Title 50—Wildlife and Fisheries--Volume 1
PART 660—FISHERIES OFF WEST COAST STATES
§ 660.512   Limited entry fishery.
(a) General. (1) This section applies to fishing for or landing CPS finfish in the limited entry fishery in the Limited Entry Zone.
(2) Effective January 1, 2000, the owner of a vessel with more than 5 mt of CPS finfish on board in the CPS Limited Entry Zone, other than live bait, must have a limited entry permit registered for use with that vessel.
(3) Only a person eligible to own a documented vessel under the terms of 46 U.S.C. 12102(a) qualifies to be issued or may hold, by ownership or otherwise, a limited entry permit.
(b) Initial qualification. (1) A limited entry permit for a vessel will be issued only if that vessel landed 100 mt of CPS finfish from January 1, 1993, through November 5, 1997.
(2) A limited entry permit will be issued only to the current owner of the vessel, unless:
(i) The previous owner of a vessel qualifying for a permit, by the express terms of a written contract, reserved the right to the limited entry permit, in which case the limited entry permit will be issued to the previous owner based on the catch history of the qualifying vessel, or
(ii) A vessel that would have qualified for a limited entry permit was totally lost prior to issuance of a limited entry permit. In this case, the owner of the vessel at the time it was lost retains the right to a permit for a replacement vessel, unless the owner conveyed the right to another person by the express terms of a written contract. The lost vessel must be replaced within 2 years of the date that the qualifying vessel was lost, and the replaced vessel must be of equal or less net tonnage.
(c) Documentation and burden of proof. A vessel owner (or person holding limited entry rights under the express terms of a written contract as specified in paragraph (a)(2)) of this section applying for issuance, renewal, transfer, or registration of a limited entry permit must prove that the qualification requirements are met by submitting the following documentation:
(1) A certified copy of the vessel's documentation as a fishing vessel of the United States (U.S. Coast Guard or state) is the best evidence of vessel ownership;
(2) A certified copy of a state fish landing receipt is the best evidence of a landing of a vessel;
(3) A copy of a written contract reserving or conveying limited entry rights is the best evidence of reserved or acquired rights; and
(4) Other relevant, credible evidence that the applicant may wish to submit or that the SFD may request or require.
(d) Fees. The Regional Administrator may charge fees to cover administrative expenses related to issuing limited entry permits, as well as renewing, transferring, and replacing permits. The amount of the fee is calculated in accordance with the procedures of the NOAA Finance Handbook for determining the administrative costs of each special product or service. The fee may not exceed such costs and is specified with each application form. The appropriate fee must accompany each application.
(e) Initial decisions. (1) The SFD will make initial decisions regarding issuing, renewing, transferring, and registering limited entry permits.
(2) Adverse decisions shall be in writing and shall state the reasons for the adverse decision.
(3) The SFD may decline to act on an application for issuing, renewing, transferring, or registering a limited entry permit and will notify the applicant, if the permit sanction provisions of the Magnuson-Stevens Act at 16 U.S.C. 1858(a) and implementing regulations at 15 CFR part 904, subpart D, apply.
(f) Initial issuance. (1) The SFD will issue limited entry permits.
(2) In order to receive a final decision on a limited entry permit application before January 1, 2000, an applicant must submit the application to the SFD on or before February 14, 2000.
(3) A separate, complete, and accurate application form, accompanied by any required supporting documentation and the appropriate fee, must be submitted for each vessel for which a limited entry permit is sought.
(4) Upon receipt of an incomplete or improperly executed application, the SFD will notify the applicant of the deficiency. If the applicant fails to correct the deficiency within 30 days following the date of notification, the application will be considered void.
(5) The SFD may request further documentation before acting on an application.
(6) The SFD will not accept applications for a limited entry permit after July 1, 2000.
(g) Appeals. (1) Any applicant for an initial permit may appeal the initial issuance decision to the Regional Administrator. To be considered by the Regional Administrator, such appeal must be in writing and state the reasons for the appeal, and must be submitted within 30 days of the action by the Regional Administrator. The appellant may request an informal hearing on the appeal.
(2) Upon receipt of an appeal authorized by this section, the Regional Administrator will notify the permit applicant, or permit holder as appropriate, and will request such additional information and in such form as will allow action upon the appeal.
(3) Upon receipt of sufficient information, the Regional Administrator will decide the appeal in accordance with the permit eligibility criteria set forth in this section and in the FMP, as appropriate, based upon information relative to the application on file at NMFS and the Council and any additional information submitted to or obtained by the Regional Administrator, the summary record kept of any hearing and the hearing officer's recommended decision, if any, and such other considerations as the Regional Administrator deems appropriate. The Regional Administrator will notify all interested persons of the decision, and the reasons therefor, in writing, normally within 30 days of the receipt of sufficient information, unless additional time is needed for a hearing.
(4) If a hearing is requested or if the Regional Administrator determines that one is appropriate, the Regional Administrator may grant an informal hearing before a hearing officer designated for that purpose after first giving notice of the time, place, and subject matter of the hearing to the applicant. The appellant and, at the discretion of the hearing officer, other interested persons may appear personally or be represented by counsel at the hearing and submit information and present arguments as determined appropriate by the hearing officer. Within 30 days of the last day of the hearing, the hearing officer shall recommend in writing a decision to the Regional Administrator.
(5) The Regional Administrator may adopt the hearing officer's recommended decision, in whole or in part, or may reject or modify it. In any event, the Regional Administrator will notify interested persons of the decision, and the reason(s) therefore, in writing, within 30 days of receipt of the hearing officer's recommended decision. The Regional Administrator's action shall constitute final action for the agency for the purposes of the APA.
(6) Any time limit prescribed in this section may be extended for a period not to exceed 30 days by the Regional Administrator for good cause, either upon his or her own motion or upon written request from the appellant stating the reason(s) therefore.
(h) Issuance of new permits. (1) When the aggregate gross tonnage of all vessels participating in the limited entry fishery declines below 5,650.9 metric tons (mt), the Council will review the status of the fishery, taking into consideration:
(i) The changes in gross tonnage that have and are likely to occur in the transfer of limited entry permits;
(ii) The actual harvesting capacity as experienced in the current fishery in comparison to the capacity goal;
(iii) Comments of the CPSMT;
(iv) Any other relevant factors related to maintaining the capacity goal.
(2) Following its review, the Council will recommend to NMFS whether additional permit(s) should be issued and if the new permit(s) should be temporary or permanent. The issuance of new permit(s) shall be based on the following:
(i) The qualifying criteria in paragraph (b) of this section, but vessels that were issued a permit before December 31, 2000, are not eligible.
(ii) If no vessel meets the qualifying criteria in paragraph (b), then the permit(s) will be issued to the vessel(s) with total landings nearest 100 mt during the qualifying period of paragraph (b).
(iii) No vessel will be issued a permit under this paragraph (h) that is currently registered for use with a permit.
(3) The Regional Administrator will review the Council's recommendation and determine whether issuing additional permit(s) is consistent with the FMP and with paragraph (h)(2) of this section. If issuing additional permit(s) is appropriate, the Regional Administrator will:
(i) Issue the appropriate number of permits consistent with the Council's recommendation; and
(ii) Publish a document in the Federal Register notifying the public that new permits or a new permit has been issued, the conditions attached to any permit, and the reasons for the action.
§ 660.513   Permit conditions.
(a) A limited entry permit expires on failure to renew the limited entry permit as specified in § 660.515.
(b) A limited entry permit may not be used with a vessel unless it is registered for use with that vessel. Limited entry permits will be registered for use with a particular vessel at the time the permit is issued, renewed, or transferred.
(c) Limited entry permits issued or applied for under this subpart are subject to sanctions pursuant to the Magnuson-Stevens Act, 16 U.S.C. 1858(g), and 15 CFR part 904, subpart D.
§ 660.514   Transferability.
(a) General. (1) The SFD will process applications for transferring limited entry permits to a different owner and/or to a different vessel according to this section.
(2) After January 27, 2003, the SFD will issue a limited entry permit to the owner of each vessel permitted to participate in the limited entry fishery for CPS. This permit will replace the existing permit and will include the gross tonnage of the vessel, which will constitute an endorsement for that vessel for the purpose of regulating the transfer of limited entry permits.
(b) Criteria. (1) When the aggregate gross tonnage of all vessels participating the limited entry fishery is at or below 5,650.9 mt, a permit may be transferred to a different owner or to a different vessel in the following circumstances only:
(i) A permit may be transferred to a vessel without a permit if the vessel without a permit has a comparable capacity to the capacity on the permit or is less than comparable capacity on the permit.
(ii) When a permit is transferred to a vessel without a permit that has less gross tonnage than that of the permitted vessel, the excess gross tonnage may not be separated from the permit and applied to a second vessel.
(iii) A permit may be transferred to a vessel without a permit that is of greater than comparable capacity only if two or more permits are transferred to the vessel without a permit to equal the gross tonnage of the vessel. The number of permits required will be determined by adding together the comparable capacity of all permits being transferred. Any gross tonnage in excess of that needed for a vessel remains with the permit.
(2) When a vessel with multiple permits leaves the fishery, the permits may be sold separately and applied to other vessels according to the criteria in this section.
(c) Stipulations. (1) The gross tonnage endorsement of a permit is integral to the permit for the duration of the permit, regardless of the gross tonnage of any vessel to which the permit is transferred.
(2) Permits may be used only on the vessel for which they are registered by the SFD. All permits that authorize a vessel to operate in the limited entry fishery must be on board the vessel during any fishing trip on which CPS is harvested or is on board.
(3) A permit may be transferred only once during a calendar year.
(d) Vessel alterations. (1) A permitted vessel's length, breadth, or depth may be altered to increase the gross tonnage of the vessel only if the aggregate gross tonnage of all vessels participating in the limited entry fishery equals, or is below 5,650.9 mt, and only under the following conditions:
(i) The gross tonnage of the altered vessel, calculated according to the formula in 46 CFR 69.209(a), does not exceed 110 percent of the vessel's original gross tonnage endorsement, and
(ii) A new certificate of documentation is obtained from the U.S. Coast Guard or State. Modifications exceeding 110 percent of the vessel's gross tonnage endorsement will require registration of the vessel under an additional permit or permits or under a permit with a sufficient gross tonnage endorsement.
(2) A copy of the certificate of documentation indicating changes in length, depth, or breadth must be provided to the SFD.
(3) The revised gross tonnage will not be valid as an endorsement until a revised permit is issued by the SFD.
(e) Applications. (1) All requests for the transfer of a limited entry permit will be made to the SFD in writing and shall contain the following information:
(i) Name, address, and phone number of the owner of the permitted vessel.
(ii) Name of the permitted vessel and documentation number of the vessel.
(iii) Name, address, and phone number of the owner of the vessel to which the permit is to be transferred.
(iv) Name and documentation number of the vessel to which the permit is to be transferred.
(v) Signature(s) of the owner(s) of the vessels participating in the transfer.
(vi) Any other information that the SFD may request.
(2) No permit transfer is effective until the transfer has been authorized by the SFD.
(f) Capacity reduction. (1) When the aggregate gross tonnage of the limited entry fleet reaches 5,933.5 mt, a permit may be transferred to a vessel without a permit only if the vessel without a permit is of the same or less gross tonnage.
(2) When the aggregate gross tonnage of the limited entry fleet reaches 5,933.5 mt, alterations in the length, depth, or breadth of a permitted vessel may not result in an increase in the gross tonnage of the vessel.
§ 660.515   Renewal of limited entry permits.
(a) Each limited entry permit must be renewed by January 1 of even numbered years.
(b) The SFD will send notices to renew limited entry permits to the most recent address of the permit holder.
(c) The permit owner must provide SFD with notice of any address change within 15 days of the change.
(d) The permit holder must submit applications for renewal of a permit on forms available from the SFD.
(e) The permit owner is responsible for renewing a limited entry permit.
(f) An expired permit cannot be used to fish for CPS in the limited entry fishery.
§ 660.516   Exempted fishing.
(a) General. In the interest of developing an efficient and productive fishery for CPS, the Regional Administrator may issue exempted fishing permits (EFP) for the harvest of CPS that otherwise would be prohibited.
(b) No exempted fishing for CPS may be conducted unless authorized by an EFP issued for the participating vessel in accordance with the criteria and procedures specified in § 600.745 of this chapter.
§ 660.517   Framework for revising regulations.
(a) General. NMFS will establish and adjust specifications and management measures in accordance with procedures and standards in Amendment 8 to the FMP.
(b) Annual actions. Annual specifications are developed and implemented according to § 660.508.
(c) Routine management measures. Consistent with section. 2.1 of Amendment 8 to the FMP, management measures designated as routine may be adjusted during the year after recommendation from the Council, approval by NMFS, and publication in the Federal Register.
(d) Changes to the regulations. Regulations under this subpart may be promulgated, removed, or revised. Any such action will be made according to the framework measures in section 2 of Amendment 8 to the FMP and will be published in the Federal Register.
§ 660.518   Pacific Coast Treaty Indian Rights.
(a) Pacific Coast treaty Indian tribes have treaty rights to harvest CPS in their usual and accustomed fishing areas in the EEZ.
(b) For the purposes of this section, Pacific Coast treaty Indian tribes means the Hoh, Makah, and Quileute Indian Tribes and the Quinault Indian Nation, and their “usual and accustomed fishing areas” are described at § 660.4, subpart A.
(c) Boundaries of a tribe's fishing area may be revised as ordered by a Federal court.
(d) Procedures. The rights referred to in paragraph (a) of this section will be implemented in accordance with the procedures and requirements of the framework contained in Amendment 9 to the FMP and in this Subpart.
(1) The Secretary, after consideration of the tribal request, the recommendation of the Council, and the comments of the public, will implement Indian fishing rights.
(2) The rights will be implemented either through an allocation of fish that will be managed by the tribes or through regulations that will apply specifically to the tribal fisheries.
(3) An allocation or a regulation specific to the tribes shall be initiated by a written request from a Pacific Coast treaty Indian tribe to the NMFS Southwest Regional Administrator at least 120 days prior to the start of the fishing season as specified at § 660.510 and will be subject to public review according to the procedures in § 660.508(d).
(4) The Regional Administrator will announce the annual tribal allocation at the same time as the annual specifications.
(e) The Secretary recognizes the sovereign status and co-manager role of Indian tribes over shared Federal and tribal fishery resources. Accordingly, the Secretary will develop tribal allocations and regulations in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.
§ 660.519   Scientific observers.
All fishing vessels operating in the coastal pelagic species fishery, including catcher/processors, at-sea processors, and vessels that harvest in Washington, Oregon, or California and land catch in another area, may be required to accommodate NMFS- certified observers aboard to collect scientific data. An observer program will be considered only for circumstances where other data collection methods are deemed insufficient for management of the fishery. Any observer program will be implemented in accordance with § 660.517.
§ 660.520   Reporting requirements.
(a) Otter interaction. (1) If a southern sea otter is entangled in a net, regardless of whether the animal is injured or killed, the vessel operator must report this interaction within 24 hours to the Regional Administrator.
(2) While fishing for CPS, vessel operators must record all observations of otter interactions (defined as otters within encircled nets or coming into contact with nets or vessels, including but not limited to entanglement) with their purse seine net(s) or vessel(s). With the exception of an entanglement, which must be initially reported as described in paragraph (a)(1)of this section, all other observations must be reported within 20 days to the Regional Administrator.
(3) When contacting NMFS after an interaction, vessel operators must provide the location (latitude and longitude) of the interaction and a description of the interaction itself. If available, location information should also include water depth, distance from shore, and relation to port or other landmarks. Descriptive information of the interaction should include: whether or not the otters were seen inside or outside the net; if inside the net, had the net been completely encircled; whether any otters came in contact with either the net or the vessel; the number of otters present; duration of interaction; the otter's behavior during interaction; measures taken to avoid interaction.
(b) [Reserved]
§ 660.600   Applicability.
(a) General. This subpart contains requirements for vessels using EM in lieu of observers, as authorized under § 660.140(h)(1)(i) (Shorebased IFQ Program) and § 660.150(j)(1)(i) (MS Co-op Program), and requirements for EM service providers. Vessel owners, operators, and managers are jointly and severally liable for a vessel's compliance with EM requirements under this subpart. This subpart also contains requirements for a first receiver receiving catch from a trip monitored by EM ( see § 660.604(u)). The table below provides references to the sections that contain vessel owner, operator, first receiver, and service provider responsibilities.
(b) EM program purpose. The purpose of the EM program is to provide NMFS with the best scientific information available to determine individual accountability for catch (including discards) of IFQ species and compliance with requirements of the Shorebased IFQ Program (§ 660.140) and MS Co-op Program (§ 660.150). NMFS will develop EM Program Guidelines, which will document best practices and other information that NMFS will use to evaluate proposed service and vessel monitoring plans submitted by EM service providers and vessel owners under this subpart, and to evaluate the performance of EM service providers and vessels, in meeting the requirements of this subpart to achieve the purpose of the EM program. NMFS will develop the EM Program Guidelines in consultation with the Council and publish notice of their availability in the Federal Register. NMFS will maintain the EM Program Guidelines on its website and make them available to vessel owners and operators and EM service providers to assist in developing service plans and vessel monitoring plans that comply with the requirements of this subpart and meet the purpose of the EM program.
§ 660.601   Definitions.
These definitions are specific to this subpart. General groundfish definitions are found at § 660.11, subpart C, and trawl fishery definitions are found at § 660.111, subpart D.
Active sampling unit means the portion of the groundfish fleet in which an observer coverage plan is being applied.
Discard control point means the location on the vessel designated by a vessel operator where allowable discarding may occur.
Discard event means a single occurrence of discarding of fish or other species.
Electronic Monitoring or EM consists of the use of an electronic monitoring system (EMS) to passively monitor fishing operations through observing or tracking.
Electronic Monitoring Authorization means the official document provided by NMFS that allows a vessel with a limited entry trawl permit to use electronic monitoring under the provisions of this subpart.
Electronic Monitoring System or EMS means a data collection tool that uses a software operating system connected to an assortment of electronic components, including video recorders, to create a collection of data on vessel activities.
Electronic Monitoring System Certification Form means the official document provided by NMFS, signed by a representative of a NMFS-permitted electronic monitoring service provider that attest that an EM system and associated equipment meets the performance standards defined at § 660.604(j) of this subpart, as required by § 660.604(e)(3)(i).
EM data means the information output of the Electronic Monitoring System ( e.g., imagery, sensor data, and other associated data files).
EM data processing means the review, interpretation, and analysis of EM data and associated meta data.
EM dataset means a collection of EM data from a single EM trip or group of EM trips.
EM Program means the Electronic Monitoring Program of the West Coast Region, National Marine Fisheries Service.
EM Service Plan means the document required under § 660.603 that describes in detail how the EM service provider will provide EM services.
EM service provider means any person, including their employees or agents, that is granted a permit by NMFS to provide EM services for vessels as required under § 660.603 and § 660.604.
EM technician means an employee of the EM service provider that provides support for EM systems and technical assistance.
EM trip means any fishing trip for which electronic monitoring is the declared monitoring type.
Initial Administrative Determination (IAD) means a formal, written determination made by NMFS on an application or permit request that is subject to an appeal within NMFS.
Non-trawl shorebased IFQ vessel means a vessel on a declared limited entry groundfish non-trawl, shorebased IFQ trip.
Pacific whiting fishery refers to the Pacific whiting primary season fisheries described at § 660.131. The Pacific whiting fishery is composed of vessels participating in the C/P Co-op Program, the MS Co-op Program, or the Pacific whiting IFQ fishery.
Pacific whiting IFQ fishery is composed of vessels on Pacific whiting IFQ trips.
Pacific whiting IFQ trip means a trip in which a vessel uses midwater groundfish trawl gear during the dates of the Pacific whiting primary season to target Pacific whiting, and Pacific whiting constitutes 50 percent or more of the catch by weight at landing as reported on the state landing receipt. Vessels on Pacific whiting IFQ trips must have a valid declaration for limited entry midwater trawl, Pacific whiting shorebased IFQ.
Prohibited species means those species and species groups defined at § 660.11; Dungeness crab caught south of Point Reyes, California; fish in excess of state or Federal limits; fish below a state or Federal minimum size; and species for which the vessel or vessel representative does not have a state or Federal permit.
Shorebased IFQ Program or Shorebased IFQ sector, refers to the fishery described at § 660.140, subpart D, and includes all vessels on IFQ trips.
Vessel Monitoring Plan ( VMP ) means the document that describes how fishing operations on the vessel will be conducted and how the EM system and associated equipment will be configured to meet the performance standards and purpose of the EM Program.
§ 660.602   Prohibitions.
In addition to the general prohibitions specified in § 600.725 of this chapter, it is unlawful for any person to:
(a) Electronic monitoring program. (1) Make a false or inaccurate/incorrect statement on an application for issuance, renewal, or changes to an EM Authorization or NMFS-accepted VMP.
(2) Fish for or land fish from a trip without electronic monitoring or observer coverage when a vessel is required to carry electronic monitoring or an observer under §§ 660.140(h) or 660.150(j).
(3) Fish for or land fish from a trip taken under electronic monitoring without a valid EM Authorization and NMFS-accepted vessel monitoring plan onboard, and a valid gear and monitoring declaration with NMFS OLE as required by § 660.604(c)(1) and § 660.604(m).
(4) Fail to comply with the terms of a NMFS-accepted VMP.
(5) Fail to notify the NMFS West Coast Groundfish Observer Program at least 48-hours prior to departing port of the vessel operator's intent to take a trip under EM, as required by § 660.604(n).
(6) Fail to conduct a pre-departure test of the EM system prior to departing port as required by § 660.604(l)(2).
(7) Fish on an EM trip without a fully functional EM system, unless authorized by a NMFS-accepted VMP as required by § 660.604(l)(3).
(8) Fail to make the EM system, associated equipment, logbooks, EM data, and other records available for inspection immediately upon request by NMFS, its agent, or authorized officers, as required by §§ 660.604(o) and 660.604(t).
(9) Discard species other than those allowed to be discarded as specified at § 660.604(p).
(10) Fail to handle fish and other marine organisms in a manner that enables the EM system to record it as required by § 660.604(r).
(11) Fail to submit complete and accurate logbook(s) and EM data for each EM trip as specified at § 660.604(s),
(12) Tamper with, disconnect, damage, destroy, alter, or in any way distort, render useless, inoperative, ineffective, or inaccurate any component of the EM system or associated equipment.
(13) Assault, resist, oppose, impede, intimidate, harass, sexually harass, bribe, or interfere with an EM service provider, EM field services staff, or EM data processing staff.
(14) Interfere with or bias the sampling procedure employed by EM data processing staff including either mechanically or manually sorting or discarding catch outside of camera view or inconsistent with the NMFS-accepted VMP.
(15) Fail to meet the vessel owner or operator responsibilities specified in § 660.604.
(16) Fail to meet the first receiver responsibilities specified at § 660.604(u).
(17) Fail to meet the EM service provider responsibilities specified in § 660.603.
(18) Fish without an observer when a vessel is required to carry an observer under subpart J of this part if:
(i) The vessel is inadequate for observer deployment as specified at § 600.746 of this chapter;
(ii) The vessel does not maintain safe conditions for an observer as specified at § 660.604(n);
(iii) NMFS, the observer provider, or the observer determines the vessel is inadequate or unsafe pursuant to vessel responsibilities to maintain safe conditions as specified at § 660.604(n);
(19) Fail to meet the vessel responsibilities and observer coverage requirements specified at § 660.604(n).
(b) [Reserved]
§ 660.603   Electronic monitoring provider permits and responsibilities.
(a) General. This section contains requirements for EM service providers providing EM services, pursuant to contracts with vessel owners whose vessels operate in the Shorebased IFQ Program (§ 660.140) or the MS Co-op Program (§ 660.150) and use EM under this subpart. A person must obtain a permit and endorsement as provided under § 660.603(b) in order to be an EM service provider. An EM service provider must:
(1) Operate under a NMFS-accepted EM Service Plan (see paragraph (b)(1)(vii) of this section).
(2) Provide and manage EM systems, field services, and technical assistance as required under § 660.603(k);
(3) Provide technical and litigation information to NMFS or its agent ( see § 660.603(l)).
(4) Provide technical support to contracted fishing vessels 24-hours per day, seven days per week, and year-round as provided under § 660.603(k)(4);
(5) Provide EM data processing, reporting, and record retention services to contracted vessels using EM ( see § 660.603(m)).
(6) Comply with data integrity and security requirements, including requirements pertaining to hard drives and data files containing EM data, ( see § 660.603(n)).
(b) Provider permits. To be an EM service provider, a person must obtain an EM service provider permit and endorsement by submitting an application to the NMFS West Coast Region Fisheries Permit Office. NMFS will issue a public notice at least 90 calendar days prior to when it will begin accepting applications for EM service provider permits for the first year of the Program. A person may meet some requirements of this section through a partnership or subcontract with another entity, in which case the application for an EM service provider permit must include information about the partnership. Once NMFS begins accepting applications, if a new EM service provider, or an existing EM service provider seeking to deploy a new EMS or software version, submits an application by June 1, NMFS will issue a new permit by January 1 of the following calendar year. Applications submitted after June 1 will be processed as soon as practicable. NMFS will only process complete applications. Additional endorsements to provide observer or catch monitor services may be obtained under § 660.18.
(1) Contents of provider application. To be considered for an EM service provider permit and endorsement, the service provider must submit a complete application that includes the following information. The same information must be included for any partners or subcontractors if the applicant intends to satisfy any of the EM service provider requirements through a partnership or contractual relationship with another entity.
(i) Certify that the applicant meets the following eligibility criteria:
(A) The EM service provider and its employees do not have a conflict of interest as defined at § 660.603(h), and,
(B) The EM service provider is willing and able to comply with all applicable requirements of this section and to operate under a NMFS-accepted EM Service Plan.
(ii) Applicant's contact information.
(iii) Legal name of applicant organization. If the applicant organization is a United States business entity, include the state registration number.
(iv) Description of the management, organizational structure, and ownership structure of the applicant's business, including identification by name and general function of all controlling management interests in the company, including but not limited to owners, board members, officers, authorized agents, and employees. List all office locations and their business mailing address, business phone, fax number, and email addresses. If the applicant is a corporation, the articles of incorporation must be provided. If the applicant is a partnership, the partnership agreement must be provided.
(v) A narrative statement describing prior relevant experience in providing EM services, technical support, or fishery data analysis services, including recruiting, hiring, training, deploying, and managing of individuals in marine work environments and of individuals working with fishery data, in the groundfish fishery or other fisheries of similar scale.
(vi) A statement signed under penalty of perjury by an authorized agent of the applicant about each owner, or owners, board members, and officers if a corporation, authorized agents, and employees, regarding:
(A) Conflict of interest as described in § 660.603(h),
(B) Criminal convictions,
(C) Federal contracts they have had and the performance rating they received on each contract, and
(D) Any previous history of decertification or permit sanction action while working as an observer, catch monitor, observer provider, catch monitor provider, or electronic monitoring provider.
(vii) EM Service Plan. An EM Service Plan that describes in detail how the applicant will provide EM services for vessels. To ensure that the EM Program achieves its purpose, NMFS will develop EM Program Guidelines ( see § 660.600(b)) and use them to evaluate proposed EM Service Plans. NMFS may consider alternative, but equivalent, methods proposed by EM service providers and vessel owners in their plans to meet the requirements of this subpart, if they achieve the purpose of the EM program. An EM Service Plan must include descriptions of the following (using pictures and diagrams where appropriate):
(A) Contact information for a primary point of contact for program operations inseason;
(B) A plan for provision of services including communications, service locations, response timelines, and procedures for services, repairs, technical support, and other program services;
(C) Procedures for hiring and training of competent program staff to carry out EM field services and data services, including procedures to maintain the skills of EM data processing staff in:
( 1 ) Use of data processing software;
( 2 ) Species identification;
( 3 ) Fate determination and metadata reporting requirements;
( 4 ) Data processing procedures;
( 5 ) Data tracking; and,
( 6 ) Reporting and data upload procedures.
(D) Procedures for tracking hard drives and/or data files throughout their use cycle, including procedures to ensure the integrity and security of hard drives or data files in transit, and for removing EM data from hard drives or other medium before returning them to the field;
(E) Procedures for data processing, including tracking of EM datasets throughout their processing cycle and documenting any access and modifications;
(F) Procedures for correction and resubmission of EM summary data reports and other reports that NMFS has determined are not of sufficient quality to meet the purpose of the EM program, as described at § 660.603(m)(5), and to ensure that future reports are sufficient for use by NMFS.
(G) Policies on data access, handling, and release to prevent unauthorized disclosure of EM data and other records specified in this section by the EM provider as required under § 660.603(n);
(H) Procedures for retention of records as required under § 660.603(m)(6);
(I) Identifying characteristics of the EMS to be deployed and the video review software to be used in the fishery, including but not limited to: Manufacturer, brand name, model name, model number, software version and date, firmware version number and date, hardware version number and date, monitor/terminal number and date, pressure sensor model number and date, drum rotation sensor model number and date, and GPS model number and date.
(J) EM system and software specifications, including a narrative statement describing how the EM system and associated equipment meets the performance standards at § 660.604(j).
(K) EM video review software specifications, including a narrative statement describing how the software meets the EM Program Guidelines and will provide NMFS with data to achieve the purpose of the EM Program as defined at § 660.600(b).
(viii) Provide NMFS the following, if requested:
(A) Two EM system units loaded with software for a minimum of 90 calendar days for testing and evaluation.
(B) Thorough documentation for the EM system, including: User manuals, any necessary interfacing software, performance specifications, technical support information, and tamperproof or tamper evident features.
(C) The results of at-sea trials of the EM system.
(D) Two copies of video review and analysis software for a minimum of 90 calendar days for testing and evaluation.
(E) Thorough documentation for the video review and analysis software, including: User manuals, performance specifications, and technical support information.
(F) Descriptions of database models and analysis procedures for EM data and associated meta data to produce required reports.
(2) Application evaluation. NMFS may request additional information or revisions from the applicant until NMFS is satisfied that the application is complete. Complete applications will be forwarded to the EM Program for review and evaluation by the EM provider permit review board. If the applicant is an entity, the review board also will evaluate the application criteria for each owner, board member, officer, authorized agent, and employee. NMFS will evaluate the application based on the EM Program Guidelines ( see § 660.600(b)) and the following criteria:
(i) The applicant's relevant experience and qualifications;
(ii) Review of any conflict of interest as described in § 660.603(h);
(iii) Review of any criminal convictions;
(iv) Review of the proposed EM Service Plan, including evaluation of EM equipment and software;
(v) Satisfactory performance ratings on any federal contracts held by the applicant;
(vi) Review of any history of decertification or permit sanction as an observer, catch monitor, observer provider, catch monitor provider, or EM service provider; and,
(vii) Review of any performance history as an EM service provider.
(3) Agency determination on an application. Based on a complete application, if NMFS determines that the applicant has met the requirements of this section, NMFS will issue an initial administrative determination (IAD). If the application is approved, the IAD will serve as the EM service provider's permit and endorsement. If the application is denied, the IAD will provide an explanation of the denial in writing. The applicant may appeal NMFS' determination following the process at § 660.19.
(4) Effective dates. The provider permit is valid from the effective date identified on the permit until the permit expiration date of December 31 of the following year. Provider permit holders must renew biennially by following the renewal process specified in paragraph (f) of this section.
(5) Expiration of the provider permit —(i) Expiration due to inactivity. After a period of 24 continuous months during which no EM services are provided by the provider in the Pacific coast groundfish fishery, NMFS will issue an IAD describing the intent to expire the provider permit or to remove the appropriate endorsement(s) and the timeline to do so. A provider that receives an IAD may appeal under § 660.19. The provider permit and endorsements will remain valid until a final agency decision is made or until the permit expiration date, whichever is earlier.
(ii) Expiration due to failure to renew. Failure to renew biennially will result in expiration of the provider permit and endorsements on the permit expiration date.
(iii) Invalidation due to lapse in eligibility. NMFS may invalidate an EM service provider permit if NMFS determines that the EM service provider no longer meets the eligibility criteria defined at paragraph (b)(1)(i) of this section. NMFS will first notify the EM service provider of the deficiencies in writing and the EM service provider must correct the deficiencies following the instructions provided. If the deficiencies are not resolved upon review of the first trip following the notification, NMFS will notify the EM service provider in writing that the provider permit is invalid and that the EM service provider is no longer eligible to provide EM services for vessels for the remainder of that calendar year. The EM service provider may reapply for an EM service provider permit and endorsement for the following calendar year.
(iv) Obtaining a new permit or endorsement following an expiration or invalidated permit. A person holding an expired or invalidated permit or endorsement may reapply for a new provider permit or endorsement at any time consistent with paragraph (b) of this section.
(c) Changes to a NMFS-accepted EM Service Plan. An EM service provider may make changes to a NMFS-accepted EM Service Plan by submitting a revised plan or plan addendum to NMFS in writing. NMFS will review and accept the change if it meets all the requirements of this section. A plan addendum must contain:
(1) The date and the name and signature of an authorized agent of the EM service provider;
(2) Address, telephone number, fax number and email address of the person submitting the addendum;
(3) A complete description of the proposed EM Service Plan change.
(d) Change of provider permit ownership and transfer restrictions. If an EM service provider changes ownership during the term of an EM service provider permit, the new owner must apply for a new provider permit.
(e) Provider permit sanctions. Procedures governing sanctions of permits are found at subpart D of 15 CFR part 904.
(f) Renewing a provider permit. To maintain a valid provider permit, provider permit holders must reapply biennially prior to the permit expiration date. NMFS will mail a provider permit application form to existing permit holders on or about July 15 of the year that the permit is due to expire. Providers who want to have their permits effective for January 1 of the following calendar year must submit their complete application form to NMFS by September 1. If a provider fails to renew the provider permit, the provider permit and endorsements will expire on the permit expiration date.
(g) Fees. NMFS may charge a fee to cover administrative expenses related to issuance of permits including initial issuance, renewal, replacement, and appeals.
(h) Limitations on conflict of interest for providers and employees. (1) EM service providers and their employees must not have a direct financial interest, other than the provision of observer, catch monitor, EM, other biological sampling services, VMS, AIS transponders, telemetry (such as product temperature monitoring for seafood safety), buoy and gear monitoring, sonar systems, mandatory safety services ( i.e. GMDSS), or other technical or equipment services, in any Federal or state managed fisheries, including but not limited to:
(i) Any ownership, mortgage holder, or other secured interest in a vessel, first receiver, shorebased or floating stationary processor facility involved in the catching, taking, harvesting or processing of fish;
(ii) Any business involved with selling supplies or services to any vessel, first receiver, shorebased or floating stationary processing facility; or
(iii) Any business involved with purchasing raw or processed products from any vessel, first receiver, shorebased or floating stationary processing facilities.
(2) EM service providers and their employees must not solicit or accept, directly or indirectly, any gratuity, gift, favor, entertainment, loan, employment, or anything of monetary value from any person who conducts fishing or fish processing activities that are regulated by NMFS, or who has interests that may be substantially affected by the performance or nonperformance of the provider's contractual duties.
(3) The EM service provider may not employ any person to handle hard drives or EM data from a vessel by which the person was previously employed in the last two years.
(4) Provisions of contracts or agreements for remuneration of EM services under this section do not constitute a conflict of interest.
(i) Insurance. The EM service provider must maintain sufficient commercial liability insurance to cover bodily injury and property damage caused by their employees while on a contracted vessel and State Worker's Compensation insurance. The EM service provider shall provide copies of these insurance policies to the vessel owner, operator, or vessel manager, when requested.
(j) Warranties. None of the provisions of this section are intended to preclude any state or federal statutes or regulations governing warranties.
(k) Field and technical support services. The EM service provider must provide and manage EM systems, installation, maintenance and technical support, as described below and according to a NMFS-accepted EM Service Plan, which is required under § 660.603(b)(1)(vii), and as described in the EM Program Manual or other written and oral instructions provided by the EM Program, such that the EM program achieves its purpose as defined at § 660.600(b).
(1) At the time of installation, the EM service provider must:
(i) Install an EM system that meets the performance standards under § 660.604(j);
(ii) Ensure that the EM system is set up, wires run, system powered, and tested with the vessel in operation;
(iii) Brief the vessel operator on system operation, maintenance, and procedures to follow for technical support or field service;
(iv) Provide necessary information for the vessel operator to complete the VMP, such as images and diagrams of camera views and vessel layout, specific information about system settings, and designated discard control points; and,
(v) Complete an EM System Certification Form for the vessel owner.
(2) The EM service provider must communicate with vessel operators and NMFS to coordinate service needs, resolve specific program issues, and provide feedback on program operations.
(3) The EM service provider must provide maintenance and support services, including maintaining an EM equipment inventory, such that all deployed EM systems perform according to the performance standards at § 660.604(j) and that field service events are scheduled and carried out with minimal delays or disruptions to fishing activities.
(4) The EM service provider must provide technical assistance to vessels, upon request, in EM system operation, the diagnosis of the cause of malfunctions, and assistance in resolving any malfunctions. Technical support must be available 24-hours per day, seven days per week, and year-round.
(5) The EM service provider must submit to NMFS reports of requests for technical assistance from vessels, including when the call or visit was made, the nature of the issue, and how it was resolved. Reports must be submitted to NMFS within 24 hours of the EM service provider being notified of the request for technical assistance.
(l) Technical assistance and litigation information. As a requirement of its permit, the EM service provider must provide the following to NMFS or authorized officers, upon request.
(1) Assistance in EM system operation, diagnosing and resolving technical issues, and recovering corrupted or lost data.
(2) Responses to inquiries related to data summaries, analyses, reports, and operational issues with vessel representatives.
(3) Technical and expert information, if the EM system/data are being admitted as evidence in a court of law. All technical aspects of a NMFS-approved EM system may be analyzed in court for, inter alia, testing procedures, error rates, peer review, technical processes and general industry acceptance. To substantiate the EM system data and address issues raised in litigation, an EM service provider must provide information, including but not limited to:
(i) If the technologies have previously been subject to such scrutiny in a court of law, a brief summary of the litigation and any court findings on the reliability of the technology.
(ii) [Reserved]
(4) All software necessary for accessing, viewing, and interpreting the data generated by the EM system, including maintenance releases to correct errors in the software or enhance the functionality of the software.
(5) Notification NMFS within 24 hours after the EM service provider becomes aware of the following:
(i) Any information, allegations, or reports regarding possible harassment of EM provider staff;
(ii) Any information, allegations, or reports regarding possible EM system tampering;
(iii) Any information, allegations, or reports regarding any action prohibited under §§ 660.12(f) or 660.602(a)(13); or,
(iv) Any information, allegations or reports regarding EM service provider staff conflicts of interest.
(6) Notification to NMFS of any change of management or contact information or a change to insurance coverage.
(7) A copy of any contract between the service provider and entities requiring EM services;
(8) Proof of sufficient insurance as defined in paragraph (i);
(9) Copies of any information developed and used by the EM service provider and distributed to vessels, including, but not limited to, informational pamphlets, payment notifications, and description of EM service provider duties; and,
(10) EM data and associated meta data, and other records specified in this section.
(m) Data services. For vessels with which it has a contract (see § 660.604(k)), the EM service provider must provide and manage EM data and logbook processing, reporting, and record retention services, as described below and according to a NMFS-approved EM Service Plan, which is required under paragraph (b)(1)(vii) of this section, and as described in the EM Program Manual or other written and oral instructions provided by the EM program, and such that the EM program achieves its purpose as defined at § 660.600(b).
(1) [Reserved]
(2) The EM service provider must ensure that its data processing staff are fully trained in:
(i) Use of data processing software;
(ii) Species identification;
(iii) Fate determination and metadata reporting requirements;
(iv) Data processing procedures;
(v) Data tracking; and,
(vi) Reporting and data upload procedures.
(3) The EM service provider must track hard drives and EM datasets throughout their cycles, including documenting any access and modifications. If end-to-end encryption is not used to protect EM data, EM data must be removed from hard drives or other mediums before returning them to the field.
(4) The EM service provider must communicate with vessel operators and NMFS to coordinate data service needs, resolve specific program issues, and provide feedback on program operations. No later than 60 days from the date of receipt of EM data for processing from the vessel operator, the EM service provider must provide feedback to vessel representatives, field services staff, and NMFS regarding:
(i) Adjustments to system settings;
(ii) Changes to camera positions;
(iii) Advice to vessel personnel on duty of care responsibilities;
(iv) Advice to vessel personnel on catch handling practices; and,
(v) Any other information that would improve the quality and effectiveness of data collection on the vessel.
(5) Submission of data and reports. On behalf of vessels with which it has a contract (see § 660.604(k)), the EM service provider must submit to NMFS logbook data, EM summary reports, including discard estimates, fishing activity information, and meta data ( e.g., image quality, reviewer name), and incident reports of compliance issues according to a NMFS-accepted EM Service Plan, which is required under paragraph (b)(1)(vii) of this section, and as described in the EM Program Manual or other written and oral instructions provided by the EM program, such that the EM program achieves its purpose as defined at § 660.600(b). Logbook data must be submitted to NMFS within 7 business days of receipt from the vessel operator. EM summary reports must be submitted within 60 days of the date the EM data was received by the EM service provider from the vessel operator. If NMFS determines that the information does not meet these standards, NMFS may require the EM service provider to correct and resubmit the datasets and reports.
(6) Retention of records. Following an EM trip, the EM service provider must maintain all of a vessel's EM data and other records specified in this section, or used in the preparation of records or reports specified in this section or corrections to these reports. The EM service provider must maintain EM data for a period of not less than 12 months after NMFS has completed its determination of the total base year IFQ catch for all vessels for end-of-year account reconciliation ( i.e., base year is the year in which the EM trip was taken). NMFS will issue a public notice when end-of-the-year account reconciliation has been completed, on or about March 1 of each year. The EM service provider must maintain summary EM data and other records for a period of not less than three years after the date of landing for that trip. EM data and other records must be stored such that the integrity and security of the records is maintained for the duration of the retention period. The EM service provider must produce EM data and other records immediately upon request by NMFS or an authorized officer.
(n) Data integrity and security. The EM service provider must ensure the integrity and security of vessels' EM data and other records specified in this section. The EM service provider and its employees:
(1) Must not handle or transport hard drives or other medium containing EM data except to carry out EM services required by this section in accordance with a NMFS-accepted EM Service Plan.
(2) Must not write to or modify any EM hard drive or other medium that contains EM data before it has been copied and catalogued.
(3) Must not release a vessel's EM data and other records specified in this section (including documents containing such data and observations or summaries thereof) except to NMFS and authorized officers as provided in paragraph (m)(6) of this section, or as authorized by an authorized representative of the vessel.
§ 660.604   Vessel and first receiver responsibilities.
(a) General. This section lays out the requirements for catcher vessels to obtain an exemption to use EM in place of 100-percent observer coverage required by the Shorebased IFQ Program (§ 660.140(h)(1)(i)) and MS Co-op Program (§ 660.150(j)(1)(i)(B)). Requirements are also described for first receivers receiving landings from EM trips.
(b) Vessel owner responsibilities. To use EM under this section, vessel owners must:
(1) Obtain an EM Authorization from the NMFS West Coast Region Fisheries Permit Office ( see § 660.604(e));
(2) Install an EM system using a NMFS-permitted EM service provider that meets performance standards under § 660.604(j);
(3) Have a signed EM system certification form ( see § 660.604(e)(3)(i));
(4) Have a NMFS-accepted vessel monitoring plan ( see § 660.604(e)(3)(iii));
(5) Ensure that the vessel operator attends a mandatory EM orientation session provided by the NMFS West Coast Region EM Program (NMFS may waive this requirement on a case-by-case basis, such as when the vessel operator has prior EM experience);
(6) Maintain logbooks and other records for three years and provide them to NMFS or authorized officers for inspection ( see § 660.604(t)).
(7) Obtain EM data processing, reporting, and recordkeeping services from a NMFS-permitted EM service provider ( see § 660.604(k)).
(c) Vessel operator responsibilities. To use EM under this section, vessel operators must:
(1) Maintain a valid EM Authorization and NMFS-accepted vessel monitoring plan onboard the vessel at all times that the vessel is fishing on an EM trip or when fish harvested during an EM trip are onboard the vessel;
(2) Ensure that the EM system is installed, operated, and maintained consistent with performance standards ( see § 660.604(l));
(3) Comply with a NMFS-accepted vessel monitoring plan ( see § 660.604(e)(3)(iii);
(4) Make declaration reports to OLE prior to leaving port ( see § 660.604(m));
(5) Provide advance notice to the NMFS WCGOP at least 48 hours prior to departing port ( see § 660.604(n));
(6) Comply with observer requirements, if NMFS notifies the vessel owner, operator, or manager that the vessel is required to carry an observer ( see § 660.604(n));
(7) Ensure retention and handling of all catch as provided under §§ 660.604(p) and 660.604(r); and
(8) Comply with recordkeeping, reporting, and inspection requirements ( see §§ 660.604(o), (s) and (t)).
(d) First receiver responsibilities. First receivers receiving catch from trips taken under EM must follow special disposition and sorting requirements for prohibited and protected species ( see § 660.604(u)).
(e) Electronic Monitoring (EM) Authorization. To obtain an EM Authorization, a vessel owner must submit an initial application to the NMFS West Coast Region Fisheries Permit Office, and then a final application that includes an EM system certification and a vessel monitoring plan (VMP). NMFS will only review complete applications. NMFS will issue a public notice at least 90 calendar days prior to when it will begin accepting applications for EM Authorizations for the first year of the Program. Once NMFS begins accepting applications, vessel owners that want to have their EM Authorizations effective for January 1 of the following calendar year must submit their complete application to NMFS by October 1. Vessel owners that want to have their EM Authorizations effective for the primary whiting season start date must submit their complete application to NMFS by February 1 of the same year.
(1) Initial application. To be considered for an EM Authorization, the vessel owner must:
(i) Submit a completed application form provided by NMFS, signed and dated by an authorized representative of the vessel;
(ii) Meet the following eligibility criteria:
(A) The applicant owns the vessel proposed to be used;
(B) The vessel has a valid Pacific Coast Groundfish limited entry, trawl-endorsed permit registered to it;
(C) The vessel is participating in the Pacific whiting IFQ fishery, mothership sector, or the Shorebased IFQ sector;
(D) The vessel is able to accommodate the EM system, including providing sufficient uninterrupted electrical power, suitable camera mounts, adequate lighting, and fittings for hydraulic lines to enable connection of a pressure transducer;
(E) The vessel owner and operator are willing and able to comply with all applicable requirements of this section and to operate under a NMFS-accepted VMP; and
(F) The vessel owner and operator are willing and able to comply with the terms and conditions of a self-enforcing agreement that was submitted as part of a group authorization application, if applicable.
(iii) If applying for a group EM Authorization, submit a complete proposed self-enforcing agreement that describes how the group's operations will be conducted to meet the requirements of this section. NMFS will develop EM Program Guidelines containing best practices and templates and make them available on NMFS's website to assist vessel owners in developing a self-enforcing agreement. The self-enforcing agreement must include descriptions of the following:
(A) A list of all participating vessels, owners, operators, and other parties;
(B) The name and contact information of a designated representative who will be responsible for ensuring that each vessel is complying with the terms and conditions of the agreement and the requirements of this section, and who will promptly inform the appropriate parties and NMFS if any vessel fails to comply;
(C) Eligibility criteria for participating vessels, owners, and operators;
(D) The roles and responsibilities of participating vessels, owners, operators, the designated representative, and any other parties to the agreement;
(E) Procedures for communication between participating vessels, owners, operators, the designated representative, and any other parties to the agreement, NMFS or its designated agent, and EM service providers, for the execution of the agreement and the requirements of this section;
(F) Performance standards or requirements for equipment, if applicable;
(G) Reporting requirements, if applicable;
(H) Time and area restrictions, if applicable;
(I) Provisions for the use and protection of confidential data necessary for execution of the agreement;
(J) Provisions to encourage or enforce the compliance of members with the agreement and the requirements of this section;
(K) Procedures for addressing the non-compliance of members with the agreement and the requirements of this section, including procedures for restricting or terminating vessel's participation in the agreement;
(L) Procedures for notifying NMFS when a participating vessel or its owner(s) or operator(s) are not complying with the terms of the agreement or the requirements of this section;
(M) Procedures for participating vessels, owners, operators, the designated representative, or other parties to the agreement, to exit the agreement;
(N) Any other provisions that the applicants deem necessary for the execution of the agreement; and
(O) Procedures for the designated representative to submit an annual report to the Council prior to applying to renew a group EM authorization containing information about the group's performance from the previous year, including a description of any actions taken by the self-enforcing group in response to the non-compliance of members with the agreement.
(2) Review of initial application. Based on a complete initial application, if NMFS determines that the applicant meets the eligibility criteria in paragraph (e)(1) of this section, NMFS will notify the applicant in writing that the initial application has been accepted for further consideration. An applicant who receives such notice may install an EM system on his or her vessel and proceed with submission of a final application as provided under paragraph (e)(3) of this section. If an initial application has not been accepted, NMFS will provide the applicant an explanation of the denial in writing. The applicant may appeal NMFS' determination following the process at § 660.25(g).
(3) Final application. A final application must be complete and must include:
(i) EM system certification. A certification form, provided by NMFS, signed by a representative of a NMFS-permitted EM service provider that attests that an EM system and associated equipment that meets the performance standards at paragraph (k) of this section was installed on the vessel, that the system was tested while the vessel was underway, and that the vessel operator was briefed on the EM system operation and maintenance. NMFS will maintain a list of permitted EM service providers on its website.
(ii) Tentative fishing plan. A description of the vessel owner's fishing plans for the year, including which fishery the vessel owner plans to participate in, from what ports, and when the vessel owner intends to use EM and observers. This information is for purposes of planning observer deployments and is not binding.
(iii) Vessel monitoring plan. A complete vessel monitoring plan for the vessel that accurately describes how fishing operations on the vessel will be conducted and how the EM system and associated equipment will be configured to meet the performance standards at paragraph (k) of this section. NMFS will develop EM Program Guidelines containing best practices and templates and make them available on NMFS' website to assist vessel owners in developing VMPs ( see § 660.600(b)). NMFS may consider alternative, but equivalent, methods proposed by EM service providers and vessel owners in their plans to meet the requirements of this subpart, if they achieve the purpose of the EM program. An EM service provider may prepare and submit a VMP on behalf of the applicant. The VMP must include descriptions of the following (using pictures and diagrams where appropriate):
(A) General vessel information including the vessel name, hull number, gear type(s), home port, captain name, and target fishery or sector;
(B) The coordinates of the home port box, if a geo-referenced port box will be used to trigger data collection;
(C) A diagram of the vessel layout with measurements of the deck and denoting the location of any designated discard control points;
(D) The number and location of cameras and with images of corresponding views;
(E) The location of lighting, control center, GPS, sensors, monitor, and other EM equipment;
(F) Frame rates, image resolution, frequency of data logging, sensor trigger threshold values, and other EM system specifications;
(G) The location and procedures for any catch handling, including designated discard control points within camera view, procedures for sorting and measuring discards, the number of crew sorting catch, and what steps will be taken to ensure that all catch remains in camera view;
(H) The measurements of all bins, baskets, compartments, and other tools that will be used to calculate estimates of weight;
(I) The detailed steps that will be taken to minimize the potential for EM system malfunctions and the steps that will be taken, when malfunctions occur, to ensure the adequate monitoring of catch;
(J) The name, address, phone number, and email address of a primary point of contact for vessel operations;
(K) The name, address, and phone number of the vessel's EM service provider, and contact information for a primary point of contact at the EM service provider;
(L) The name, address, phone number, and signature of the applicant, and the date of the application; and,
(M) Any other information required by NMFS.
(iv) Any updates to information submitted in the initial application, including updates to proposed, self-enforcing agreements, if applicable ( see paragraph (e)(5) of this section).
(4) Review of final application. NMFS may request additional information or revisions from the applicant until NMFS is satisfied that the application is complete. Based on a complete application, if NMFS determines that the applicant has met the requirements of this section, NMFS will issue an IAD and an EM Authorization. If the application is denied, the IAD will provide an explanation of the denial in writing. The applicant may appeal NMFS' determination following the process at § 660.25(g). NMFS will evaluate an application based on the EM Program Guidelines ( see § 660.600(b)) and the following criteria, at a minimum:
(i) Review of the vessel owner's and operator's eligibility based on the eligibility criteria at paragraph (e)(1);
(ii) Review of the proposed VMP; and,
(iii) Review of the proposed self-enforcing agreement, if applicable.
(f) Changes to a NMFS-accepted VMP or NMFS-approved self-enforcing agreement. A vessel owner may make changes to a NMFS-accepted VMP by submitting a revised plan or plan addendum to NMFS in writing. A group may make changes to an approved self-enforcing agreement by submitting a revised agreement or agreement addendum to NMFS in writing. NMFS will review and accept the change if it meets all the requirements of this section. A VMP or self-enforcing agreement addendum must contain:
(1) The date and the name and signature of the vessel owner, or designated representative for a self-enforcing agreement;
(2) Address, telephone number, fax number and email address of the person submitting the revised plan or addendum; and
(3) A complete description of the proposed change.
(g) Change in ownership of a vessel. If a vessel changed ownership, the new owner must apply for a new EM Authorization.
(h) Effective dates. (1) The EM Authorization is valid from the effective date identified on the Authorization until the expiration date of December 31. EM Authorization holders must renew annually by following the renewal process specified in paragraph (e) of this section. Failure to renew annually will result in expiration of the EM Authorization and endorsements on the Authorization expiration date.
(2) NMFS may invalidate an EM Authorization if NMFS determines that the vessel, vessel owner, and/or operator no longer meets the eligibility criteria specified at paragraph (e)(1) of this section. NMFS would first notify the vessel owner of the deficiencies in writing and the vessel owner must correct the deficiencies following the instructions provided. If the deficiencies are not resolved upon review of the first trip following the notification, NMFS will notify the vessel owner in writing that the EM Authorization is invalid and that the vessel is no longer exempt from observer coverage at §§ 660.140(h)(1)(i) and 660.150(j)(1)(i)(B) for that authorization period. The holder may reapply for an EM Authorization for the following authorization period.
(3) A vessel owner holding an expired or invalidated authorization may reapply for a new EM Authorization at any time consistent with paragraph (e) of this section.
(i) Renewing an EM Authorization. To maintain a valid EM Authorization, vessel owners must renew annually prior to the permit expiration date. NMFS will mail EM Authorization renewal forms to existing EM Authorization holders each year on or about: September 1 for non-trawl shorebased IFQ vessels and January 1 for Pacific whiting IFQ and MS/CV vessels. Vessel owners who want to have their EM Authorizations effective for January 1 of the following calendar year must submit their complete renewal form to NMFS by October 15. Vessel owners who want to have their EM Authorizations effective for the primary whiting season start date of the following calendar year must submit their complete renewal form to NMFS by February 1.
(j) EM System Performance Standards. The specifications ( e.g., image resolution, frame rate, user interface) and configuration of an EM system and associated equipment ( e.g., number and placement of cameras, lighting) used to meet the requirements of this section must be sufficient to:
(1) Allow easy and complete viewing, identification, and quantification, of catch items discarded at sea, including during low light conditions;
(2) Continuously record vessel location (latitude/longitude coordinates), velocity, course, and sensor data ( i.e, hydraulic and winch activity);
(3) Allow the identification of the time, date, and location of a haul/set or discard event;
(4) Record and store image data from all hauls/sets and the duration that fish are onboard the vessel until offloading begins;
(5) Continuously record and store raw sensor data ( i.e., GPS and gear sensors) for the entire fishing trip;
(6) Prevent radio frequency interference (RFI) with vessel monitoring systems (VMS) and other equipment;
(7) Allow the vessel operator to test and monitor the functionality of the EM system prior to and during the fishing trip to ensure it is fully functional;
(8) Prevent tampering or, if tampering does occur, show evidence of tampering; and,
(9) Provide image and sensor data in a format that enables their integration for analysis.
(k) EM data services. A vessel owner with a valid EM Authorization must obtain EM data processing, reporting, and record retention services from a NMFS-permitted EM service provider, as described at § 660.603(m). If the vessel owner changes EM service providers, the vessel owner must ensure the continuity of EM data retention for the entire duration of the required retention period as specified § 660.603(m)(6). NMFS will maintain a list of permitted EM service providers on its website.
(l) EM system operation and maintenance. The EM system must be recording imagery and sensor data at all times that fish harvested during an EM trip are onboard the vessel until offloading begins. For the purposes of this section, a fully functional EM system is defined as an EM system and associated equipment that meets the performance standards listed in paragraph (j) of this section.
(1) Duties of care. The operator of a vessel with a valid EM Authorization must maintain the EM system in good working order, including:
(i) Ensuring the EM system is powered continuously during the fishing trip;
(ii) Ensuring the system is functioning for the entire fishing trip and that camera views are unobstructed and clear in quality, such that the performance standards listed in paragraph (j) of this section are met; and,
(iii) Ensuring EM system components are not tampered with, disabled, destroyed, operated or maintained improperly.
(2) Pre-departure test. Prior to departing port, the operator of a vessel with a valid EM Authorization must turn the EM system on and conduct a system function test following the instructions from the EM service provider. The vessel operator must verify that the EM system has adequate memory to record the entire trip and that the vessel is carrying one or more spare hard drives with sufficient capacity to record the entire trip.
(3) EM system malfunctions. The operator of a vessel with a valid EM Authorization is prohibited from fishing on an EM trip without a fully functional EM system, unless an alternate arrangement has been specified in the NMFS-accepted VMP. In the event of an EM system malfunction, the vessel operator may voluntarily obtain observer coverage and revise the vessel's declaration following the process at § 660.13(d)(4), in which case the vessel operator is no longer exempt from the observer requirements at §§ 660.140(h) and 660.150(j).
(m) Declaration reports. The operator of a vessel with a valid EM Authorization must make a declaration report to NMFS OLE prior to leaving port following the process described at § 660.13(d)(4). A declaration report will be valid until another declaration report revising the existing gear or monitoring declaration is received by NMFS OLE.
(n) Observer requirements. The operator of a vessel with a valid EM Authorization must provide advanced notice to NMFS, at least 48 hours prior to departing port, of the vessel operator's intent to take a trip under EM, including: vessel name, permit number; contact name and telephone number for coordination of observer deployment; date, time, and port of departure; and the vessel's trip plan, including area to be fished, gear type to be used, and whether the vessel will use maximized or optimized retention rules for the trip as defined at paragraphs (p)(3) and (4) of this section. NMFS may waive this requirement for vessels declared into the Pacific whiting IFQ fishery or mothership sector with prior notice. If NMFS notifies the vessel owner, operator, or manager of any requirement to carry an observer, the vessel may not be used to fish for groundfish without carrying an observer. The vessel operator must comply with the following requirements on a trip that the vessel owner, operator, or manager has been notified is required to carry an observer.
(o) Inspection. The operator of a vessel with a valid EM Authorization must make the EM system and associated equipment available for inspection immediately upon request by NMFS or any authorized officer.
(p) Retention requirements —(1) Pacific whiting IFQ and MS/CV vessels. The operator of a vessel on a declared limited entry midwater trawl, Pacific whiting shorebased IFQ trip or limited entry midwater trawl, Pacific whiting mothership sector (catcher vessel or mothership) trip, EM trip must retain all fish until landing, with exceptions listed in paragraphs (p)(1)(i) through (v) of this section.
(i) Minor operational discards are permitted. Minor operational discards include mutilated fish; fish vented from an overfull codend, fish spilled from the codend during preparation for transfer to the mothership; and fish removed from the deck and fishing gear during cleaning. Minor operational discards do not include discards that result when more catch is taken than is necessary to fill the hold or catch from a tow that is not delivered.
(ii) Large individual marine organisms ( i.e., all marine mammals, sea turtles, and non-ESA-listed seabirds, and fish species longer than 6 ft (1.8 m) in length) may be discarded. For any ESA-listed seabirds that are brought on board, vessel operators must follow any relevant instructions for handling and disposition under § 660.21(c)(1)(v).
(iii) Crabs, starfish, coral, sponges, and other invertebrates may be discarded.
(iv) Trash, mud, rocks, and other inorganic debris may be discarded.
(v) A discard that is the result of an event that is beyond the control of the vessel operator or crew, such as a safety issue or mechanical failure, is permitted.
(2) Non-trawl shorebased IFQ. A vessel operator on a declared limited entry groundfish non-trawl, shorebased IFQ trip must retain all salmon and must discard Dungeness crab caught seaward of Washington or Oregon, Pacific halibut, green sturgeon, eulachon, sea turtles, and marine mammals. All other catch may be discarded following instructions in the VMP, except as required by the Seabird Avoidance Program at § 660.21(c)(1)(v).
(3) Maximized retention bottom trawl and non-whiting midwater trawl trips. A vessel operator on a declared maximized retention trip using bottom trawl gear, or midwater trawl gear in which Pacific whiting constitutes less than 50 percent of the catch by weight at landing, the vessel must not sort catch at sea and must retain all catch until landing, with exceptions listed below in paragraphs (p)(3)(i) through (v) of this section. All discards must be discarded following instructions in the VMP per paragraph (e)(3)(iii) of this section. All discards, regardless of the source, must be reported in a discard logbook, as defined at § 660.604(s)(1), including the species (where possible), estimated weight, and reason for discard. The vessel operator is responsible for ensuring that all catch is handled in a manner that enables the EM system to record it.
(i) Minor operational discards are permitted. Minor operational discards include mutilated fish; fish vented from an overfull codend; and fish removed from the deck and fishing gear during cleaning. Minor operational discards do not include discards that result when more catch is taken than is necessary to fill the hold or catch from a tow that is not delivered.
(ii) Large individual marine organisms ( i.e., all marine mammals, sea turtles, and non-ESA-listed seabirds, and fish species longer than 6 ft (1.8 m) in length) may be discarded. For any ESA-listed seabirds that are brought on board, vessel operators must follow any relevant instructions for handling and disposition under § 660.21(c)(1)(v).
(iii) Crabs, starfish, coral, sponges, and other invertebrates may be discarded.
(iv) Trash, mud, rocks, and other inorganic debris may be discarded.
(v) A discard that is the result of an event that is beyond the control of the vessel operator or crew, such as a safety issue or mechanical failure, is permitted.
(4) Optimized retention bottom trawl and non-whiting midwater trawl trips. On a declared optimized retention trip using bottom trawl gear, or midwater trawl gear in which Pacific whiting constitutes less than 50 percent of the catch by weight at landing, the vessel owner and operator are responsible for the following:
(i) The vessel must retain IFQ species (as defined at § 660.140(c)), except for Arrowtooth flounder, English sole, Dover sole, deep sea sole, Pacific sanddab, Pacific whiting, lingcod, sablefish, starry flounder, and rex sole; must retain salmon and eulachon; and must retain the following non-IFQ species: Greenland turbot, slender sole, hybrid sole, c-o sole, bigmouth sole, fantail sole, hornyhead turbot, spotted turbot, northern rockfish, black rockfish, blue rockfish, shortbelly rockfish, olive rockfish, Puget Sound rockfish, semaphore rockfish, walleye pollock, slender codling, and Pacific tom cod, with exceptions listed in paragraphs (p)(4)(i)(A) and (B) of this section.
(B) A discard that is the result of an event that is beyond the control of the vessel operator or crew, such as a safety issue or mechanical failure, is permitted.
(ii) The vessel must discard Pacific halibut, green sturgeon, California halibut (except as allowed by state regulations), and nearshore groundfish species below state commercial minimum size limits, following instructions in the NMFS-accepted VMP.
(iii) Incidentally caught marine mammals, non-ESA-listed seabirds, sea turtles, other ESA-listed fish, and Dungeness crab caught seaward of Washington or Oregon or south of Point Reyes, California, as described at § 660.11 Prohibited species, must be discarded following instructions in the NMFS-accepted VMP per paragraph (e)(3)(iii) of this section. For any ESA-listed seabirds that are brought on board, vessel operators must follow any relevant instructions for handling and disposition under § 660.21(c)(1)(v).
(iv) Crabs, starfish, coral, sponges, and other invertebrates may be discarded.
(v) Trash, mud, rocks, and other inorganic debris may be discarded.
(vi) All discards must be discarded following instructions in the VMP per paragraph (e)(3)(iii) of this section. All discards, regardless of the source, must be reported in a discard logbook, as defined at § 660.604(s)(1), including the species (where possible), estimated weight, and reason for discard. The vessel operator is responsible for ensuring that all catch is handled in a manner that enables the EM system to record it.
(q) Changes to retention requirements. NMFS may specify alternate retention requirements in a NMFS-accepted VMP through the process described in paragraph (f) of this section, after consultation with the Council and issuance of a public notice notifying the public of the changes. Alternate retention requirements must be sufficient to provide NMFS with the best available information to determine individual accountability for catch, including discards, of IFQ species and compliance with requirements of the Shorebased IFQ Program (§ 660.140) and MS Co-op Program (§ 660.150).
(r) Catch handling. The vessel operator of a vessel on an EM trip must ensure that all catch is handled in a manner that enables the EM system to record it and that is consistent with the specific catch handling instructions in the NMFS-accepted VMP.
(s) Reporting requirements —(1) Discard logbook. The operator of a vessel with a valid EM Authorization must complete, submit, and maintain onboard the vessel an accurate federal discard logbook for each EM trip on forms supplied by or approved by NMFS. If authorized in writing by NMFS, a vessel owner or operator may submit reports electronically, for example by using a VMS or other media. A state logbook that contains all the required information may be submitted in place of a federal discard logbook. If operating an MS/CV vessel, the vessel operator must provide logbook information to the mothership observer by transmitting the logbook information via radio or email to the mothership at the completion of each haul.
(2) Submission of logbooks. Vessel operators must submit copies of the discard logbooks as described at § 660.604(s)(1) and if applicable, the trawl logbook as described at § 660.13 (a)(1), to the vessel owner's contracted EM service provider and to NMFS or its agent within 24 hours of the end of each EM trip.
(3) Submission of EM data. Vessel operators must submit EM data to the vessel owner's contracted EM service provider using a method that documents time, date, and location of transmission and receipt. Deadlines for submission are as follows:
(i) Shorebased IFQ vessels. EM data from an EM trip must be submitted within 72 hours after the beginning of the offload (and no more than 10 days after the end of the first trip on the hard drive).
(ii) Mothership catcher vessels. EM data from an EM trip must be submitted within 72 hours of the catcher vessel's return to port.
(t) Retention of records. The operator of a vessel with a valid EM Authorization must maintain federal discard logbooks onboard the vessel until the end of the fishing year during which the EM trips were conducted, and make the report forms available to observers, NMFS staff, or authorized officers, immediately upon request. The vessel owner must maintain the federal discard logbooks and other records specified in this section, or used in the preparation of records or reports specified in this section or corrections to these reports, for a period of not less than three years after the date of landing from an EM trip. The vessel owner must make such records available for inspection by NMFS staff or authorized officers, immediately upon request.
(u) First receiver requirements —(1) Prohibited species handling and disposition. To ensure compliance with fishery regulations at 50 CFR part 300, subparts E and F, and part 600, subpart H; with the Pacific Salmon Fishery Management Plan; and with the Pacific Halibut Catch Share Plan; the handling and disposition of all prohibited species in EM trip landings are the responsibility of the first receiver and must be consistent with the following requirements:
(i) Any prohibited species landed at first receivers must not be transferred, processed, or mixed with another landing until the catch monitor has: Recorded the number and weight of salmon by species; inspected all prohibited species for tags or marks; and, collected biological data, specimens, and genetic samples.
(ii) No part of any prohibited species may be retained for personal use by a vessel owner or crew member, or by a first receiver or processing crew member. No part of any prohibited species may be allowed to reach commercial markets.
(iii) Prohibited species suitable for human consumption at landing must be handled and stored to preserve the quality. Priority in disposition must be given to the donation to surplus food collection and distribution system operated and established to assist in bringing donated food to nonprofit charitable organizations and individuals for the purpose of reducing hunger and meeting nutritional needs.
(iv) The first receiver must report all prohibited species landings on the electronic fish ticket and is responsible for maintaining records verifying the disposition of prohibited species. Records on catch disposition may include, but are not limited to: Receipts from charitable organizations that include the organization's name and amount of catch donated; cargo manifests setting forth the origin, weight, and destination of all prohibited species; or disposal receipts identifying the recipient organization and amount disposed. Any such records must be maintained for a period not less than three years after the date of disposal and such records must be provided to NMFS or authorized officers immediately upon request.
(2) Protected Species handling and disposition. All protected species must be abandoned to NMFS or the U.S. Fish and Wildlife Service or disposed of consistent with paragraphs (u)(2)(i) and (ii) of this section. No part of any protected species may be retained for personal use by a vessel owner or crew member, or by a first receiver or processing crew member. No part of any protected species may be allowed to reach commercial markets.
(i) Eulachon and green sturgeon. Must be sorted and reported by species on electronic fish tickets and state landing receipts and may not be reported in unspecified categories. Whole body specimens of green sturgeon must be retained, frozen, stored separately by delivery, and labeled with the vessel name, electronic fish ticket number, and date of landing. Arrangements for transferring the specimens must be made by contacting NMFS Southwest Fisheries Science Center at 831-420-3903 within 72 hours after the completion of the offload.
(ii) Seabirds, marine mammals, and sea turtles. Albatross must reported to the U.S. Fish and Wildlife Service (541-867-4558 extension 237 or 503-231-6179 as soon as possible and directions for surrendering must be followed. Marine mammals and sea turtles must be reported to NMFS as soon as possible (206-526-6550) and directions for surrendering or disposal must be followed. Whole body specimens must be labeled with the vessel name, electronic fish ticket number, and date of landing. Whole body specimens must be kept frozen or on ice until arrangements for surrendering or disposing are completed. Unless directed otherwise, after reporting is completed, seabirds, marine mammals, and sea turtles may be disposed by incinerating, rendering, composting, or returning the carcasses to sea.
§ 660.701   Purpose and scope.
This subpart implements the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (FMP). These regulations govern commercial and recreational fishing for HMS in the U.S. EEZ off the coasts of Washington, Oregon, and California and in adjacent high seas waters.
§ 660.702   Definitions.
Basket-style longline gear means a type of longline gear that is divided into units called baskets, each consisting of a segment of main line to which 10 or more branch lines with hooks are spliced. The mainline and all branch lines are made of multiple braided strands of cotton, nylon, or other synthetic fibers impregnated with tar or other heavy coatings that cause the lines to sink rapidly in seawater.
Change in ownership means the addition of a new shareholder or partner to the membership of the corporation, partnership, or other entity. A change in ownership is not considered to have occurred if a member dies or becomes legally incapacitated and a trustee is appointed to act on their behalf, nor if the ownership of shares among existing members changes, nor if a member leaves the corporation or partnership or other entity and is not replaced. A change in ownership is not considered to have occurred if only the name of the entity changes.
Closure, when referring to closure of a fishery, means that taking and retaining, possessing, or landing the particular species or species group is prohibited.
Commercial fishing means:
(1) Fishing by a person who possesses a commercial fishing license or is required by law to possess such license issued by one of the states or the Federal Government as a prerequisite to taking, retaining, possessing, landing and/or selling of fish; or
(2) Fishing that results in or can be reasonably expected to result in sale, barter, trade, or other disposition of fish for other than personal consumption.
Commercial fishing gear includes the following types of gear and equipment used in the highly migratory species fisheries:
(1) Deep-set buoy gear. Line fishing gear which consists of vertical mainlines suspended from a buoy array, with gangions with hooks attached to either a vertical line or a horizontal line connected to the terminal ends of two vertical lines. All configurations must be set at or below a minimum depth and actively tended;
(2) Drift gillnet. A panel of netting, 14 inch (35.5 cm) stretched mesh or greater, suspended vertically in the water by floats along the top and weights along the bottom. A drift gillnet is not stationary or anchored to the bottom;
(3) Harpoon. Gear consisting of a pointed dart or iron attached to the end of a pole or stick that is propelled only by hand and not by mechanical means;
(4) Pelagic longline. A main line that is suspended horizontally in the water column and not stationary or anchored, and from which dropper lines with hooks (gangions) are attached. Legal longline gear also includes basket-style longline gear;
(5) Purse seine. An encircling net that may be closed by a purse line threaded through the bottom of the net. Purse seine gear includes ring net, drum purse seine, and lampara nets; and
(6) Surface hook-and-line. Fishing gear, other than longline gear, with one or more hooks attached to one or more lines (includes troll, rod and reel, handline, albacore jig, live bait, and bait boat). Surface hook and line is always attached to the vessel.
Council means the Pacific Fishery Management Council, including its Highly Migratory Species Management Team (HMSMT), Scientific and Statistical Committee (SSC), Highly Migratory Species Advisory Subpanel (HMSAS), and any other committee established by the Council.
Family member for the purposes of change in ownership of limited entry deep-set buoy gear permits means spouse, domestic partner, cohabitant, child, stepchild, grandchild, parent, stepparent, mother-in-law, father-in-law, son-in-law, daughter-in-law, grandparent, great-grandparent, brother, sister, half-brother, half-sister, stepsibling, brother-in-law, sister-in-law, aunt, uncle, niece, nephew, or first cousin.
Fishing trip is a period of time between landings when fishing is conducted.
Fishing year is the year beginning at 0801 GMT (0001 local time) on April 1 and ending at 0800 GMT on March 31 (2400 local time) of the following year.
Force majeure means an event of extraordinary circumstances including the death of a vessel owner or operator, or when a designated vessel at sea (except while transiting between ports on a trip during which no fishing operations occur) is disabled by mechanical or structure failure, fire, or explosion, or the designated vessel is totally lost.
Harvest guideline means a specified numerical harvest objective that is not a quota. Attainment of a harvest guideline does not require closure of a fishery.
Highly Migratory Species (HMS) means species managed by the FMP, specifically:
Highly Migratory Species Advisory Subpanel (HMSAS) means the individuals comprised of members of the fishing industry and public appointed by the Council to review proposed actions for managing highly migratory species fisheries.
Highly Migratory Species Fishery Management Plan (FMP) means the Fishery Management Plan for the U.S. West Coast Fisheries for Highly Migratory Species developed by the Pacific Fishery Management Council and approved by the Secretary of Commerce and amendments to the FMP.
Highly Migratory Species Management Team (HMSMT) means the individuals appointed by the Council to review, analyze, and develop management measures for highly migratory species fisheries.
Incidental catch or incidental species means HMS caught while fishing for the primary purpose of catching other species with gear not authorized by the FMP.
Initial administrative determination (IAD) means a formal, written determination made by National Marine Fisheries Service (NMFS) on an application or permit request that is subject to an appeal within NMFS.
Injury, when referring to marine mammals and sea turtles, means the animal has been released with obvious physical injury or with attached fishing gear.
Land or landing means offloading fish from a fishing vessel or arriving in port to begin offloading fish or causing fish to be offloaded from a fishing vessel.
Mesh size means the opening between opposing knots in a net. Minimum mesh size means the smallest distance allowed between the inside of one knot to the inside of the opposing knot when the mesh is stretched, regardless of twine size.
Offloading means removing HMS from a vessel.
Ownership interest means participation in ownership of a corporation, partnership, or other entity that owns a limited entry deep-set buoy gear permit.
Permit holder means a permit owner.
Permit owner means a person who owns an HMS permit for a specific vessel fishing with specific authorized fishing gear.
Person, as it applies to fishing conducted under this subpart, means any individual, corporation, partnership, association or other entity (whether or not organized or existing under the laws of any state), and any Federal, state, or local government, or any entity of any such government that is eligible to own a documented vessel under the terms of 46 U.S.C. 12102(a).
Processing or to process means the preparation or packaging of HMS to render it suitable for human consumption, industrial uses or long-term storage, including, but not limited to, cooking, canning, smoking, salting, drying, filleting, freezing, or rendering into meal or oil, but does not mean heading and gutting or freezing at sea unless additional preparation is done.
Prohibited species means any highly migratory species for which quotas or catch limits under the FMP have been achieved and the fishery closed; salmon; great white shark; basking shark; megamouth shark; and Pacific halibut.
Quota means a specified numerical harvest objective, the attainment (or expected attainment) of which causes closure of the fishery for that species or species group.
Recreational charter vessel means a vessel that carries fee-paying passengers for the purpose of recreational fishing.
Recreational fishing means fishing with authorized recreational fishing gear for personal use only and not for sale or barter.
Regional Administrator means the Regional Administrator for the West Coast Region, National Marine Fisheries Service, or a designee.
Special Agent-In-Charge (SAC) means the Special Agent-In-Charge, NMFS, Office of Enforcement, West Coast Division, or a designee of the Special Agent-In-Charge.
Sustainable Fisheries Division (SFD) means the Assistant Regional Administrator for Sustainable Fisheries, West Coast Region, NMFS, or his or her designee.
Totally lost means the vessel being replaced no longer exists in specie, or is absolutely and irretrievably sunk, or the costs of repair (including recovery) will exceed the value of the vessel after repairs.
Tranship means offloading or otherwise transferring HMS or products thereof to a receiving vessel.
Vessel monitoring system unit (VMS unit) means an automated, remote system and mobile transceiver unit that is approved by NMFS and provides information about a vessel's identity, location, and activity for the purposes of routine monitoring, control, surveillance and enforcement of area and time restrictions and other fishery management measures.
§ 660.703   Management area.
The fishery management area for the regulation of fishing for HMS has the following designations and boundaries:
(a) Southern boundary—the United States-Mexico International Boundary, which is a line connecting the following coordinates:
32°35′22″ N. lat. 117°27′49″ W. long.
32°37′37″ N. lat. 117°49′31″ W. long.
31°07′58″ N. lat. 118°36′18″ W. long.
30°32′31″ N. lat. 121°51′58″ W. long.
(b) Northern boundary—the United States-Canada Provisional International Boundary, which is a line connecting the following coordinates:
48°29′37.19″ N. lat. 124°43′33.19″ W. long.
48°30′11″ N. lat. 124°47′13″ W. long.
48°30′22″ N. lat. 124°50′21″ W. long.
48°30′14″ N. lat. 124°54′52″ W. long.
48°29′57″ N. lat. 124°59′14″ W. long.
48°29′44″ N. lat. 125°00′06″ W. long.
48°28′09″ N. lat. 125°05′47″ W. long.
48°27′10″ N. lat. 125°08′25″ W. long.
48°26′47″ N. lat 125°09′12″ W. long.
48°20′16″ N. lat. 125°22′48″ W. long.
48°18′22″ N. lat. 125°29′58″ W. long.
48°11′05″ N. lat. 125°53′48″ W. long.
47°49′15″ N. lat. 126°40′57″ W. long.
47°36′47″ N. lat. 127°11′58″ W. long.
47°22′00″ N. lat. 127°41′23″ W. long.
46°42′05″ N. lat. 128°51′56″ W. long.
46°31′47″ N. lat. 129°07′39″ W. long.
(c) Adjacent waters on the high seas in which persons subject to this subpart may fish.
§ 660.704   Vessel identification.
(a) Applicability. This section only applies to commercial fishing vessels that fish for HMS off, or land HMS in the States of California, Oregon, and Washington. This section does not apply to recreational charter vessels that fish for HMS off or land HMS in the States of California, Oregon, and Washington. Each fishing vessel must be marked for identification purposes, as follows:
(1) A vessel used to fish on the high seas within the Convention Area as defined in § 300.211 of this title must be marked in accordance with the requirements at §§ 300.14 and 300.217 of this title.
(2) A vessel not used to fish on the high seas within the Convention Area as defined in § 300.211 of this title must be marked in accordance with either:
(i) Sections 300.14 and 300.217 of this title, or
(ii) The vessel's official number must be affixed to the port and starboard sides of the deckhouse or hull, and on an appropriate weather deck so as to be visible from enforcement vessels and aircraft. The official number must be affixed to each vessel subject to this section in block Arabic numerals at least 10 inches (25.40 cm) in height for vessels more than 25 ft (7.62 m) but equal to or less than 65 ft (19.81 m) in length; and 18 inches (45.72 cm) in height for vessels longer than 65 ft (19.81 m) in length. Markings must be legible and of a color that contrasts with the background.
(b) [Reserved]
§ 660.705   Prohibitions.
In addition to the general prohibitions specified in § 600.725 of this chapter, it is unlawful for any person to do any of the following:
(a) Fish for HMS in the U.S. EEZ off the Pacific coast without a permit issued under § 660.707 for the use of authorized fishing gear.
(b) Fish with gear in any closed area specified in this subpart that prohibits the use of such gear.
(c) Land HMS at Pacific coast ports without a permit issued under § 600.707 for the use of authorized fishing gear.
(d) Sell HMS without an applicable commercial state fishery license.
(e) When fishing for HMS, fail to return a prohibited species to the sea immediately with a minimum of injury, except under the following circumstances:
(1) Any prohibited species may be retained for examination by an authorized observer or to return tagged fish as specified by the tagging agency.
(2) Salmon may be retained if harvested in accordance with subpart H of this part, and other applicable law.
(3) Great white sharks, basking sharks, and megamouth sharks may be retained if incidentally caught and subsequently sold or donated to a recognized scientific or educational organization for research or display purposes.
(4) Pacific halibut may be retained if harvested in accordance with part 300, subpart E of this Title, and other applicable law.
(f) Falsify or fail to affix and maintain vessel markings as required by § 660.704.
(g) Fish for HMS in violation of any terms or conditions attached to an exempted fishing permit issued under § 600.745 of this chapter.
(h) When a directed fishery has been closed for a specific species, take and retain, possess, or land that species after the closure date.
(i) Refuse to submit fishing gear or fish subject to such person's control to inspection by an authorized officer, or to interfere with or prevent, by any means, such an inspection.
(j) Falsify or fail to make and/or file any and all reports of fishing, landing, or any other activity involving HMS, containing all data, and in the exact manner, required by the applicable state law, as specified in § 660.708(b).
(k) Fail to carry aboard a vessel that vessel's permit issued under § 660.707 or exempted fishing permit issued under § 660.718, except if the permit was issued while the vessel was at sea.
(l) Fail to install, activate, repair, replace, carry, operate or maintain a VMS unit as required under § 660.712 and § 660.713.
(m) Interfere with, tamper with, alter, damage, disable, or impede the operation of a VMS unit or to attempt any of the same; or to move or remove a VMS unit without the prior permission of the SAC.
(n) Make a false statement, oral or written, to an authorized officer, regarding the use, operation, or maintenance of a VMS unit.
(o) Fish for, catch, or harvest HMS with longline or drift gillnet gear without an operating VMS unit on board the vessel after installation of the VMS unit.
(p) Possess on board a vessel without an operating VMS unit HMS harvested with longline or drift gillnet gear after installation of the VMS unit.
(q) Direct fishing effort toward the harvest of swordfish ( Xiphias gladius ) using longline gear deployed west of 150° W. long. and north of the equator (0° lat.) on a vessel registered for use of longline gear in violation of § 660.712(a)(1).
(r) Possess a light stick on board a longline vessel when fishing west of 150° W. long. and north of the equator (0° lat.) in violation of § 660.712(a)(6)
(s) If no observer is on the vessel and J-type fishing hooks are used, possess more than 10 swordfish; if no observer on the vessel and only circle-type fishing hooks are used, possess more than 25 swordfish on board a longline vessel from a fishing trip where any part of the trip included fishing west of 150° W. long. and north of the equator (0° lat.) in violation of § 660.712(a)(9).
(t) Interfere with, impede, delay, or prevent the installation, maintenance, repair, inspection, or removal of a VMS unit.
(u) Interfere with, impede, delay, or prevent access to a VMS unit by a NMFS observer.
(v) Connect or leave connected additional equipment to a VMS unit without the prior approval of the SAC.
(w) Fish for HMS with a vessel registered for use of longline gear within closed areas or by use of unapproved gear configurations in violation of § 660.712(a)(2), (a)(3), (a)(7), (a)(8), or (a)(9).
(x) Fail to use a line setting machine or line shooter, with weighted branch lines, to set the main longline when operating a vessel that is registered for use of longline gear and equipped with monofilament main longline, when making deep sets north of 23° N. lat. in violation of § 660.712(c)(1)(i) and (c)(1)(ii).
(y) Fail to employ basket-style longline gear such that the mainline is deployed slack when operating a vessel registered for use of longline gear north of 23° N. lat. in violation of § 660.712 (c)(1)(iii).
(z) Fail to maintain and use blue dye to prepare thawed bait when operating a vessel registered for use of longline gear that is fishing north of 23° N. lat., in violation of § 660.712(c)(2) and (c)(3).
(aa) Fail to retain, handle, and discharge fish, fish parts, and spent bait strategically when operating a vessel registered for use of longline gear that is fishing north of 23° N. lat. in violation of § 660.712 (c)(4) through (c)(7).
(bb) Fail to handle short-tailed albatrosses that are caught by pelagic longline gear in a manner that maximizes the probability of their long-term survival, in violation of § 660.712(c)(8).
(cc) Fail to handle seabirds other than short-tailed albatross that are caught by pelagic longline gear in a manner that maximizes the probability of their long-term survival in violation of § 660.712(c)(17).
(dd) Own a longline vessel registered for use of longline gear that is engaged in longline fishing for HMS without a valid protected species workshop certificate issued by NMFS or a legible copy thereof in violation of § 660.712(e)(3).
(ee) Fish for HMS on a vessel registered for use of longline gear without having on board a valid protected species workshop certificate issued by NMFS or a legible copy thereof in violation of § 660.712(e).
(ff) Fail to carry line clippers, dip nets, and wire or bolt cutters on a vessel registered for use as a longline vessel in violation of § 660.712(b).
(gg) Fail to comply with sea turtle handling, resuscitation, and release requirements specified in § 660.712(b)(4) through (7) when operating a vessel.
(hh) Fail to comply with seabird take mitigation or handling techniques required under § 660.712(c)
(ii) Fish for HMS with a vessel registered for use as a longline vessel without being certified by NMFS for completion of an annual protected species workshop as required under § 660.712(e).
(jj) Fail to notify the Regional Administrator at least 24 hours prior to departure on a fishing trip using longline gear as required under § 660.712(f).
(kk) Except when fishing under a western Pacific longline limited entry permit issued under § 660.21, direct fishing effort toward the harvest of swordfish or fail to have and use gear in waters west of 150° W. long. in violation of § 660.720.
(ll) Except when fishing under a western Pacific longline limited entry permit issued under § 660.21, possess a light stick on board a longline vessel on the high seas of the Pacific Ocean west of 150° W. long. north of the equator in violation of § 660.720 (a)(ii).
(mm) Except when fishing under a western Pacific longline limited entry permit issued under § 660.21, possess more than 10 swordfish on board a longline vessel from a fishing trip where any part of the trip included fishing on the high seas of the Pacific Ocean west of 150° W. long. north of the equator in violation of § 660.720(a)(3).
(nn) Except when fishing under a western Pacific longline limited entry permit issued under § 660.21, fail to employ basket-style longline gear such that the mainline is deployed slack when fishing on the high seas of the Pacific Ocean west of 150° W. long. north of the equator, in violation of § 660.720 (a)(iv).
(oo) Except when fishing under a western Pacific longline limited entry permit issued under § 660.21, when a conventional monofilament longline is deployed by a vessel subject to this section, deploy fewer than 15 branch lines between any two floats, in violation of § 660.720 (a)(v). Vessel operators using basket-style longline gear may not set less than 10 branch lines between any 2 floats when fishing in waters west of 150° W. long. north of the equator.
(pp) Except when fishing under a western Pacific longline limited entry permit issued under § 660.21, fail to deploy longline gear such that the deepest point of the main longline between any two floats, i.e., the deepest point in each sag of the main line, is at a depth greater than 100 m (328.1 ft or 54.6 fm) below the sea surface, in violation of § 660.720 (a)(vi).
(qq) Take and retain, possess on board, or land, fish in excess of any bag limit specified in § 660.721.
(rr) Fail to notify NMFS or the NMFS-designated observer provider at least 48 hours prior to departure on a fishing trip using drift gillnet gear as required under § 660.713.
(ss) Fail to submit a declaration report to the NMFS Office of Law Enforcement prior to departure on a fishing trip using drift gillnet gear as required under § 660.713.
(tt) Fish with a large-mesh drift gillnet (mesh size ≥ 14 inches) in the U.S. West Coast Exclusive Economic Zone during the time the fishery is closed pursuant to § 660.713(h)(2)(ii).
(uu) Retain on board, transship, or land any fish caught with a large-mesh drift gillnet (mesh size ≥ 14 inches) later than 4 days after the effective date of a drift gillnet fishery closure and before the drift gillnet fishery re-opens pursuant to § 660.713(h)(2)(ii).
(vv) Deploy or have onboard a vessel, deep-set buoy gear (DSBG) in contravention of gear configuration specifications described at § 660.715(a) and (b).
(ww) Own or operate a vessel used to fish with DSBG in contravention of operational requirements specified at § 660.715(c)(1) and (2).
(xx) When required under § 660.715(c)(3), fail to notify NMFS or the NMFS-designated observer provider at least 48 hours prior to departure on a fishing trip during which DSBG is deployed.
(yy) Own or operate a vessel that is engaged in DSBG fishing without record of the operator's participation in a protected species workshop as required under § 660.715(c)(4).
(zz) Own or operate a vessel used to fish with DSBG in Federal waters north of a line extending seaward of the Oregon/Washington border at 46°16′ N latitude.
(aaa) Own or operate a vessel used to fish with DSBG in the Southern California Bight (as defined at § 660.715(d)(2)) while not in possession of a valid DSBG limited entry permit.
(bbb) Own or operate a vessel used to fish a linked configuration of DSBG shoreward of a line approximating the 400 meter depth contour (according to coordinates specified at § 660.715(d)(3)) in waters between a line extending seaward at 34°16′8.331″ N latitude and a line extending seaward from the Oregon/Washington border at 46°16′ N latitude.
§ 660.706   Pacific Coast Treaty Indian rights.
(a) Pacific Coast treaty Indian tribes have treaty rights to harvest HMS in their usual and accustomed (U&A) fishing areas in the EEZ.
(b) Pacific Coast treaty Indian tribes means the Hoh, Makah, and Quileute Indian Tribes and the Quinault Indian Nation.
(c) The Pacific Coast treaty Indian tribes' U&A fishing areas within the EEZ are set forth in § 660.4 of this chapter.
(d) Procedures. The rights referred to in paragraph (a) of this section will be implemented by the Secretary of Commerce, after consideration of the tribal request, the recommendation of the Council, and the comments of the public. The rights will be implemented either through an allocation of fish that will be managed by the tribes, or through regulations that will apply specifically to the tribal fisheries. An allocation or a regulation specific to the tribes shall be initiated by a written request from a Pacific Coast treaty Indian tribe to the NMFS West Coast Regional Administrator, at least 120 days prior to the time the allocation is desired to be effective, and will be subject to public review through the Council process. The Secretary of Commerce recognizes the sovereign status and co-manager role of Indian tribes over shared Federal and tribal fishery resources. Accordingly, the Secretary of Commerce will develop tribal allocations and regulations in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.
(e) Identification. A valid treaty Indian identification card issued pursuant to 25 CFR part 249, subpart A, is prima facie evidence that the holder is a member of the Pacific Coast treaty Indian tribe named on the card.
(f) Fishing (on a tribal allocation or under a Federal regulation applicable to tribal fisheries) by a member of a Pacific Coast treaty Indian tribe within that tribe's U&A fishing area is not subject to provisions of the HMS regulations applicable to non-treaty fisheries.
(g) Any member of a Pacific Coast treaty Indian tribe must comply with any applicable Federal and tribal laws and regulations, when participating in a tribal HMS fishery implemented under paragraph (d) of this section.
(h) Fishing by a member of a Pacific Coast treaty Indian tribe outside that tribe's U&A fishing area, or for a species of HMS not covered by a treaty allocation or applicable Federal regulation, is subject to the HMS regulations applicable to non-treaty fisheries.
§ 660.707   Permits.
(a) General. This section applies to vessels that fish for HMS off or land HMS in the States of California, Oregon, and Washington.
(1) A commercial fishing vessel of the United States must be registered for use under a general HMS permit that authorizes the use of specific gear, and a recreational charter vessel must be registered for use under a HMS permit if that vessel is used:
(i) To fish for HMS in the U.S. EEZ off the States of California, Oregon, and Washington; or
(ii) To land or transship HMS shoreward of the outer boundary of the U.S. EEZ off the States of California, Oregon, and Washington.
(2) The permit must be on board the vessel and available for inspection by an authorized officer, except that if the permit was issued while the vessel was at sea, this requirement applies only to any subsequent trip.
(3) A permit is valid only for the vessel for which it is registered. A permit not registered for use with a particular vessel may not be used.
(4) Only a person eligible to own a documented vessel under the terms of 46 U.S.C. 12102(a) may be issued or may hold (by ownership or otherwise) a general HMS permit.
(b) Application. (1) Following publication of the final rule implementing the FMP, NMFS will issue general HMS permits to the owners of those vessels on a list of vessels obtained from owners previously applying for a permit under the authority of the High Seas Fishing Compliance Act, the Tuna Conventions Act of 1950, the Marine Mammal Protection Act, and the Fishery Management Plan for Pelagic Fisheries of the Western Pacific Region, or whose vessels are listed on the vessel register of the Inter-American Tropical Tuna Commission.
(2) All permits issued by NMFS in accordance with paragraph (b)(1) of this section will authorize the use of specific fishing gear by the identified commercial fishing vessels.
(3) An owner of a vessel subject to these requirements who has not received a permit under this section from NMFS and who wants to engage in the fisheries must apply to the SFD for the required permit in accordance with the following:
(i) A West Coast Region Federal Fisheries application form may be obtained from the West Coast Region Fisheries Permits Office or downloaded from the West Coast Region website to apply for a permit under this section. A completed application is one that contains all the necessary information, and required fees, documentation, and signatures.
(ii) A minimum of 15 days should be allowed for processing a permit application. If an incomplete or improperly completed application is filed, the applicant will be sent a notice of deficiency. If the applicant fails to correct the deficiency within 30 days following the date of notification, the application will be considered abandoned.
(iii) A permit will be issued by the SFD. If an application is denied, the SFD will indicate the reasons for denial.
(iv)(A) Any applicant for an initial permit may appeal the initial issuance decision to the Regional Administrator. To be considered by the Regional Administrator, such appeal must be in writing and state the reasons for the appeal, and must be submitted within 30 days of the action by the Regional Administrator. The appellant may request an informal hearing on the appeal.
(B) Upon receipt of an appeal authorized by this section, the Regional Administrator will notify the permit applicant, or permit holder as appropriate, and will request such additional information and in such form as will allow action upon the appeal.
(C) Upon receipt of sufficient information, the Regional Administrator will decide the appeal in accordance with the permit provisions set forth in this section at the time of the application, based upon information relative to the application on file at NMFS and the Council and any additional information submitted to or obtained by the Regional Administrator, the summary record kept of any hearing and the hearing officer's recommended decision, if any, and such other considerations as the Regional Administrator deems appropriate. The Regional Administrator will notify all interested persons of the decision, and the reasons for the decision, in writing, normally within 30 days of the receipt of sufficient information, unless additional time is needed for a hearing.
(D) If a hearing is requested, or if the Regional Administrator determines that one is appropriate, the Regional Administrator may grant an informal hearing before a hearing officer designated for that purpose after first giving notice of the time, place, and subject matter of the hearing to the applicant. The appellant, and, at the discretion of the hearing officer, other interested persons, may appear personally or be represented by counsel at the hearing and submit information and present arguments as determined appropriate by the hearing officer. Within 30 days of the last day of the hearing, the hearing officer shall recommend in writing a decision to the Regional Administrator.
(E) The Regional Administrator may adopt the hearing officer's recommended decision, in whole or in part, or may reject or modify it. In any event, the Regional Administrator will notify interested persons of the decision, and the reason(s) therefore, in writing, within 30 days of receipt of the hearing officer's recommended decision. The Regional Administrator's decision will constitute the final administrative action by NMFS on the matter.
(F) Any time limit prescribed in this section may be extended for a period not to exceed 30 days by the Regional Administrator for good cause, either upon his or her own motion or upon written request from the appellant stating the reason(s) therefore.
(4) General HMS permits issued under this subpart will remain valid until the first date of renewal, and permits may be subsequently renewed for 2-year terms. The first date of renewal will be the last day of the vessel owner's birth month in the second calendar year after the permit is issued (e.g., if the birth month is March and the permit is issued on October 3, 2007, the permit will remain valid through March 31, 2009).
(5) Replacement permits may be issued without charge to replace lost or mutilated permits. Replacement permits may be obtained by submitting to the SFD c/o the Regional Administrator a complete, signed vessel permit application. An application for a replacement permit is not considered a new application.
(6) Any permit that has been altered, erased, or mutilated is invalid.
(c) Display. Any permit issued under this subpart, or a facsimile of the permit, must be on board the vessel at all times while the vessel is fishing for, taking, retaining, possessing, or landing HMS shoreward of the outer boundary of the fishery management area unless the vessel was at sea at the time the permit was issued. Any permit issued under this section must be displayed for inspection upon request of an authorized officer.
(d) Sanctions. Procedures governing sanctions and denials are found at subpart D of 15 CFR part 904.
(e) Fees. An application for a permit, or renewal of an existing permit under this section will include a fee for each vessel. The fee amount required will be calculated in accordance with the NOAA Finance Handbook and specified on the application form.
(f) Federal limited entry drift gillnet permit —(1) General. This section applies to individuals fishing with large-mesh (14 inch or greater stretched mesh) drift gillnet (DGN) gear. Individuals who target, retain, transship, or land fish captured with a large-mesh DGN must possess a valid Federal limited entry DGN permit. Federal limited entry DGN permits are issued to an individual, and a vessel must be specified on the permit.
(2) Initial qualification. Upon publication of NMFS' final rule to establish the Federal limited entry DGN permit, all State of California limited entry DGN permit holders are eligible to obtain a Federal limited entry DGN permit. If a 2017-2018 California state DGN permit renewal application is not received by the California Department of Fish and Wildlife or postmarked by March 31, 2018, the permit holder is not eligible to receive a 2018-2019 Federal limited entry DGN permit.
(3) Documentation and burden of proof. An individual applying for issuance, renewal, transfer, or assignment of a Federal limited entry DGN permit must prove that they meet the qualification requirements by submitting the following documentation, as applicable: A certified copy of the assigned vessel's documentation as a fishing vessel of the United States (U.S. Coast Guard or state) is the best evidence of vessel identification; a copy of a current State of California limited entry DGN permit is the best evidence of initial qualification for a Federal limited entry DGN permit; a copy of a written contract reserving or conveying limited entry rights is the best evidence of reserved or acquired rights; and other relevant, credible evidence that the applicant may wish to submit or that the SFD may request or require.
(4) Fees. Any processing fee will be determined by the service costs needed to process a permit request. If a fee is required, it would cover administrative expenses related to issuing limited entry permits, as well as renewing, transferring, assigning, and replacing permits. The amount of any fee will be calculated in accordance with the procedures of the NOAA Finance Handbook for determining the administrative costs of each special product or service. A fee may not exceed such costs and is specified with each application form. The appropriate fee must accompany each application.
(5) Initial decisions. (i) The SFD will make initial decisions regarding issuing, renewing, transferring, and assigning limited entry permits.
(ii) Adverse decisions shall be in writing and shall state the reasons for the adverse decision.
(iii) The SFD may decline to act on an application for issuing, renewing, transferring, or assigning a limited entry permit and will notify the applicant, if the permit sanction provisions of the Magnuson-Stevens Act at 16 U.S.C. 1858(a) and implementing regulations at 15 CFR part 904, subpart D, apply.
(6) Issuance. Federal limited entry DGN permits will be issued by the SFD. If an application is denied, the SFD will indicate the reasons for denial. A DGN permit will be issued to an individual and assigned to a specific vessel. A permit holder may assign the permit to another vessel once per permit year (April 1 to March 31).
(7) Appeals. Any applicant for an initial permit may appeal the initial issuance decision to the Regional Administrator. Appeals will be made and processed following procedures as described at paragraph (b)(3)(iv) of this section.
(8) Transfers. Federal limited entry DGN permits may be transferred to another individual only if the current permit holder has held the Federal DGN permit for a minimum of three consecutive years (counted April 1 to March 31 of the following year). At the time of the establishment of the Federal limited entry DGN permit system, the length of time an individual has held a State of California limited entry DGN permit carries over (e.g., if an individual has held a California DGN permit for two years, they are eligible to transfer the Federal DGN permit after holding the Federal DGN permit for one year). Exceptions to this limitation on permit transfer may be made under the following circumstances:
(i) The permit holder suffers from a serious illness or permanent disability that prevents the permit holder from earning a livelihood from commercial fishing.
(ii) If a deceased permit holder's estate or heirs submit a transfer request within six months of the permit holder's death.
(iii) Upon dissolution of marriage if the permit is held as community property.
(9) Renewals. (i) The SFD will send notices to renew limited entry permits to the most recent address of the permit holder on file.
(ii) The permit owner is responsible for renewing a limited entry permit.
(iii) The deadline for receipt or postmark of a Federal DGN permit renewal application is April 30 of the permit year ( i.e., April 30, 2019 for 2019-2020 fishing season). Federal DGN permits must be renewed yearly.
(iv) A DGN permit that is allowed to expire will not be renewed unless the permit owner requests reissuance by July 31 (three months after the renewal application deadline) and NMFS determines that failure to renew was proximately caused by illness, injury, or death of the permit owner. If the permit expires, it will be forfeited and NMFS will not reissue the permit to anyone.
(10) Owner on-board requirement. (i) Except as provided in paragraphs (f)(10)(ii) through (v) of this section, the DGN permit holder must be on-board the vessel and in possession of a valid Federal limited entry DGN permit when engaged in DGN fishing activity.
(ii) A permit holder may designate another individual to fish under their permit for up to 15 days per fishing year (April 1 to March 31 of the following year); the substitute must comply with all other Federal permitting requirements. A permit holder shall notify NMFS of a substitution at least 24 hours prior to the commencement of the trip.
(iii) If the person who owns a Federal DGN permit is prevented from being on-board a fishing vessel because the person died, is ill, or is injured, NMFS may allow an exemption to the owner on-board requirement for more than 15 days. The person requesting the exemption must send a letter to NMFS requesting an exemption from the owner on-board requirements, with appropriate evidence as described at paragraph (f)(10)(iv) or (v) of this section. All exemptions for death, injury, or illness will be evaluated by NMFS and a decision will be made in writing to the permit owner (or, in the case of the death of the permit owner, to the estate or heirs of the permit owner) within 60 calendar days of receipt of the original exemption request.
(iv) Evidence of death of the permit owner shall be provided to NMFS in the form of a copy of a death certificate. In the interim before the estate is settled, if the deceased permit owner was subject to the owner on-board requirements, the estate of the deceased permit owner may send a letter to NMFS with a copy of the death certificate, requesting an exemption from the owner-on-board requirements. An exemption due to death of the permit owner will be effective only until such time that the estate of the deceased permit owner has registered the deceased permit owner's permit to a beneficiary, transferred the permit to another owner, or three years after the date of death as proven by a death certificate, whichever is earliest. An exemption from the owner-on-board requirement will be conveyed in a letter from NMFS to the estate of the permit owner and is required to be on the vessel during DGN fishing operations.
(v) Evidence of illness or injury that prevents the permit owner from participating in the fishery shall be provided to NMFS in the form of a letter from a certified medical practitioner. This letter must detail the relevant medical conditions of the permit owner and how those conditions prevent the permit owner from being on-board a fishing vessel during DGN fishing. An exemption due to injury or illness will be effective only for the fishing year of the request for exemption. In order to extend a medical exemption for a succeeding year, the permit owner must submit a new request and provide documentation from a certified medical practitioner detailing why the permit owner is still unable to be on-board a fishing vessel. An exemption from the owner-on-board requirement will be conveyed in a letter from NMFS to the permit owner and is required to be on the vessel during DGN fishing operations.
(g) Limited entry deep-set buoy gear (DSBG) permit —(1) General. This paragraph (g) applies to persons (as defined at § 660.702) owning a limited entry permit to fish with DSBG (as defined at § 660.702) inside the Southern California Bight (as defined at § 660.715(d)(2)) and to vessels registered to such permits. For a vessel to be used to fish with DSBG in the Southern California Bight, that vessel must be registered for use with a limited entry DSBG permit.
(2) Basic requirements. Limited entry DSBG permits are issued to a person, and a vessel must be specified on the permit.
(i) Persons. Any “person” as defined at § 660.702 may own a limited entry DSBG permit, subject to the ownership requirements and limitations at paragraph (g)(3) of this section.
(ii) Vessels. A vessel registered to a limited entry DSBG permit must also be registered to a valid general HMS permit with a DSBG endorsement issued pursuant to paragraphs (a) and (b) of this section. The designated vessel need not be owned by the limited entry DSBG permit owner. The same vessel may be registered to multiple limited entry DSBG permits, but only one permit may be fished at a time.
(3) Ownership requirements and limitations —(i) Limitation on permit ownership. No person may own more than one limited entry DSBG permit, in whole or in part, including through ownership interest in a partnership, corporation, or other entity.
(ii) DSBG identification of ownership interest form. Any person that owns a limited entry DSBG permit and that is applying for or renewing a limited entry DSBG permit shall document those persons that have an ownership interest in the limited entry DSBG permit. This ownership interest must be documented with NMFS via the DSBG Identification of Ownership Interest Form.
(iii) Transferability. Limited entry DSBG permits are not transferable, except for a one-time transfer to a family member, as defined at § 660.702, upon the death or legal incapacitation of the individual or a member of the corporation, partnership, or other entity that owns the permit, following the procedures at paragraph (g)(7) of this section. The limited entry DSBG permit owner cannot change or add additional individuals or entities as owners of the permit, or otherwise change ownership of the permit as defined at § 660.702. A transfer may not occur if such a transfer will result in a person holding more than one limited entry DSBG permit as described in paragraph (g)(3)(i) of this section.
(iv) Divestiture, surrender, and revocation. If NMFS discovers that a person owns or has an ownership interest in more than one limited entry DSBG permit (including any person who has ownership interest in the entities listed as owners on the permit), NMFS will notify the permit owner that they have 90 days to divest of the excess ownership interest. During this 90-day period, the person may surrender permit(s) in excess of the permit ownership limit to NMFS by submitting a request in writing. After the 90-day divestiture period, NMFS will revoke all limited entry DSBG permits held by that person in excess of the permit ownership limit. Surrendered and revoked permits, with vessel status as “unidentified,” will be issued to the next eligible applicant following the procedures at paragraphs (g)(11) and (12) of this section.
(4) Renewal. Limited entry DSBG permits are valid for 1 year (May 1-April 30). Permits expire April 30 of each year and must be renewed between February 1 and March 31 of each year to remain in force the following permit year.
(i) Renewal notices. NMFS will send notices to renew limited entry DSBG permits to the permit owner's most recent email address on record with NMFS. The permit owner is responsible for notifying the Fisheries Permits Office of any email address change.
(ii) Renewal packages. A complete limited entry DSBG permit renewal package must be received by NMFS by March 31 of each year. If a complete renewal package is not received by March 31, NMFS will not renew the limited entry DSBG permit, except under the circumstances described in paragraph (g)(4)(iii) of this section. A complete renewal package consists of a completed renewal application form, a completed DSBG Identification of Ownership Interest Form as required under paragraph (g)(3)(ii) of this section, and payment of required fees. NMFS may require additional documentation as it deems necessary to make a determination on the application. The renewal package will be considered incomplete until the required information is submitted. NMFS will decline to act on an incomplete application.
(iii) Forfeited permits. A limited entry DSBG permit for which renewal is not requested will be considered expired unless the permit owner requests reissuance of the permit by June 30 (3 months after the renewal application deadline) and NMFS determines that failure to renew was proximately caused by illness, injury, or death of the permit owner. If a permit is allowed to expire, it will be forfeited and NMFS may reissue the permit to another qualified applicant following the procedures at paragraphs (g)(11) and (12) of this section.
(iv) Renewal determinations. Based on a complete application for renewal of a limited entry DSBG permit, if NMFS determines that the applicant has met the requirements of this section and is in compliance with any other applicable regulations, NMFS will approve the renewal and issue the permit. If the application is not approved, NMFS will issue an initial administrative decision (IAD) that will explain the denial in writing. The applicant may appeal NMFS' determination following the process at paragraph (b)(3)(iv) of this section.
(5) Permit replacement. Replacement permits may be issued without charge to replace lost or mutilated permits. Replacement permits may be obtained by submitting a complete permit replacement application to NMFS. An application for a replacement permit is not considered a new application. Any permit that has been altered, erased, or mutilated is invalid.
(6) Change in vessel registration. Limited entry DSBG permits will normally be registered for use with a particular vessel at the time the permit is issued, renewed, or replaced. A permit may not be used with any vessel other than the vessel registered for use with that permit. If the permit will be used with a vessel other than the one registered for use with the permit, the permit owner must request a change in vessel registration in accordance with paragraphs (g)(6)(ii) through (iv) of this section.
(i) Limits on changes in vessel registration. The registered vessel may be changed no more than once per calendar year, except in cases of a force majeure event as defined at § 660.702. A permit owner may also designate the vessel registration for a permit as “unidentified,” meaning that no vessel has been identified as registered for use with that permit. Changing a permit's designated vessel to “unidentified” is not considered a change in vessel registration for purposes of this section, but the permit is not authorized for use until a subsequent change of registration out of “unidentified” status occurs. Any subsequent change in registration out of “unidentified” status to a vessel will be considered a change in vessel registration and subject to a once-per-calendar-year limit.
(ii) Request for change in vessel registration. To request a change in vessel registration, a permit owner must fill out a vessel transfer application online through the NOAA Fisheries Permits website with appropriate fields completed and must submit the application to the West Coast Region Fisheries Permits Office. A complete change in vessel registration package consists of a transfer application form with appropriate fields completed, a current copy of the United States Coast Guard Documentation Form or state registration form, and payment of required fees. NMFS may require additional documentation as it deems necessary to make a determination on the application. The change in vessel registration package will be considered incomplete until the required information is submitted. NMFS will decline to act on an incomplete application. A permit owner may designate the vessel registration for a permit as “unidentified,” meaning that no vessel has been identified as registered for use with that permit. No vessel is authorized to use a permit with the vessel registration designated as “unidentified.”
(iii) Agency determination on an application. Based on a complete application for a change in vessel registration, if NMFS determines that the applicant has met the requirements of this section, NMFS will approve the change in vessel registration and issue the permit. Changes in vessel registration will take effect on the date that the change is approved by NMFS. If the application for a change in vessel registration is not approved, NMFS will issue an initial administrative determination that will explain the denial in writing. The applicant may appeal NMFS' determination following the process at paragraph (b)(3)(iv) of this section.
(7) Permit ownership transfer —(i) Request for change in permit ownership. A permit owner may request change in ownership of a permit, in compliance with the limits at paragraph (g)(3) of this section, by submitting a complete transfer application package with appropriate fields completed to NMFS. A complete transfer application package consists of all of the following:
(A) A transfer application form with appropriate fields completed;
(B) For a request to change a permit's ownership where the current permit owner is a corporation, partnership or other business entity, a corporate resolution that authorizes the conveyance of the permit to a new owner and authorizes the individual applicant to request the conveyance on behalf of the corporation, partnership, or other business entity;
(C) For a request to change a permit's ownership that is necessitated by the death of the permit owner(s), a death certificate of the permit owner(s) and appropriate legal documentation that either: Specifically registers the permit to a designated individual(s); or provides legal authority to the transferor to convey the permit ownership; and
(D) Payment of required fees.
(ii) Incomplete application. NMFS may require additional documentation as it deems necessary to make a determination on the application for change in ownership. The renewal package will be considered incomplete until the required information is submitted. NMFS will decline to act on an incomplete application.
(iii) Agency determination on an application. Based on a complete application for change in ownership, if NMFS determines that the applicant has met the requirements of this section, NMFS will approve the change in ownership and issue the permit. Changes in permit ownership will take effect on the date that the change is approved by NMFS. If the application is not approved, NMFS will issue an initial administrative decision (IAD) that will explain the denial in writing. The applicant may appeal NMFS' determination following the process at paragraph (b)(3)(iv) of this section.
(8) Fees. The Regional Administrator may charge fees to cover administrative expenses related to processing initial issuance, renewal, change in ownership, change in vessel registration, divestiture, and appeals of permits. The amount of the fee is determined in accordance with the procedures of the NOAA Finance Handbook for determining administrative costs. A fee may not exceed administrative costs and is specified with each application form. The appropriate fee must accompany each application.
(9) Sanctions. NMFS may decline to act on an application for initial issuance, renewal, replacement, change in ownership, divestiture, or change in vessel registration, and will notify the applicant if the permit sanction provisions of the Magnuson-Stevens Act at 16 U.S.C. 1858(a) and implementing regulations at 15 CFR part 904, subpart D, apply.
(10) Appeals. In cases where the applicant disagrees with NMFS' decision on a permit application for initial issuance, renewal, replacement, change in ownership, divestiture, or change in vessel registration, the applicant may file an appeal following the procedures described at paragraph (b)(3)(iv) of this section.
(11) Initial issuance for Tiers 1 through 8. This section describes the process for initial issuance of limited entry DSBG permits to applicants that qualify under Tiers 1 through 8 as defined at paragraphs (g)(11)(iii)(C)( 1 ) through ( 8 ) of this section.
(i) Exempted fishing permit (EFP) holder. For purposes of paragraph (g)(11) of this section only, exempted fishing permit (EFP) holder means any individual with NMFS approval to captain a commercial vessel and use DSBG under the authority of a DSBG EFP or any individual who is identified by NMFS as having managed a DSBG EFP, including vessel owners whose vessel fished under the authority of a DSBG EFP.
(ii) Initial applications. Persons may apply for a limited entry DSBG permit by completing and submitting an initial issuance application package to NMFS, beginning on June 7, 2023. The completed application package must be submitted on the National Permit System website, or by another method approved by NMFS, no later than 11:59 p.m. on August 7, 2023. If an applicant fails to submit a completed application by the deadline date, they forgo the opportunity to receive a limited entry DSBG permit under Tiers 1 through 8 and their permit will be issued to the next eligible applicant following the procedures at paragraphs (g)(11) and (12) of this section. A complete initial issuance application package consists of the following: a completed initial issuance application form; a completed DSBG Identification of Ownership Interest Form, as required under paragraph (g)(3)(ii) of this section; a current copy of the United States Coast Guard Documentation Form or state registration form for the vessel that will be registered to the permit; and payment of required fees. NMFS may require additional documentation as it deems necessary to make a determination on the application. The initial issuance application package will be considered incomplete until the required information is submitted. NMFS will decline to act on an incomplete application.
(iii) Eligibility criteria for Tiers 1 through 8. To qualify for a permit under Tiers 1 through 8, as defined at paragraphs (g)(11)(iii)(C)( 1 ) through ( 8 ) of this section, an applicant must meet all of the following criteria:
(A) The applicant is eligible to own a limited entry DSBG permit in accordance with paragraph (g)(2)(i) of this section;
(B) The applicant is in compliance with the ownership requirements and limitations of paragraph (g)(3) of this section. Applicants found to have qualified for more than one permit will be notified by NMFS in writing and will have 30 days to divest of the excess permit ownership interest and resubmit their application package; and
(C) The applicant meets the criteria of one of the qualification tiers in paragraphs (g)(11)(iii)(C)( 1 ) through ( 8 ) of this section based on data as of August 7, 2023. Permits will be issued by ranking applicants according to the tiered criteria in paragraphs (g)(11)(iii)(C)( 1 ) through ( 8 ) of this section, beginning with Tier 1 and ending with Tier 8. NMFS will qualify applicants that meet the criteria of multiple tiers based on their highest tier, with Tier 1 being the highest, Tier 2 the second highest, and so on.
( 1 ) Tier 1 consists of EFP holders with at least 10 documented calendar days of DSBG fishing effort by December 31, 2018, based on NMFS West Coast Region Observer Program records indicating either that the EFP holder was the vessel captain for that fishing day or that fishing effort for that day was conducted on a vessel owned by or under the EFP managed by that individual.
( 2 ) Tier 2 consists of California Limited Entry Drift Gill Net (DGN) Shark and Swordfish permit holders who made at least one large-mesh DGN swordfish landing between the 2013-2014 and 2017-2018 fishing seasons and surrendered their state or Federal limited entry DGN permit as part of a DGN permit trade-in or buy-back program, based on California Department of Fish and Wildlife (CDFW) marine landing receipt and buyback records and NMFS and CDFW permit information.
( 3 ) Tier 3 consists of EFP holders approved by the Pacific Fishery Management Council prior to April 1, 2021, who conducted at least 10 calendar days of DSBG fishing effort or with 10 days of DSBG effort on their vessel or by vessels they manage under the EFP by June 7, 2023, based on a NMFS West Coast Regional Observer Program record or a properly submitted NMFS DSBG EFP logbook indicating either that the EFP holder was vessel captain for that fishing day or that the fishing effort for that day was conducted on a vessel owned by or under the EFP managed by that individual.
( 4 ) Tier 4 consists of California Swordfish permit holders who possessed a permit during the 2018-2019 fishing season and made at least one swordfish landing using harpoon gear between the 2013-2014 or 2017-2018 fishing seasons, based on California Department of Fish and Wildlife (CDFW) permit and marine landing receipt records.
( 5 ) Tier 5 consists of California Limited Entry Drift Gill Net (DGN) Shark and Swordfish permit holders who have made at least one large-mesh DGN swordfish landing between the 2013-2014 and 2017-2018 fishing seasons and who did not surrender their state or Federal limited entry DGN permit as part of a trade-in or buy-back program, based on California Department of Fish and Wildlife (CDFW) marine landing receipts and buyback records and NMFS and CDFW permit information.
( 6 ) Tier 6 consists of California Limited Entry Drift Gill Net (DGN) Shark and Swordfish permit holders who have not made a swordfish landing with large-mesh DGN gear since March 31, 2013, and who surrendered their state or Federal limited entry DGN permit as part of a permit trade-in or buy-back program, based on California Department of Fish and Wildlife (CDFW) marine landing receipts and buyback records and NMFS and CDFW permit information.
( 7 ) Tier 7 consists of state or Federal limited entry drift gillnet (DGN) permit holders who have not made a swordfish landing with DGN gear since March 31, 2013, and did not surrender their limited entry DGN permit as part of a state or Federal limited entry DGN permit trade-in or buy-back program, based on California Department of Fish and Wildlife (CDFW) marine landing receipts and buyback records and NMFS and CDFW permit information.
( 8 ) Tier 8 consists of any individual with documented commercial swordfish fishing experience between January 1, 1986, and June 7, 2023, on a first come, first served basis, based on California Department of Fish and Wildlife (CDFW) permit records showing possession of a valid commercial fishing license on that date and one of the following:
( i ) A valid CDFW marine landing receipt identifying the individual as the fisherman of record;
( ii ) A valid state or Federal logbook where swordfish were taken and identifying the individual as captain or crew on that day; and
( iii ) A signed affidavit from a vessel owner or captain identifying the individual as vessel captain or crew on the day that swordfish were taken.
(iv) Agency determination on an application. Based on a complete application for an initial permit under Tiers 1 through 8, as defined at paragraphs (g)(11)(iii)(C)( 1 ) through ( 8 ) of this section, if NMFS determines that the applicant has met the requirements of this section, NMFS will issue an initial administrative determination (IAD). If the application is approved, the applicant will receive a permit according to the permit issuance procedures in paragraph (g)(11)(v) of this section. If the application is denied, the IAD will provide an explanation of the denial in writing. The applicant may appeal NMFS' determination following the process at paragraph (b)(3)(iv) of this section.
(v) Permit issuance. NMFS will issue permits to approved applicants in priority order according to the qualification tiers in paragraphs (g)(11)(iii)(C)( 1 ) through ( 8 ) of this section, with qualified applicants in Tier 1 receiving permits first, then qualified applicants in Tier 2, and so on. Qualified applicants will be further ranked within a tier based on their total swordfish landings for the time period and gear type specified for that tier for Tiers 1 through 5, according to California Department of Fish and Wildlife (CDFW) marine landing receipts as of August 7, 2023, or by the date and time their application is received for Tiers 6 through 8. NMFS will issue up to 50 permits in 2023, and up to 25 permits each year after, up to a total of 300 valid permits. Permits issued to the next eligible applicant as a result of surrender, revocation, or expiration will not count toward the annual permit issuance limits. Permits will be mailed on or about April 1 for the upcoming May 1 permit year to the address of record. Permit holders are responsible for keeping their contact information current with NMFS to receive their permit. If a permit is returned to NMFS as undeliverable, NMFS will make further attempts to contact the permit holder using the contact information on file. If NMFS is not able to contact the permit holder within 30 days, the permit will be revoked and issued to the next eligible applicant following the procedures at paragraphs (g)(11) and (12) of this section.
(12) Initial issuance for Tier 9. When the list of permit qualifiers from the initial issuance for Tiers 1 through 8, as defined at paragraphs (g)(11)(iii)(C)( 1 ) through ( 8 ) of this section, is exhausted, NMFS will begin accepting applications for additional limited entry DSBG permits on a first come, first served basis. In January of the year NMFS anticipates accepting Tier 9 applications, NMFS will publish a notice in the Federal Register to notify the public of the application opportunity. NMFS will accept applications for initial issuance of limited entry DSBG permits under Tier 9 on an annual basis until a total of 300 limited entry DSBG permits are issued.
(i) Initial applications. Persons may apply for a limited entry DSBG permit under Tier 9 by completing and submitting an initial issuance application package to NMFS via the National Permit System website during the annual application period February 1-March 31. The completed application package must be submitted no later than 11:59 p.m. Pacific Daylight Time on March 31st of the relevant year. A complete initial issuance application package consists of the following: a completed initial issuance application form; a completed DSBG Identification of Ownership Interest Form, as required under paragraph (g)(3)(ii) of this section; a current copy of the United States Coast Guard Documentation Form or state registration form for the vessel that will be registered to the permit; and payment of required fees. NMFS may require additional documentation as it deems necessary to make a determination on the application. The initial issuance application package will be considered incomplete until the required information is submitted. NMFS will decline to act on an incomplete application.
(ii) Eligibility criteria for Tier 9. To qualify for a permit under Tier 9, an applicant must meet all of the following criteria:
(A) The applicant is eligible to own a limited entry DSBG permit in accordance with paragraph (g)(2)(i) of this section; and
(B) The applicant is in compliance with the ownership requirements and limitations of paragraph (g)(3) of this section.
(iii) Agency determination on an application. Based on a complete application, if NMFS determines that the applicant for an initial permit under Tier 9 has met the requirements of this section, NMFS will issue an initial administrative determination (IAD). If the application is approved, the IAD will say so and the applicant will receive a permit according to the permit issuance procedures in paragraph (g)(11)(iv) of this section. If the application is denied, the IAD will provide an explanation of the denial in writing. The applicant may appeal NMFS' determination following the process at paragraph (b)(3)(iv) of this section.
(iv) Permit issuance. NMFS will issue permits to approved applicants under Tier 9 on a first come, first served basis, according to the date and time that their application was submitted through the National Permit System. NMFS will issue up to 25 permits each year, up to a total of 300 valid permits. If NMFS approves more than 25 applications in a single year, the approved applicants above 25 will receive priority for permit issuance the following year according to the date and time that their complete applications were received. Permits issued to the next eligible applicant as a result of surrender, revocation, or expiration will not count toward the annual permit issuance limits.
§ 660.708   Reporting and recordkeeping.
(a) Logbooks. The operator of any commercial fishing vessel and any recreational charter vessel fishing for HMS in the management area must maintain on board the vessel an accurate and complete record of catch, effort, and other data on report forms provided by the Regional Administrator or a state agency. All information specified on the forms must be recorded on the forms within 24 hours after the completion of each fishing day. The original logbook form for each day of the fishing trip must be submitted to either the Regional Administrator or the appropriate state management agency within 30 days of each landing or transhipment of HMS. Each form must be signed and dated by the fishing vessel operator.
(1) Logbooks that meet the logbook reporting requirement may be found at http://swr.nmfs.noaa.gov/logbooks.htm and include:
(i) The logbook required under 50 CFR 300.21 implementing the Tuna Conventions Act of 1950;
(ii) The logbook required under § 660.14 implementing the Fishery Management Plan for Pelagic Fisheries of the Western Pacific Region;
(iii) Any logbook required by the fishery management agency of the States of California, Oregon, or Washington.
(2) Any holder of a permit who does not submit logbooks under any of the above authorities must submit a written request to the SFD for the appropriate logbook. The applicant must provide his or her name and address, the name of the vessel, and the type of fishing gear used.
(3) The Regional Administrator may, after consultation with the Council, act to modify the information to be provided on the fishing record forms.
(b) Any person who is required to do so by the applicable state law must make and/or file, retain, or make available any and all reports of HMS containing all data, and in the exact manner, required by the applicable state law.
§ 660.709   Annual specifications.
(a) Procedure. (1) Each year, the HMSMT will deliver a stock assessment and fishery evaluation report to the Council for all HMS with any necessary recommendations for harvest guidelines, quotas or other management measures to protect HMS, including updated maximum sustainable yield (MSY) and optimum yield (OY) estimates based on the best available science. The Council's Scientific and Statistical Committee may review the estimates and make a recommendation on their suitability for management. As described in the fishery management plan, the Council will periodically review these recommendations and decide whether to adopt updated numerical estimates of MSY and OY, which are then submitted as recommendations for NMFS to review as part of the management measures review process.
(2) Based on recommendations of the Council, the Regional Administrator will approve or disapprove any harvest guideline, quota, or other management measure including updated MSY and OY estimates after reviewing such recommendations to determine compliance with the FMP, the Magnuson Act, and other applicable law. The Regional Administrator will implement through rulemaking any approved harvest guideline, quota, or other management measure adopted under this section.
(b) Fishing seasons for all species will begin on April 1 of each year at 0001 hours local time and terminate on March 31 of each year at 2400 hours local time.
(c) Harvest guidelines, quotas, and other management measures announced for a particular year will be in effect the following year unless changed through the public review process described in paragraph (a) of this section.
(d) Irrespective of the normal review process, the Council may propose management action to protect HMS at any time. The Council may adopt a management cycle different from the one described in the fishery management plan provided that such change is made by a majority vote of the Council and a 6-month notice of the change is given.
§ 660.710   Closure of directed fishery.
(a) When a quota has been taken, the Regional Administrator will announce in the Federal Register the date of closure of the fishery for the species of concern.
(b) When a harvest guideline has been taken, the Regional Administrator will initiate review of the species of concern according to section 8.4.8 of the FMP and publish in the Federal Register any necessary and appropriate regulations following Council recommendations.
§ 660.711   General catch restrictions.
(a) Incidental landings. HMS caught by gear not authorized by this subpart may be landed in incidental amounts as follows:
(1) Drift gillnet vessels with stretched mesh less than 14 inches may land up to 10 HMS per trip, except that no swordfish may be landed.
(2) Bottom longline vessels may land up to 20 percent by weight of management unit sharks in landings of all species, or 3 individual sharks of the species in the management unit, whichever is greater.
(3) Trawl and pot gear vessels may land up to 1 percent by weight of management unit sharks in a landing of all species or 2 individual sharks of the species in the management unit, whichever is greater.
(b) Marlin prohibition. The sale of striped marlin by a vessel with a permit under this subpart is prohibited.
(c) Sea turtle handling and resuscitation. All sea turtles taken incidentally in fishing operations by any HMS vessel other than vessels subject to § 660.712 must be handled in accordance with 50 CFR 223.206(d)(1).
§ 660.712   Longline fishery.
(a) Gear and fishing restrictions. (1) Owners and operators of vessels registered for use of longline gear may not use longline gear to fish for or target HMS within the U.S. EEZ.
(2) Owners and operators of vessels registered for use of longline gear may not make shallow sets with longline gear to fish for or target swordfish ( Xiphias gladius ) west of 150° W. long. and north of the equator (0° N. lat.).
(3) A person aboard a vessel registered for use of longline gear fishing for HMS west of 150° W. long. and north of the equator (0° N. lat.) may not possess or deploy any float line that is shorter than or equal to 20 m (65.6 ft or 10.9 fm). As used in this paragraph, float line means a line used to suspend the main longline beneath a float.
(4) From April 1 through May 31, owners and operators of vessels registered for use of longline gear may not use longline gear in waters bounded on the south by 0° lat., on the north by 15° N. lat., on the east by 145° W. long., and on the west by 180° long.
(5) From April 1 through May 31, owners and operators of vessels registered for use of longline gear may not receive from another vessel HMS that were harvested by longline gear in waters bounded on the south by 0° lat., on the north by 15° N. lat., on the east by 145° W. long., and on the west by 180° long.
(6) From April 1 through May 31, owners and operators of vessels registered for use of longline gear may not land or transship HMS that were harvested by longline gear in waters bounded on the south by 0° lat., on the north by 15° N. lat., on the east by 145° W. long., and on the west by 180° long.
(7) No light stick may be possessed on board a vessel registered for use of longline gear during fishing trips that include any fishing west of 150° W. long. and north of the equator (0° N. lat.). A light stick as used in this paragraph is any type of light emitting device, including any flourescent glow bead, chemical, or electrically powered light that is affixed underwater to the longline gear.
(8) When a conventional monofilament longline is deployed in waters west of 150° W. long. and north of the equator (0° N. lat.) by a vessel registered for use of longline gear, no fewer than 15 branch lines may be set between any two floats. Vessel operators using basket-style longline gear must set a minimum of 10 branch lines between any 2 floats when fishing in waters north of the equator.
(9) Longline gear deployed west of 150° W. long. and north of the equator (0° N. lat.) by a vessel registered for use of longline gear must be deployed such that the deepest point of the main longline between any two floats, i.e., the deepest point in each sag of the main line, is at a depth greater than 100 m (328.1 ft or 54.6 fm) below the sea surface.
(10) If no observer is on board the vessel, owners and operators of longline vessels registered for use of longline gear may land or possess no more than 10 swordfish from a fishing trip when using any J-type fishing hooks, and no more than 25 swordfish from a fishing trip when using only circle hook-type fishing hooks. If a NMFS-approved observer is on board the vessel for the duration of the fishing trip, there is no limit on the amount of swordfish retained.
(11) Owners and operators of longline vessels registered for use of longline gear are subject to the provisions at 50 CFR part 223 prohibiting shallow sets to target swordfish in waters beyond the U.S. EEZ and east of 150° W. long.
(b) Sea turtle take mitigation measures. (1) Owners and operators of vessels registered for use of longline gear must carry aboard their vessels line clippers meeting the minimum design standards specified in paragraph (b)(2) of this section, dip nets meeting minimum standards specified in paragraph (b)(3) of this section, and wire or bolt cutters capable of cutting through the vessel's hooks. These items must be used to disengage any hooked or entangled sea turtles with the least harm possible to the sea turtles and as close to the hook as possible in accordance with the requirements specified in paragraphs (b)(4) through (b)(7) of this section.
(2) Line clippers are intended to cut fishing line as close as possible to hooked or entangled sea turtles. NMFS has established minimum design standards for line clippers. The Arceneaux line clipper (ALC) is a model line clipper that meets these minimum design standards and may be fabricated from readily available and low-cost materials (see figure 1 to § 660.32). The minimum design standards are as follows:
(i) The cutting blade must be curved, recessed, contained in a holder, or otherwise afforded some protection to minimize direct contact of the cutting surface with sea turtles or users of the cutting blade.
(ii) The blade must be capable of cutting 2.0-2.1 mm monofilament line and nylon or polypropylene multistrand material commonly known as braided mainline or tarred mainline.
(iii) The line clipper must have an extended reach handle or pole of at least 6 ft (1.82 m).
(iv) The cutting blade must be securely fastened to the extended reach handle or pole to ensure effective deployment and use.
(3) Dip nets are intended to facilitate safe handling of sea turtles and access to sea turtles for purposes of cutting lines in a manner that minimizes injury and trauma to sea turtles. The minimum design standards for dip nets that meet the requirements of this section are:
(i) The dip net must have an extended reach handle of at least 6 ft (1.82 m) of wood or other rigid material able to support a minimum of 100 lbs (34.1 kg) without breaking or significant bending or distortion.
(ii) The dip net must have a net hoop of at least 31 inches (78.74 cm) inside diameter and a bag depth of at least 38 inches (96.52 cm). The bag mesh openings may be no more than 3 inches × 3 inches (7.62 cm × 7.62 cm).
(4) All incidentally taken sea turtles brought aboard for dehooking and/or disentanglement must be handled in a manner to minimize injury and promote post-hooking survival.
(i) When practicable, comatose sea turtles must be brought on board immediately, with a minimum of injury, and handled in accordance with the procedures specified in paragraphs (b)(5) and (b)(6) of this section.
(ii) If a sea turtle is too large or hooked in such a manner as to preclude safe boarding without causing further damage/injury to the turtle, line clippers described in paragraph (b)(2) of this section must be used to clip the line and remove as much line as possible prior to releasing the turtle.
(iii) If a sea turtle is observed to be hooked or entangled by longline gear during hauling operations, the vessel operator must immediately cease hauling operations until the turtle has been removed from the longline gear or brought on board the vessel.
(iv) Hooks must be removed from sea turtles as quickly and carefully as possible. If a hook cannot be removed from a turtle, the line must be cut as close to the hook as possible.
(5) If the sea turtle brought aboard appears dead or comatose, the sea turtle must be placed on its belly (on the bottom shell or plastron) so that the turtle is right side up and its hindquarters elevated at least 6 inches (15.24 cm) for a period of no less than 4 hours and no more than 24 hours. The amount of the elevation depends on the size of the turtle; greater elevations are needed for larger turtles. A reflex test, performed by gently touching the eye and pinching the tail of a sea turtle, must be administered by a vessel operator, at least every 3 hours, to determine if the sea turtle is responsive. Sea turtles being resuscitated must be shaded and kept damp or moist but under no circumstance may be placed into a container holding water. A water-soaked towel placed over the eyes, carapace, and flippers is the most effective method to keep a turtle moist. Those that revive and become active must be returned to the sea in the manner described in paragraph (b)(6) of this section. Sea turtles that fail to revive within the 24-hour period must also be returned to the sea in the manner described in paragraph (b)(6)(i) of this section.
(6) Live turtles must be returned to the sea after handling in accordance with the requirements of paragraphs (b)(4) and (b)(5) of this section:
(i) By putting the vessel engine in neutral gear so that the propeller is disengaged and the vessel is stopped, and releasing the turtle away from deployed gear; and
(ii) Observing that the turtle is safely away from the vessel before engaging the propeller and continuing operations.
(7) In addition to the requirements in paragraphs (b) and (c) of this section, a vessel operator shall perform sea turtle handling and resuscitation techniques consistent with 50 CFR 223.206(d)(1), as appropriate.
(c) Longline Seabird mitigation measures. (1) Seabird mitigation techniques. Owners and operators of vessels registered for use of longline gear must ensure that the following actions are taken when fishing north of 23° N. lat.:
(i) Employ a line setting machine or line shooter to set the main longline when making deep sets west of 150° W. long. using monofilament main longline;
(ii) Attach a weight of at least 45 g to each branch line within 1 m of the hook when making deep sets using monofilament main longline;
(iii) When using basket-style longline gear, ensure that the main longline is deployed slack to maximize its sink rate;
(2) Use completely thawed bait that has been dyed blue to an intensity level specified by a color quality control card issued by NMFS;
(3) Maintain a minimum of two cans (each sold as 0.45 kg or 1 lb size) containing blue dye on board the vessel;
(4) Discharge fish, fish parts (offal), or spent bait while setting or hauling longline gear, on the opposite side of the vessel from where the longline gear is being set or hauled;
(5) Retain sufficient quantities of fish, fish parts, or spent bait, between the setting of longline gear for the purpose of strategically discharging it in accordance with paragraph (a)(6) of this section;
(6) Remove all hooks from fish, fish parts, or spent bait prior to its discharge in accordance with paragraph (c)(4) of this section; and
(7) Remove the bill and liver of any swordfish that is caught, sever its head from the trunk and cut it in half vertically, and periodically discharge the butchered heads and livers in accordance with paragraph (a)(6) of this section.
(8) If a short-tailed albatross is hooked or entangled by a vessel registered for use of longline gear, owners and operators must ensure that the following actions are taken:
(i) Stop the vessel to reduce the tension on the line and bring the bird on board the vessel using a dip net;
(ii) Cover the bird with a towel to protect its feathers from oils or damage while being handled;
(iii) Remove any entangled lines from the bird;
(iv) Determine if the bird is alive or dead.
(A) If dead, freeze the bird immediately with an identification tag attached directly to the specimen listing the species, location and date of mortality, and band number if the bird has a leg band. Attach a duplicate identification tag to the bag or container holding the bird. Any leg bands present must remain on the bird. Contact NMFS, the Coast Guard, or the U.S. Fish and Wildlife Service at the numbers listed on the Short-tailed Albatross Handling Placard distributed at the NMFS protected species workshop, inform them that you have a dead short-tailed albatross on board, and submit the bird to NMFS within 72 hours following completion of the fishing trip.
(B) If alive, handle the bird in accordance with paragraphs (c)(9) through (c)(14) of this section.
(9) Place the bird in a safe enclosed place;
(10) Immediately contact NMFS, the Coast Guard, or the U.S. Fish and Wildlife Service at the numbers listed on the Short-tailed Albatross Handling Placard distributed at the NMFS protected species workshop and request veterinary guidance;
(11) Follow the veterinary guidance regarding the handling and release of the bird.
(12) Complete the short-tailed albatross recovery data form issued by NMFS.
(13) If the bird is externally hooked and no veterinary guidance is received within 24-48 hours, handle the bird in accordance with paragraphs (c)(17)(iv) and (v) of this section, and release the bird only if it meets the following criteria:
(i) Able to hold its head erect and respond to noise and motion stimuli;
(ii) Able to breathe without noise;
(iii) Capable of flapping and retracting both wings to normal folded position on its back;
(iv) Able to stand on both feet with toes pointed forward; and
(v) Feathers are dry.
(14) If released under paragraph (c)(13) of this section or under the guidance of a veterinarian, all released birds must be placed on the sea surface.
(15) If the hook has been ingested or is inaccessible, keep the bird in a safe, enclosed place and submit it to NMFS immediately upon the vessel's return to port. Do not give the bird food or water.
(16) Complete the short-tailed albatross recovery data form issued by NMFS.
(17) If a seabird other than a short-tailed albatross is hooked or entangled by a vessel registered for use of longline gear, owners and operators must ensure that the following actions are taken:
(i) Stop the vessel to reduce the tension on the line and bring the seabird on board the vessel using a dip net;
(ii) Cover the seabird with a towel to protect its feathers from oils or damage while being handled;
(iii) Remove any entangled lines from the seabird;
(iv) Remove any external hooks by cutting the line as close as possible to the hook, pushing the hook barb out point first, cutting off the hook barb using bolt cutters, and then removing the hook shank;
(v) Cut the fishing line as close as possible to ingested or inaccessible hooks;
(vi) Leave the bird in a safe enclosed space to recover until its feathers are dry; and
(vii) After recovered, release seabirds by placing them on the sea surface.
(d) Vessel monitoring system. (1) Only a VMS unit owned by NMFS and installed by NMFS complies with the requirement of this subpart.
(2) After the holder of a permit to use longline gear has been notified by the SAC of a specific date for installation of a VMS unit on the permit holder's vessel, the vessel must carry the VMS unit after the date scheduled for installation.
(3) A longline permit holder will not be assessed any fee or other charges to obtain and use a VMS unit, including the communication charges related directly to requirements under this section. Communication charges related to any additional equipment attached to the VMS unit by the owner or operator shall be the responsibility of the owner or operator and not NMFS.
(4) The holder of a longline permit and the master of the vessel operating under the permit must:
(i) Provide opportunity for the SAC to install and make operational a VMS unit after notification.
(ii) Carry the VMS unit on board whenever the vessel is at sea.
(iii) Not remove or relocate the VMS unit without prior approval from the SAC.
(5) The SAC has authority over the installation and operation of the VMS unit. The SAC may authorize the connection or order the disconnection of additional equipment, including a computer, to any VMS unit when deemed appropriate by the SAC.
(e) Protected species workshop. (1) Each year both the owner and the operator of a vessel registered for use of longline gear must attend and be certified for completion of a workshop conducted by NMFS on mitigation, handling, and release techniques for turtles and seabirds and other protected species.
(2) A protected species workshop certificate will be issued by NMFS annually to any person who has completed the workshop.
(3) An owner of a vessel registered for use of longline gear must have on file a valid protected species workshop certificate or copy issued by NMFS in order to maintain or renew their vessel registration.
(4) An operator of a vessel registered for use of longline gear must have on board the vessel a valid protected species workshop certificate issued by NMFS or a legible copy thereof.
(f) An operator of a vessel registered for use of longline gear must notify the Regional Administrator at least 24 hours prior to embarking on a fishing trip regardless of the intended area of fishing.
(g) An operator of a vessel registered for use of longline gear in waters east of 150° W. long. and beyond the EEZ is subject to the requirements at 50 CFR part 223.