42786 Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 600 

[Docket No. 071121736–91118–03] 

RIN 0648–AR78 

Magnuson-Stevens Act Provisions; 

Experimental Permitting Process, 

Exempted Fishing Permits, and 

Scientific Research Activity 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues new and revised 

definitions for certain regulatory terms, 

and procedural and technical changes to 

the regulations addressing scientific 

research activities, exempted fishing, 

and exempted educational activities 

under the Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSA). This action is necessary to 

provide better administration of these 

activities and to revise the regulations 

consistent with the Magnuson-Stevens 

Fishery Conservation and Management 

Reauthorization Act (MSRA). NMFS 

intends to clarify the regulations, ensure 

necessary information to complete 

required analyses is requested and made 

available, and provide for expedited 

review of permit applications where 

possible. 

DATES: Effective September 24, 2009. 

ADDRESSES: Written comments 

regarding burden-hour estimates or 

other aspects of the collection-ofinformation requirements contained in 

this final rule may be sent to Alan 

Risenhoover, Director, Office of 

Sustainable Fisheries, 1315 East-West 

Highway, SSMC3, Silver Spring, MD 

20910, and to the Office of Information 

and Regulatory Affairs, Office of 

Management and Budget, Washington, 

D.C. 20503 (Attn: NOAA Desk Officer), 

or email to 

DavidlRostker@omb.eop.gov, or fax to 

(202) 395–7285. 

Copies of the categorical exclusion 

(CE) prepared for this action are 

available from NMFS at the above 

address or by calling the Office of 

Sustainable Fisheries, NMFS, at 301– 

713–2341. 

FOR FURTHER INFORMATION CONTACT: 

Jason Blackburn at 301–713–2341, or by 

e-mail at jason.blackburn@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background and Need for Action 

On January 12, 2007, the MSRA was 

enacted. Section 204 of the MSRA 

added a new Cooperative Research and 

Management Program section (section 

318) to the MSA. Section 318(d) of the 

revised MSA requires that the Secretary, 

through NMFS, ‘‘promulgate regulations 

that create an expedited, uniform, and 

regionally-based process to promote 

issuance, where practicable, of 

experimental fishing permits.’’ Under 

the 1996 exempted fishing regulations, 

exempted and experimental fishing 

were treated synonymously as the terms 

had been used interchangeably in the 

regions. (March 15, 1996, 61 FR 10712 

and May 28, 1996, 61 FR 26435) This 

rulemaking continues the practice of 

using the terms interchangeably. 

A proposed rule with revisions and 

updates to the regulations addressing 

scientific research activities, exempted 

fishing, and exempted educational 

activities was published in the Federal 

Register on December 21, 2007 (72 FR 

72657), with a comment period ending 

on March 20, 2008. An extension of the 

comment period was published on 

March 18, 2008 (73 FR 14428) that 

extended the comment period to April 

4, 2008. The extension of the comment 

period for an additional 15 days was 

intended to ensure that NMFS provided 

adequate time for fishery management 

councils, stakeholders and members of 

the public to comment on the proposed 

revisions. 

Comments and Responses 

A total of 18 relevant comment letters 

were received from regional fishery 

management councils, environmental 

organizations, industry representatives, 

research institutions, and other 

members of the public. These comments 

are summarized below. 

Compensation Fishing 

Comment 1: Several commenters had 

questions about how compensation 

fishing can be authorized, including 

when it requires an EFP. 

Response: Compensation fishing is 

authorized under section 402(e) of the 

MSA. Historically, the primary purpose 

of compensation fishing has been to 

compensate scientific research vessel 

owners or operators for participating in 

NMFS sponsored resource surveys. 

More recently, compensation fishing has 

also been authorized to compensate 

vessels participating in scientific 

research projects conducted by nongovernmental institutions where 

additional fish, outside of the scope of 

the scientific research plan, are needed 

to fund the research. The amount of fish 

caught during scientific research 

activities must be limited to only that 

which is necessary to meet the needs of 

the research, i.e., the amount identified 

in the scientific research plan as the 

necessary sample size to support a 

robust analysis. Any additional fish 

needed to compensate vessels for their 

participation requires evaluation of the 

effects of this additional mortality on 

the affected stock(s), for example, to 

ensure that overfishing does not occur, 

consistent with National Standard (NS) 

1, the NS1 Guidelines, and MSA section 

303(a)(15). The following scenarios are 

provided to assist in determining 

whether or not compensation fishing 

requires an EFP: (1) For research 

projects where the additional mortality 

associated with the compensation 

fishing has already been evaluated in a 

Fishery Management Plan (FMP) or 

FMP action, which allocates a set 

amount of fish to a research set-aside 

(RSA) and includes analysis of the 

impacts of the action (such as the 

annual specifications process used for 

the Mid-Atlantic Council’s fisheries), no 

further analysis is required, and the 

compensation fishing may not require 

an EFP, depending on whether 

exemptions from existing regulations 

would be requested (e.g., possession 

limits, seasonal closures, etc.); (2) for 

research projects where compensation 

fishing would be consistent with the 

regulations for the fishery, the 

compensation fishing would not require 

an EFP; and (3) for research projects 

where the additional mortality 

associated with the compensation 

fishing has not been evaluated, or where 

the proposed compensation fishing 

would require an exemption from a 

fishery regulation, such as fishing 

during a closed season or retaining 

catch in excess of allowable limits, the 

compensation fishing would require an 

EFP. 

Comment 2: One commenter asked for 

clarification about whether a contract 

for compensation fishing can be used in 

lieu of an EFP outside of the RSA 

program. 

Response: A contract entered into by 

NMFS to conduct compensation fishing 

does not exempt the participating 

vessel(s) from any fishing regulations. 

An EFP is always required for any 

fishing activity that would, or has the 

potential to, violate any fishing 

regulation (e.g., fishing during a closure 

or in excess of a possession limit), 

unless the fishing activity has been 

approved to be conducted in concert 

with a scientific research activity that 

was issued a scientific research permit 

or a letter of acknowledgment. 


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Comment 3: Two commenters 

suggested that creating a new 

compensation fishing permit would 

help to streamline the process by 

alleviating the lengthy EFP review 

process. 

Response: Any permit issued by 

NMFS is a Federal action, and as such 

must comply with any and all 

applicable laws, including the 

Endangered Species Act (ESA), the 

Marine Mammal Protection Act 

(MMPA), and the National 

Environmental Policy Act (NEPA). 

Therefore, a separate permit for 

compensation fishing would require the 

same review process as an EFP, and 

would not streamline the process. 

Comment 4: Two commenters 

suggested that NMFS should streamline 

issuance of an EFP for compensation 

fishing by issuing the EFP at the same 

time as the Letter of Acknowledgment 

(typically occurring when projects 

utilize multiple vessels to conduct 

scientific research and compensation 

fishing), or by combining the EFPs for 

the principle investigator (PI) and the 

vessels. 

Response: The time frame involved in 

reviewing applications and issuing 

Letters of Acknowledgment and EFPs is 

very different, because issuing an EFP is 

a Federal action requiring compliance 

with other applicable laws, while 

providing a Letter of Acknowledgment 

does not trigger the same requirements. 

Issuing both at the same time would 

essentially delay the receipt of the Letter 

of Acknowledgment, thus potentially 

delaying the start of the scientific 

research. The decision to combine, or 

not combine, the EFPs for the PI and the 

vessels should be handled on a case-bycase basis by the Regional Administrator 

or Director. In the Mid-Atlantic RSA 

program, the vessels participating in a 

given project are often listed on one 

EFP, which is issued to the PI. Other 

programs and regions may find that a 

different approach works better under 

their particular circumstances. Vessels 

participating in a scientific research 

activity or compensation fishing should 

be identified in the Letter of 

Acknowledgment and/or EFP. It is the 

PI’s responsibility to manage the project 

and to ensure that all aspects of the 

project are carried out in accordance 

with the scientific research plan and the 

EFP. No research or compensation 

fishing should occur until the PI has 

coordinated with the vessel and 

provided the vessel with a copy of the 

Letter of Acknowledgment and/or EFP. 

Conservation Engineering 

Comment 5: Many commenters raised 

concerns about how the two terms, 

‘‘conservation engineering’’ and ‘‘gear 

testing,’’ appear to limit the types of 

cooperative research projects that would 

be allowed, or not allowed, particularly 

in light of the very restrictive ‘‘gear 

testing’’ definition. This caused 

particular concern for researchers who 

conduct catch rate comparisons as part 

of their research protocols. One 

commenter agreed that the distinction 

between ‘‘conservation engineering’’ 

and the ‘‘testing of gear’’ needs to be 

clarified. 

Response: The definition of 

‘‘scientific research activity’’ states that 

such activity does not include ‘‘the 

testing of fishing gear.’’ As a result, 

people have obtained EFPs for many 

projects that might otherwise be 

considered scientific research. In the 

proposed rule, NMFS intended the 

narrow definition of ‘‘gear testing,’’ 

coupled with the new definition of 

‘‘conservation engineering,’’ to allow 

more projects to be considered scientific 

research activities that would not 

require an EFP because scientific 

research activities are outside of the 

scope of the MSA. Additionally, the 

proposed rule referred to testing 

modified gear as conservation 

engineering instead of ‘‘gear testing.’’ 

Due to the breadth of concerns raised 

about the definition of gear testing, and 

because the term is often used 

synonymously with conservation 

engineering, NMFS removed the 

definition of gear testing from the final 

rule. Therefore, as clarification, NMFS 

emphasizes that according to the MSA 

definition of fishing, scientific research 

activities are not fishing. Accordingly, 

conservation engineering activities that 

also meet the definition of scientific 

research activity are not fishing. 

Alternatively, conservation engineering 

activities that do not meet the definition 

of scientific research activity, but that 

do meet the definition of fishing are 

fishing, and must be conducted under 

an EFP if the activity would otherwise 

be prohibited by regulations under part 

600. 

Comment 6: Three commenters 

suggested that the phrase ‘‘efficient 

harvest of target species’’ in the 

definition of ‘‘conservation engineering’’ 

should be interpreted broadly to include 

projects that focus on environmental 

efficiency, such as testing methods to 

reduce fuel consumption and 

greenhouse gas emissions. 

Response: This phrase comes directly 

from MSA section 404(c)(2). As such its 

intent is clearly fisheries conservation, 

and not other forms of environmental 

conservation, which are outside the 

scope of the MSA and these regulations. 

Fishermen will take steps to reduce fuel 

consumption and increase efficiency in 

the course of their normal business. 

Comment 7: Two other commenters 

focused on the phrase ‘‘efficient harvest 

of target species’’ in the definition of 

‘‘conservation engineering.’’ One 

suggested that the phrase should be 

revised so that it does not encourage 

increased catch efficiency, while the 

other suggested that conservation 

engineering work should focus on 

minimizing bycatch while maintaining 

or increasing target catches. 

Response: ‘‘Conservation 

engineering’’ is defined in the 

regulations as relating to fisheries 

conservation and the research being 

conducted to minimize the unintended 

impacts of fishing. The phrase ‘‘efficient 

harvest of target species’’ needs to be 

considered in the context of 

’’conservation engineering,’’ which 

includes ‘‘the study of fish behavior and 

the development and testing of new gear 

technologies and fishing techniques that 

reduce collateral effects, such as 

minimizing bycatch and any adverse 

effects on EFH.’’ This definition is 

intended to promote research that 

focuses on ways to harvest target species 

in a manner that conserves and reduces 

impacts on non-target species. The 

definition is not intended to promote 

research that focuses on catching more 

of the target species. 

Comment 8: Another commenter was 

concerned that the phrase ‘‘minimizing 

bycatch and any adverse affects on 

EFH’’ in the definition of ‘‘conservation 

engineering’’ might be misconstrued as 

examples of ‘‘collateral effects.’’ 

Response: To alleviate possible 

misunderstandings, the reference to 

‘‘collateral effects’’ has been removed 

from the definition, and the language of 

MSA section 404(c)(2) has been used 

verbatim. 

Comment 9: One commenter raised 

concern that some activities that have 

typically required an EFP in the past 

may be reclassified as scientific research 

and would now receive a Letter of 

Acknowledgment and not have to go 

through the Council review process 

associated with EFP proposals. 

Response: The new definition of 

‘‘conservation engineering’’ and the 

associated revision of the definition of 

‘‘scientific research activity’’ are 

provided to assist the Regional 

Administrator or Director in 

determining whether an activity is, or is 

not, scientific research. This 

determination is a matter of 

interpretation, and the changes to these 

definitions are provided for clarity. If an 

activity that would otherwise be 

considered fishing is determined to be 


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scientific research, then it is not 

regulated by the MSA. 

Comment 10: One commenter 

inquired about whether or not 

‘‘conservation engineering’’ includes the 

deployment of modified fishing gear 

under conditions similar to commercial 

fishing to assess the effectiveness of the 

modifications and to make comparisons 

to gear allowed under regulations. 

Response: The expectation is that 

some conservation engineering projects 

will indeed need to conduct activities 

such as those described above in order 

to scientifically verify the effectiveness 

of the modified gear. It is very important 

that the amount of fish taken during 

such activities be kept to the minimum 

necessary to achieve a scientifically 

robust analysis while conserving the 

resource, and that any mortality is 

accounted for consistent with NS1, the 

NS1 Guidelines, and MSA section 

303(a)(15), as well as other MSA 

provisions and other applicable laws, 

including the ESA. Any additional fish 

used as compensation for conducting 

the research must be caught either by 

fishing consistent with existing 

regulations or through compensation 

fishing, which must be approved by 

NMFS. The definition of conservation 

engineering has been revised to identify 

the activity as the development and 

assessment of fishing technologies and 

fishing techniques designed to conserve 

target and non-target species. The 

language of MSA section 404(c)(2) is 

then provided as an example of 

conservation engineering. 

Comment 11: Two commenters 

inquired about what is meant by ‘‘new’’ 

gear technologies in the definition of 

‘‘conservation engineering.’’ 

Response: To clarify this point, NMFS 

added additional language to the 

definition to indicate that conservation 

engineering may include the 

development and assessment of new 

gear technologies as well as the 

assessment of existing technologies 

applied in novel ways. An example 

would be assessing the ability of a 

bycatch reduction device (BRD), 

designed and proven in one fishery, to 

reduce bycatch in another fishery. 

Comment 12: Two commenters 

suggested that NMFS should ensure that 

EFPs produce meaningful results and 

provide information that will advance 

fishery management, and that the 

regulations should include a list of 

requirements for EFPs similar to that 

provided for conservation engineering 

and scientific research activities. 

Another commenter suggested that we 

remove the requirement that these 

activities address a testable hypothesis, 

as this undercuts the validity of 

resource surveys, which do not test a 

hypothesis but instead make scientific 

observations. 

Response: An EFP is a permit issued 

for an exemption from one or more 

fishery regulations. There are many 

reasons for requesting an EFP. Not all 

EFPs are issued for research purposes or 

to obtain information for fishery 

management purposes. The proposed 

rule included a discussion of 

conservation engineering and the 

distinctions between fishing activities 

that require an EFP and scientific 

research activities that do not, where a 

Letter of Acknowledgment is 

appropriate. Not all scientific research 

involves testing a hypothesis. Resource 

surveys by their nature record 

observations instead of testing a 

hypothesis. The MSA mandates in 

section 318(d) that the process be 

regionally-based. Councils can set 

research priorities for the fisheries that 

they manage. It is appropriate to leave 

the decision regarding the merits of each 

EFP proposal to the Regional 

Administrator or Director, with input 

from the relevant Council and the 

public obtained during the public 

comment process. 

Comment 13: Three commenters 

suggested that the discussion about 

mortality associated with conservation 

engineering was characterized with 

unsupported statements and 

generalizations, and that in some cases 

the mortality has already been 

accounted for under the relevant 

FMP(s). 

Response: The proposed rule 

preamble described conservation 

engineering and included a description 

of NMFS concerns about the impacts of 

conservation engineering activities and 

the associated mortality. Conservation 

engineering activities may catch 

substantial amounts of fish. For 

example, when conducting catch rate 

comparisons between experimental and 

control gear, projects often conduct 

multiple sets of tows to compare 

catches. The mortality associated with 

conservation engineering work needs to 

be properly accounted for and analyzed, 

consistent with NS1, the NS1 

Guidelines, and MSA section 303(a)(15). 

If the activity is scientific research, then 

the activity is not regulated under the 

MSA, but the mortality should be 

analyzed under the relevant FMP(s) as 

scientific research mortality. If the 

activity is fishing and the fish are 

landed against the appropriate quota, 

then the mortality has already been 

analyzed as part of the FMP action that 

set the quota (this includes RSA 

programs). If the activity is fishing and 

is being conducted under an EFP, then 

the mortality should be analyzed as part 

of the EFP application if it has not 

already been analyzed elsewhere. 

Scientific Research Activity 

Comment 14: Several commenters 

raised concerns with various aspects of 

the definition of scientific research 

activity. Some comments focused on the 

distinction between scientific research 

and fishing. It was suggested in several 

comments that work done under an EFP 

is not considered to be scientific, that 

there is a perception that EFPs amount 

to a lower standard of research, and that 

EFPs are used as a ‘‘catch all’’ for 

projects that do not meet the specifics 

of the definition of scientific research. 

Response: Scientific research is not 

regulated by the MSA, and as such it is 

exempt from fisheries regulations. A 

definition of scientific research activity 

is provided to clarify what activities 

would qualify for such an exemption. 

Fishing activities that do not meet the 

definition of scientific research activity, 

and are prohibited by fishery 

regulations, require an EFP to exempt 

the activity from the relevant 

regulations. The determination that an 

EFP is necessary does not denigrate the 

scientific nature of an activity; it simply 

indicates that some aspect of the activity 

requires an exemption. 

Comment 15: Two commenters 

inquired about whether or not the fish 

caught during a research activity can be 

sold. 

Response: Only fish that are caught 

during a scientific research activity that 

is within the scope of the scientific 

research plan may be sold. Under the 

MSA scientific research activity on 

board a scientific research vessel is not 

fishing. Therefore, the sale of fish 

caught and retained during a scientific 

research activity that is within the scope 

of the research plan is not fishing or 

commercial fishing as defined by the 

MSA, and the sale of such fish does not 

change the scientific activity to fishing. 

Alternatively, the retention and sale of 

fish exceeding the scope of the research 

plan is fishing and requires the 

appropriate permits. 

Scientific Research Vessel 

Comment 16: Eleven of the 18 

commenters had a comment regarding 

the utilization of commercial fishing 

vessels as research platforms and many 

suggested that commercial fishing 

vessels should be specifically included 

in the definition of ‘‘scientific research 

vessel.’’ Many of the comments focused 

on the ownership or chartering of 

vessels and on the misconception that 

commercial fishing vessels can not be 


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Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 42789 

utilized as scientific research vessels 

under the current regulations. 

Response: There were no revisions to 

the definition of scientific research 

vessel in the proposed rule. Under 

current regulations, a commercial 

fishing vessel can be utilized as a 

scientific research vessel if: (1) The 

activities on board the vessel meet the 

definition of scientific research activity; 

and (2) the vessel is ‘‘owned or 

chartered by, and controlled by, a ... 

U.S. Government agency ... U.S. state or 

territorial agency, university ... or 

scientific institution.’’ To date, the 

evaluation of proposals and the types of 

vessels being utilized as research 

platforms has been handled on a caseby-case basis by the Regional 

Administrator or Director. In some 

cases, state agencies and scientific 

institutions conducting research on 

board commercial fishing vessels have 

been required to obtain an EFP, while in 

other cases universities conducting 

similar research have received a Letter 

of Acknowledgment. These types of 

situations have been misconstrued to 

mean that commercial fishing vessels 

can not be utilized as research platforms 

without obtaining an EFP, when in fact 

that is not the case. Often the more 

important qualifier is the level of 

accreditation and/or scientific standing 

of the scientific institution. NMFS 

recognizes the importance of having the 

ability to conduct scientific research on 

board commercial fishing vessels, both 

for convenience as well as for necessity 

of the research. Commercial fishing 

vessels have been, and may continue to 

be, utilized as scientific research 

platforms. The decision to recognize 

this activity under a Letter of 

Acknowledgment versus requiring that 

an EFP be obtained should remain 

under the purview of the Regional 

Administrator or Director, be 

determined on a case-by-case basis, and 

be based on the merits of the individual 

proposal and the institution(s) involved, 

i.e., whether the proposed activity meets 

the definition of scientific research 

activity, and whether the vessel meets 

the definition of scientific research 

vessel. Allowing the Regional 

Administrator or Director to make this 

determination meets the ‘‘regionallybased’’ mandate in MSA section 318(d). 

Language to this effect has been added 

to the definition of scientific research 

vessel that incorporates ‘‘commercial 

fishing vessels’’ and states that Letter of 

Acknowledgment versus EFP 

determinations should be made by the 

Regional Administrator or Director. 

General Comments 

Comment 17: Two commenters 

suggested the introduction of a new 

term and concept, a NMFS-approved 

scientific research plan. Under this 

concept, the scientific research plan 

would be the document that would be 

used to determine whether the proposed 

activity: (1) should be considered a 

scientific research activity and be 

recognized with a Letter of 

Acknowledgment; or (2) should not be 

considered a scientific research activity 

and therefore may require an EFP. Using 

this concept, if NMFS approves the 

scientific research plan as part of a grant 

proposal review or other approval 

process, then the proposal should be 

deemed a scientific research project, 

and no further review, approval, or 

permit should be required. 

Response: The determination made by 

the Regional Administrator or Director, 

as to whether a project is a scientific 

research activity, is separate and 

distinct from the decisions made to fund 

a project. While funding approval 

indicates that the project has merit, it 

does not evaluate the project in the 

context of the relevant fishery 

regulations. To create a system to do 

both would require a major reworking of 

the existing programs and their 

processes, and the involvement of all 

the affected programs. This is beyond 

the scope of this rulemaking. 

Comment 18: Five commenters raised 

concerns with the proposed exemption 

of projects funded by quota set-asides 

from the requirement to publish 

separate notices in the Federal Register, 

even though notice has already been 

published in the Federal Register as 

part of the annual specifications process 

for a program, such as the Mid-Atlantic 

RSA program. The primary concerns 

were that this exemption would 

effectively block a Council’s ability to 

comment on these proposals, and that it 

may hinder the ability of other 

concerned parties to comment on the 

proposed activities. 

Response: NMFS agrees that it is 

important to ensure that the Councils 

and the public have the ability to 

comment on all EFP proposals. 

Therefore, the exemption has been 

removed from the rule. In addition to 

NMFS publishing a notice in the 

Federal Register for EFP proposals, 

Councils may take public comments on 

EFP proposals at Council meetings, 

providing additional opportunities for 

public comment. 

Comment 19: One commenter 

supported the proposed change to the 

regulations requiring that the Regional 

Administrator or Director withhold a 

Letter of Acknowledgment if they 

determined that the proposed research 

activity may require a permit or 

consultation under ESA, MMPA, or 

other applicable law, while another 

commenter was against this approach, 

indicating that it restricts the Regional 

Administrator or Director’s ability to 

issue a Letter of Acknowledgment and 

that it would likely cause delays. 

Response: To address these concerns, 

an alternate approach has been selected 

that allows the Regional Administrator 

or Director to provide the applicant with 

a Letter of Acknowledgment in these 

cases, but requires that they include text 

in the Letter of Acknowledgment 

informing the applicant that they may 

require a permit or consultation under 

other laws. 

Comment 20: One commenter 

suggested that these regulations should 

clarify which activities are commercial 

fishing, and which are not, for purposes 

of the MMPA. 

Response: Throughout the final rule, 

clarification has been provided as to 

when the various activities are fishing 

under the MSA. It is not appropriate for 

these regulations to address fishing as it 

relates to the MMPA. 

Comment 21: Three commenters 

raised concerns about the proposed 

changes affecting the amount of 

additional information and the level of 

analysis required to be submitted with 

an EFP application. In particular, the 

level of NEPA analysis was felt to be 

excessive, potentially requiring an 

environmental assessment (EA) level of 

analysis for projects that would likely 

only require a CE. One commenter 

supported the development of broadbased analyses under NEPA and ESA 

that can apply to multiple projects. 

Response: The proposed changes were 

intended to broaden the list of items 

that need to be considered when 

reviewing an application, to include 

items, such as EFH, that have been 

added to the MSA since the original 

regulations were published in 1996. The 

proposed changes were not intended to 

require EA-level analysis for every 

proposal prior to application. The 

agency supports proactive, up-front 

discussions to alleviate problems during 

the application and review process. EFP 

applicants are encouraged to contact the 

applicable NMFS regional office to 

discuss the proposed activity prior to 

submitting an application. Having this 

initial discussion benefits both parties. 

The agency becomes aware of the 

proposed activity and can provide the 

applicant with information about the 

relevant regulations and other 

information pertinent to its application, 

such as: if the proposed activity is likely 


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to meet the definition of scientific 

research activity and be eligible to 

receive a Letter of Acknowledgment, or 

if it requires an exemption from a 

fishery regulation, thus requiring an 

EFP; and any additional information 

that is needed for a complete 

application. This initial discussion also 

gives the applicant the chance to find 

out if any other laws may apply (e.g., 

ESA, MMPA, NEPA, etc.) and what 

level of NEPA analysis might be 

required. The agency also supports the 

combination of groups of associated 

projects, and their associated 

applications, analyses, etc., such as the 

projects funded through the MidAtlantic RSA program and the Northeast 

Cooperative Research Partners Program. 

The agency has streamlined the process 

for reviewing applications and 

combining analyses for these grouped 

projects. For example, the NEPA 

analysis for the Mid-Atlantic RSA 

projects is included as part of the EA for 

the annual specifications process for the 

respective FMP(s), thus alleviating the 

need for each project to do its own 

analysis. The agency is also open to 

considering the development of broadbased (umbrella) EFPs for groups of 

associated projects. This approach is 

currently being considered for the 

Cooperative Research Study Fleet in the 

Northeast region. 

Comment 22: Two additional 

comments also focused on 

environmental analyses. One 

recommended that environmental 

analyses should be completed and made 

available to the public before the public 

comment period on an EFP application. 

The other suggested that collective and 

cumulative impacts of multiple 

concurrent EFPs must be evaluated. 

Response: The Federal Register notice 

that is published for EFP applications 

provides a brief description of the 

proposed activities, and provides 

contact information for the NMFS staff 

involved in reviewing such proposals. 

The public may contact NMFS staff to 

request a copy of the environmental 

analyses submitted for the proposed 

project. Some regions also make their 

NEPA analyses available through their 

regional website. NMFS is concerned 

with the cumulative impacts of multiple 

concurrent EFP projects. There are 

NEPA staff located in each NMFS 

regional office and at NMFS 

Headquarters. They monitor and track 

NEPA-related activities under their 

purview, and perform appropriate 

analyses, such as cumulative impact 

analyses, in accordance with national 

and regional policies and procedures. 

Comment 23: Several commenters 

raised concerns that the proposed rule 

did not meet Congress’ intent in MSA 

section 318(d) to ‘‘promulgate 

regulations that create an expedited, 

uniform, and regionally-based process 

to promote issuance, where practicable, 

of experimental fishing permits.’’ Some 

comments asserted that there was little 

if any streamlining of the process. Other 

comments focused on a need for 

flexibility to address issues on a 

regional basis, while recognizing that 

the proposed rule did provide remedies 

to some existing regional problems. 

Most of the comments related to MSA 

language raised concerns that the 

proposed changes would actually make 

the EFP process more complex and 

burdensome. 

Response: NMFS believes that the 

proposed rule does meet Congressional 

intent. Congress did not provide a 

definition of ‘‘experimental fishing’’ in 

the reauthorized MSA and NMFS 

regulations at § 600.10 have long 

interpreted ‘‘experimental fishing’’ and 

‘‘exempted fishing’’ as synonymous. 

Therefore, the mandate in section 318(d) 

was viewed as direction to amend the 

existing regulations. The existing 

regulations, in conjunction with the 

revisions made herein, allow for 

regional flexibility while also 

maintaining national consistency. The 

regulations allow the Regional 

Administrator or Director to make 

determinations on a case-by-case basis 

when this is the best solution to address 

region and fishery specific issues. This 

meets the congressional mandate to 

have a ‘‘uniform, and regionally-based 

process.’’ Part of the concern raised 

about the additional complexity 

introduced in the proposed rule directly 

relates to the proposed definition of 

‘‘gear testing.’’ The removal of the 

definition of gear testing, and the further 

clarification of conservation 

engineering, scientific research activity, 

scientific research vessel, and exempted 

fishing, provides additional clarification 

to address these concerns. Some 

conservation engineering projects will 

now be considered scientific research 

and will qualify for a Letter of 

Acknowledgment, thus simplifying and 

streamlining the review and issuance 

process for these projects. The process 

for obtaining EFPs is complex due to the 

need to comply with other applicable 

laws (e.g., ESA, MMPA, NEPA, etc.). 

Where the process becomes the most 

efficient is in the programs, like the 

Mid-Atlantic RSA and Northeast 

Cooperative Research Study Fleet, 

where the analyses can be performed for 

all the participating projects at the same 

time. NMFS encourages the Councils to 

work with the cooperative research 

community and NMFS to increase the 

use of these types of programs. 

Comment 24: One commenter stated 

that the Councils were not adequately 

engaged in the preparation of the 

proposed rule. 

Response: NMFS engaged the 

Councils as allowed under current 

authorities. NMFS conducted several 

conference calls with regional office and 

Council staff to discuss the draft 

proposed rule. NMFS also briefed the 

Council Chairs and Executive Directors 

on the proposed rule at the March 2008 

Council Coordination Committee 

meeting. 

Comment 25: One commenter was 

concerned that the time limit for EFPs 

specified in the proposed rule in 

§ 600.745(b)(5) is limiting and 

unnecessary. The commenter indicated 

that the duration of the permit can be 

determined during the review of the 

proposal and can be handled on a caseby-case basis. 

Response: The 1-year limit specified 

in the proposed rule is in the existing 

regulations, and was not revised in the 

proposed rule. The only proposed 

change to this section was the removal 

of the phrase ‘‘unless revoked, 

suspended, or modified.’’ The relevant 

paragraph now reads: ‘‘Unless otherwise 

specified in the EFP or a superseding 

notice or regulation, an EFP is valid for 

no longer than 1 year. EFPs may be 

renewed following the application 

procedures in this section.’’ Therefore, 

the Regional Administrator or Director 

continues to have the discretion to issue 

an EFP for more than 1 year. 

Comment 26: One commenter stated 

that inclusion of terms and conditions 

in EFPs should not be discretionary. 

Response: Section 600.745(b)(3)(v) 

allows the Regional Administrator or 

Director the discretion to attach terms 

and conditions to an EFP on a case-bycase basis, and does not mandate 

specific terms and conditions, thus 

allowing for a regionally-based process. 

Comment 27: One commenter raised a 

concern that § 600.745(b)(3)(ii) could be 

interpreted to mean that NMFS may not 

have to consult with the Council(s). The 

commenter felt strongly that all EFP 

applications should be reviewed by the 

Council(s), and wanted to ensure that 

Council review will not be 

circumvented by the new regulations. 

Response: Section 600.745(b)(3)(i) 

states, ‘‘The Regional Administrator or 

Director also will forward copies of the 

application to the appropriate 

Council(s), the USCG, and the 

appropriate fishery management 

agencies of affected states ...’’ This is a 

mandatory requirement to notify the 

appropriate Council(s) and other 


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agencies that an EFP application is 

under review and provides an 

opportunity for the Council(s) and 

agencies to review and provide 

comment on the application. Further, 

§ 600.745(b)(3)(ii) states, ‘‘If the 

application is complete and warrants 

additional consultation, the Regional 

Administrator or Director may consult 

with the appropriate Council(s) 

concerning the permit application 

during the period in which comments 

have been requested.’’ This sentence 

was not revised in the proposed rule. 

Retaining this wording allows the 

Councils the flexibility to do their 

review during a Council meeting, and 

not necessarily during the comment 

period. 

Comment 28: Two commenters raised 

issue with the language in 

§ 600.745(b)(1) allowing the collection 

of a fee for issuance of an EFP. 

Response: This language is in the 

existing regulations, and was not 

revised in the proposed rule. The 

language does not mandate that a fee 

will be charged, it simply allows a fee 

to be charged. 

Comment 29: One commenter 

recommended that the proposed 

regulations at § 600.745(b)(1) be revised 

to clarify that EFPs will not be issued to 

authorize fishing activities that are 

inconsistent with the requirements of 

take reduction plans adopted under the 

MMPA. Another commenter requested 

that the regulations clarify when ESA 

consultation will be required. 

Response: NMFS emphasizes that this 

rulemaking concerns regulations of 

general applicability. In the course of 

reviewing each EFP application, NMFS 

conducts the appropriate level of ESA 

and MMPA consultation, which require 

a fact-specific inquiry. Concerns about 

consistency with any relevant take 

reduction plans would be evaluated at 

that time. 

Comment 30: One commenter raised a 

concern with the potential increased 

expense of particular terms and 

conditions that may be applied to EFPs 

under the authority of revised 

§ 600.745(b)(3)(v). They point out that 

requiring observers, vessel monitoring 

systems, or other electronic devices as a 

condition of an EFP may add significant 

costs to a project, and that such costs 

should be incorporated into the grant or 

that compensation fishing should be 

authorized to help cover the additional 

expense. 

Response: This regulation, which is 

only slightly modified from the existing 

requirements in § 600.745(b)(3)(v), was 

written to provide the Regional 

Administrator or Director with the 

flexibility to place specific terms and 

conditions within each EFP 

authorization on a case-by-case basis. 

NMFS realizes that these additional 

terms and conditions may increase the 

cost of conducting the project. When the 

Regional Administrator or Director 

requires additional terms and 

conditions they have made an informed 

decision that they are necessary. 

Comment 31: One commenter raised 

concerns about the modification of 

projects issued EFPs. They 

recommended that any modifications 

should be clearly documented, and the 

public should be notified of any such 

changes. 

Response: It is currently left up to the 

discretion of the Regional Administrator 

or Director as to whether any proposed 

modifications will be authorized, and to 

what extent a modification requires 

review and consultation. Minor 

modifications, such as the replacement 

of one vessel by another similar vessel, 

are handled as routine. In such 

circumstances, the principal 

investigator submits to NMFS 

information about the new vessel and 

any additional information required in 

the applicable region, such as the 

owner’s or operator’s signature agreeing 

to the conditions of the permit. NMFS 

then evaluates and documents the 

replacement based on regional policies, 

which include consideration of the 

vessel’s history of prior fisheries 

violations, if any, and, in some regions, 

issuance of a new EFP listing the new 

vessel. The new vessel must carry the 

permit on board while conducting EFP 

activities. Other minor modifications, 

such as a slight change to the start and 

end date of a project, are typically 

handled by conducting an abbreviated 

review and possibly a consultation 

process (time and area changes may 

require ESA, MMPA and/or Habitat 

consultation), while significant 

modifications, such as gear changes, 

requests to enter an adjacent closed 

area, or substituting a vessel that is not 

equivalent to the vessel it replaces, are 

typically handled as a new application, 

with full review and consultation, as 

needed. 

Comment 32: One commenter raised 

multiple concerns regarding the level of 

involvement that NMFS should have 

with applicants, the amount of 

assistance provided in the completion of 

EFP applications, and whether or not 

resubmissions of previously denied 

projects should be considered. 

Response: NMFS will provide some 

level of assistance to EFP applicants, as 

resources and priorities allow. It is at 

the agency’s discretion to decide how 

much assistance is appropriate given the 

nature of the situation. These situations 

are best handled on a case-by-case basis. 

All applications for EFPs should be 

considered, even those that are being 

resubmitted after being previously 

denied. 

Comment 33: Three commenters 

raised questions regarding the new 

regulations added in § 600.745(e) 

concerning observers. The commenters 

inquired to whom the regulations 

applied, and what was meant by ‘‘other 

programs.’’ 

Response: This section was added to 

specifically address an agency need 

regarding its ability to place observers 

on fishing vessels to collect fish and/or 

data. It applies specifically to the NMFS 

observer programs, and to NMFS 

observers, staff, and contractors 

conducting activities in accordance with 

approved NMFS observer program 

sampling protocols. The reference to 

‘‘other programs’’ in the preamble of the 

proposed rule means any other NMFS 

program besides the NMFS observer 

program (e.g., the NMFS study fleet 

program in the Northeast). This section 

of the regulations is not intended to 

apply to any other observer programs, 

such as those associated with any state 

agency, university, research institution, 

or industry group. Determining whether 

another institution requires an EFP shall 

be based upon the proposed activities 

and the regulations pertaining to 

scientific research and exempted 

fishing. 

Changes from Proposed Rule 

In § 600.10, the definition of 

‘‘Compensation fishing’’ is revised to 

clarify when an EFP is required. 

In § 600.10, the definition of 

‘‘Conservation engineering’’ is revised to 

further describe the types and nature of 

the activities included, that the 

assessment of novel uses of existing 

devices is acceptable, and to clarify 

when this activity is, and is not, fishing, 

i.e., when an EFP or a Letter of 

Acknowledgment is appropriate. 

In § 600.10, the definition of ‘‘Gear 

testing’’ is removed. 

In § 600.10, the definition of 

‘‘Scientific research activity’’ is revised. 

The phrase ‘‘collateral fishing effects’’ 

has been changed to read ‘‘collateral 

effects of fishing.’’ In addition, the 

description of when gear testing may or 

may not be considered scientific 

research is removed. In the proposed 

rule the phrase ‘‘unless it meets the 

definition of conservation engineering’’ 

was added following the phrase ‘‘or the 

testing of fishing gear.’’ Since 

conservation engineering was also 

added to the list of scientific research 

activity topics, this phrase is redundant 

and has been removed. 


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In § 600.10, the definition of 

‘‘Scientific research vessel’’ is revised to 

clarify that a commercial fishing vessel 

can be utilized as a scientific research 

vessel. 

In addition, the definitions for 

compensation fishing, conservation 

engineering, and scientific research 

activity in § 600.10 have been 

streamlined by moving text into the 

operative regulatory sections. For 

example, the regulatory language that 

relates to foreign fishing has been 

deleted from the definitions and placed 

in § 600.512(a) for scientific research, 

and the regulatory language that applies 

to domestic fishing has been deleted 

from the definitions and placed in 

§ 600.745(a) for scientific research and 

§ 600.745(b)(1) for exempted fishing. 

In §§ 600.512(a) and 600.745(a), the 

factors that the Regional Administrator 

or Director should consider when 

making the determination of whether an 

activity constitutes scientific research or 

fishing have been outlined. 

In §§ 600.512(a) and 600.745(a), text is 

added to instruct the Regional 

Administrator or Director to include text 

in the Letter of Acknowledgment 

informing the applicant that the 

proposed research activity may require 

a permit or consultation under other 

applicable laws. The proposed rule had 

instructed the Regional Administrator or 

Director not to issue the LOA until these 

other permits had been obtained. The 

new approach responds to the proposal 

as it pertains to fishing under the MSA 

while informing the applicant of 

potential issues under other applicable 

laws. In the same sections, the word 

‘‘cruise’’ is replaced with the word 

‘‘activity.’’ 

In addition, in §§ 600.512(a) and 

600.745(a), language has been added to 

recommend that a copy of the Letter of 

Acknowledgment accompany any fish, 

or parts thereof, during any ex-vessel 

activities, such as transporting the fish 

or fish parts from the vessel to a 

laboratory. In §§ 600.745(b)(7) and 

600.745(d)(7), language has been added 

to require that a copy of the EFP or 

exempted educational activities 

authorization accompany any fish, or 

parts thereof, during such activities. 

In § 600.745(b)(3)(i), the text that was 

inserted to exempt research projects 

funded by quota set-asides from the 

requirement to publish a separate notice 

in the Federal Register is removed. This 

alleviates the concerns that were raised 

about the council review and public 

comment process for EFP proposals for 

these types of projects. 

In the new § 600.745(b)(4), the 

requirement to sign the permit is 

retained, but the requirement to return 

a copy of the signed permit is removed. 

This requirement did not address a 

current problem, nor did it meet the 

intent of MSA section 318(d) to expedite 

the process. 

In § 600.745(c)(1), ‘‘and the 

appropriate Regional Administrator or 

Director’’ is added so that the NMFS 

Science Center (fisheries scientists) and 

the NMFS Regional Office or Office of 

Sustainable Fisheries (fisheries 

managers) may receive a copy of a 

report derived from the research 

activity. 

In § 600.745(c)(2), the requirement to 

submit a report is revised to set 6 

months as the deadline for submission. 

In § 600.745(e), the phrase NMFSapproved observer protocols is revised 

to read ‘‘NMFS-approved sea sampling 

and/or observer protocols.’’ 

The Paperwork Reduction Act public 

reporting burden-hour estimates have 

been revised based on updated 

estimates from the NMFS regional 

offices. 

Classification 

The NMFS Assistant Administrator 

has determined that this rule is 

consistent with the provisions of 

sections 318(d), 402(e), and 305(d) of 

the MSA, other provisions of the MSA, 

and other applicable law. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration that this 

rule would not have a significant 

economic impact on a substantial 

number of small entities. 

This rule provides clarifications of current 

regulations and information requirements, as 

well as other administrative requirements 

regarding scientific research, exempted 

fishing, and exempted educational activities. 

The rule serves only to define terms, clarify 

distinctions among scientific research 

activity, exempted fishing, and exempted 

educational activities, and standardize 

procedures for applying for and issuing EFPs 

and authorizations for exempted educational 

activities as allowed under EFPs. 

As a result, a final regulatory 

flexibility analysis is not required and 

none has been prepared. 

This rule contains a collection-ofinformation requirement subject to 

review and approval by OMB under the 

Paperwork Reduction Act (PRA), which 

has been approved by OMB under 

Control Number 0648–0309. The public 

reporting burden for this collection of 

information is estimated: (1) To average 

113 hours per response to send NMFS 

a copy of a scientific research plan and 

to average 3 hours per response to 

provide a copy of the cruise report or 

research publication; (2) to average 95 

hours per response to complete an 

application for an EFP and to average 3 

hours per response or authorization for 

an exempted educational activity; and 

(3) to average 47 hours per response to 

provide a report at the conclusion of 

exempted fishing and to average 2 hours 

per response to provide a report at the 

conclusion of exempted educational 

activities, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

information. Send comments regarding 

this burden estimate, or any other aspect 

of this data collection, including 

suggestions for reducing the burden, to 

the Office of Sustainable Fisheries at the 

ADDRESSES above, and email to 

DavidlRostker@omb.eop.gov, or fax to 

(202) 395–7285. Notwithstanding any 

other provision of the law, no person is 

required to respond to, and no person 

shall be subject to penalty for failure to 

comply with, a collection of information 

subject to the requirements of the PRA, 

unless that collection of information 

displays a currently valid OMB control 

number. 

List of Subjects in 50 CFR Part 600 

Fisheries, Fishing. 

Dated: August 19, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For the reasons stated in the preamble, 

NMFS amends 50 CFR part 600 as 

follows: 

PART 600—MAGNUSON-STEVENS 

ACT PROVISIONS 

■ 1. The authority citation for part 600 

continues to read as follows: 

Authority: 16 U.S.C. 971 et seq. and 1801 

et seq. 

■ 2. In § 600.10, definitions for 

‘‘Exempted educational activity’’, 

‘‘Exempted or experimental fishing’’, 

‘‘Region’’, ‘‘Regional Administrator’’, 

‘‘Science and Research Director’’, 

‘‘Scientific research activity’’, and 

‘‘Scientific research vessel’’ are revised, 

and definitions for ‘‘Compensation 

fishing’’ and ‘‘Conservation 

engineering’’ are added, in alphabetical 

order, to read as follows: 

§ 600.10 Definitions. 

* * * * * 

Compensation fishing means fishing 

conducted for the purpose of recovering 

costs associated with resource surveys 

and scientific studies that support the 


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Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 42793 

management of a fishery, or to provide 

incentive for participation in such 

studies. Compensation fishing may 

include fishing during or subsequent to 

such surveys or studies. 

* * * * * 

Conservation engineering means the 

development and assessment of fishing 

technologies and fishing techniques 

designed to conserve target and nontarget species, and may include the 

study of fish behavior and the 

development and testing of new gear 

technologies and fishing techniques to 

minimize bycatch and any adverse 

effects on essential fish habitat and 

promote efficient harvest of target 

species. Conservation engineering may 

include the assessment of existing 

fishing technologies applied in novel 

ways. An example would be assessing 

the ability of a bycatch reduction device 

(BRD), designed and proven in one 

fishery, to reduce bycatch in another 

fishery. Conservation engineering 

meeting the definition of scientific 

research activity is not fishing. 

* * * * * 

Exempted educational activity means 

an activity that would otherwise be 

considered fishing, conducted by an 

educational institution accredited by a 

recognized national or international 

accreditation body, of limited scope and 

duration, that is otherwise prohibited by 

this chapter VI, but that is authorized by 

the appropriate Regional Administrator 

or Director for educational purposes, 

i.e., the instruction of an individual or 

group, and authorized capture of only 

the amount of fish necessary to 

demonstrate the lesson. 

Exempted or experimental fishing 

means fishing from a vessel of the 

United States that involves activities 

otherwise prohibited by this chapter VI, 

but that are authorized under an 

exempted fishing permit (EFP). The 

regulations in § 600.745 refer 

exclusively to exempted fishing. 

References elsewhere in this chapter to 

experimental fishing mean exempted 

fishing under this part. 

* * * * * 

Region means one of six NMFS 

Regional Offices responsible for 

administering the management and 

development of marine resources in the 

United States in their respective 

geographical areas of responsibility. 

Regional Administrator means the 

Administrator of one of the six NMFS 

Regions. 

* * * * * 

Science and Research Director means 

the Director of one of the six NMFS 

Fisheries Science Centers described in 

Table 1 of § 600.502, or a designee, also 

known as a Center Director. 

* * * * * 

Scientific research activity is, for the 

purposes of this part, an activity in 

furtherance of a scientific fishery 

investigation or study that would meet 

the definition of fishing under the 

Magnuson-Stevens Act, but for the 

exemption applicable to scientific 

research activity conducted from a 

scientific research vessel. Scientific 

research activity includes, but is not 

limited to, sampling, collecting, 

observing, or surveying the fish or 

fishery resources within the EEZ, at sea, 

on board scientific research vessels, to 

increase scientific knowledge of the 

fishery resources or their environment, 

and to test a hypothesis as part of a 

planned, directed investigation or study 

conducted according to methodologies 

generally accepted as appropriate for 

scientific research. At-sea scientific 

fishery investigations address one or 

more topics involving taxonomy, 

biology, physiology, behavior, disease, 

aging, growth, mortality, migration, 

recruitment, distribution, abundance, 

ecology, stock structure, bycatch or 

other collateral effects of fishing, 

conservation engineering, and catch 

estimation of fish species considered to 

be a component of the fishery resources 

within the EEZ. Scientific research 

activity does not include the collection 

and retention of fish outside the scope 

of the applicable research plan, or the 

testing of fishing gear. Data collection 

designed to capture and land quantities 

of fish for product development, market 

research, and/or public display are not 

scientific research activities. For foreign 

vessels, such data collection activities 

are considered scientific research if they 

are carried out in full cooperation with 

the United States. 

* * * * * 

Scientific research vessel means a 

vessel owned or chartered by, and 

controlled by, a foreign government 

agency, U.S. Government agency 

(including NOAA or institutions 

designated as federally funded research 

and development centers), U.S. state or 

territorial agency, university (or other 

educational institution accredited by a 

recognized national or international 

accreditation body), international treaty 

organization, or scientific institution. In 

order for a domestic commercial fishing 

vessel to meet this definition, it must be 

under the control of a qualifying agency 

or institution, and operate in accordance 

with a scientific research plan, for the 

duration of the scientific research 

activity. In order for a vessel that is 

owned or chartered and controlled by a 

foreign government to meet this 

definition, the vessel must have 

scientific research as its exclusive 

mission during the scientific activity in 

question, and the vessel operations must 

be conducted in accordance with a 

scientific research plan. 

* * * * * 

■ 3. In § 600.512, paragraph (a) is 

revised to read as follows: 

§ 600.512 Scientific research. 

(a) Scientific research activity. 

Persons planning to conduct scientific 

research activities on board a scientific 

research vessel in the EEZ that may be 

confused with fishing are encouraged to 

submit to the appropriate Regional 

Administrator or Director, 60 days or as 

soon as practicable prior to its start, a 

scientific research plan for each 

scientific activity. The Regional 

Administrator or Director will 

acknowledge notification of scientific 

research activity by issuing to the 

operator or master of that vessel, or to 

the sponsoring institution, a Letter of 

Acknowledgment. This Letter of 

Acknowledgment is separate and 

distinct from any permit or consultation 

required under the MMPA, the ESA, or 

any other applicable law. The Regional 

Administrator or Director will include 

text in the Letter of Acknowledgment 

informing the applicant that such 

permits may be required and should be 

obtained from the agency prior to 

embarking on the activity. If the 

Regional Administrator or Director, after 

review of a research plan, determines 

that it does not constitute scientific 

research activity but rather fishing, the 

Regional Administrator or Director will 

inform the applicant as soon as 

practicable and in writing. In making 

this determination, the Regional 

Administrator, Director, or designee 

shall consider: the merits of the 

individual proposal and the 

institution(s) involved; whether the 

proposed activity meets the definition of 

scientific research activity; and whether 

the vessel meets all the requirements for 

a scientific research vessel. Foreign 

vessels that qualify as scientific research 

vessels and which are engaged in a 

scientific research activity may only 

engage in compensation fishing during 

the scientific research cruise and in 

accordance with the applicable 

scientific research plan. The Regional 

Administrator or Director may also 

make recommendations to revise the 

research plan to ensure the activity will 

be considered to be a scientific research 

activity. The Regional Administrator or 

Director may designate a Science and 

Research Director, or the Assistant 


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Regional Administrator for Sustainable 

Fisheries, to receive scientific research 

plans and issue Letters of 

Acknowledgment. In order to facilitate 

identification of the activity as scientific 

research, persons conducting scientific 

research activities are advised to carry a 

copy of the scientific research plan and 

the Letter of Acknowledgment on board 

the scientific research vessel and to 

make it available for inspection upon 

the request of any authorized officer. It 

is recommended that for any scientific 

research activity, any fish, or parts 

thereof, retained pursuant to such 

activity be accompanied, during any exvessel activities, by a copy of the Letter 

of Acknowledgment. Activities 

conducted in accordance with a 

scientific research plan acknowledged 

by such a Letter of Acknowledgment are 

presumed to be scientific research 

activities. An authorized officer may 

overcome this presumption by showing 

that an activity does not fit the 

definition of scientific research activity 

or is outside the scope of the scientific 

research plan. 

* * * * * 

■ 4. In § 600.745: 

A. Redesignate paragraphs (b)(3)(v)(C) 

through (H) as paragraphs (b)(3)(v)(D) 

through (I), respectively. 

B. Redesignate paragraphs (b)(4) 

through (8) as paragraphs (b)(5) through 

(9), respectively. 

C. Redesignate paragraphs (d)(3)(ii)(B) 

through (F) as paragraphs (d)(3)(ii)(C) 

through (G), respectively. 

D. Add paragraphs (b)(3)(v)(C), (b)(4), 

(d)(3)(ii)(B), and (e). 

E. Revise paragraphs (a), (b)(1), 

(b)(2)(v), (b)(3)(i) introductory text, 

(b)(3)(i)(C), (b)(3)(ii), (b)(3)(iii) 

introductory text, (b)(3)(iii)(B), 

(b)(3)(iii)(C), (b)(3)(v) introductory text, 

(b)(3)(v)(F), (b)(3)(v)(G), (b)(5), (b)(7), (c), 

(d)(1), (d)(2)(vii), (d)(3)(ii) introductory 

text, (d)(3)(ii)(E), (d)(3)(iii), and (d)(7). 

The revisions and additions read as 

follows: 

§ 600.745 Scientific research activity, 

exempted fishing, and exempted 

educational activity. 

(a) Scientific research activity. 

Nothing in this part is intended to 

inhibit or prevent any scientific research 

activity conducted by a scientific 

research vessel. Persons planning to 

conduct scientific research activities on 

board a scientific research vessel in the 

EEZ are encouraged to submit to the 

appropriate Regional Administrator or 

Director, 60 days or as soon as 

practicable prior to its start, a scientific 

research plan for each scientific activity. 

The Regional Administrator or Director 

will acknowledge notification of 

scientific research activity by issuing to 

the operator or master of that vessel, or 

to the sponsoring institution, a Letter of 

Acknowledgment. This Letter of 

Acknowledgment is separate and 

distinct from any permit or consultation 

required by the MMPA, the ESA, or any 

other applicable law. The Regional 

Administrator or Director will include 

text in the Letter of Acknowledgment 

informing the applicant that such a 

permit may be required and should be 

obtained from the agency prior to 

embarking on the activity. If the 

Regional Administrator or Director, after 

review of a research plan, determines 

that it does not constitute scientific 

research but rather fishing, the Regional 

Administrator or Director will inform 

the applicant as soon as practicable and 

in writing. In making this 

determination, the Regional 

Administrator, Director, or designee 

shall consider: the merits of the 

individual proposal and the 

institution(s) involved; whether the 

proposed activity meets the definition of 

scientific research activity; and whether 

the vessel meets all the requirements for 

a scientific research vessel. The 

Regional Administrator or Director may 

also make recommendations to revise 

the research plan to ensure the activity 

will be considered to be scientific 

research activity or recommend the 

applicant request an EFP. The Regional 

Administrator or Director may designate 

a Science and Research Director, or the 

Assistant Regional Administrator for 

Sustainable Fisheries, to receive 

scientific research plans and issue 

Letters of Acknowledgment. In order to 

facilitate identification of the activity as 

scientific research, persons conducting 

scientific research activities are advised 

to carry a copy of the scientific research 

plan and the Letter of Acknowledgment 

on board the scientific research vessel 

and to make it available for inspection 

upon the request of any authorized 

officer. It is recommended that for any 

scientific research activity, any fish, or 

parts thereof, retained pursuant to such 

activity be accompanied, during any exvessel activities, by a copy of the Letter 

of Acknowledgment. Activity conducted 

in accordance with a scientific research 

plan acknowledged by such a Letter of 

Acknowledgment is presumed to be 

scientific research activity. An 

authorized officer may overcome this 

presumption by showing that an activity 

does not fit the definition of scientific 

research activity or is outside the scope 

of the scientific research plan. 

(b) * * * 

(1) General. A NMFS Regional 

Administrator or Director may 

authorize, for limited testing, public 

display, data collection, exploratory 

fishing, compensation fishing, 

conservation engineering, health and 

safety surveys, environmental cleanup, 

and/or hazard removal purposes, the 

target or incidental harvest of species 

managed under an FMP or fishery 

regulations that would otherwise be 

prohibited. Exempted fishing may not 

be conducted unless authorized by an 

EFP issued by a Regional Administrator 

or Director in accordance with the 

criteria and procedures specified in this 

section. Compensation fishing must be 

conducted under an EFP if the activity 

would otherwise be prohibited by 

applicable regulations unless the 

activity is specifically authorized under 

an FMP or a scientific research permit. 

Conservation engineering that does not 

meet the definition of scientific research 

activity, but does meet the definition of 

fishing must be conducted under an EFP 

if the activity would otherwise be 

prohibited by applicable regulations. 

Data collection designed to capture and 

land quantities of fish for product 

development, market research, and/or 

public display must be permitted under 

exempted fishing procedures. An EFP 

exempts a vessel only from those 

regulations specified in the EFP. All 

other applicable regulations remain in 

effect. The Regional Administrator or 

Director may charge a fee to recover the 

administrative expenses of issuing an 

EFP. The amount of the fee will be 

calculated, at least annually, in 

accordance with procedures of the 

NOAA Handbook for determining 

administrative costs of each special 

product or service; the fee may not 

exceed such costs. Persons may contact 

the appropriate Regional Administrator 

or Director to determine the applicable 

fee. 

(2) * * * 

(v) The species (target and incidental) 

expected to be harvested under the EFP, 

the amount(s) of such harvest necessary 

to conduct the exempted fishing, the 

arrangements for disposition of all 

regulated species harvested under the 

EFP, and any anticipated impacts on the 

environment, including impacts on 

fisheries, marine mammals, threatened 

or endangered species, and EFH. 

* * * * * 

(3) * * * 

(i) The Regional Administrator or 

Director, as appropriate, will review 

each application and will make a 

preliminary determination whether the 

application contains all of the required 

information and constitutes an activity 

appropriate for further consideration. If 

the Regional Administrator or Director 

finds that any application does not 


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Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 42795 

warrant further consideration, both the 

applicant and the affected Council(s) 

will be notified in writing of the reasons 

for the decision. If the Regional 

Administrator or Director determines 

that any application warrants further 

consideration, notification of receipt of 

the application will be published in the 

Federal Register with a brief description 

of the proposal. Interested persons will 

be given a 15- to 45-day opportunity to 

comment on the notice of receipt of the 

EFP application. In addition, comments 

may be requested during public 

testimony at a Council meeting. If the 

Council intends to take comments on 

EFP applications at a Council meeting, 

it must include a statement to this effect 

in the Council meeting notice and 

meeting agenda. Multiple applications 

for EFPs may be published in the same 

Federal Register document and may be 

discussed under a single Council agenda 

item. The notification may establish a 

cut-off date for receipt of additional 

applications to participate in the same, 

or a similar, exempted fishing activity. 

The Regional Administrator or Director 

will also forward copies of the 

application to the Council(s), the U.S. 

Coast Guard, and the appropriate fishery 

management agencies of affected states, 

accompanied by the following 

information: 

* * * * * 

(C) Biological information relevant to 

the proposal, including appropriate 

statements of environmental impacts, 

including impacts on fisheries, marine 

mammals, threatened or endangered 

species, and EFH. 

(ii) If the application is complete and 

warrants additional consultation, the 

Regional Administrator or Director may 

consult with the appropriate Council(s) 

concerning the permit application 

during the period in which comments 

have been requested. The Council(s) or 

the Regional Administrator or Director 

shall notify the applicant in advance of 

any public meeting at which the 

application will be considered, and offer 

the applicant the opportunity to appear 

in support of the application. 

(iii) As soon as practicable after 

receiving a complete application, 

including all required analyses and 

consultations (e.g., NEPA, EFH, ESA 

and MMPA), and having received 

responses from the public, the agencies 

identified in paragraph (b)(3)(i) of this 

section, and/or after the consultation, if 

any, described in paragraph (b)(3)(ii) of 

this section, the Regional Administrator 

or Director shall issue the EFP or notify 

the applicant in writing of the decision 

to deny the EFP and the reasons for the 

denial. Grounds for denial of an EFP 

include, but are not limited to, the 

following: 

* * * * * 

(B) According to the best scientific 

information available, the harvest to be 

conducted under the permit would 

detrimentally affect the well-being of 

the stock of any regulated species of 

fish, marine mammal, threatened or 

endangered species, or EFH; or 

(C) Issuance of the EFP would have 

economic allocation as its sole purpose 

(other than compensation fishing); or 

* * * * * 

(v) The Regional Administrator or 

Director should attach, as applicable, 

terms and conditions to the EFP, 

consistent with the purpose of the 

exempted fishing and as otherwise 

necessary for the conservation and 

management of the fishery resources 

and the marine environment, including, 

but not limited to: 

* * * * * 

(C) A citation of the regulations from 

which the vessel is exempted. 

* * * * * 

(F) Whether observers, a vessel 

monitoring system, or other electronic 

equipment must be carried on board 

vessels operating under the EFP, and 

any necessary conditions, such as 

predeployment notification 

requirements. 

(G) Data reporting requirements 

necessary to document the activities, 

including catches and incidental 

catches, and to determine compliance 

with the terms and conditions of the 

EFP and established time frames and 

formats for submission of the data to 

NMFS. 

* * * * * 

(4) Acknowledging permit conditions. 

Upon receipt of an EFP, the permit 

holder must date and sign the permit, 

and retain the permit on board the 

vessel(s). The permit is not valid until 

signed by the permit holder. In signing 

the permit, the permit holder: 

(i) Agrees to abide by all terms and 

conditions set forth in the permit, and 

all restrictions and relevant regulations; 

and 

(ii) Acknowledges that the authority 

to conduct certain activities specified in 

the permit is conditional and subject to 

authorization and revocation by the 

Regional Administrator or Director. 

(5) Duration. Unless otherwise 

specified in the EFP or a superseding 

notice or regulation, an EFP is valid for 

no longer than 1 year. EFPs may be 

renewed following the application 

procedures in this section. 

* * * * * 

(7) Inspection. Any EFP issued under 

this section must be carried on board 

the vessel(s) for which it was issued. 

The EFP must be presented for 

inspection upon request of any 

authorized officer. Any fish, or parts 

thereof, retained pursuant to an EFP 

issued under this paragraph must be 

accompanied, during any ex-vessel 

activities, by a copy of the EFP. 

* * * * * 

(c) Reports. (1) NMFS requests that 

persons conducting scientific research 

activities from scientific research 

vessels submit a copy of any report or 

other publication created as a result of 

the activity, including the amount, 

composition, and disposition of their 

catch, to the appropriate Science and 

Research Director and Regional 

Administrator or Director. 

(2) Upon completion of the activities 

of the EFP, or periodically as required 

by the terms and conditions of the EFP, 

persons fishing under an EFP must 

submit a report of their catches and any 

other information required, to the 

appropriate Regional Administrator or 

Director, in the manner and within the 

time frame specified in the EFP, but no 

later than 6 months after concluding the 

exempted fishing activity. Persons 

conducting EFP activities are also 

requested to submit a copy of any 

publication prepared as a result of the 

EFP activity. 

(d) * * * 

(1) General. A NMFS Regional 

Administrator or Director may 

authorize, for educational purposes, the 

target or incidental harvest of species 

managed under an FMP or fishery 

regulations that would otherwise be 

prohibited. The trade, barter or sale of 

fish taken under this authorization is 

prohibited. The decision of a Regional 

Administrator or Director to grant or 

deny an exempted educational activity 

authorization is the final action of 

NMFS. Exempted educational activities 

may not be conducted unless authorized 

in writing by a Regional Administrator 

or Director in accordance with the 

criteria and procedures specified in this 

section. Such authorization will be 

issued without charge. 

(2) * * * 

(vii) The species and amounts 

expected to be caught during the 

exempted educational activity, and any 

anticipated impacts on the environment, 

including impacts on fisheries, marine 

mammals, threatened or endangered 

species, and EFH. 

* * * * * 

(3) * * * 

(ii) The Regional Administrator or 

Director should attach, as applicable, 

terms and conditions to the 

authorization, consistent with the 


srobinson on DSKHWCL6B1PROD with RULES
42796 Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 

purpose of the exempted educational 

activity and as otherwise necessary for 

the conservation and management of the 

fishery resources and the marine 

environment, including, but not limited 

to: 

* * * * * 

(B) A citation of the regulations from 

which the vessel is being exempted. 

* * * * * 

(E) Data reporting requirements 

necessary to document the activities and 

to determine compliance with the terms 

and conditions of the exempted 

educational activity. 

* * * * * 

(iii) The authorization will specify the 

scope of the authorized activity and will 

include, at a minimum, the duration, 

vessel(s), persons, species, and gear 

involved in the activity, as well as any 

additional terms and conditions 

specified under paragraph (d)(3)(ii) of 

this section. 

* * * * * 

(7) Inspection. Any authorization 

issued under this paragraph (d) must be 

carried on board the vessel(s) for which 

it was issued, or be in the possession of 

at least one of the persons identified in 

the authorization, who must be present 

while the exempted educational activity 

is being conducted. The authorization 

must be presented for inspection upon 

request of any authorized officer. 

Activities that meet the definition of 

‘‘fishing,’’ despite an educational 

purpose, are fishing. An authorization 

may allow covered fishing activities; 

however, fishing activities conducted 

outside the scope of an authorization for 

exempted educational activities are 

illegal. Any fish, or parts thereof, 

retained pursuant to an authorization 

issued under this paragraph must be 

accompanied, during any ex-vessel 

activities, by a copy of the 

authorization. 

(e) Observers. NMFS-sanctioned 

observers or biological technicians 

conducting activities within NMFSapproved sea sampling and/or observer 

protocols are exempt from the 

requirement to obtain an EFP. For 

purposes of this section, NMFSsanctioned observers or biological 

technicians include NMFS employees, 

NMFS observers, observers who are 

employees of NMFS-contracted observer 

providers, and observers who are 

employees of NMFS-permitted observer 

providers. 

[FR Doc. E9–20489 Filed 8–24–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 090324366–9371–01] 

RIN 0648–XQ50 

Fisheries Off West Coast States; 

Modifications of the West Coast 

Commercial and Recreational Salmon 

Fisheries; Inseason Actions #1, #2, and 

#3 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Modification of fishing seasons, 

gear restrictions, and landing and 

possession limits; request for comments. 

SUMMARY: NOAA Fisheries announces 

three inseason actions in the ocean 

salmon fisheries. Inseason action #1 

modified the commercial fishery in the 

area from Cape Falcon, Oregon to 

Humbug Mountain, Oregon, and from 

Humbug Mountain, Oregon to the 

Oregon/California Border. Inseason 

action #2 modified the recreational 

fishery in the area from Cape Falcon, 

Oregon to Humbug Mountain, Oregon. 

Inseason action #3 modified the 

commercial fishery in the area from 

U.S./Canada Border to Cape Falcon, 

Oregon. 

DATES: Inseason actions #1 and #2 were 

effective on March 15, 2009, until 

replaced by the 2009 management 

measures, May 1, 2009. Inseason action 

#3 was effective on July 18, 2009 and 

remains in effect until the closing date 

or attainment of the subarea quotas, 

whichever was first, as announced in 

the 2009 annual management measures 

or through additional inseason action. 

Comments will be accepted through 

September 9, 2009. 

ADDRESSES: You may submit comments, 

identified by 0648–XQ50, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov 

• Fax: 206–526–6736, Attn: Peggy 

Busby 

• Mail: 7600 Sand Point Way NE, 

Building 1, Seattle, WA, 98115 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Peggy Busby, by phone at 206–526– 

4323. 

SUPPLEMENTARY INFORMATION: In the 

2008 annual management measures for 

ocean salmon fisheries (73 FR 23971, 

May 1, 2008), NMFS announced the 

commercial and recreational fisheries in 

the area from the U.S./Canada Border to 

the U.S./Mexico Border. 

On March 10, 2009, the Regional 

Administrator (RA) consulted with 

representatives of the Pacific Fishery 

Management Council (Council), 

Washington Department of Fish and 

Wildlife, Oregon Department of Fish 

and Wildlife, and California Department 

of Fish and Game. Information related to 

catch to date, Chinook and coho catch 

rates, and possible impacts to 

Sacramento Fall Chinook were 

discussed. These inseason actions were 

taken because these fisheries were to 

occur in the impact area for Sacramento 

Fall Chinook. Preliminary projections 

suggested this stock was at risk of not 

meeting its escapement goal in 2009 and 

therefore consistent with the MagnusonStevens Act, all fisheries that impact the 

stock were potentially to remain closed 

until the 2009 management measures 

became effective on May 1, 2009. By 

moving the opening dates of these 

fisheries NMFS and the Council would 

have more time to evaluate the impacts 

of these fisheries on the Sacramento 

River fall Chinook stock. 

As a result, on March 10, 2009, the 

states recommended, and the RA 

concurred that inseason actions #1 and 

#2 would cancel the previously 

scheduled March 15, 2009, fishery 

opening date for the (a) commercial 

fishery in the area from Cape Falcon, 

Oregon to Humbug Mountain, Oregon, 

and from Humbug Mountain, Oregon to 

the Oregon/California Border and (b) the 

recreational fishery in the area from 

Cape Falcon, Oregon, to Humbug 

Mountain, Oregon. Modification in 

quota and/or fishing seasons is 

authorized by regulations at 50 CFR 

660.409(b)(1)(I). 

In the 2009 annual management 

measures for ocean salmon fisheries (74 

FR 20610, May 5, 2009), NMFS 

announced the commercial and 


srobinson on DSKHWCL6B1PROD with RULES