows:
(1) If a request is approved or partially approved, NMFS OLE will provide notice as described under § 600.1510 and the type-approval letter will serve as official documentation and notice of type-approval. OLE will publish and maintain the list of type-approved units on their Vessel Monitoring System web page.
(2) If a request is disapproved or partially disapproved:
(i) OLE will send a letter to the requestor that explains the reason for the disapproval/partial disapproval.
(ii) The requestor may respond to NMFS OLE in writing with additional information to address the reasons for disapproval identified in the NMFS OLE letter. The requestor must submit this response within 21 calendar days of the date of the OLE letter sent under paragraph (e)(2)(i) of this section.
(iii) If any additional information is submitted under paragraph (e)(2)(ii) of this section, NMFS OLE, after reviewing such information, may either take action under paragraph (e)(1) of this section or determine that the request should continue to be disapproved or partially disapproved. In the latter case, the NMFS OLE Director will send a letter to the requestor that explains the reasons for the continued disapproval/partial disapproval. The NMFS OLE Director's decision is final upon issuance of this letter and is not appealable.
§ 600.1502   Communications functionality.
(a) Unless otherwise specified, this subsection applies to all VMS units. Units that can operate as both an EMTU and EMTU-C must meet the requirements for both an EMTU and an EMTU-C in order to gain type-approval as both. The VMS unit must:
(1) Be able to transmit all automatically-generated position reports.
(2) Provide visible or audible alarms onboard the vessel to indicate malfunctioning of the VMS unit.
(3) Be able to disable non-essential alarms in non-Global Maritime Distress and Safety System (GMDSS) installations.
(4) EMTU/EMTU-Cs must be able to send communications that function uniformly throughout the geographic area(s) covered by the type-approval, except an EMTU-C only needs to be capable of transmission and reception when in the range of a cellular network.
(5) EMTU/EMTU-Cs must have two-way communications between the unit and authorized entities, via MCS, or be able to connect to a device that has two-way communications.
(6) EMTU/EMTU-Cs must be able to run or to connect to a dedicated message terminal and display component that can run software and/or applications that send and receive electronic forms and internet email messages for the purpose of complying with VMS reporting requirements in Federal fisheries. Depending on the reporting requirements for the fishery(s) in which the requester is seeking type-approval, an EMTU-C type-approval may not require the inclusion of a dedicated message terminal and display component at the time of approval, but the capability to support such a component must be shown.
(7) Have messaging and communications mechanisms that are completely compatible with NMFS vessel monitoring and surveillance software.
(b) In addition, messages and communications from a VMS unit must be able to be parsed out to enable clear billing of costs to the government and to the owner of a vessel or EMTU/EMTU-C, when necessary. Also, the costs associated with position reporting and the costs associated with other communications (for example, personal email or communications/reports to non-NMFS Office of Law Enforcement entities) must be parsed out and billed to separate parties, as appropriate.
§ 600.1503   Position report data formats and transmission.
Unless otherwise specified, this subsection applies to all VMS units, MCSs and bundles. Units that can operate as both an EMTU and EMTU-C must meet the requirements for both an EMTU and an EMTU-C in order to gain type-approval as both. To be type-approved in any given fishery, a VMS unit must also meet any additional positioning information as required by the applicable VMS regulations and requirements in effect for each fishery or region for which the type-approval applies. The VMS unit must meet the following requirements:
(a) Transmit all automatically-generated position reports, for vessels managed individually or grouped by fleet, that meet the latency requirement under § 600.1504.
(b) When powered up, must automatically re-establish its position reporting function without manual intervention.
(c) Position reports must contain all of the following:
(1) Unique identification of an EMTU/EMTU-C and clear indication if the unit is an EMTU-C.
(2) Date (year/month/day with century in the year) and time stamp (GMT) of the position fix.
(3) Date (year/month/day with century in the year) and time stamp (GMT) that the EMTU-C position report was sent from the EMTU-C.
(4) Position fixed latitude and longitude, including the hemisphere of each, which comply with the following requirements:
(i) The position fix precision must be to the decimal minute hundredths.
(ii) Accuracy of the reported position must be within 100 meters (328.1 ft).
(d) An EMTU/EMTU-C must have the ability to: (1) Store 1,000 position fixes in local, non-volatile memory.
(2) Allow for defining variable reporting intervals between 5 minutes and 24 hours.
(3) Allow for changes in reporting intervals remotely and only by authorized users.
(e) An EMTU/EMTU-C must generate specially identified position reports upon:
(1) Antenna disconnection.
(2) Loss of positioning reference signals.
(3) Security events, power-up, power down, and other status data.
(4) A request for EMTU/EMTU-C status information such as configuration of programming and reporting intervals.
(5) The EMTUs loss of the mobile communications signals.
(6) An EMTU must generate a specially identified position report upon the vessel crossing of a pre-defined geographic boundary.
§ 600.1504   Latency requirement.
(a) Ninety percent of all pre-programmed or requested Global Positioning System position reports during each 24-hour period must reach NMFS within 15 minutes or less of being sent from the VMS unit, for 10 out of 11 consecutive days (24-hour time periods).
(b) NMFS will continually examine latency by region and by type-approval holder.
(c) Exact dates for calculation of latency will be chosen by NMFS. Days in which isolated and documented system outages occur will not be used by NMFS to calculate a type-approval holder's latency.
§ 600.1505   Messaging.
(a) Unless otherwise specified, this section applies to all VMS units, MCSs, and bundles. Units that can operate as both an EMTU and EMTU-C must meet the requirements for both an EMTU and an EMTU-C in order to gain type-approval as both. Depending on the reporting requirements for the fishery(s) in which the requester is seeking type-approval, an EMTU-C type-approval may not require the inclusion of a dedicated message terminal and display component at the time of approval, but the capability to support such a component must be shown. To be type-approved in any given fishery, a VMS unit must meet messaging information requirements under the applicable VMS regulations and requirements in effect for each fishery or region for which the type-approval applies. The VMS unit must also meet the following requirements:
(b) An EMTU must be able to run software and/or applications that send email messages for the purpose of complying with VMS reporting requirements in Federal fisheries that require email communication capability. An EMTU-C must be able to run or connect to a device that can run such software and/or applications. In such cases, the EMTU/EMTU-C messaging must provide for the following capabilities:
(1) Messaging from vessel to shore, and from shore to vessel by authorized entities, must have a minimum supported message length of 1 KB. For EMTU-Cs, this messaging capability need only be functional when in range of shore-based cellular communications.
(2) There must be a confirmation of delivery function that allows a user to ascertain whether a specific message was successfully transmitted to the MCS email server(s).
(3) Notification of failed delivery to the EMTU/EMTU-C must be sent to the sender of the message. The failed delivery notification must include sufficient information to identify the specific message that failed and the cause of failure ( e.g., invalid address, EMTU/EMTU-C switched off, etc. ).
(4) The EMTU/EMTU-C must have an automatic retry feature in the event that a message fails to be delivered.
(5) The EMTU/EMTU-C user interface must:
(i) Support an “address book” capability and a function permitting a “reply” to a received message without re-entering the sender's address.
(ii) Provide the ability to review by date order, or by recipient, messages that were previously sent. The EMTU/EMTU-C terminal must support a minimum message history of 50 sent messages—commonly referred to as an “Outbox” or “Sent” message display.
(iii) Provide the ability to review by date order, or by sender, all messages received. The EMTU/EMTU-C terminal must support a minimum message history of at least 50 messages in an inbox.
§ 600.1506   Electronic forms.
Unless otherwise specified, this subsection applies to all EMTUs, EMTU-Cs, MCSs, and bundles.
(a) Forms. An EMTU/EMTU-C must be able to run, or to connect to and transmit data from a device that can run electronic forms software. Depending on the reporting requirements for the fishery(s) in which the requester is seeking type-approval, an EMTU-C type-approval may not require the inclusion of a dedicated message terminal and display component at the time of approval, but the capability to support such a component must be shown. The EMTU/EMTU-C must be able to support forms software that can hold a minimum of 20 electronic forms, and it must also meet any additional forms requirements in effect for each fishery or region for which the type-approval applies. The EMTU/EMTU-C must meet the following requirements:
(1) Form Validation: Each field on a form must be capable of being defined as Optional, Mandatory, or Logic Driven. Mandatory fields are those fields that must be entered by the user before the form is complete. Optional fields are those fields that do not require data entry. Logic-driven fields have their attributes determined by earlier form selections. Specifically, a logic-driven field must allow for selection of options in that field to change the values available as menu selections on a subsequent field within the same form.
(2) A user must be able to select forms from a menu on the EMTU/EMTU-C.
(3) A user must be able to populate a form based on the last values used and “modify” or “update” a prior submission without unnecessary re-entry of data. A user must be able to review a minimum of 20 past form submissions and ascertain for each form when the form was transmitted and whether delivery was successfully sent to the type-approval holder's VMS data processing center. In the case of a transmission failure, a user must be provided with details of the cause and have the opportunity to retry the form submission.
(4) VMS Position Report: Each form must include VMS position data, including latitude, longitude, date and time. Data to populate these fields must be automatically generated by the EMTU/EMTU-C and unable to be manually entered or altered.
(5) Delivery and Format of Forms Data: Delivery of form data to NMFS must employ the same transport security and reliability as set out in § 600.1507 of this subpart. The forms data and delivery must be completely compatible with NMFS vessel monitoring software.
(b) Updates to Forms. (1) The EMTU/EMTU-C and MCS must be capable of providing updates to forms or adding new form requirements via wireless transmission and without manual installation.
(2) From time to time, NMFS may provide type-approved applicants with requirements for new forms or modifications to existing forms. NMFS may also provide notice of forms and form changes through the NMFS Work Order System. Type-approved applicants will be given at least 60 calendar days to complete their implementation of new or changed forms. Applicants will be capable of, and responsible for translating the requirements into their EMTU/EMTU-C-specific forms definitions and wirelessly transmitting the same to all EMTU/EMTU-C terminals supplied to fishing vessels.
§ 600.1507   Communications security.
Communications between an EMTU/EMTU-C and MCS must be secure from tampering or interception, including the reading of passwords and data. The EMTU/EMTU-C and MCS must have mechanisms to prevent to the extent possible:
(a) Sniffing and/or interception during transmission from the EMTU/EMTU-C to MCS.
(b) Spoofing.
(c) False position reports sent from an EMTU/EMTU-C.
(d) Modification of EMTU/EMTU-C identification.
(e) Interference with Global Maritime Distress and Safety System (GMDSS) or other safety/distress functions.
(f) Introduction of malware, spyware, keyloggers, or other software that may corrupt, disturb, or disrupt messages, transmission, and the VMS system.
(g) The EMTU/EMTU-C terminal from communicating with, influencing, or interfering with the Global Positioning System antenna or its functionality, position reports, or sending of position reports. The position reports must not be altered, corrupted, degraded, or at all affected by the operation of the terminal or any of its peripherals or installed-software.
(h) VMS data must be encrypted and sent securely through all associated cellular, satellite, and internet communication pathways and channels.
§ 600.1508   Field and technical services.
As a requirement of its type-approval, a type-approval holder must communicate with NMFS to resolve technical issues with a VMS Unit, MCS or bundle and ensure that field and technical services includes:
(a) Diagnostic and troubleshooting support to NMFS and fishers, which is available 24 hours a day, seven days per week, and year-round.
(b) Response times for customer service inquiries that shall not exceed 24 hours.
(c) Warranty and maintenance agreements.
(d) Escalation procedures for resolution of problems.
(e) Established facilities and procedures to assist fishers in maintaining and repairing their EMTU, EMTU-C, or MTU.
(f) Assistance to fishers in the diagnosis of the cause of communications anomalies.
(g) Assistance in resolving communications anomalies that are traced to the EMTU, EMTU-C, or MTU.
(h) Assistance to NMFS Office of Law Enforcement and its contractors, upon request, in VMS system operation, resolving technical issues, and data analyses related to the VMS Program or system.
§ 600.1509   General.
(a) An EMTU/EMTU-C must have the durability and reliability necessary to meet all requirements of §§ 600.1502 through 600.1507 regardless of weather conditions, including when placed in a marine environment where the unit may be subjected to saltwater (spray) in smaller vessels, and in larger vessels where the unit may be maintained in a wheelhouse. The unit, cabling and antenna must be resistant to salt, moisture, and shock associated with sea-going vessels in the marine environment.
(b) PII and Other Protected Information. Personally identifying information (PII) and other protected information includes Magnuson-Stevens Act confidential information as provided at 16 U.S.C. 1881a and Business Identifiable Information (BII), as defined in the Department of Commerce Information Technology Privacy Policy. A type-approval holder is responsible for ensuring that:
(1) All PII and other protected information is handled in accordance with applicable state and Federal law.
(2) All PII and other protected information provided to the type-approval holder by vessel owners or other authorized personnel for the purchase or activation of an EMTU/EMTU-C or arising from participation in any Federal fishery are protected from disclosure not authorized by NMFS or the vessel owner or other authorized personnel.
(3) Any release of PII or other protected information beyond authorized entities must be requested and approved in writing, as appropriate, by the submitter of the data in accordance with 16 U.S.C. 1881a, or by NMFS.
(4) Any PII or other protected information sent electronically by the type-approval holder to the NMFS Office of Law Enforcement must be transmitted by a secure means that prevents interception, spoofing, or viewing by unauthorized individuals.
§ 600.1510   Notification of type-approval.
(a) If a request made pursuant to § 600.1501 (type-approval) is approved or partially approved, NMFS will issue a type-approval letter to indicate the specific EMTU/EMTU-C model, MCSP, or bundle that is approved for use, the MCS or class of MCSs permitted for use with the type-approved EMTU, and the regions or fisheries in which the EMTU/EMTU-C, MCSP, or bundle is approved for use.
(b) The NMFS Office of Law Enforcement will maintain a list of type-approved EMTUs/EMTU-C, MCSPs, and bundles on a publicly available website and provide copies of the list upon request.
§ 600.1511   Changes or modifications to type-approvals.
Type-approval holders must notify NMFS Office of Law Enforcement (OLE) in writing no later than 2 days following modification to or replacement of any functional component or piece of their type-approved EMTU, EMTU-C, or MTU configuration, MCS, or bundle. If the changes are substantial, NMFS OLE will notify the type-approval holder in writing within 60 calendar days that an amended type-approval is required or that NMFS will initiate the type-approval revocation process.
§ 600.1512   Type-approval revocation process.
(a) If at any time, a type-approved EMTU/EMTU-C, MCS, or bundle fails to meet requirements at §§ 600.1502 through 600.1509 or applicable VMS regulations and requirements in effect for the region(s) and Federal fisheries for which the EMTU/EMTU-C or MCS is type-approved, or if an MTU fails to meet the requirements under which it was type-approved, OLE may issue a Notification Letter to the type-approval holder that:
(1) Identifies the MTU, EMTU, EMTU-C, MCS, or bundle that allegedly fails to comply with type-approval regulations and requirements;
(2) Identifies the alleged failure to comply with type-approval regulations and requirements, and the urgency and impact of the alleged failure;
(3) Cites relevant regulations and requirements under this subpart;
(4) Describes the indications and evidence of the alleged failure;
(5) Provides documentation and data demonstrating the alleged failure;
(6) Sets a response date by which the type-approval holder must submit to NMFS OLE a written response to the Notification Letter, including, if applicable, a proposed solution; and
(7) Explains the type-approval holder's options if the type-approval holder believes the Notification Letter is in error.
(b) NMFS will establish a response date between 30 and 120 calendar days from the date of the Notification Letter. The type-approval holder's response must be received in writing by NMFS on or before the response date. If the type-approval holder fails to respond by the response date, the type-approval will be revoked. At its discretion and for good cause, NMFS may extend the response date to a maximum of 150 calendar days from the date of the Notification Letter.
(c) A type-approval holder who has submitted a timely response may meet with NMFS within 21 calendar days of the date of that response to discuss a detailed and agreed-upon procedure for resolving the alleged failure. The meeting may be in person, conference call, or webcast.
(d) If the type-approval holder disagrees with the Notification Letter and believes that there is no failure to comply with the type-approval regulations and requirements, NMFS has incorrectly defined or described the failure or its urgency and impact, or NMFS is otherwise in error, the type-approval holder may submit a written objection letter to NMFS on or before the response date. Within 21 calendar days of the date of the objection letter, the type-approval holder may meet with NMFS to discuss a resolution or redefinition of the issue. The meeting may be in person, conference call, or webcast. If modifications to any part of the Notification Letter are required, then NMFS will issue a revised Notification Letter to the type-approval holder. However, the response date or any other timeline in this process would not restart or be modified unless NMFS decides to do so, at its discretion.
(e) The total process from the date of the Notification Letter to the date of final resolution should not exceed 180 calendar days, and may require a shorter timeframe, to be determined by NMFS, depending on the urgency and impact of the alleged failure. In rare circumstances, NMFS, at its discretion, may extend the time for resolution of the alleged failure. In such a case, NMFS will provide a written notice to the type-approval holder informing him or her of the extension and the basis for the extension.
(f) If the failure to comply with type-approval regulations and requirements cannot be resolved through this process, the NMFS OLE Director will issue a Revocation Letter to the type-approval holder that:
(1) Identifies the MTU, EMTU, EMTU-C, MCS, or bundle for which type-approval is being revoked;
(2) Summarizes the failure to comply with type-approval regulations and requirements, including describing its urgency and impact;
(3) Summarizes any proposed plan, or attempts to produce such a plan, to resolve the failure;
(4) States that revocation of the MTU, EMTU, EMTU-C, MCS, or bundle's type-approval has occurred;
(5) States that no new installations of the revoked unit will be permitted in any NMFS-managed fishery requiring the use of VMS;
(6) Cites relevant regulations and requirements under this subpart;
(7) Explains why resolution was not achieved;
(8) Advises the type-approval holder that:
(i) The type-approval holder may reapply for a type-approval under the process set forth in § 600.1501, and
(ii) A revocation may be appealed pursuant to the process under § 600.1513.
§ 600.1513   Type-approval revocation appeals process.
(a) If a type-approval holder receives a Revocation Letter pursuant to § 600.1512, the type-approval holder may file an appeal of the revocation to the NMFS Assistant Administrator.
(b) An appeal must be filed within 14 calendar days of the date of the Revocation Letter. A type-approval holder may not request an extension of time to file an appeal.
(c) An appeal must include a complete copy of the Revocation Letter and its attachments and a written statement detailing any facts or circumstances explaining and refuting the failures summarized in the Revocation Letter.
(d) The NMFS Assistant Administrator may, at his or her discretion, affirm, vacate, or modify the Revocation Letter and send a letter to the type-approval holder explaining his or her determination, within 21 calendar days of receipt of the appeal. The NMFS Assistant Administrator's determination constitutes the final agency decision.
§ 600.1514   Revocation effective date and notification to vessel owners.
(a) Following issuance of a Revocation Letter pursuant to § 600.1512 and any appeal pursuant to § 600.1513, NMFS will provide notice to all vessel owners impacted by the type-approval revocation via letter and Federal Register notice. NMFS will provide information to impacted vessel owners on:
(1) The next steps vessel owners should take to remain in compliance with regional and/or national VMS requirements;
(2) The date, 60-90 calendar days from the notice date, on which the type-approval revocation will become effective;
(3) Reimbursement of the cost of a new type-approved EMTU/EMTU-C, should funding for reimbursement be available pursuant to § 600.1516.
§ 600.1515   Litigation support.
(a) All technical aspects of a type-approved EMTU, EMTU-C, MTU, MCS, or bundle are subject to being admitted as evidence in a court of law, if needed. The reliability of all technologies utilized in the EMTU, EMTU-C, MTU, MCS, or bundle may be analyzed in court for, inter alia, testing procedures, error rates, peer review, technical processes and general industry acceptance.
(b) The type-approval holder must, as a requirement of the holder's type-approval, provide technical and expert support for litigation to substantiate the EMTU/EMTU-C, MCS, or bundle capabilities to establish NMFS Office of Law Enforcement cases against violators, as needed. If the technologies have previously been subject to such scrutiny in a court of law, the type-approval holder must provide NMFS with a brief summary of the litigation and any court findings on the reliability of the technology.
(c) The type-approval holder will be required to sign a non-disclosure agreement limiting the release of certain information that might compromise the effectiveness of the VMS operations.
§ 600.1516   Reimbursement opportunities for revoked Vessel Monitoring System type-approval products.
(a) Subject to the availability of funds, vessel owners may be eligible for reimbursement payments for a replacement EMTU/EMTU-C if:
(1) All eligibility and process requirements specified by NMFS are met as described in NMFS Policy Directive 06-102; and
(2) The replacement type-approved EMTU/EMTU-C is installed on the vessel, and reporting to NMFS Office of Law Enforcement; and
(3) The type-approval for the previously installed EMTU/EMTU-C has been revoked by NMFS; or
(4) NMFS requires the vessel owner to purchase a new EMTU/EMTU-C prior to the end of an existing unit's service life.
(b) The cap for individual reimbursement payments is subject to change. If this occurs, NMFS Office of Law Enforcement will publish a notice in the Federal Register announcing the change.
§ 600.1600   Purpose and scope.
Section 303(a)(11) of the Magnuson-Stevens Act requires that any fishery management plan (FMP) with respect to any fishery shall establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery. 16 U.S.C. 1853(a)(11). The purpose of a standardized reporting methodology is to collect, record, and report bycatch data in a fishery that, in conjunction with other relevant sources of information, are used to assess the amount and type of bycatch occurring in the fishery and inform the development of conservation and management measures that, to the extent practicable, minimize bycatch and bycatch mortality. This subpart sets forth requirements for and guidance on establishing and reviewing a standardized reporting methodology.
§ 600.1605   Definitions and word usage.
(a) Definitions. In addition to the definitions in the Magnuson-Stevens Act and § 600.10, standardized reporting methodology means an established, consistent procedure or procedures used to collect, record, and report bycatch data in a fishery, which may vary from one fishery to another. Bycatch assessment is not part of the standardized reporting methodology, but must be considered as described in § 600.1610(a)(2)(iv).
(b) Word usage. The terms “bycatch” and “fishery” are used in the same manner as in 16 U.S.C. 1802. The terms “must”, “should”, “may”, “will”, “could”, and “can” are used in the same manner as in § 600.305(c). The term “Council” is used in the same manner as in § 600.305(d)(10), and includes the regional fishery management Councils and the Secretary of Commerce, as appropriate (16 U.S.C. 1854(c) and (g)).
§ 600.1610   Establishing and reviewing standardized bycatch reporting methodologies in fishery management plans.
(a) Establishing a standardized reporting methodology —(1) Fishery management plan contents. An FMP must identify the required procedure or procedures that constitute the standardized reporting methodology for the fishery. The required procedures may include, but are not limited to, one or more of the following: Observer programs, electronic monitoring and reporting technologies, and self-reported mechanisms ( e.g., recreational sampling, industry-reported catch and discard data). The FMP, or a fishery research plan authorized under 16 U.S.C. 1862, must explain how the standardized reporting methodology meets the purpose described in § 600.1600, based on an analysis of the requirements under § 600.1610(a)(2). The FMP, or fishery research plan authorized under 16 U.S.C. 1862, may reference analyses and information in other FMPs, FMP amendments, Stock Assessment and Fishery Evaluation (SAFE) reports, or other documents. Councils should work together and collaborate on standardized reporting methodologies for fisheries that operate across multiple jurisdictions, as appropriate. In addition to proposing regulations necessary to implement the standardized reporting methodology, a Council should also provide in its FMP, or a fishery research plan authorized under 16 U.S.C. 1862, guidance to NMFS on how to adjust implementation of a standardized reporting methodology consistent with the FMP. See National Standard 6 guidelines, § 600.335.
(2) Requirements for standardized reporting methodology. The FMP must establish a standardized reporting methodology as provided under § 600.1610(a)(1) that meets the specific purpose described in § 600.1600. Due to the inherent diversity of fisheries, different standardized reporting methodologies may be appropriate for different fisheries. However, when establishing or reviewing a standardized reporting methodology, a Council must address the following:
(i) Information about the characteristics of bycatch in the fishery. A Council must address information about the characteristics of bycatch in the fishery, when available, including, but not limited to: The amount and type of bycatch occurring in the fishery, which may vary based on different fishing activities and operations; the importance of bycatch in estimating the fishing mortality of fish stocks; and the effect of bycatch on ecosystems.
(ii) Feasibility. The implementation of a standardized reporting methodology must be feasible from cost, technical, and operational perspectives. However, feasibility concerns do not exempt an FMP from the requirement to establish a standardized reporting methodology. Recognizing that costs and funding may vary from year to year, a Council must also address how implementation of the standardized reporting methodology may be adjusted while continuing to meet the purpose described under § 600.1600.
(iii) Data uncertainty. A Council must address the uncertainty of the data resulting from the standardized reporting methodology. The standardized reporting methodology must be designed so that the uncertainty associated with the resulting bycatch data can be described, quantitatively or qualitatively. The Council should seek to minimize uncertainty in the resulting data, recognizing that different degrees of data uncertainty may be appropriate for different fisheries.
(iv) Data use. A Council must address how data resulting from the standardized reporting methodology are used to assess the amount and type of bycatch occurring in the fishery. A Council must consult with its scientific and statistical committee and/or the regional National Marine Fisheries Service science center on reporting methodology design considerations such as data elements, sampling designs, sample sizes, and reporting frequency. The Council must also consider the scientific methods and techniques available to collect, record, and report bycatch data that could improve the quality of bycatch estimates. Different standardized reporting methodology designs may be appropriate for different fisheries.
(b) Review of FMPs. All FMPs must be consistent with this subpart by February 21, 2022. Therefore, a Council, in coordination with NMFS, must conduct a review of its FMPs for consistency with this subpart. A Council does not need to amend an FMP if NMFS determines that it is consistent with this subpart. Thereafter, Councils, in coordination with NMFS, should conduct a review of standardized reporting methodologies at least once every 5 years in order to verify continued compliance with the MSA and this subpart.