32538 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

15 CFR Part 902

50 CFR Parts 600, 601, 602, 603, 605,

611, 619, 620, and 621

[Docket No. 960315081–6160–02; I.D.

030596B]

RIN 0648–AI17

Magnuson Act Provisions;

Consolidation and Update of

Regulations; Collection-of-Information

Approval

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS consolidates nine CFR

parts into one part that contains general

provisions under the Magnuson Fishery

Conservation and Management Act

(Magnuson Act) as they apply to the

operation of Regional Fishery

Management Councils (Councils) and

the management of foreign and domestic

fishing in the U.S. Exclusive Economic

Zone (EEZ). The consolidated text is

reorganized into a more logical and

cohesive order, duplicative and

outdated provisions are eliminated, and

editorial changes are made for

readability, clarity, and uniformity. In

addition, the final rule makes several

revisions to the regulations applying to

the operation of the Councils to codify

recent administrative and policy

changes. The purpose of this final rule

is to make the regulations more concise,

better organized and, therefore, easier

for the public to use, and to update the

regulations to reflect current policies

and procedures. This rule also adds a

reference to approved collection-ofinformation requirements under the

Paperwork Reduction Act (PRA) and

amends references to previously

approved collections of information.

This final action is part of the

President’s Regulatory Reinvention

Initiative.

EFFECTIVE DATE: July 1, 1996.

FOR FURTHER INFORMATION CONTACT: Tom

Meyer, 301–713–2339.

SUPPLEMENTARY INFORMATION: Pursuant

to the Regulatory Reinvention Initiative

of the President, this final rule removes

eight 50 CFR parts (parts 601 (Regional

Fishery Management Councils), 602

(Guidelines for Fishery Management

Plans), 603 (Confidentiality of

Statistics), 605 (Guidelines for Council

Operations/Administration), 611

(Foreign Fishing), 619 (Preemption of

State Authority under Section 306(b)),

620 (General Provisions for Domestic

Fisheries), and 621 (Civil Procedures)),

and consolidates the regulations

contained therein, except for part 605,

with the existing regulations in part 600.

The final rule removes most of part 605

(Guidelines for Council Operations/

Administration), and the material

contained in that part has been placed

in a Council Operations and

Administration Handbook. These

consolidated regulations provide the

public with a single reference source for

the general regulations under the

Magnuson Act as they apply to the

operation of Councils and the

management of foreign and domestic

fishing in the EEZ, which results in one

set of regulations that are more concise,

clearer, and easier to use than the

existing regulations.

Additional background for this rule

was contained in the preamble to the

proposed rule (61 FR 19390, May 1,

1996).

Comments and Responses

The New England, Mid-Atlantic,

Pacific and North Pacific Fishery

Management Councils submitted

comments on the proposed rule. These

comments are summarized below with

responses to them.

1. Comment: The four Councils

objected to the proposed rule that would

require state-designated members on

Councils to be full-time employees of

the state agency responsible for marine

fishery management. One wondered

whether current members who are not

full-time state employees would have to

resign.

Response: No change was made.

Section 302(b)(1)(A) of the Magnuson

Act states that voting members include

the ‘‘principal State official with marine

fishery management responsibility and

expertise in each constituent State, who

is designated as such by the Governor of

the State, so long as the official

continues to hold such position.’’ We

believe the better interpretation of this

language is that the official must be a

state employee with present

responsibility within the state for

management of marine fisheries, rather

than a retired employee or someone

with only a tenuous relationship with

the state government. The rationale for

Section 302(b)(1)(A) is that the principal

state official is expected to represent

and espouse the positions of the

governor and the state fishery agency.

The Councils cannot function as a state/

federal/public partnership if the

principal state official cannot be

counted on to speak officially on behalf

of the state.

Section 600.205(a) requires new or

revised designations to comply with this

requirement, so no current member

would have to resign.

2. Comment: The four Councils

criticized the proposed rule that would

require the principal state official’s

designee to be a subordinate of the

principal state official.

Response: Section 600.205(b) is

revised to eliminate the reference to a

subordinate.

3. Comment: The New England and

North Pacific Councils disagreed with

the proposed rule that as little as 1 day

served in a term counts toward a full

term, in calculating the 3-consecutiveterm limit for Council members. The

New England Council proposed that

service of less than 18 months should

not count toward a full term. The North

Pacific Council pointed out that the

pending Senate bill (S. 39) to amend the

Magnuson Act would insert ‘‘full’’

before ‘‘consecutive’’ in the second

sentence of section 302(b)(3). This

would then conflict with the restrictions

envisioned in § 600.210.

Response: The current language of the

Magnuson Act does not define ‘‘term.’’

Questions have arisen whether someone

who served 2 years and 11 months of a

3-year term should have that term count

against the 3-term limit. NMFS

proposed that any length of service

within a term should count, but

acknowledges that the New England

Council’s proposal is a good

compromise. Section 600.210(a) has

been revised to count service of 18

months or more during a term as service

for the entire term.

If the Magnuson Act is amended

otherwise, NMFS will make the

appropriate change in the regulation.

4. Comment: The Mid-Atlantic

Council wanted Appendix A to Subpart

B—Explanatory Materials (currently in

50 CFR part 602) to be restored in the

final rule.

Response: Appendix A was

eliminated; however, the guidance

provided in that Appendix remains

relevant. Those wishing to review the

guidance may read it as previously

published in the Federal Register (54

FR 30833, July 24, 1989).

5. Comment: The Mid-Atlantic

Council thought the last sentence of

current § 601.39(b), which allows state

officials to be compensated if they can

document that they were on leave

without pay, should be included in the

final rule.

Response: It will not be included. We

believe state officials designated by the

governor should be paid by the state,
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32539

not by the Councils. The example cited

by the Mid-Atlantic Council, payment to

a Council member appointed by the

Secretary but employed by a state

educational institute, could receive pay

under § 600.245(a) if he or she did not

receive compensation from the state for

the period of Council service.

6. Comment: The New England

Council questioned the procedure for

filling at-large vacancies. The Magnuson

Act requires that each constituent state

governor submit a list of at least three

qualified candidates for each vacancy.

In the case when more than one at-large

vacancy is available, the New England

Council would like the names of all

qualified candidates submitted by the

governors for all of the positions to be

placed in a ‘‘pool.’’ The Secretary would

then be free to select appointees from

this pool who are felt to represent a

balanced and fair representation of the

varying interests within the region.

Response: The procedure suggested

by the New England Council for filling

at-large vacancies is consistent with

current procedures. As stated by the

Council, this procedure results in a

broader pool of qualified at-large

candidates from which the Secretary

may choose. Section 600.215(g)(3) has

been revised to clarify the current

procedures.

7. Comment: The New England

Council objected to the requirement

that, after a member has completed

three consecutive terms, he/she will not

be eligible for appointment to another

term on any Council until 1 year has

elapsed since the last day of that

member’s service. Since nominations

must be made in March, this

requirement effectively means that a

qualified member leaving a Council in

August of 1996 could not be considered

for another appointment until March of

1998, for a term beginning in August of

1998, which is 2 years of elapsed time.

The New England Council believes a

former member should be able to be

renominated in March of the year

following his/her leaving a seat, for

appointment the following August,

where 1 full year would have elapsed

since last service.

Response: Section 600.210(c) was

intended to require a lapse of 1 year

between completion of a third

consecutive term and the beginning of a

new term. It has been rewritten to

clarify that intention.

Changes From the Proposed Rule

(1) Revised § 600.205(b) to eliminate

the reference to subordinate.

(2) Revised § 600.10 definition of

‘‘authorized officer’’ to include ‘‘any

other statute administered by NOAA.’’

(3) Added definitions to § 600.10 for

‘‘codend,’’ ‘‘drift gillnet,’’ ‘‘gillnet,’’

‘‘handgear,’’ ‘‘harpoon or harpoon gear,’’

‘‘metric ton (mt),’’ ‘‘nm,’’ ‘‘total length

(TL),’’ and ‘‘trawl,’’ which will apply to

these terms throughout Chapter VI.

(4) Revised § 600.10 definition of

‘‘retain, retain aboard, or retain on

board,’’ by deleting ‘‘retain’’ and ‘‘retain

aboard.’’ ‘‘Retain’’ is too general and is

used in many contexts throughout the

regulation, while ‘‘retain aboard’’ is

inconsistent with our usage of the terms.

(5) Revised § 600.10 definition of

‘‘round weight’’ to include ‘‘before

processing or removal of any part.’’

(6) Revised § 600.10 definition of

‘‘state’’ by adding ‘‘the Northern

Mariana Islands.’’

(7) Removed definition for ‘‘state

employee’’ from § 600.10 because the

deletion of reference to ‘‘subordinate’’ in

§ 600.205(b) eliminates the need to

retain definition.

(8) Revised sections discussed in the

scientific research activity and

exempted fishing final rule (61 FR

26435, May 28, 1996).

(9) Revised § 600.210(a) to count

service of 18 months or more during a

term as service for the entire term.

(10) Revised § 600.210(c) to clarify the

current procedures for reappointment

after a Council member has served three

consecutive terms.

(11) Revised § 600.215(g)(3) to clarify

the current procedures for filling an atlarge vacancy.

(12) Deleted §§ 600.507 (f) and (g) and

combined text with §§ 600.507 (h) and

(i).

(13) Added ‘‘or any other statute

administered by NOAA’’ to §§ 600.725

(a), (d), (f), (g), (j), and (k) after

Magnuson Act.

(14) Added a general prohibition to

§ 600.725(p) to prohibit the violation of

any other provision of this part, the

Magnuson Act, or any other statute

administered by NOAA.

(15) Section 3506(c)(B)(i) of the PRA

requires that agencies inventory and

display a current control assigned by the

Director, Office of Management and

Budget (OMB), for each agency

information collection. Section 902.1(b)

identifies the location of NOAA

regulations for which OMB approval

numbers have been issued. This final

rule adds OMB approval numbers for

approved collections-of-information to

the table in § 902.1(b) and amends

references to previously approved

collections of information.

Under NOAA Organization

Handbook, Transmittal #34, dated May

31, 1993, the Under Secretary for

Oceans and Atmosphere has delegated

to the Assistant Administrator for

Fisheries, NOAA, the authority to sign

material for publication in the Federal

Register.

Classification

This final rule has been determined to

be not significant for purposes of E.O.

12866.

Because this rule makes only

nonsubstantive changes to existing

regulations originally issued after prior

notice and an opportunity for public

comment, the Assistant Administrator

for Fisheries, NOAA, under 5 U.S.C.

553(b)(B), for good cause finds that

providing such procedures for this

rulemaking is unnecessary. Because this

rule is not substantive, it is not subject

to a 30-day delay in effective date under

5 U.S.C. 553(d).

The Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce certified to

the Chief Counsel for Advocacy of the

Small Business Administration that this

final rule would not have a significant

economic impact on a substantial

number of small entities. The reasons

were published in the proposed rule (61

FR 19390, May 1, 1996). As a result, a

regulatory flexibility analysis was not

prepared.

Notwithstanding any other provision

of the law, no person is required to

respond to, nor shall any person be

subject to a 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.

This rule contains collection-ofinformation requirements subject to the

Paperwork Reduction Act (PRA).

Approved Collection-of-Information

Requirements

The following collection-ofinformation requirements have already

been approved by OMB for foreign

fishing activities:

(a) Approved under 0648–0089—

Foreign fishing permits, estimated at 2

hours per response.

(b) Approved under 0648–0075—

Vessel reports (1) activity reports

estimated at 0.1 hours per response, (2)

weekly reports estimated at 0.5 hour per

response, and (3) marine mammal report

estimated at 0.2 hour per response;

Observers (1) effort plan estimated at 0.5

hour per response, and (2) notification

requirement to observers estimated at

0.2 hour per response; Recordkeeping

(1) communications logs estimated at

0.1 hour per response, (2) transfer logs

estimated at 0.2 hour per response, (3)

daily fishing logs estimated at 0.4 hour

per response, (4) daily consolidated

fishing log estimated at 0.5 hour per
32540 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

response, and (5) joint venture logs

estimated at 0.5 hour per response; and

gear avoidance and disposal (1) gear

conflicts estimated at 0.2 hour per

response, and (2) disposal estimated at

0.2 hour per response.

(c) Approved under 0648–0306—

Vessel identification requirements

estimated at 35 minutes per response.

(d) Approved under 0648–0305—Gear

identification requirements estimated at

30 minutes per response.

Collection-of-Information Requirements

Submitted for Approval

(e) Approved under 0648–0309—

Scientific research activity and

exempted fishing (1) 1 hour per

response to send NMFS a copy of a

scientific research plan and provide a

copy of the cruise report or research

publication, (2) 1 hour per response to

complete an application for an

exempted fishing permit or

authorization for an exempted

educational activity, and (3) 1 hour per

response to collect information and

provide a report at the conclusion of

exempted fishing.

The following collection-ofinformation requirements have been

approved by OMB:

(a) Principal state officials and their

designees—Estimated at 15 hours per

response (OMB control number 0648–

0314).

(b) Council appointments—Estimated

at 120 hours per appointment (30

appointments required)(OMB control

number 0648–0314).

(c) Application for reinstatement of

State authority— Estimated at 2 hours

per response (OMB control number

0648–0314).

The estimated response times shown

include the time for reviewing

instructions, searching existing data

sources, gathering and maintaining the

data needed, and completing and

reviewing the collection of information.

List of Subjects

15 CFR Part 902

Reporting and recordkeeping

requirements.

50 CFR Parts 600, 602, and 620

Fisheries, Fishing.

50 CFR Part 601

Administrative practice and

procedure, Fisheries, Fishing.

50 CFR Part 603

Confidential business information,

Fisheries, Statistics.

50 CFR Part 605

Administrative practice and

procedure, Fisheries, Fishing, Reporting

and recordkeeping requirements.

50 CFR Part 611

Fisheries, Foreign relations, Reporting

and recordkeeping requirements.

50 CFR Part 619

Administrative practice and

procedure, Fisheries, Fishing,

Intergovernmental relations.

50 CFR Part 621

Fisheries, Fishing, Fishing vessels,

Penalties.

Dated: June 14, 1996.

Gary Matlock,

Program Management Officer, National

Marine Fisheries Service.

For the reasons set out in the

preamble, 15 CFR chapter IX and, under

the authority of 16 U.S.C., 1801 et seq.,

50 CFR chapter VI are amended as

follows:

15 CFR CHAPTER IX

PART 902—NOAA INFORMATION

COLLECTION REQUIREMENTS UNDER

THE PAPERWORK REDUCTION ACT:

OMB CONTROL NUMBERS

1. The authority citation for part 902

continues to read as follows:

Authority: 44 U.S.C. 3501 et seq.

2. In § 902.1, paragraph (b), the table

is amended by removing in the left

column under 50 CFR, the entries

‘‘601.37’’, ‘‘611.3’’, ‘‘611.4’’, ‘‘611.5’’,

‘‘611.6’’, ‘‘611.8’’, ‘‘611.9’’, ‘‘611.12’’,

‘‘611.14’’, ‘‘611.50’’, ‘‘611.61’’, ‘‘611.70’’,

‘‘611.80’’, ‘‘611.81’’, ‘‘611.82’’, ‘‘611.90’’,

‘‘611.92’’, ‘‘611.93’’, ‘‘611.94’’, and

‘‘620.10’’, and by removing in the right

column the control numbers in

corresponding positions; and by adding,

in numerical order, the following entries

to read as follows:

§ 902.1 OMB control numbers assigned

pursuant to the Paperwork Reduction Act.

* * * * *

(b) * * *

CFR part or section

where the information

collection requirement

is located

Current OMB control

number (all numbers

begin with 0648–)

* * * * *

50 CFR

* * * * *

600.205 .................. –0314

600.215 .................. –0314

600.235 .................. –0192

600.501 .................. –0089

600.502 .................. –0075

CFR part or section

where the information

collection requirement

is located

Current OMB control

number (all numbers

begin with 0648–)

600.503 .................. –0305 and –0306

600.504 .................. –0075

600.506 .................. –0075

600.507 .................. –0075

600.510 .................. –0075

600.512 .................. –0309

600.520 .................. –0075

600.630 .................. –0314

* * * * *

50 CFR CHAPTER VI

3. Part 600 is revised to read as

follows:

PART 600—MAGNUSON ACT

PROVISIONS

Subpart A—General

Sec.

600.5 Purpose and scope.

600.10 Definitions.

600.15 Other acronyms.

Subpart B—Regional Fishery Management

Councils

600.105 Intercouncil boundaries.

600.110 Intercouncil fisheries.

600.115 Statement of organization,

practices, and procedures (SOPP).

600.120 Employment practices.

600.125 Budgeting, funding, and

accounting.

600.130 Protection of confidentiality of

statistics.

Subpart C—Council Membership

600.205 Principal state officials and their

designees.

600.210 Terms of council members.

600.215 Appointments.

600.220 Oath of office.

600.225 Rules of conduct.

600.230 Removal.

600.235 Financial disclosure.

600.240 Security assurances.

600.245 Council member compensation.

Subpart D—National Standards

600.305 General.

600.310 National Standard 1—Optimum

Yield.

600.315 National Standard 2—Scientific

Information.

600.320 National Standard 3—Management

Units.

600.325 National Standard 4—Allocations.

600.330 National Standard 5—Efficiency.

600.335 National Standard 6—Variations

and Contingencies.

600.340 National Standard 7—Costs and

Benefits.

Subpart E—Confidentiality of Statistics

600.405 Types of statistics covered.

600.410 Collection and maintenance of

statistics.

600.415 Access to statistics.

600.420 Control system.

600.425 Release of statistics.
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32541

Subpart F—Foreign Fishing

600.501 Vessel permits.

600.502 Vessel reports.

600.503 Vessel and gear identification.

600.504 Facilitation of enforcement.

600.505 Prohibitions.

600.506 Observers.

600.507 Recordkeeping.

600.508 Fishing operations.

600.509 Prohibited species.

600.510 Gear avoidance and disposal.

600.511 Fishery closure procedures.

600.512 Scientific research.

600.513 Recreational fishing.

600.514 Relation to other laws.

600.515 Interpretation of 16 U.S.C. 1857(4).

600.516 Total allowable level of foreign

fishing (TALFF).

600.517 Allocations.

600.518 Fee schedule for foreign fishing.

600.520 Northwest Atlantic Ocean fishery.

600.525 Atlantic herring fishery.

Subpart G—Preemption of State Authority

Under Section 306(b)

600.605 General policy.

600.610 Factual findings for Federal

preemption.

600.615 Commencement of proceedings.

600.620 Rules pertaining to the hearing.

600.625 Secretary’s decision.

600.630 Application for reinstatement of

state authority.

Subpart H—General Provisions for

Domestic Fisheries

600.705 Relation to other laws.

600.710 Permits.

600.715 Recordkeeping and reporting.

600.720 Vessel and gear identification.

600.725 General prohibitions.

600.730 Facilitation of enforcement.

600.735 Penalties.

600.740 Enforcement policy.

600.745 Scientific research activity,

exempted fishing, and exempted

educational activity.

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

Subpart A—General

600.5 Purpose and scope.

(a) This part contains general

provisions governing the operation of

the eight Regional Fishery Management

Councils established by the Magnuson

Act and describes the Secretary’s role

and responsibilities under the Act. The

Councils are institutions created by

Federal law and must conform to the

uniform standards established by the

Secretary in this part.

(b) This part also governs all foreign

fishing under the Magnuson Act,

prescribes procedures for the conduct of

preemption hearings under section

306(b) of the Magnuson Act, and

collects the general provisions common

to all domestic fisheries governed by

this chapter.

§ 600.10 Definitions.

Unless defined otherwise in other

parts of Chapter VI, the terms in this

chapter have the following meanings:

Administrator means the

Administrator of NOAA (Under

Secretary of Commerce for Oceans and

Atmosphere) or a designee.

Advisory group means a Scientific

and Statistical Committee (SSC), Fishing

Industry Advisory Committee (FIAC), or

Advisory Panel (AP) established by a

Council under the Magnuson Act.

Agent, for the purpose of foreign

fishing (subpart F), means a person

appointed and maintained within the

United States who is authorized to

receive and respond to any legal process

issued in the United States to an owner

and/or operator of a vessel operating

under a permit and of any other vessel

of that Nation fishing subject to the

jurisdiction of the United States. Any

diplomatic official accepting such an

appointment as designated agent waives

diplomatic or other immunity in

connection with such process.

Aggregate or summary form means

confidential data structured in such a

way that the identity of the submitter

cannot be determined either from the

present release of the data or in

combination with other releases.

Allocated species means any species

or species group allocated to a foreign

nation under § 600.517 for catching by

vessels of that Nation.

Allocation means direct and

deliberate distribution of the

opportunity to participate in a fishery

among identifiable, discrete user groups

or individuals.

Anadromous species means species of

fish that spawn in fresh or estuarine

waters of the United States and that

migrate to ocean waters.

Assistant Administrator means the

Assistant Administrator for Fisheries,

NOAA, or a designee.

Authorized officer means:

(1) Any commissioned, warrant, or

petty officer of the USCG;

(2) Any special agent or fishery

enforcement officer of NMFS;

(3) Any officer designated by the head

of any Federal or state agency that has

entered into an agreement with the

Secretary and the Commandant of the

USCG to enforce the provisions of the

Magnuson Act or any other statute

administered by NOAA; or

(4) Any USCG personnel

accompanying and acting under the

direction of any person described in

paragraph (1) of this definition.

Authorized species means any species

or species group that a foreign vessel is

authorized to retain in a joint venture by

a permit issued under Activity Code 4

as described by § 600.501(c).

Catch, take, or harvest includes, but is

not limited to, any activity that results

in killing any fish or bringing any live

fish on board a vessel.

Center means one of the five NMFS

Fisheries Science Centers.

Coast Guard Commander means one

of the commanding officers of the Coast

Guard units specified in Table 1 of

§ 600.502, or a designee.

Codend means the terminal, closed

end of a trawl net.

Confidential statistics are those

submitted as a requirement of an FMP

and that reveal the business or identity

of the submitter.

Continental shelf fishery resources

means the species listed under section

3(4) of the Magnuson Act.

Council means one of the eight

Regional Fishery Management Councils

established by the Magnuson Act.

Data, statistics, and information are

used interchangeably. Dealer means the

person who first receives fish by way of

purchase, barter, or trade.

Designated representative means the

person appointed by a foreign nation

and maintained within the United

States who is responsible for

transmitting information to and

submitting reports from vessels of that

Nation and establishing observer

transfer arrangements for vessels in both

directed and joint venture activities.

Directed fishing, for the purpose of

foreign fishing (subpart F), means any

fishing by the vessels of a foreign nation

for allocations of fish granted that

Nation under § 600.517.

Director means the Director of the

Office of Fisheries Conservation and

Management, 1315 East-West Highway,

Silver Spring, MD 20910.

Discard means to release or return fish

to the sea, whether or not such fish are

brought fully on board a fishing vessel.

Drift gillnet means a gillnet that is

unattached to the ocean bottom,

whether or not attached to a vessel.

Exclusive economic zone (EEZ) means

the zone established by Presidential

Proclamation 5030, 3 CFR part 22, dated

March 10, 1983, and is that area

adjacent to the United States which,

except where modified to accommodate

international boundaries, encompasses

all waters from the seaward boundary of

each of the coastal states to a line on

which each point is 200 nautical miles

(370.40 km) from the baseline from

which the territorial sea of the United

States is measured.

Exempted educational activity means

an activity, conducted by an educational

institution accredited by a recognized

national or international accreditation
32542 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

body, of limited scope and duration,

that is otherwise prohibited by part 285

or chapter VI of this title, but that is

authorized by the appropriate Director

or Regional Director for educational

purposes.

Exempted or experimental fishing

means fishing from a vessel of the

United States that involves activities

otherwise prohibited by part 285 or

chapter VI of this title, but that are

authorized under an exempted fishing

permit (EFP). These regulations refer

exclusively to exempted fishing.

References in part 285 of this title and

elsewhere in this chapter to

experimental fishing mean exempted

fishing under this part.

Fish means:

(1) When used as a noun, means any

finfish, mollusk, crustacean, or parts

thereof, and all other forms of marine

animal and plant life other than marine

mammals and birds.

(2) When used as a verb, means to

engage in ‘‘fishing,’’ as defined below.

Fishery means:

(1) One or more stocks of fish that can

be treated as a unit for purposes of

conservation and management and that

are identified on the basis of geographic,

scientific, technical, recreational, or

economic characteristics, or method of

catch; or

(2) Any fishing for such stocks.

Fishery management unit (FMU)

means a fishery or that portion of a

fishery identified in an FMP relevant to

the FMP’s management objectives. The

choice of an FMU depends on the focus

of the FMP’s objectives, and may be

organized around biological, geographic,

economic, technical, social, or

ecological perspectives.

Fishery resource means any fish, any

stock of fish, any species of fish, and

any habitat of fish.

Fishing, or to fish means any activity,

other than scientific research conducted

by a scientific research vessel, that

involves:

(1) The catching, taking, or harvesting

of fish;

(2) The attempted catching, taking, or

harvesting of fish;

(3) Any other activity that can

reasonably be expected to result in the

catching, taking, or harvesting of fish; or

(4) Any operations at sea in support

of, or in preparation for, any activity

described in paragraphs (1), (2), or (3) of

this definition.

Fishing vessel means any vessel, boat,

ship, or other craft that is used for,

equipped to be used for, or of a type that

is normally used for:

(1) Fishing; or

(2) Aiding or assisting one or more

vessels at sea in the performance of any

activity relating to fishing, including,

but not limited to, preparation, supply,

storage, refrigeration, transportation, or

processing.

Foreign fishing means fishing by a

foreign fishing vessel.

Foreign fishing vessel (FFV) means

any fishing vessel other than a vessel of

the United States, except those foreign

vessels engaged in recreational fishing,

as defined in this section.

Gear conflict means any incident at

sea involving one or more fishing

vessels:

(1) In which one fishing vessel or its

gear comes into contact with another

vessel or the gear of another vessel; and

(2) That results in the loss of, or

damage to, a fishing vessel, fishing gear,

or catch.

Gillnet means a panel of netting,

suspended vertically in the water by

floats along the top and weights along

the bottom, to entangle fish that attempt

to pass through it.

Governing International Fishery

Agreement (GIFA) means an agreement

between the United States and a foreign

nation or Nations under section 201(c)

of the Magnuson Act.

Grants Officer means the NOAA

official authorized to sign, on behalf of

the Government, the cooperative

agreement providing funds to support

the Council’s operations and functions.

Greenwich mean time (GMT) means

the local mean time at Greenwich,

England. All times in this part are GMT

unless otherwise specified.

Handgear means handline, harpoon,

or rod and reel.

Harass means to unreasonably

interfere with an individual’s work

performance, or to engage in conduct

that creates an intimidating, hostile, or

offensive environment.

Harpoon or harpoon gear means

fishing gear consisting of a pointed dart

or iron attached to the end of a line

several hundred feet in length, the other

end of which is attached to a floatation

device. Harpoon gear is attached to a

pole or stick that is propelled only by

hand, and not by mechanical means.

Industry means both recreational and

commercial fishing, and includes the

harvesting, processing, and marketing

sectors.

International radio call sign (IRCS)

means the unique radio identifier

assigned a vessel by the appropriate

authority of the flag state.

Joint venture means any operation by

a foreign vessel assisting fishing by U.S.

fishing vessels, including catching,

scouting, processing and/or support. (A

joint venture generally entails a foreign

vessel processing fish received from

U.S. fishing vessels and conducting

associated support activities.)

Magnuson Act means the Magnuson

Fishery Conservation and Management

Act, as amended (16 U.S.C. 1801 et

seq.), also known as MFCMA.

Metric ton (mt) means 1,000 kg

(2,204.6 lb).

nm means nautical mile (6,076 ft

(1,852 m)).

Official number means the

documentation number issued by the

USCG or the certificate number issued

by a state or by the USCG for an

undocumented vessel.

Operator, with respect to any vessel,

means the master or other individual

aboard and in charge of that vessel.

Optimum yield (OY) means the

amount of fish:

(1) That will provide the greatest

overall benefit to the United States, with

particular reference to food production

and recreational opportunities; and

(2) That is prescribed as such on the

basis of the maximum sustainable yield

from such fishery, as modified by any

relevant economic, social, or ecological

factor.

Owner, with respect to any vessel,

means:

(1) Any person who owns that vessel

in whole or in part;

(2) Any charterer of the vessel,

whether bareboat, time, or voyage;

(3) Any person who acts in the

capacity of a charterer, including, but

not limited to, parties to a management

agreement, operating agreement, or any

similar agreement that bestows control

over the destination, function, or

operation of the vessel; or

(4) Any agent designated as such by

a person described in paragraph (1), (2),

or (3) of this definition.

Plan Team means a Council working

group selected from agencies,

institutions, and organizations having a

role in the research and/or management

of fisheries, whose primary purpose is

to assist the Council in the preparation

and/or review of FMPs, amendments,

and supporting documents for the

Council, and/or SSC and AP.

Predominately means, with respect to

fishing in a fishery, that more fishing on

a stock or stocks of fish covered by the

FMP occurs, or would occur in the

absence of regulations, within or beyond

the EEZ than occurs in the aggregate

within the boundaries of all states off

the coasts of which the fishery is

conducted.

Processing, for the purpose of foreign

fishing (subpart F), means any operation

by an FFV to receive fish from foreign

or U.S. fishing vessels and/or the

preparation of fish, including, but not

limited to, cleaning, cooking, canning,
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32543

smoking, salting, drying, or freezing,

either on the FFV’s behalf or to assist

other foreign or U.S. fishing vessels.

Product recovery rate (PRR) means a

ratio expressed as a percentage of the

weight of processed product divided by

the round weight of fish used to

produce that amount of product.

Prohibited species, with respect to a

foreign vessel, means any species of fish

that that vessel is not specifically

allocated or authorized to retain,

including fish caught or received in

excess of any allocation or

authorization.

Recreational fishing, with respect to a

foreign vessel, means any fishing from

a foreign vessel not operated for profit

and not operated for the purpose of

scientific research. It may not involve

the sale, barter, or trade of part or all of

the catch (see § 600.513).

Retain on board means to fail to

return fish to the sea after a reasonable

opportunity to sort the catch.

Region mean one of five NMFS

Regional Offices responsible for

administering the management and

development of marine resources in the

United States in their respective

geographical regions.

Regional Director (RD) means the

Director of one of the five NMFS

Regions described in Table 1 of

§ 600.502, or a designee.

Regional Program Officer means the

NMFS official designated in the terms

and conditions of the grant award

responsible for monitoring,

recommending, and reviewing any

technical aspects of the application for

Federal assistance and the award.

Round weight means the weight of the

whole fish before processing or removal

of any part.

Secretary means the Secretary of

Commerce or a designee.

Science and Research Director means

the Director of one of the five NMFS

Fisheries Science Centers described in

Table 1 of § 600.502 of this part, or a

designee, also known as Center Director.

Scientific cruise means the period of

time during which a scientific research

vessel is operated in furtherance of a

scientific research project, beginning

when the vessel leaves port to undertake

the project and ending when the vessel

completes the project as provided for in

the applicable scientific research plan.

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 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, or to test a hypothesis as

part of a planned, directed investigation

or study conducted according to

methodologies generally accepted as

appropriate for scientific research. Atsea scientific fishery investigations

address one or more issues involving

taxonomy, biology, physiology,

behavior, disease, aging, growth,

mortality, migration, recruitment,

distribution, abundance, ecology, stock

structure, bycatch, and catch estimation

of finfish and shellfish (invertebrate)

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 or

invertebrates for product development,

market research, and/or public display

are not scientific research activities and

must be permitted under exempted

fishing procedures. 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 plan means a

detailed, written formulation, prepared

in advance of the research, for the

accomplishment of a scientific research

project. At a minimum, a sound

scientific research plan should include:

(1) A description of the nature and

objectives of the project, including the

hypothesis or hypotheses to be tested.

(2) The experimental design of the

project, including a description of the

methods to be used, the type and class

of any vessel(s) to be used, and a

description of sampling equipment.

(3) The geographical area(s) in which

the project is to be conducted.

(4) The expected date of first

appearance and final departure of the

research vessel(s) to be employed, and

deployment and removal of equipment,

as appropriate.

(5) The expected quantity and species

of fish to be taken and their intended

disposition, and, if significant amounts

of a managed species or species

otherwise restricted by size or sex are

needed, an explanation of such need.

(6) The name, address, and telephone/

telex/fax number of the sponsoring

organization and its director.

(7) The name, address, and telephone/

telex/fax number, and curriculum vitae

of the person in charge of the project

and, where different, the person in

charge of the research project on board

the vessel.

(8) The identity of any vessel(s) to be

used including, but not limited to, the

vessel’s name, official documentation

number and IRCS, home port, and

name, address, and telephone number of

the owner and master.

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 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 cruise in question and the

vessel operations must be conducted in

accordance with a scientific research

plan.

Scouting means any operation by a

vessel exploring (on the behalf of an

FFV or U.S. fishing vessel) for the

presence of fish by visual, acoustic, or

other means that do not involve the

catching of fish.

State means each of the several states,

the District of Columbia, the

Commonwealth of Puerto Rico,

American Samoa, the Virgin Islands,

Guam, the Northern Mariana Islands,

and any other Commonwealth, territory,

or possession of the United States.

State employee means any employee

of the state agency responsible for

developing and monitoring the state’s

program for marine and/or anadromous

fisheries.

Statement of Organization, Practices,

and Procedures (SOPP) means a

statement by each Council describing its

organization, practices, and procedures

as required under section 302(f)(6) of

the Magnuson Act.

Stock assessment means the process

of collecting and analyzing biological

and statistical information to determine

the changes in the abundance of fishery

stocks in response to fishing, and, to the

extent possible, to predict future trends

of stock abundance. Stock assessments

are based on resource surveys;

knowledge of the habitat requirements,

life history, and behavior of the species;

the use of environmental indices to

determine impacts on stocks; and catch

statistics. Stock assessments are used as

a basis to ‘‘assess and specify the

present and probable future condition of
32544 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

a fishery’’ (as is required by the

Magnuson Act), and are summarized in

the Stock Assessment and Fishery

Evaluation or similar document.

Stock Assessment and Fishery

Evaluation (SAFE) means a document or

set of documents that provides Councils

with a summary of the most recent

biological condition of species in an

FMU, and the social and economic

condition of the recreational and

commercial fishing industries and the

fish processing industries. It

summarizes, on a periodic basis, the

best available scientific information

concerning the past, present, and

possible future condition of the stocks

and fisheries being managed under

Federal regulation.

Substantially (affects) means, for the

purpose of subpart G, with respect to

whether a state’s action or omission will

substantially affect the carrying out of

an FMP for a fishery, that those effects

are important or material, or

considerable in degree. The effects of a

state’s action or omission for purposes

of this definition include effects upon:

(1) The achievement of the FMP’s

goals or objectives for the fishery;

(2) The achievement of OY from the

fishery on a continuing basis;

(3) The attainment of the national

standards for fishery conservation and

management (as set forth in section

301(a) of the Magnuson Act) and

compliance with other applicable law;

or

(4) The enforcement of regulations

implementing the FMP.

Support means any operation by a

vessel assisting fishing by foreign or

U.S. vessels, including supplying water,

fuel, provisions, fish processing

equipment, or other supplies to a fishing

vessel.

Total length (TL) means the straightline distance from the tip of the snout

to the tip of the tail (caudal fin) while

the fish is lying on its side, normally

extended.

Transship means offloading and

onloading or otherwise transferring fish

or fish products and/or transporting fish

or products made from fish.

Trawl means a cone or funnel-shaped

net that is towed through the water by

one or more vessels.

U.S. observer or observer means any

person serving in the capacity of an

observer employed by NMFS, either

directly or under contract, or certified as

a supplementary observer by NMFS.

Vessel of the United States or U.S.

vessel means:

(1) Any vessel documented under

chapter 121 of title 46, United States

Code;

(2) Any vessel numbered under

chapter 123 of title 46, United States

Code, and measuring less than 5 net

tons;

(3) Any vessel numbered under

chapter 123 of title 46, United States

Code, and used exclusively for pleasure;

or

(4) Any vessel not equipped with

propulsion machinery of any kind and

used exclusively for pleasure.

§ 600.15 Other acronyms.

(a) Fishery management terms. (1)

ABC—acceptable biological catch

(2) DAH—estimated domestic annual

harvest

(3) DAP—estimated domestic annual

processing

(4) EIS—environmental impact

statement

(5) EY—equilibrium yield

(6) FMP—fishery management plan

(7) JVP—joint venture processing

(8) MSY—maximum sustainable yield

(9) PMP—preliminary FMP

(10) TAC—total allowable catch

(11) TALFF—total allowable level of

foreign fishing

(b) Legislation. (1) APA—

Administrative Procedure Act

(2) CZMA—Coastal Zone Management

Act

(3) ESA—Endangered Species Act

(4) FACA—Federal Advisory

Committee Act

(5) FOIA—Freedom of Information

Act

(6) FLSA—Fair Labor Standards Act

(7) MFCMA—Magnuson Fishery

Conservation and Management Act

(8) MMPA—Marine Mammal

Protection Act

(9) MPRSA—Marine Protection,

Research, and Sanctuaries Act

(10) NEPA—National Environmental

Policy Act

(11) PA—Privacy Act

(12) PRA—Paperwork Reduction Act

(13) RFA—Regulatory Flexibility Act

(c) Federal agencies. (1) CEQ—

Council on Environmental Quality

(2) DOC—Department of Commerce

(3) DOI—Department of the Interior

(4) DOS—Department of State

(5) EPA—Environmental Protection

Agency

(6) FWS—Fish and Wildlife Service

(7) GSA—General Services

Administration

(8) NMFS—National Marine Fisheries

Service

(9) NOAA—National Oceanic and

Atmospheric Administration

(10) OMB—Office of Management and

Budget

(11) OPM—Office of Personnel

Management

(12) SBA—Small Business

Administration

(13) USCG—United States Coast

Guard

Subpart B—Regional Fishery

Management Councils

§ 600.105 Intercouncil boundaries.

(a) New England and Mid-Atlantic

Councils. The boundary begins at the

intersection point of Connecticut, Rhode

Island, and New York at 41°18′16.249′′

N. lat. and 71°54′28.477′′ W. long. and

proceeds south 37°22′32.75′′ East to the

point of intersection with the outward

boundary of the EEZ as specified in the

Magnuson Act.

(b) Mid-Atlantic and South Atlantic

Councils. The boundary begins at the

seaward boundary between the States of

Virginia and North Carolina

(36°31′00.8′′ N. lat.), and proceeds due

east to the point of intersection with the

outward boundary of the EEZ as

specified in the Magnuson Act.

(c) South Atlantic and Gulf of Mexico

Councils. The boundary coincides with

the line of demarcation between the

Atlantic Ocean and the Gulf of Mexico,

which begins at the intersection of the

outer boundary of the EEZ, as specified

in the Magnuson Act, and 83°00′ W.

long., proceeds northward along that

meridian to 24°35′ N. lat., (near the Dry

Tortugas Islands), thence eastward along

that parallel, through Rebecca Shoal and

the Quicksand Shoal, to the Marquesas

Keys, and then through the Florida Keys

to the mainland at the eastern end of

Florida Bay, the line so running that the

narrow waters within the Dry Tortugas

Islands, the Marquesas Keys and the

Florida Keys, and between the Florida

Keys and the mainland, are within the

Gulf of Mexico.

§ 600.110 Intercouncil fisheries.

If any fishery extends beyond the

geographical area of authority of any

one Council, the Secretary may—

(a) Designate a single Council to

prepare the FMP for such fishery and

any amendments to such FMP, in

consultation with the other Councils

concerned; or

(b) Require that the FMP and any

amendments be prepared jointly by all

the Councils concerned.

(1) A jointly prepared FMP or

amendment must be adopted by a

majority of the voting members, present

and voting, of each participating

Council. Different conservation and

management measures may be

developed for specific geographic areas,

but the FMP should address the entire

geographic range of the stock(s).

(2) In the case of joint FMP or

amendment preparation, one Council

will be designated as the
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32545

‘‘administrative lead.’’ The

‘‘administrative lead’’ Council is

responsible for the preparation of the

FMP or any amendments and other

required documents for submission to

the Secretary.

(3) None of the Councils involved in

joint preparation may withdraw without

Secretarial approval. If Councils cannot

agree on approach or management

measures within a reasonable period of

time, the Secretary may designate a

single Council to prepare the FMP or

may issue the FMP under Secretarial

authority.

§ 600.115 Statement of organization,

practices, and procedures (SOPP).

(a) Councils are required to publish

and make available to the public a SOPP

in accordance with such uniform

standards as are prescribed by the

Secretary (section 302(f)(6)) of the

Magnuson Act. The purpose of the

SOPP is to inform the public how the

Council operates within the framework

of the Secretary’s uniform standards.

(b) Amendments to current SOPPs

must be consistent with the guidelines

in this section and the terms and

conditions of the cooperative agreement,

the statutory requirements of the

Magnuson Act and other applicable law.

Upon approval of a Council’s SOPP

amendment by the Secretary, a Notice of

Availability will be published in the

Federal Register, including an address

where the public may write to request

copies.

(c) Councils may deviate, where

lawful, from the guidelines with

appropriate supporting rationale, and

Secretarial approval of each amendment

to a SOPP would constitute approval of

any such deviations for that particular

Council.

§ 600.120 Employment practices.

Council members (except for Federal

Government officials) and staff are not

Federal employees subject to OPM

regulations. Council staffing practices

are set forth in each Council’s SOPP.

§ 600.125 Budgeting, funding, and

accounting.

Each Council’s grant activities are

governed by OMB Circular A–110

(Uniform Administrative Requirements

for Grants and Agreements with

Institutions of Higher Education,

Hospitals, and other Non-Profit

Organizations), OMB Circular A–122

(Cost Principles for Non-Profit

Organizations), 15 CFR Part 29b (Audit

Requirements for Institutions of Higher

Education and Other Nonprofit

Organizations), and the terms and

conditions of the cooperative agreement.

(See 5 CFR 1310.3 for availability of

OMB Circulars.)

§ 600.130 Protection of confidentiality of

statistics.

Each Council must establish

appropriate procedures for ensuring the

confidentiality of the statistics that may

be submitted to it by Federal or state

authorities and may be voluntarily

submitted to it by private persons,

including, but not limited to (also see

§ 600.405):

(a) Procedures for the restriction of

Council member, employee, or advisory

group access and the prevention of

conflicts of interest, except that such

procedures must be consistent with

procedures of the Secretary.

(b) In the case of statistics submitted

to the Council by a state, the

confidentiality laws and regulations of

that state.

Subpart C—Council Membership

§ 600.205 Principal state officials and their

designees.

(a) Only a full-time state employee of

the state agency responsible for marine

and/or anadromous fisheries shall be

designated by a constituent state

Governor as the principal state official

for purposes of section 302(b) of the

Magnuson Act. New or revised

designations by state Governors of

principal state officials, and new or

revised designations by principal state

officials of their designees(s), must be

delivered in writing to the appropriate

NMFS Regional Director at least 48

hours before the individual may vote on

any issue before the Council. Written

designation(s) must indicate the

employment status of each principal

state official and that of his/her

designee(s), how the official or designee

is employed by the state fisheries

agency, where each individual is

employed (business address and

telephone number), and whether the

official’s full salary is paid by the state.

(b) A principal state official may name

his/her designee(s) to act on his/her

behalf at Council meetings. Individuals

designated to serve as designees of a

principal state official on a Council,

pursuant to section 302(b)(1)(A) of the

Magnuson Act, must be full time state

employees involved in the development

of fisheries management policies for that

state.

§ 600.210 Terms of Council members.

(a) Voting members (other than

principal state officials, the Regional

Directors, or their designees) are

appointed for a term of 3 years and,

except as discussed below, may be

reappointed. A voting member’s Council

service of 18 months or more during a

term of office will be counted as service

for the entire 3-year term.

(b) The anniversary date for

measuring terms of membership is

August 11. The Secretary may designate

a term of appointment shorter than 3

years, if necessary, to provide for

balanced expiration of terms of office.

Members may not serve more than three

consecutive terms.

(c) A member appointed after January

1, 1986, who has completed three

consecutive terms will be eligible for

appointment to another term one full

year after completion of the third

consecutive term.

§ 600.215 Appointments.

The following procedures govern the

nomination and appointment of Council

members.

(a) Each year, terms of approximately

one-third of the appointed members of

each Council expire. New members will

be appointed, or seated members will be

reappointed to another term, by the

Secretary to fill the seats being vacated.

The Secretary will select the appointees

from lists of nominees submitted by

March 15 of each year by the Governors

of the constituent states that are eligible

to nominate candidates for that vacancy.

When an appointed member vacates

his/her seat prior to the expiration of

his/her term, the Secretary will fill the

vacancy for the remainder of the term by

selecting from among the nominees

submitted by the responsible

Governor(s).

(b) A Governor must submit the

names of at least three qualified

nominees for each applicable vacancy.

(c) Governors are responsible for

ensuring that persons nominated for

appointment meet the qualification

requirements of the Magnuson Act. A

Governor must provide a statement

explaining how each of his or her

nominees meets the qualification

requirements; and must provide

appropriate documentation to the

Secretary that each nomination was

made in consultation with commercial

and recreational fishing interests of that

state, and that each nominee is

knowledgeable and experienced, by

reason of his or her occupational or

other experience, scientific expertise, or

training, in one or more of the following

ways related to the fishery resources of

the geographical area of concern to the

Council:

(1) Commercial fishing or the

processing or marketing of fish, fish

products, or fishing equipment;

(2) Fishing for pleasure, relaxation, or

consumption, or experience in any

business supporting fishing;
32546 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

(3) Leadership in a state, regional, or

national organization whose members

participate in a fishery in the Council’s

area of authority;

(4) The management and conservation

of natural resources, including related

interactions with industry, government

bodies, academic institutions, and

public agencies. This includes

experience serving as a member of a

Council, AP, SSC, or FIAC;

(5) Representing consumers of fish or

fish products through participation in

local, state, or national organizations, or

performing other activities specifically

related to the education or protection of

consumers of marine resources; and

(6) Teaching, journalism, writing,

consulting, legal practice, or researching

matters related to fisheries, fishery

management, and marine resource

conservation.

(d) To assist in identifying necessary

qualifications, each nominee must

furnish to the appropriate Governor’s

office a current resume, or equivalent,

describing career history—with

particular attention to experience

related to the above criteria. Nominees

may provide such information in any

format they wish. Career and

educational history information sent to

the Governors should also be sent to the

NMFS Office of Fisheries Conservation

and Management.

(e) The Secretary will review each list

submitted by a Governor to ascertain if

the individuals on the list are qualified

for the vacancy on the basis of the

criteria prescribed in paragraph (c) of

this section. If the Secretary determines

that any nominee is not qualified, the

Secretary will notify the appropriate

Governor of that determination. The

Governor shall then submit a revised list

or resubmit the original list with an

additional explanation of the

qualifications of the nominee in

question. The Secretary reserves the

right to determine whether nominees

are qualified.

(f) There are two categories of seats to

which voting members are appointed:

‘‘obligatory’’ and ‘‘at-large.’’

(1) Each constituent state is entitled to

one seat on the Council on which it is

a member, except that Alaska is entitled

to five seats and Washington is entitled

to two seats on the North Pacific Fishery

Management Council. When the term of

a state’s obligatory member is expiring,

or that seat becomes vacant before the

expiration of its term, the Governor of

that state must submit the names of at

least three qualified individuals to fill

that seat. In order to fill a state’s

obligatory seat, the Secretary may select

from any of the nominees for such

obligatory seat and from the nominees

for any at-large seat submitted by the

Governor of that state. If a Governor fails

to provide a list of at least three

qualified nominees for a seat obligated

to that Governor’s state, then the state’s

obligatory seat will remain vacant until

three qualified nominees are submitted

by the Governor and acted upon by the

Secretary.

(2) Prior to submitting nominees for

appointment to a Council, a constituent

state Governor must determine if each of

his or her nominees is a resident of that

constituent state. A State Governor may

not nominate a non-resident of that state

for appointment to a Council seat

obligated to that state. If, at any time

during a term, an appointee to an

obligatory seat changes residency to

another state that is not a constituent

state of that Council, the member may

no longer vote as a representative of that

state and must resign from that

obligated seat. For purposes of this

paragraph (f)(2), a state resident is an

individual who maintains his/her

principal residence within that

constituent state and, if applicable, pays

income taxes to that state and/or to

another appropriate jurisdiction within

that state.

(g) When the term of an at-large

member is expiring, or that seat

becomes vacant before the expiration of

a term, the Governors of all constituent

states of that Council must each submit

the names of at least three qualified

individuals to fill that seat.

(1) In order to fill an at-large seat, the

Secretary may select a nominee for that

seat submitted by any Governor of a

constituent state. When the terms of

both an obligatory member and an atlarge member expire concurrently, the

Governor of the state holding the

expiring obligatory seat may indicate

that the nominees who were not

selected for appointment to the

obligatory seat may be considered for

appointment to an at-large seat,

provided that the resulting total number

of nominees submitted by that Governor

for the expiring at-large seat is no fewer

than three.

(2) If a Governor fails to submit a list

of three qualified nominees for an

available at-large seat within the time

allotted, then a new at-large member

will be appointed from lists of qualified

nominees submitted by Governors of

other constituent states.

(3) If a Governor chooses to submit

nominations for one or more vacant atlarge seats on a Council, he or she must

submit lists that contain at least three

different nominees for each vacant seat.

In making selections to each of the

available at-large seats, the Secretary

will consider all names submitted by

the constituent state governors.

(4) In filling expiring at-large seats,

the Secretary will consider only

complete slates of nominees submitted

by the Governors of the Council’s

constituent states. If nominations are

requested to fill more than one at-large

seat and a Governor elects to nominate

a total of four candidates, (i.e., a slate of

three candidates for one seat and one for

the other(s)), the set of three candidates

will be considered only for the first seat,

but the two candidates who were not

selected will not be considered for the

other(s). In this case, the only

candidates considered for the other

seat(s) would be derived from the slates

offered by the Governors of the other

states that included three different

qualified candidates (i.e., candidates

who were not considered for one of the

other seats).

(5) Governors may nominate residents

of another constituent state of a Council

for appointment to an at-large seat on

that Council.

(6) The Secretary must, to the extent

practicable, ensure a fair and balanced

apportionment, on a rotating or other

basis, of the active participants (or their

representatives) in the commercial and

recreational fisheries in the Council’s

area of authority. Further, the Secretary

must take action to ensure, to the extent

practicable, that those persons

dependent for their livelihood upon the

fisheries in the Council’s area of

authority are fairly represented as voting

members.

§ 600.220 Oath of office.

Each member appointed to a Council

must take an oath of office.

§ 600.225 Rules of conduct.

(a) Council members, as Federal office

holders, and Council employees are

subject to most Federal criminal statutes

covering bribery, conflict-of-interest,

disclosure of confidential information,

and lobbying with appropriated funds.

(b) The Councils are responsible for

maintaining high standards of ethical

conduct among themselves, their staffs,

and their advisory groups. In addition to

abiding by the applicable Federal

conflict of interest statutes, both

members and employees of the Councils

must comply with the following

standards of conduct:

(1) No employee of a Council may use

his or her official authority or influence

derived from his or her position with

the Council for the purpose of

interfering with or affecting the result of

an election to or a nomination for any

national, state, county, or municipal

elective office.
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32547

(2) No employee of a Council may be

deprived of employment, position,

work, compensation, or benefit

provided for or made possible by the

Magnuson Act on account of any

political activity or lack of such activity

in support of or in opposition to any

candidate or any political party in any

national, state, county, or municipal

election, or on account of his or her

political affiliation.

(3) No Council member or employee

may pay, offer, promise, solicit, or

receive from any person, firm, or

corporation a contribution of money or

anything of value in consideration of

either support or the use of influence or

the promise of support or influence in

obtaining for any person any appointive

office, place, or employment under the

Council.

(4) No employee of a Council may

have a direct or indirect financial

interest that conflicts with the fair and

impartial conduct of his or her Council

duties. However, an Executive Director

may retain a financial interest in

harvesting, processing or marketing

activities, and participate in matters of

general public concern on the Council

that might affect that interest, if that

interest has been disclosed in a report

filed under § 600.235.

(5) No Council member, employee of

a Council, or member of a Council

advisory group may use or allow the

use, for other than official purposes, of

information obtained through or in

connection with his or her Council

employment that has not been made

available to the general public.

(6) No Council member or employee

of the Council may engage in criminal,

infamous, dishonest, notoriously

immoral, or disgraceful conduct.

(7) No Council member or employee

of the Council may use Council property

on other than official business. Such

property must be protected and

preserved from improper or deleterious

operation or use.

(8) No Council member may

participate—

(i) Personally and substantially as a

member through decision, approval,

disapproval, recommendation, the

rendering of advice, investigation, or

otherwise in a particular matter

primarily of individual concern, such as

a contract, in which he or she has a

financial interest; or

(ii) In any matter of general public

concern that is likely to have a direct

and predictable effect on a member’s

financial interest, unless that interest is

in harvesting, processing, or marketing

activities and has been disclosed in a

report filed under § 600.235. For

purposes of this section, the member’s

financial interest includes that of the

member’s spouse; minor child; partner;

organization in which the member is

serving as officer, director, trustee,

partner or employee; or any person or

organization with whom the member is

negotiating or has any arrangement

concerning prospective employment.

§ 600.230 Removal.

The Secretary may remove for cause

any Secretarially appointed member of

a Council in accordance with section

302(b)(5) of the Magnuson Act, wherein

the Council concerned first recommends

removal of that member by not less than

two-thirds of the voting members. A

recommendation of a Council to remove

a member must be made in writing to

the Secretary and accompanied by a

statement of the reasons upon which the

recommendation is based.

§ 600.235 Financial disclosure.

(a) The Magnuson Act requires the

disclosure by each Council nominee,

voting member appointed to the Council

by the Secretary, and Executive

Director, of any financial interest of the

reporting individual in any harvesting,

processing, or marketing activity that is

being, or will be, undertaken within any

fishery under the authority of the

individual’s Council, and of any such

financial interest of the reporting

individual’s spouse, minor child,

partner, or any organization (other than

the Council) in which that individual is

serving as an officer, director, trustee,

partner, or employee. The information

required to be reported must be

disclosed on NOAA Form 88–195,

‘‘Statement of Financial Interests for Use

by Voting Members, Nominees, and

Executive Directors of Regional Fishery

Management Councils’’ (Financial

Interest Form), or such other form as the

Secretary may prescribe. The report

must be filed by each nominee for

Secretarial appointment with the

Assistant Administrator by April 15 or,

if nominated after March 15, 1 month

after nomination by the Governor. A

seated voting member appointed by the

Secretary, or an Executive Director,

must file a Financial Interest Form

within 45 days of taking office; must

update his or her statement within 30

days of acquiring any such financial

interest, or of substantially changing a

financial interest; and must update his/

her statement annually and file that

update by February 1 of each year with

the Executive Director of the

appropriate Council, and concurrently

provide copies of such documents to the

NMFS Regional Director for the

geographic area concerned. The

completed Financial Interest Forms will

be kept on file, and made available for

public inspection at reasonable hours at

the Council offices. In addition, the

statements will be made available at

each public Council meeting or hearing.

(b) The provisions of 18 U.S.C. 208 do

not apply to an individual who has filed

a financial report under this section

regarding an interest that has been

reported.

(c) By February 1 of each year,

Councils must forward copies of the

completed disclosure from each current

Council member and Executive Director

to the Director, Office of Fisheries

Conservation and Management, NMFS.

Councils must also include any updates

in disclosures, as well as revisions

required for changes of interests.

(d) Councils must retain the

disclosure forms for each member for at

least 5 years after the expiration of that

member’s last term.

§ 600.240 Security assurances.

(a) DOC/OS will issue security

assurances to Council nominees and

members following completion of

background checks. Security assurances

will be valid for 5 years from the date

of issuance. A security assurance will

not entitle the member to access

classified data. In instances in which

Council members may need to discuss,

at closed meetings, materials classified

for national security purposes, the

agency or individual (e.g., DOS, USCG)

providing such classified information

will be responsible for ensuring that

Council members and other attendees

have the appropriate security

clearances.

(b) Each nominee to a Council is

required to complete a Certification of

Status form (‘‘form’’). All nominees

must certify, pursuant to the Foreign

Agents Registration Act of 1938,

whether they serve as an agent of a

foreign principal. Each nominee must

certify, date, sign, and return the form

with his or her completed nomination

kit. Nominees will not be considered for

appointment to a Council if they have

not filed this form. Any nominee who

currently is an agent of a foreign

principal will not be eligible for

appointment to a Council, and therefore

should not be nominated by a Governor

for appointment.

§ 600.245 Council member compensation.

(a) The obligatory and at-large voting

members of each Council appointed

under section 302(b)(1)(C) of the

Magnuson Act who are not employed by

the Federal Government or any state or

local government (i.e., any member who

does not receive compensation from any

such government for the period when
32548 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

performing duties as a Council member)

shall receive compensation at 1.2 times

the daily rate for a GS–15 (Step 1) of the

General Schedule (without locality pay)

when engaged in actual performance of

duties as assigned by the Chair of the

Council. Actual performance of duties,

for the purposes of compensation, may

include travel time.

(b) All voting Council members whose

eligibility for compensation has been

established in accordance with NOAA

guidelines will be paid through the

cooperative agreement as a direct line

item on a contractual basis without

deductions being made for Social

Security or Federal and state income

taxes. A report of compensation will be

furnished each year by the member’s

Council to the proper Regional Program

Officer, as required by the Internal

Revenue Service. Such compensation

may be paid on a full day’s basis,

whether in excess of 8 hours a day or

less than 8 hours a day. The time is

compensable where the individual

member is required to expend a

significant private effort that

substantially disrupts the daily routine

to the extent that a work day is lost to

the member. ‘‘Homework’’ time in

preparation for formal Council meetings

is not compensable.

(c) Non-government Council members

receive compensation for:

(1) Days spent in actual attendance at

a meeting of the Council or jointly with

another Council.

(2) Travel on the day preceding or

following a scheduled meeting that

precluded the member from conducting

his normal business on the day in

question.

(3) Meetings of standing committees

of the Council if approved in advance

by the Chair.

(4) Individual member meeting with

scientific and technical advisors, when

approved in advance by the Chair and

a substantial portion of any day is spent

at the meeting.

(5) Conducting or attending hearings,

when authorized in advance by the

Chair.

(6) Other meetings involving Council

business when approved in advance by

the Chair.

(d) The Executive Director of each

Council must submit to the appropriate

Regional Office annually a report,

approved by the Council Chair, of

Council member compensation

authorized. This report shall identify,

for each member, amount paid, dates,

and location and purpose of meetings

attended.

Subpart D—National Standards

§ 600.305 General.

(a) Purpose. (1) This subpart

establishes guidelines, based on the

national standards, to assist in the

development and review of FMPs,

amendments, and regulations prepared

by the Councils and the Secretary.

(2) In developing FMPs, the Councils

have the initial authority to ascertain

factual circumstances, to establish

management objectives, and to propose

management measures that will achieve

the objectives. The Secretary will

determine whether the proposed

management objectives and measures

are consistent with the national

standards, other provisions of the

Magnuson Act, and other applicable

law. The Secretary has an obligation

under section 301(b) of the Magnuson

Act to inform the Councils of the

Secretary’s interpretation of the national

standards so that they will have an

understanding of the basis on which

FMPs will be reviewed.

(3) The national standards are

statutory principles that must be

followed in any FMP. The guidelines

summarize Secretarial interpretations

that have been, and will be, applied

under these principles. The guidelines

are intended as aids to decisionmaking;

FMPs formulated according to the

guidelines will have a better chance for

expeditious Secretarial review,

approval, and implementation. FMPs

that are in substantial compliance with

the guidelines, the Magnuson Act, and

other applicable law must be approved.

(b) Fishery management objectives. (1)

Each FMP, whether prepared by a

Council or by the Secretary, should

identify what the FMP is designed to

accomplish (i.e., the management

objectives to be attained in regulating

the fishery under consideration). In

establishing objectives, Councils

balance biological constraints with

human needs, reconcile present and

future costs and benefits, and integrate

the diversity of public and private

interests. If objectives are in conflict,

priorities should be established among

them.

(2) How objectives are defined is

important to the management process.

Objectives should address the problems

of a particular fishery. The objectives

should be clearly stated, practicably

attainable, framed in terms of definable

events and measurable benefits, and

based upon a comprehensive rather than

a fragmentary approach to the problems

addressed. An FMP should make a clear

distinction between objectives and the

management measures chosen to

achieve them. The objectives of each

FMP provide the context within which

the Secretary will judge the consistency

of an FMP’s conservation and

management measures with the national

standards.

(c) Word usage. The word usage refers

to all regulations in this subpart.

(1) Must is used, instead of ‘‘shall’’, to

denote an obligation to act; it is used

primarily when referring to

requirements of the Magnuson Act, the

logical extension thereof, or of other

applicable law.

(2) Shall is used only when quoting

statutory language directly, to avoid

confusion with the future tense.

(3) Should is used to indicate that an

action or consideration is strongly

recommended to fulfill the Secretary’s

interpretation of the Magnuson Act, and

is a factor reviewers will look for in

evaluating a SOPP or FMP.

(4) May is used in a permissive sense.

(5) May not is proscriptive; it has the

same force as ‘‘must not.’’

(6) Will is used descriptively, as

distinguished from denoting an

obligation to act or the future tense.

(7) Could is used when giving

examples, in a hypothetical, permissive

sense.

(8) Can is used to mean ‘‘is able to,’’

as distinguished from ‘‘may.’’

(9) Examples are given by way of

illustration and further explanation.

They are not inclusive lists; they do not

limit options.

(10) Analysis, as a paragraph heading,

signals more detailed guidance as to the

type of discussion and examination an

FMP should contain to demonstrate

compliance with the standard in

question.

(11) Determine is used when referring

to OY.

(12) Adjust is used when establishing

a deviation from MSY for biological

reasons, such as in establishing ABC,

TAC, or EY.

(13) Modify is used when the

deviation from MSY is for the purpose

of determining OY, in accord with

relevant economic, social, or ecological

factors.

§ 600.310 National Standard 1—Optimum

Yield.

(a) Standard 1. Conservation and

management measures shall prevent

overfishing while achieving, on a

continuing basis, the OY from each

fishery for the U.S. fishing industry.

(b) General. The determination of OY

is a decisional mechanism for resolving

the Magnuson Act’s multiple purposes

and policies, for implementing an

FMP’s objectives, and for balancing the

various interests that comprise the

national welfare. OY is based on MSY,
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32549

or on MSY as it may be adjusted under

paragraph (d)(3) of this section. The

most important limitation on the

specification of OY is that the choice of

OY—and the conservation and

management measures proposed to

achieve it—must prevent overfishing.

(c) Overfishing. (1) Overfishing is a

level or rate of fishing mortality that

jeopardizes the long-term capacity of a

stock or stock complex to produce MSY

on a continuing basis. Each FMP must

specify, to the maximum extent

possible, an objective and measurable

definition of overfishing for each stock

or stock complex covered by that FMP,

and provide an analysis of how the

definition was determined and how it

relates to reproductive potential.

(2) The definition of overfishing for a

stock or stock complex may be

developed or expressed in terms of a

minimum level of spawning biomass

(‘‘threshold’’); maximum level or rate of

fishing mortality; or formula, model, or

other measurable standard designed to

ensure the maintenance of the stock’s

productive capacity. Overfishing must

be defined in a way to enable the

Council and the Secretary to monitor

and evaluate the condition of the stock

or stock complex relative to the

definition.

(3) Different fishing patterns can

produce a variety of effects on local and

areawide abundance, availability, size,

and age composition of a stock. Some of

these fishing patterns have been called

‘‘growth,’’ ‘‘localized,’’ or ‘‘pulse’’

overfishing; however, these patterns are

not necessarily overfishing under the

national standard 1 definition, which

focuses on recruitment and long-term

reproductive capacity. (Also see

paragraph (c)(6)(v)).

(4) Overfishing definitions must be

based on the best scientific information

available. Councils must build into the

definition appropriate consideration of

risk, taking into account uncertainties in

estimating domestic harvest, stock

conditions, or the effects of

environmental factors (also see

§ 600.335). In cases where scientific data

are severely limited, the Councils’

informed judgment must be used, and

effort should be directed to identifying

and gathering the needed data.

(5) Secretarial approval or disapproval

of the overfishing definition will be

based on consideration of whether the

proposal:

(i) Has sufficient scientific merit.

(ii) Is likely to result in effective

Council action to prevent the stock from

closely approaching or reaching an

overfished status.

(iii) Provides a basis for objective

measurement of the status of the stock

against the definition.

(iv) Is operationally feasible.

(6) In addition to a specific definition

of overfishing for each stock or stock

complex, an FMP must contain

management measures necessary to

prevent overfishing.

(i) If overfishing is defined in terms of

a threshold biomass level, the Council

must ensure that fishing effort does not

cause spawning biomass to fall and

remain below that threshold.

(ii) If overfishing is defined in terms

of a maximum fishing mortality rate, the

Council must ensure that fishing effort

on that stock does not cause the

maximum rate to be exceeded.

(iii) If data indicate that an overfished

condition exists, a program must be

established for rebuilding the stock over

a period of time specified by the

Council and acceptable to the Secretary.

(iv) If data indicate that a stock or

stock complex is approaching an

overfished condition, the Council

should identify actions or combination

of actions to be undertaken in response.

(v) Depending on the objectives of a

particular FMP and the specific

definition of overfishing established for

the stock or stock complex under

management, a Council may

recommend measures to prevent or

permit pulse, localized, or growth

overfishing.

(7) Significant adverse alterations in

environment/habitat conditions increase

the possibility that fishing effort will

contribute to a stock collapse. Care

should be taken to identify the cause of

any downward trends in spawning stock

sizes or average annual recruitment.

(i) Whether these trends are caused by

environmental changes or by fishing

effort, the only direct control provided

by the Magnuson Act is to reduce

fishing mortality.

(ii) Unless the Council asserts, as

supported by appropriate evidence, that

reduced fishing effort would not

alleviate the problem, the FMP must

include measures to reduce fishing

mortality, regardless of the cause of the

low population level.

(iii) If manmade environmental

changes are contributing to the

downward trends, in addition to

controlling effort, Councils should

recommend restoration of habitat and

other ameliorative programs, to the

extent possible, and consider whether to

take action under section 302(i) of the

Magnuson Act.

(8) There are certain limited

exceptions to the requirement to prevent

overfishing. Harvesting the major

component of a mixed fishery at its

optimum level may result in the

overfishing of a minor (smaller or less

valuable) stock component in the

fishery. A Council may decide to permit

this type of overfishing if it is

demonstrated by analysis (paragraph

(f)(5) of this section) that it will result

in net benefits to the Nation, and if the

Council’s action will not cause any

stock to require protection under the

ESA.

(9) All FMPs should contain a

definition of overfishing for the stock or

stock complex managed under the

affected FMP.

(d) MSY. (1) MSY is the largest

average annual catch or yield that can

be taken over a significant period of

time from each stock under prevailing

ecological and environmental

conditions.

(2) MSY may be presented as a range

of values. One MSY may be specified for

a related group of species in a mixedspecies fishery. Since MSY is a longterm average, it need not be specified

annually, but must be based on the best

scientific information available.

(3) MSY may be only the starting

point in providing a realistic biological

description of allowable fishery

removals. MSY may need to be adjusted

because of environmental factors, stock

peculiarities, or other biological

variables, prior to the determination of

OY. An example of such an adjustment

is determination of ABC.

(e) ABC. (1) ABC is a preliminary

description of the acceptable harvest (or

range of harvests) for a given stock or

stock complex. Its derivation focuses on

the status and dynamics of the stock,

environmental conditions, other

ecological factors, and prevailing

technological characteristics of the

fishery.

(2) When ABC is used, its

specification constitutes the first step in

deriving OY from MSY. Unless the best

scientific information available

indicates otherwise (see § 600.315, ABC

should be no higher than the product of

the stock’s natural mortality rate and the

biomass of the exploitable stock. If a

threshold has been specified for the

stock, ABC must equal zero when the

stock is at or below that threshold (also

see paragraph (c)(2) of this section).

ABC may be expressed in numeric or

nonnumeric terms.

(f) OY—(1) Definition. The term

‘‘optimum’’ with respect to the yield

from a fishery, means the amount of fish

that will provide the greatest overall

benefit to the Nation, with particular

reference to food production and

recreational opportunities; and that is

prescribed as such on the basis of the

MSY from each fishery, as modified by
32550 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

any relevant economic, social, or

ecological factors (section 3(21)(b) of the

Magnuson Act).

(2) Values in determination. In

determining the greatest benefit to the

Nation, two values that should be

weighed are food production and

recreational opportunities (section

3(21)(a) of the Magnuson Act). They

should receive serious attention as

measures of benefit when considering

the economic, ecological, or social

factors used in modifying MSY to obtain

OY.

(i) Food production encompasses the

goals of providing seafood to

consumers, maintaining an

economically viable fishery, and

utilizing the capacity of U.S. fishery

resources to meet nutritional needs.

(ii) Recreational opportunities

includes recognition of the importance

of the quality of the recreational fishing

experience, and of the contribution of

recreational fishing to the national,

regional, and local economies and food

supplies.

(3) Factors relevant to OY. The

Magnuson Act’s definition of OY

identifies three categories of factors to

be used in modifying MSY to arrive at

OY: Economic, social, and ecological

(section 3(21)(b) of the Magnuson Act).

Not every factor will be relevant in

every fishery. For some fisheries,

insufficient information may be

available with respect to some factors to

provide a basis for corresponding

modifications to MSY.

(i) Economic factors. Examples are

promotion of domestic fishing,

development of unutilized or

underutilized fisheries, satisfaction of

consumer and recreational needs, and

encouragement of domestic and export

markets for U.S.-harvested fish. Some

other factors that may be considered are

the value of fisheries, the level of

capitalization, operating costs of vessels,

alternate employment opportunities,

and economies of coastal areas.

(ii) Social factors. Examples are

enjoyment gained from recreational

fishing, avoidance of gear conflicts and

resulting disputes, preservation of a way

of life for fishermen and their families,

and dependence of local communities

on a fishery. Among other factors that

may be considered are the cultural place

of subsistence fishing, obligations under

Indian treaties, and worldwide

nutritional needs.

(iii) Ecological factors. Examples are

the vulnerability of incidental or

unregulated species in a mixed-species

fishery, predator-prey or competitive

interactions, and dependence of marine

mammals and birds or endangered

species on a stock of fish. Equally

important are environmental conditions

that stress marine organisms, such as

natural and manmade changes in

wetlands or nursery grounds, and effects

of pollutants on habitat and stocks.

(4) Specification. (i) The amount of

fish that constitutes the OY need not be

expressed in terms of numbers or weight

of fish. The economic, social, or

ecological modifications to MSY may be

expressed by describing fish having

common characteristics, the harvest of

which provides the greatest overall

benefit to the Nation. For instance, OY

may be expressed as a formula that

converts periodic stock assessments into

quotas or guideline harvest levels for

recreational, commercial, and other

fishing. OY may be defined in terms of

an annual harvest of fish or shellfish

having a minimum weight, length, or

other measurement. OY may also be

expressed as an amount of fish taken

only in certain areas, or in certain

seasons, or with particular gear, or by a

specified amount of fishing effort. In the

case of a mixed-species fishery, the

incidental-species OY may be a function

of the directed catch, or absorbed into

an OY for related species.

(ii) If a numerical OY is chosen, a

range or average may be specified.

(iii) In a fishery where there is a

significant discard component, the OY

may either include or exclude discards,

consistent with the other yield

determinations.

(iv) The OY specification can be

converted into an annual numerical

estimate to establish any TALFF and to

analyze impacts of the management

regime. There should be a mechanism in

an FMP for periodic reassessment of the

OY specification, so that it is responsive

to changing circumstances in the

fishery.

(v) The determination of OY requires

a specification of MSY. However, even

where sufficient scientific data as to the

biological characteristics of the stock do

not exist, or the period of exploitation

or investigation has not been long

enough for adequate understanding of

stock dynamics, or where frequent largescale fluctuations in stock size make

this concept of limited value, the OY

should be based on the best scientific

information available.

(5) Analysis. An FMP must contain an

analysis of how its OY specification was

determined (section 303(a)(3) of the

Magnuson Act). It should relate the

explanation of overfishing in paragraph

(c) of this section to conditions in the

particular fishery, and explain how its

choice of OY and conservation and

management measures will prevent

overfishing in that fishery. If overfishing

is permitted under paragraph (c)(8) of

this section, the analysis must contain a

justification in terms of overall benefits

and an assessment of the risk of the

species or stock component reaching a

threatened or endangered status. A

Council must identify those economic,

social, and ecological factors relevant to

management of a particular fishery, then

evaluate them to arrive at the

modification (if any) of MSY. The

choice of a particular OY must be

carefully defined and documented to

show that the OY selected will produce

the greatest benefit to the Nation.

(g) OY as a target. (1) The

specification of OY in an FMP is not

automatically a quota or ceiling,

although quotas may be derived from

the OY, where appropriate. OY is a

target or goal; an FMP must contain

conservation and management

measures, and provisions for

information collection, that are designed

to achieve OY. These measures should

allow for practical and effective

implementation and enforcement of the

management regime, so that the harvest

is allowed to reach, but not to exceed

OY by a substantial amount. The

Secretary has an obligation to

implement and enforce the FMP so that

OY is achieved. If management

measures prove unenforceable—or too

restrictive, or not rigorous enough to

realize OY—they should be modified;

an alternative is to reexamine the

adequacy of the OY specification.

(2) Exceeding OY does not necessarily

constitute overfishing, although they

might coincide. Even if no overfishing

resulted, continual harvest at a level

above a fixed-value OY would violate

National Standard 1, because OY was

exceeded (not achieved) on a continuing

basis.

(3) Part of the OY may be held as a

reserve to allow for uncertainties in

estimates of stock size and of DAH or to

solve operational problems in achieving

(but not exceeding) OY. If an OY reserve

is established, an adequate mechanism

should be included in the FMP to

permit timely release of the reserve to

domestic or foreign fishermen, if

necessary.

(h) OY and foreign fishing. Section

201(d) of the Magnuson Act provides

that fishing by foreign nations is limited

to that portion of the OY that will not

be harvested by vessels of the United

States.

(1) DAH. Councils must consider the

capacity of, and the extent to which,

U.S. vessels will harvest the OY on an

annual basis. Estimating the amount

that U.S. fishing vessels will actually

harvest is required to determine the

surplus.
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32551

(2) DAP. Each FMP must identify the

capacity of U.S. processors. It must also

identify the amount of DAP, which is

the sum of two estimates:

(i) The amount of U.S. harvest that

domestic processors will process. This

estimate may be based on historical

performance and on surveys of the

expressed intention of manufacturers to

process, supported by evidence of

contracts, plant expansion, or other

relevant information.

(ii) The amount of fish that will be

harvested by domestic vessels, but not

processed (e.g., marketed as fresh whole

fish, used for private consumption, or

used for bait).

(iii) JVP. When DAH exceeds DAP,

the surplus is available for JVP. JVP is

derived from DAH.

§ 600.315 National Standard 2—Scientific

Information.

(a) Standard 2. Conservation and

management measures shall be based

upon the best scientific information

available.

(b) FMP development. The fact that

scientific information concerning a

fishery is incomplete does not prevent

the preparation and implementation of

an FMP (see related §§ 600.320(d)(2)

and 600.340(b).

(1) Scientific information includes,

but is not limited to, information of a

biological, ecological, economic, or

social nature. Successful fishery

management depends, in part, on the

timely availability, quality, and quantity

of scientific information, as well as on

the thorough analysis of this

information, and the extent to which the

information is applied. If there are

conflicting facts or opinions relevant to

a particular point, a Council may choose

among them, but should justify the

choice.

(2) FMPs must take into account the

best scientific information available at

the time of preparation. Between the

initial drafting of an FMP and its

submission for final review, new

information often becomes available.

This new information should be

incorporated into the final FMP where

practicable; but it is unnecessary to start

the FMP process over again, unless the

information indicates that drastic

changes have occurred in the fishery

that might require revision of the

management objectives or measures.

(c) FMP implementation. (1) An FMP

must specify whatever information

fishermen and processors will be

required or requested to submit to the

Secretary. Information about harvest

within state boundaries, as well as in

the EEZ, may be collected if it is needed

for proper implementation of the FMP

and cannot be obtained otherwise. The

FMP should explain the practical utility

of the information specified in

monitoring the fishery, in facilitating

inseason management decisions, and in

judging the performance of the

management regime; it should also

consider the effort, cost, or social impact

of obtaining it.

(2) An FMP should identify scientific

information needed from other sources

to improve understanding and

management of the resource and the

fishery.

(3) The information submitted by

various data suppliers about the

stocks(s) throughout its range or about

the fishery should be comparable and

compatible, to the maximum extent

possible.

(d) FMP amendment. FMPs should be

amended on a timely basis, as new

information indicates the necessity for

change in objectives or management

measures.

(e) SAFE Report. (1) The SAFE report

is a document or set of documents that

provides Councils with a summary of

the most recent biological condition of

species in the FMU, and the social and

economic condition of the recreational

and commercial fishing interests and

the fish processing industries. It

summarizes, on a periodic basis, the

best available scientific information

concerning the past, present, and

possible future condition of the stocks

and fisheries being managed under

Federal regulation.

(i) The Secretary has the

responsibility to assure that a SAFE

report or similar document is prepared,

reviewed annually, and changed as

necessary for each FMP. The Secretary

or Councils may utilize any

combination of talent from Council,

state, Federal, university, or other

sources to acquire and analyze data and

produce the SAFE report.

(ii) The SAFE report provides

information to the Councils for

determining annual harvest levels from

each stock, documenting significant

trends or changes in the resource and

fishery over time, and assessing the

relative success of existing state and

Federal fishery management programs.

In addition, the SAFE report may be

used to update or expand previous

environmental and regulatory impact

documents, and ecosystem and habitat

descriptions.

(iii) Each SAFE report must be

scientifically based, and cite data

sources and interpretations.

(2) Each SAFE report should contain

information on which to base harvest

specifications.

(3) Each SAFE report should contain

information on which to assess the

social and economic condition of the

persons and businesses that rely on the

use of fish resources, including fish

processing industries.

(4) Each SAFE report may contain

additional economic, social, and

ecological information pertinent to the

success of management or the

achievement of objectives of each FMP.

§ 600.320 National Standard 3—

Management Units.

(a) Standard 3. To the extent

practicable, an individual stock of fish

shall be managed as a unit throughout

its range, and interrelated stocks of fish

shall be managed as a unit or in close

coordination.

(b) General. The purpose of this

standard is to induce a comprehensive

approach to fishery management. The

geographic scope of the fishery, for

planning purposes, should cover the

entire range of the stocks(s) of fish, and

not be overly constrained by political

boundaries. Wherever practicable, an

FMP should seek to manage interrelated

stocks of fish.

(c) Unity of management. Cooperation

and understanding among entities

concerned with the fishery (e.g.,

Councils, states, Federal Government,

international commissions, foreign

nations) are vital to effective

management. Where management of a

fishery involves multiple jurisdictions,

coordination among the several entities

should be sought in the development of

an FMP. Where a range overlaps

Council areas, one FMP to cover the

entire range is preferred. The Secretary

designates which Council(s) will

prepare the FMP, under section 304(f) of

the Magnuson Act.

(d) Management unit. The term

‘‘management unit’’ means a fishery or

that portion of a fishery identified in an

FMP as relevant to the FMP’s

management objectives.

(1) Basis. The choice of a management

unit depends on the focus of the FMP’s

objectives, and may be organized

around biological, geographic,

economic, technical, social, or

ecological perspectives. For example:

(i) Biological—could be based on a

stock(s) throughout its range.

(ii) Geographic—could be an area.

(iii) Economic—could be based on a

fishery supplying specific product

forms.

(iv) Technical—could be based on a

fishery utilizing a specific gear type or

similar fishing practices.

(v) Social—could be based on

fishermen as the unifying element, such

as when the fishermen pursue different
32552 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

species in a regular pattern throughout

the year.

(vi) Ecological—could be based on

species that are associated in the

ecosystem or are dependent on a

particular habitat.

(2) Conservation and management

measures. FMPs should include

conservation and management measures

for that part of the management unit

within U.S. waters, although the

Secretary can ordinarily implement

them only within the EEZ. The

measures need not be identical for each

geographic area within the management

unit, if the FMP justifies the differences.

A management unit may contain, in

addition to regulated species, stocks of

fish for which there is not enough

information available to specify MSY

and OY or to establish management

measures, so that data on these species

may be collected under the FMP.

(e) Analysis. To document that an

FMP is as comprehensive as practicable,

it should include discussions of the

following:

(1) The range and distribution of the

stocks, as well as the patterns of fishing

effort and harvest.

(2) Alternative management units and

reasons for selecting a particular one. A

less-than-comprehensive management

unit may be justified if, for example,

complementary management exits or is

planned for a separate geographic area

or for a distinct use of the stocks, or if

the unmanaged portion of the resource

is immaterial to proper management.

(3) Management activities and habitat

programs of adjacent states and their

effects on the FMP’s objectives and

management measures. Where state

action is necessary to implement

measures within state waters to achieve

FMP objectives, the FMP should

identify what state action is necessary,

discuss the consequences of state

inaction or contrary action, and make

appropriate recommendations. The FMP

should also discuss the impact that

Federal regulations will have on state

management activities.

(4) Management activities of other

countries having an impact on the

fishery, and how the FMP’s

management measures are designed to

take into account these impacts.

International boundaries may be dealt

with in several ways. For example:

(i) By limiting the management unit’s

scope to that portion of the stock found

in U.S. waters;

(ii) By estimating MSY for the entire

stock and then basing the determination

of OY for the U.S. fishery on the portion

of the stock within U.S. waters; or

(iii) By referring to treaties or

cooperative agreements.

§ 600.325 National Standard 4—

Allocations.

(a) Standard 4. Conservation and

management measures shall not

discriminate between residents of

different states. If it becomes necessary

to allocate or assign fishing privileges

among various U.S. fishermen, such

allocation shall be:

(1) Fair and equitable to all such

fishermen.

(2) Reasonably calculated to promote

conservation.

(3) Carried out in such manner that no

particular individual, corporation, or

other entity acquires an excessive share

of such privileges.

(b) Discrimination among residents of

different states. An FMP may not

differentiate among U.S. citizens,

nationals, resident aliens, or

corporations on the basis of their state

of residence. An FMP may not

incorporate or rely on a state statute or

regulation that discriminates against

residents of another state. Conservation

and management measures that have

different effects on persons in various

geographic locations are permissible if

they satisfy the other guidelines under

Standard 4. Examples of these precepts

are:

(1) An FMP that restricted fishing in

the EEZ to those holding a permit from

state X would violate Standard 4 if state

X issued permits only to its own

citizens.

(2) An FMP that closed a spawning

ground might disadvantage fishermen

living in the state closest to it, because

they would have to travel farther to an

open area, but the closure could be

justified under Standard 4 as a

conservation measure with no

discriminatory intent.

(c) Allocation of fishing privileges. An

FMP may contain management

measures that allocate fishing privileges

if such measures are necessary or

helpful in furthering legitimate

objectives or in achieving the OY, and

if the measures conform with

paragraphs (c)(3)(i) through (c)(3)(iii) of

this section.

(1) Definition. An ‘‘allocation’’ or

‘‘assignment’’ of fishing privileges is a

direct and deliberate distribution of the

opportunity to participate in a fishery

among identifiable, discrete user groups

or individuals. Any management

measure (or lack of management) has

incidental allocative effects, but only

those measures that result in direct

distributions of fishing privileges will

be judged against the allocation

requirements of Standard 4. Adoption of

an FMP that merely perpetuates existing

fishing practices may result in an

allocation, if those practices directly

distribute the opportunity to participate

in the fishery. Allocations of fishing

privileges include, for example, pervessel catch limits, quotas by vessel

class and gear type, different quotas or

fishing seasons for recreational and

commercial fishermen, assignment of

ocean areas to different gear users, and

limitation of permits to a certain

number of vessels or fishermen.

(2) Analysis of allocations. Each FMP

should contain a description and

analysis of the allocations existing in

the fishery and of those made in the

FMP. The effects of eliminating an

existing allocation system should be

examined. Allocation schemes

considered, but rejected by the Council,

should be included in the discussion.

The analysis should relate the

recommended allocations to the FMP’s

objectives and OY specification, and

discuss the factors listed in paragraph

(c)(3) of this section.

(3) Factors in making allocations. An

allocation of fishing privileges must be

fair and equitable, must be reasonably

calculated to promote conservation, and

must avoid excessive shares. These tests

are explained in paragraphs (c)(3)(i)

through (c)(3)(iii) of this section:

(i) Fairness and equity. (A) An

allocation of fishing privileges should

be rationally connected to the

achievement of OY or with the

furtherance of a legitimate FMP

objective. Inherent in an allocation is

the advantaging of one group to the

detriment of another. The motive for

making a particular allocation should be

justified in terms of the objectives of the

FMP; otherwise, the disadvantaged user

groups or individuals would suffer

without cause. For instance, an FMP

objective to preserve the economic

status quo cannot be achieved by

excluding a group of long-time

participants in the fishery. On the other

hand, there is a rational connection

between an objective of harvesting

shrimp at their maximum size and

closing a nursery area to trawling.

(B) An allocation of fishing privileges

may impose a hardship on one group if

it is outweighed by the total benefits

received by another group or groups. An

allocation need not preserve the status

quo in the fishery to qualify as ‘‘fair and

equitable,’’ if a restructuring of fishing

privileges would maximize overall

benefits. The Council should make an

initial estimate of the relative benefits

and hardships imposed by the

allocation, and compare its

consequences with those of alternative

allocation schemes, including the status

quo. Where relevant, judicial guidance

and government policy concerning the

rights of treaty Indians and aboriginal
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32553

Americans must be considered in

determining whether an allocation is

fair and equitable.

(ii) Promotion of conservation.

Numerous methods of allocating fishing

privileges are considered ‘‘conservation

and management’’ measures under

section 303 of the Magnuson Act. An

allocation scheme may promote

conservation by encouraging a rational,

more easily managed use of the

resource. Or, it may promote

conservation (in the sense of wise use)

by optimizing the yield, in terms of size,

value, market mix, price, or economic or

social benefit of the product.

(iii) Avoidance of excessive shares.

An allocation scheme must be designed

to deter any person or other entity from

acquiring an excessive share of fishing

privileges, and to avoid creating

conditions fostering inordinate control,

by buyers or sellers, that would not

otherwise exist.

(iv) Other factors. In designing an

allocation scheme, a Council should

consider other factors relevant to the

FMP’s objectives. Examples are

economic and social consequences of

the scheme, food production, consumer

interest, dependence on the fishery by

present participants and coastal

communities, efficiency of various types

of gear used in the fishery,

transferability of effort to and impact on

other fisheries, opportunity for new

participants to enter the fishery, and

enhancement of opportunities for

recreational fishing.

§ 600.330 National Standard 5—Efficiency.

(a) Standard 5. Conservation and

management measures shall, where

practicable, promote efficiency in the

utilization of fishery resources; except

that no such measure shall have

economic allocation as its sole purpose.

(b) Efficiency in the utilization of

resources—(1) General. The term

‘‘utilization’’ encompasses harvesting,

processing, and marketing, since

management decisions affect all three

sectors of the industry. The goal of

promoting efficient utilization of fishery

resources may conflict with other

legitimate social or biological objectives

of fishery management. In encouraging

efficient utilization of fishery resources,

this standard highlights one way that a

fishery can contribute to the Nation’s

benefit with the least cost to society:

Given a set of objectives for the fishery,

an FMP should contain management

measures that result in as efficient a

fishery as is practicable or desirable.

(2) Efficiency. In theory, an efficient

fishery would harvest the OY with the

minimum use of economic inputs such

as labor, capital, interest, and fuel.

Efficiency in terms of aggregate costs

then becomes a conservation objective,

where ‘‘conservation’’ constitutes wise

use of all resources involved in the

fishery, not just fish stocks.

(i) In an FMP, management measures

may be proposed that allocate fish

among different groups of individuals or

establish a system of property rights.

Alternative measures examined in

searching for an efficient outcome will

result in different distributions of gains

and burdens among identifiable user

groups. An FMP should demonstrate

that management measures aimed at

efficiency do not simply redistribute

gains and burdens without an increase

in efficiency.

(ii) Management regimes that allow a

fishery to operate at the lowest possible

cost (e.g., fishing effort, administration,

and enforcement) for a particular level

of catch and initial stock size are

considered efficient. Restrictive

measures that unnecessarily raise any of

those costs move the regime toward

inefficiency. Unless the use of

inefficient techniques or the creation of

redundant fishing capacity contributes

to the attainment of other social or

biological objectives, an FMP may not

contain management measures that

impede the use of cost-effective

techniques of harvesting, processing, or

marketing, and should avoid creating

strong incentives for excessive

investment in private sector fishing

capital and labor.

(c) Limited access. A ‘‘system for

limiting access,’’ which is an optional

measure under section 303(b) of the

Magnuson Act, is a type of allocation of

fishing privileges that may be used to

promote economic efficiency or

conservation. For example, limited

access may be used to combat

overfishing, overcrowding, or

overcapitalization in a fishery to achieve

OY. In an unutilized or underutilized

fishery, it may be used to reduce the

chance that these conditions will

adversely affect the fishery in the future,

or to provide adequate economic return

to pioneers in a new fishery. In some

cases, limited entry is a useful

ingredient of a conservation scheme,

because it facilitates application and

enforcement of other management

measures.

(1) Definition. Limited access (or

limited entry) is a management

technique that attempts to limit units of

effort in a fishery, usually for the

purpose of reducing economic waste,

improving net economic return to the

fishermen, or capturing economic rent

for the benefit of the taxpayer or the

consumer. Common forms of limited

access are licensing of vessels, gear, or

fishermen to reduce the number of units

of effort, and dividing the total

allowable catch into fishermen’s quotas

(a stock-certificate system). Two forms

(i.e., Federal fees for licenses or permits

in excess of administrative costs, and

taxation) are not permitted under the

Magnuson Act.

(2) Factors to consider. The Magnuson

Act ties the use of limited access to the

achievement of OY. An FMP that

proposes a limited access system must

consider the factors listed in section

303(b)(6) of the Magnuson Act and in

§ 600.325(c)(3). In addition, it should

consider the criteria for qualifying for a

permit, the nature of the interest

created, whether to make the permit

transferable, and the Magnuson Act’s

limitation on returning economic rent to

the public under section 304(d)(1). The

FMP should also discuss the costs of

achieving an appropriate distribution of

fishing privileges.

(d) Analysis. An FMP should discuss

the extent to which overcapitalization,

congestion, economic waste, and

inefficient techniques in the fishery

reduce the net benefits derived from the

management unit and prevent the

attainment and appropriate allocation of

OY. It should also explain, in terms of

the FMP’s objectives, any restriction

placed on the use of efficient techniques

of harvesting, processing, or marketing.

If, during FMP development, the

Council considered imposing a limitedentry system, the FMP should analyze

the Council’s decision to recommend or

reject limited access as a technique to

achieve efficient utilization of the

resources of the fishing industry.

(e) Economic allocation. This

standard prohibits only those measures

that distribute fishery resources among

fishermen on the basis of economic

factors alone, and that have economic

allocation as their only purpose. Where

conservation and management measures

are recommended that would change

the economic structure of the industry

or the economic conditions under

which the industry operates, the need

for such measures must be justified in

light of the biological, ecological, and

social objectives of the FMP, as well as

the economic objectives.

§ 600.335 National Standard 6—Variations

and Contingencies.

(a) Standard 6. Conservation and

management measures shall take into

account and allow for variations among,

and contingencies in, fisheries, fishery

resources, and catches.

(b) Conservation and management.

Each fishery exhibits unique

uncertainties. The phrase ‘‘conservation

and management’’ implies the wise use
32554 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

of fishery resources through a

management regime that includes some

protection against these uncertainties.

The particular regime chosen must be

flexible enough to allow timely response

to resource, industry, and other national

and regional needs. Continual data

acquisition and analysis will help the

development of management measures

to compensate for variations and to

reduce the need for substantial buffers.

Flexibility in the management regime

and the regulatory process will aid in

responding to contingencies.

(c) Variations. (1) In fishery

management terms, variations arise from

biological, social, and economic

occurrences, as well as from fishing

practices. Biological uncertainties and

lack of knowledge can hamper attempts

to estimate stock size and strength, stock

location in time and space,

environmental/habitat changes, and

ecological interactions. Economic

uncertainty may involve changes in

foreign or domestic market conditions,

changes in operating costs, drifts toward

overcapitalization, and economic

perturbations caused by changed fishing

patterns. Changes in fishing practices,

such as the introduction of new gear,

rapid increases or decreases in harvest

effort, new fishing strategies, and the

effects of new management techniques,

may also create uncertainties. Social

changes could involve increases or

decreases in recreational fishing, or the

movement of people into or out of

fishing activities due to such factors as

age or educational opportunities.

(2) Every effort should be made to

develop FMPs that discuss and take into

account these vicissitudes. To the extent

practicable, FMPs should provide a

suitable buffer in favor of conservation.

Allowances for uncertainties should be

factored into the various elements of an

FMP. Examples are:

(i) Reduce OY. Lack of scientific

knowledge about the condition of a

stock(s) could be reason to reduce OY.

(ii) Establish a reserve. Creation of a

reserve may compensate for

uncertainties in estimating domestic

harvest, stock conditions, or

environmental factors.

(iii) Adjust management techniques.

In the absence of adequate data to

predict the effect of a new regime, and

to avoid creating unwanted variations, a

Council could guard against producing

drastic changes in fishing patterns,

allocations, or practices.

(iv) Highlight habitat conditions.

FMPs may address the impact of

pollution and the effects of wetland and

estuarine degradation on the stocks of

fish; identify causes of pollution and

habitat degradation and the authorities

having jurisdiction to regulate or

influence such activities; propose

recommendations that the Secretary will

convey to those authorities to alleviate

such problems; and state the views of

the Council on unresolved or

anticipated issues.

(d) Contingencies. Unpredictable

events—such as unexpected resource

surges or failures, fishing effort greater

than anticipated, disruptive gear

conflicts, climatic conditions, or

environmental catastrophes—are best

handled by establishing a flexible

management regime that contains a

range of management options through

which it is possible to act quickly

without amending the FMP or even its

regulations.

(1) The FMP should describe the

management options and their

consequences in the necessary detail to

guide the Secretary in responding to

changed circumstances, so that the

Council preserves its role as policysetter for the fishery. The description

should enable the public to understand

what may happen under the flexible

regime, and to comment on the options.

(2) FMPs should include criteria for

the selection of management measures,

directions for their application, and

mechanisms for timely adjustment of

management measures comprising the

regime. For example, an FMP could

include criteria that allow the Secretary

to open and close seasons, close fishing

grounds, or make other adjustments in

management measures.

(3) Amendment of a flexible FMP

would be necessary when circumstances

in the fishery change substantially, or

when a Council adopts a different

management philosophy and objectives.

§ 600.340 National Standard 7—Costs and

Benefits.

(a) Standard 7. Conservation and

management measures shall, where

practicable, minimize costs and avoid

unnecessary duplication.

(b) Necessity of Federal

management—(1) General. The

principle that not every fishery needs

regulation is implicit in this standard.

The Magnuson Act does not require

Councils to prepare FMPs for each and

every fishery—only for those where

regulation would serve some useful

purpose and where the present or future

benefits of regulation would justify the

costs. For example, the need to collect

data about a fishery is not, by itself,

adequate justification for preparation of

an FMP, since there are less costly ways

to gather the data (see § 600.320(d)(2). In

some cases, the FMP preparation

process itself, even if it does not

culminate in a document approved by

the Secretary, can be useful in

supplying a basis for management by

one or more coastal states.

(2) Criteria. In deciding whether a

fishery needs management through

regulations implementing an FMP, the

following general factors should be

considered, among others:

(i) The importance of the fishery to

the Nation and to the regional economy.

(ii) The condition of the stock or

stocks of fish and whether an FMP can

improve or maintain that condition.

(iii) The extent to which the fishery

could be or is already adequately

managed by states, by state/Federal

programs, by Federal regulations

pursuant to FMPs or international

commissions, or by industry selfregulation, consistent with the policies

and standards of the Magnuson Act.

(iv) The need to resolve competing

interests and conflicts among user

groups and whether an FMP can further

that resolution.

(v) The economic condition of a

fishery and whether an FMP can

produce more efficient utilization.

(vi) The needs of a developing fishery,

and whether an FMP can foster orderly

growth.

(vii) The costs associated with an

FMP, balanced against the benefits (see

paragraph (d) of this section as a guide).

(c) Alternative management measures.

Management measures should not

impose unnecessary burdens on the

economy, on individuals, on private or

public organizations, or on Federal,

state, or local governments. Factors such

as fuel costs, enforcement costs, or the

burdens of collecting data may well

suggest a preferred alternative.

(d) Analysis. The supporting analyses

for FMPs should demonstrate that the

benefits of fishery regulation are real

and substantial relative to the added

research, administrative, and

enforcement costs, as well as costs to

the industry of compliance. In

determining the benefits and costs of

management measures, each

management strategy considered and its

impacts on different user groups in the

fishery should be evaluated. This

requirement need not produce an

elaborate, formalistic cost/benefit

analysis. Rather, an evaluation of effects

and costs, especially of differences

among workable alternatives, including

the status quo, is adequate. If

quantitative estimates are not possible,

qualitative estimates will suffice.

(1) Burdens. Management measures

should be designed to give fishermen

the greatest possible freedom of action

in conducting business and pursuing

recreational opportunities that are

consistent with ensuring wise use of the
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32555

resources and reducing conflict in the

fishery. The type and level of burden

placed on user groups by the regulations

need to be identified. Such an

examination should include, for

example: Capital outlays; operating and

maintenance costs; reporting costs;

administrative, enforcement, and

information costs; and prices to

consumers. Management measures may

shift costs from one level of government

to another, from one part of the private

sector to another, or from the

government to the private sector.

Redistribution of costs through

regulations is likely to generate

controversy. A discussion of these and

any other burdens placed on the public

through FMP regulations should be a

part of the FMP’s supporting analyses.

(2) Gains. The relative distribution of

gains may change as a result of

instituting different sets of alternatives,

as may the specific type of gain. The

analysis of benefits should focus on the

specific gains produced by each

alternative set of management measures,

including the status quo. The benefits to

society that result from the alternative

management measures should be

identified, and the level of gain

assessed.

Subpart E—Confidentiality of Statistics

§ 600.405 Types of statistics covered.

NOAA is authorized under the

Magnuson Act and other statutes to

collect proprietary or confidential

commercial or financial information.

This part applies to all pertinent data

required to be submitted to the

Secretary with respect to any FMP

including, but not limited to,

information regarding the type and

quantity of fishing gear used, catch by

species in numbers of fish or weight

thereof, areas in which fishing occurred,

time of fishing, number of hauls, and

the estimated processing capacity of,

and the actual processing capacity

utilized by, U.S. fish processors.

§ 600.410 Collection and maintenance of

statistics.

(a) General. (1) All statistics required

to be submitted to the Secretary are

provided to the Assistant Administrator.

(2) After receipt, the Assistant

Administrator will remove all

identifying particulars from the

statistics if doing so is consistent with

the needs of NMFS and good scientific

practice.

(3) Appropriate safeguards as

specified by NOAA Directives, or other

NOAA or NMFS internal procedures,

apply to the collection and maintenance

of all statistics, whether separated from

identifying particulars or not, so as to

ensure their confidentiality.

(b) Collection agreements with states.

(1) The Assistant Administrator may

enter into an agreement with a state

authorizing the state to collect statistics

on behalf of the Secretary.

(2) NMFS will not enter into a

cooperative collection agreement with a

state unless the state has authority to

protect the statistics from disclosure in

a manner at least as protective as these

regulations.

§ 600.415 Access to statistics.

(a) General. In determining whether to

grant a request for access to confidential

data, the following information will be

taken into consideration (also see

§ 600.130):

(1) The specific types of data required.

(2) The relevance of the data to

conservation and management issues.

(3) The duration of time access will be

required: continuous, infrequent, or

one-time.

(4) An explanation of why the

availability of aggregate or nonconfidential summaries of data from

other sources would not satisfy the

requested needs.

(b) Federal employees. Statistics

submitted as a requirement of an FMP

and that reveal the identity of the

submitter will only be accessible to the

following:

(1) Personnel within NMFS

responsible for the collection,

processing, and storage of the statistics.

(2) Federal employees who are

responsible for FMP development,

monitoring, and enforcement.

(3) Personnel within NMFS

performing research that requires

confidential statistics.

(4) Other NOAA personnel on a

demonstrable need-to-know basis.

(5) NOAA/NMFS contractors or

grantees who require access to

confidential statistics to perform

functions authorized by a Federal

contract or grant.

(c) State personnel. Upon written

request, confidential statistics will only

be accessible if:

(1) State employees demonstrate a

need for confidential statistics for use in

fishery conservation and management.

(2) The state has entered into a

written agreement between the Assistant

Administrator and the head of the

state’s agency that manages marine and/

or anadromous fisheries. The agreement

shall contain a finding by the Assistant

Administrator that the state has

confidentiality protection authority

comparable to the Magnuson Act and

that the state will exercise this authority

to limit subsequent access and use of

the data to fishery management and

monitoring purposes.

(d) Councils. Upon written request by

the Council Executive Director, access

to confidential data will be granted to:

(1) Council employees who are

responsible for FMP development and

monitoring.

(2) A Council for use by the Council

for conservation and management

purposes, with the approval of the

Assistant Administrator. In addition to

the information described in paragraph

(a) of this section, the Assistant

Administrator will consider the

following in deciding whether to grant

access:

(i) The possibility that Council

members might gain personal or

competitive advantage from access to

the data.

(ii) The possibility that the suppliers

of the data would be placed at a

competitive disadvantage by public

disclosure of the data at Council

meetings or hearings.

(3) A contractor of the Council for use

in such analysis or studies necessary for

conservation and management

purposes, with approval of the Assistant

Administrator and execution of an

agreement with NMFS as described by

NOAA Administrative Order (NAO)

216–100.

(e) Prohibitions. Persons having

access to these data are prohibited from

unauthorized use or disclosure and are

subject to the provisions of 18 U.S.C.

1905, 16 U.S.C. 1857, and NOAA/NMFS

internal procedures, including NAO

216–100.

§ 600.420 Control system.

(a) The Assistant Administrator

maintains a control system to protect

the identity of submitters of statistics

required by an FMP. The control

system:

(1) Identifies those persons who have

access to the statistics.

(2) Contains procedures to limit

access to confidential data to authorized

users.

(3) Provides for safeguarding the data.

(b) This system requires that all

persons who have authorized access to

the data be informed of the

confidentiality of the data. These

persons are required to sign a statement

that they:

(1) Have been informed that the data

are confidential.

(2) Have reviewed and are familiar

with the procedures to protect

confidential statistics.

§ 600.425 Release of statistics.

(a) The Assistant Administrator will

not release to the public any statistics
32556 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

required to be submitted under an FMP

in a form that would identify the

submitter, except as required by law.

(b) All requests from the public for

statistics submitted in response to a

requirement of an FMP will be

processed consistent with the NOAA

FOIA regulations (15 CFR part 903),

NAO 205–14, Department of Commerce

Administrative Orders 205–12 and 205–

14 and 15 CFR part 4.

(c) NOAA does not release or allow

access to confidential information in its

possession to members of Council

advisory groups, except as provided by

law.

Subpart F—Foreign Fishing

§ 600.501 Vessel permits.

(a) General. (1) Each FFV fishing

under the Magnuson Act must have on

board a permit issued under this

section, unless it is engaged only in

recreational fishing.

(2) Permits issued under this section

do not authorize FFV’s or persons to

harass, capture, or kill marine

mammals. No marine mammals may be

taken in the course of fishing unless that

vessel has on board a currently valid

Authorization Certificate under the

MMPA. Regulations governing the

taking of marine mammals incidental to

commercial fishing operations are

contained in 50 CFR part 229 of this

title.

(b) Responsibility of owners and

operators. The owners and operators of

each FFV are jointly and severally

responsible for compliance with the

Magnuson Act, the applicable GIFA,

this subpart, and any permit issued

under the Magnuson Act and this

subpart. The owners and operators of

each FFV bear civil responsibility for

the acts of their employees and agents

constituting violations, regardless of

whether the specific acts were

authorized or even forbidden by the

employer or principal, and regardless of

knowledge concerning the occurrence.

(c) Activity codes. Permits to fish

under a GIFA may be issued by the

Assistant Administrator for the

activities described in this paragraph,

but the permits may be modified by

regulations of this subpart, and by the

conditions and restrictions attached to

the permit (see paragraphs (e)(1)(v) and

(l) of this section). The Assistant

Administrator may issue a permit, as

appropriate, for one or more of the

activity codes listed below. The activity

codes are described as follows:

(1) Activity Code 1. Catching,

scouting, processing, transshipping, and

supporting foreign vessels. Activity is

limited to fish harvested or to be

harvested by foreign vessels in the EEZ.

(2) Activity Code 2. Processing,

scouting, transshipping, and supporting

foreign vessels. Activity is limited to

fish harvested or to be harvested by

foreign vessels in the EEZ.

(3) Activity Code 3. Transshipping,

scouting, and supporting foreign

vessels. Activity is limited to fish

harvested or to be harvested by foreign

vessels in the EEZ.

(4) Activity Code 4. Processing,

scouting, transshipping, and supporting

U.S. vessels delivering fish to foreign

vessels. Activity is limited to the receipt

of unprocessed fish harvested or to be

harvested by U.S. vessels.

(5) Activity Code 5. Transshipping,

scouting, and supporting foreign

vessels. Transshipment limited to fish

received or to be received from foreign

vessels processing fish from U.S.

harvesting vessels.

(6) Activity Code 6. Transshipping,

scouting, and supporting U.S. vessels.

Transshipment limited to U.S.-

harvested fish processed on board U.S.

vessels.

(7) Activity Code 7. Processing,

transshipping, and supporting foreign

vessels. Activity limited to fish

harvested or to be harvested by foreign

vessels seaward of the EEZ.

(8) Activity Code 8. Transshipping

and supporting foreign vessels. Activity

is limited to fish harvested or to be

harvested seaward of the EEZ by foreign

vessels or fish duly authorized for

processing in the internal waters of one

of the states.

(9) Activity Code 9. Supporting U.S.

fishing vessels and U.S. fish processing

vessels and any foreign fishing vessels

authorized under any activity code

under paragraph (c) of this subpart.

(d) Application. (1) Applications for

FFV permits must be submitted by each

foreign nation to the DOS. Application

forms are available from OES/OMC,

DOS, Washington, DC. The applicant

should allow 90 days for review and

comment by the public, involved

governmental agencies, and appropriate

Councils, and for processing before the

anticipated date to begin fishing. The

permit application fee must be paid at

the time of application according to

§ 600.518.

(2) Applicants must provide complete

and accurate information requested on

the permit application form.

(3) Applicants for FFV’s that will

support U.S. vessels in joint ventures

(Activity Code 4) must provide the

additional information specified by the

permit application form.

(4) Each foreign nation may substitute

one FFV for another by submitting a

new vessel information form and a short

explanation of the reason for the

substitution to the DOS. Each

substitution is considered a new

application and a new application fee

must be paid. NMFS will promptly

process an application for a vessel

replacing a permitted FFV that is

disabled or decommissioned, once the

DOS has notified the appropriate

Council(s) of the substituted

application.

(e) Issuance. (1) Permits may be

issued to an FFV by the Assistant

Administrator through the DOS after—

(i) The Assistant Administrator

determines that the fishing described in

the application will meet the

requirements of the Magnuson Act and

approves the permit application.

(ii) The foreign nation has paid the

fees, including any surcharge fees and

provided any assurances required by the

Secretary in accordance with the

provisions of § 600.518.

(iii) The foreign nation has appointed

an agent.

(iv) The foreign nation has identified

a designated representative.

(v) The general ‘‘conditions and

restrictions’’ of receiving permits, as

required by section 204(b)(7) of the

Magnuson Act, and any ‘‘additional

restrictions’’ attached to the permit for

the conservation and management of

fishery resources or to prevent

significant impairment of the national

defense or security interests, have been

accepted by the nation issuing the FFV’s

documents.

(2) NMFS will distribute blank permit

forms to the designated representative

while the application is being

processed. The designated

representative must ensure that each

FFV receives a permit form and must

accurately transmit the permit form and

the contents of the permit to the FFV

when it is issued. NMFS may authorize

the modification and use of the previous

year’s permit forms to be used on an

interim basis in place of the current

year’s permit forms if the current forms

were not made available to the

designated representatives for timely

distribution. The FFV owner or operator

must accurately complete the permit

form prior to fishing in the EEZ.

(3) A completed permit form must

contain—

(i) The name and IRCS of the FFV and

its permit number.

(ii) The permitted fisheries and

activity codes.

(iii) The date of issuance and

expiration date, if other than December

31.

(iv) All conditions and restrictions,

and any additional restrictions and
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32557

technical modifications appended to the

permit.

(4) Permits are not issued for boats

that are launched from larger vessels.

Any enforcement action that results

from the activities of a launched boat

will be taken against the permitted

vessel.

(f) Duration. A permit is valid from its

date of issuance to its date of expiration,

unless it is revoked or suspended or the

nation issuing the FFV’s documents

does not accept amendments to the

permit made by the Assistant

Administrator in accordance with the

procedures of paragraph (l) of this

section. The permit will be valid for no

longer than the calendar year in which

it was issued.

(g) Transfer. Permits are not

transferable or assignable. A permit is

valid only for the FFV to which it is

issued.

(h) Display. Each FFV operator must

have a properly completed permit form

available on board the FFV when

engaged in fishing activities and must

produce it at the request of an

authorized officer or observer.

(i) Suspension and revocation. NMFS

may apply sanctions to an FFV’s permit

by revoking, suspending, or imposing

additional permit restrictions on the

permit under 15 CFR part 904, if the

vessel is involved in the commission of

any violation of the Magnuson Act, the

GIFA, or this subpart; if an agent and a

designated representative are not

maintained in the United States; if a

civil penalty or criminal fine imposed

under the Magnuson Act has become

overdue; or as otherwise specified in the

Magnuson Act.

(j) Fees. Permit application fees are

described in § 600.518.

(k) Change in application

information. (1) The foreign nation must

report, in writing, any change in the

information supplied under paragraph

(d) of this section to the Assistant

Administrator within 15 calendar days

after the date of the change. Failure to

report a change in the ownership from

that described in the current application

within the specified time frame voids

the permit, and all penalties involved

will accrue to the previous owner.

(2) The Assistant Administrator may

make technical modifications or

changes in the permit application

requested or reported by a Nation, such

as a change in radio call sign, processing

equipment, or tonnage, which will be

effective immediately.

(3) If, in the opinion of the Assistant

Administrator, a permit change

requested by a Nation could

significantly affect the status of any

fishery resource, such request will be

processed as an application for a new

permit under this section.

(4) The Assistant Administrator will

notify the designated representative of

any revision that must be made on the

permit form as the result of a permit

change.

(5) The vessel owner or operator must

record the modification on the permit

form.

(l) Permit amendments. (1) The

Assistant Administrator may amend a

permit by adding ‘‘additional

restrictions’’ for the conservation and

management of fishery resources

covered by the permit, or for the

national defense or security if the

Assistant Administrator determines that

such interests would be significantly

impaired without such restrictions.

Compliance with the added additional

restrictions is a condition of the permit.

Violations of added additional

restrictions will be treated as violations

of this subpart.

(2) The Assistant Administrator may

make proposed additional restrictions

effective immediately, if necessary, to

prevent substantial harm to a fishery

resource of the United States, to allow

for the continuation of ongoing fishing

operations, or to allow for fishing to

begin at the normal time for opening of

the fishery.

(3) The Assistant Administrator will

send proposed additional restrictions to

each Nation whose vessels are affected

(via the Secretary of State), to the

appropriate Councils, and to the

Commandant of the Coast Guard. NMFS

will, at the same time, publish a

document of any significant proposed

additional restrictions in the Federal

Register. The document will include a

summary of the reasons underlying the

proposal, and the reasons that any

proposed additional restrictions are

made effective immediately.

(4) The Nation whose vessels are

involved, the owners of the affected

vessels, their representatives, the

agencies specified in paragraph (l)(3) of

this section, and the public may submit

written comments on the proposed

additional restrictions within 30 days

after publication in the Federal

Register.

(5) The Assistant Administrator will

make a final decision regarding the

proposed additional restrictions as soon

as practicable after the end of the

comment period. The Assistant

Administrator will provide the final

additional restrictions to the Nation

whose vessels are affected (via the

Secretary of State) according to the

procedures of paragraph (e) of this

section. The Assistant Administrator

will include with the final additional

restrictions to the Nation, a response to

comments submitted.

(6) Additional restrictions may be

modified by following the procedures of

paragraphs (l)(2) through (l)(5) of this

section.

§ 600.502 Vessel reports.

(a) The operator of each FFV must

report the FFV’s activities within the

EEZ to the USCG and NMFS as

specified in this section.

(b) All reports required by this section

must be in English and in the formats

specified in the permit additions and

restrictions. Reports must be delivered

via private or commercial

communications facilities, facsimile, or

other electronic means acceptable to

NMFS and the USCG, directly to the

appropriate NMFS Region or Center and

USCG commander. Weekly reports must

also be delivered directly to the

appropriate NMFS Region or Center (see

tables 1 and 2 of this section). (The

required reports may be delivered to the

closest USCG communication station as

indicated in table 3 of this section or

other USCG communication station only

if adequate private or commercial

communications facilities have not been

successfully contacted.) Radio reports

must be made via radiotelegraphy,

Telex, or facsimile where available. For

the purposes of this section, a message

is considered ‘‘transmitted’’ when its

receipt is acknowledged by a

communications facility and considered

‘‘delivered’’ upon its receipt by the

offices of the appropriate USCG

commander, NMFS Regional Office, or

NMFS Center identified in table 2 of

this section. Reports required by this

section may be submitted by the vessel’s

designated representative; however, the

operator of the FFV is responsible for

the correct and timely filing of all

required reports.

(c) Activity reports. The operator of

each FFV must report the FFV’s

movements and activities before or

upon the event, as specified in this

paragraph (c). Appropriate forms,

instructions, codes, and examples are

contained in the conditions and

restrictions of the FFV’s permit. Each

FFV report must contain the following

information: The message identifier

‘‘VESREP’’ to indicate it is a vessel

activity report, FFV name, international

radio call sign IRCS, date (month and

day based on GMT), time (hour and

minute GMT), position (latitude and

longitude to the nearest degree and

minute) where required, area (by fishing

area code) where required, the

appropriate action code, confirmation

codes where required, and the other
32558 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

information specified in paragraphs

(c)(1) through (c)(11) of this section.

(1) ‘‘BEGIN’’. Each operator must

specify the date, time, position, and area

the FFV will actually ‘‘BEGIN’’ fishing

in the EEZ and the species (by species

code), product (by product code), and

quantity of all fish and fish products (by

product weight to the nearest hundredth

of a metric ton) on board when entering

the EEZ (action code ‘‘BEGIN’’). The

message must be delivered at least 24

hours before the vessel begins to fish.

(2) ‘‘DEPART’’. Each operator must

specify the date, time, position, and area

the FFV will ‘‘DEPART’’ the EEZ to

embark or debark an observer, to visit a

U.S. port, to conduct a joint venture in

internal waters, or to otherwise

temporarily leave an authorized fishing

area, but not depart the seaward limit of

the EEZ (action code ‘‘DEPART’’). The

message must be transmitted before the

FFV departs the present fishing area and

delivered within 24 hours of its

transmittal.

(3) ‘‘RETURN’’. Each operator must

specify the date, time, position, and area

the FFV will ‘‘RETURN’’ to the EEZ

following a temporary departure, and

the species (by species code), product

(by product code), and quantity of all

fish and fish products (by product

weight to the nearest hundredth of a

metric ton) on board that were received

in a joint venture in internal waters

(action code ‘‘RETURN’’). The message

must be transmitted before returning to

the EEZ and delivered within 24 hours

of its transmittal.

(4) ‘‘SHIFT’’. Each operator must

report each SHIFT in fishing area (as

described for each fishery) by specifying

the date, time, and position the FFV will

start fishing, and the new area (action

code ‘‘SHIFT’’). The message must be

transmitted before leaving the original

area and delivered within 24 hours of its

transmittal. If a foreign vessel operates

within 20 nautical miles (37.04 km) of

a fishing area boundary, its operator

may submit in one message the shift

reports for all fishing area shifts

occurring during 1 fishing day (0001–

2400 GMT). This message must be

transmitted prior to the last shift

expected to be made in the day and

delivered within 24 hours of its

transmittal.

(5) ‘‘JV OPS’’. Each operator must

specify the date, time, position, and area

at which the FFV will ‘‘START’’ joint

venture operations (action code

‘‘START JV OPS’’) or ‘‘END’’ joint

venture operations (action code ‘‘END

JV OPS’’). These reports must be made

in addition to other activity reports

made under this section. Each message

must be transmitted before the event

and delivered within 24 hours of its

transmittal.

(6) ‘‘TRANSFER’’. The operator of

each FFV that anticipates a

transshipping operation in which the

FFV will receive fish or fisheries

products must specify the date, time,

position and area the FFV will conduct

the ‘‘TRANSFER’’ and the name and

IRCS of the other FFV or U.S. vessel

involved (action code ‘‘TRANSFER’’).

The report must include the permit

activity code under which the transfer

will be made. The message must be

transmitted prior to the transfer and

delivered within 24 hours of its

transmittal. The movement of raw fish

from a permitted foreign catching vessel

or, under an Activity Code 4, from a

U.S. fishing vessel to the reporting

processing vessel and the return of nets

or codends is not considered a transfer.

(7) ‘‘OFFLOADED’’. Each operator

must specify the date, time, position,

and area the FFV ‘‘OFFLOADED’’ fish or

fisheries products TO another FFV or a

U.S. vessel in a transfer, the other FFV’s

or U.S. vessel’s name, IRCS, Permit

Activity Code under which the transfer

was made, species (by species code) and

quantity of fish and fisheries products

(by product code and by product

weight, to the nearest hundredth of a

metric ton) offloaded (action code

‘‘OFFLOADED TO’’). The message must

be transmitted within 12 hours after the

transfer is completed and delivered

within 24 hours of its transmittal and

before the FFV ceases fishing in the

EEZ.

(8) ‘‘RECEIVED’’. Each operator must

specify the date, time, position and area

the vessel ‘‘RECEIVED’’ fish or fisheries

products FROM another FFV in a

transfer, the other FFV’s or U.S. vessel’s

name, IRCS, Permit Activity Code under

which the receipt was made, species (by

species code) and quantity of fish and

fisheries products (by product code and

by product weight, to the nearest

hundredth of a metric ton) received

(action code ‘‘RECEIVED FROM’’). The

message must be transmitted within 12

hours after the transfer is completed and

delivered within 24 hours of its

transmittal and before the vessel ceases

fishing in the EEZ.

(9) ‘‘CEASE’’. Each operator must

specify the date, time, position, and area

the FFV will ‘‘CEASE’’ fishing in order

to leave the EEZ (action code ‘‘CEASE’’).

The message must be delivered at least

24 hours before the FFV’s departure.

(10) ‘‘CHANGE’’. Each operator must

report any ‘‘CHANGE’’ TO the FFV’s

operations if the position or time of an

event specified in an activity report will

vary more than 5 nautical miles (9.26

km) or 4 hours from that previously

reported, by sending a revised message

inserting the word ‘‘CHANGE’’ in front

of the previous report, repeating the

name, IRCS, date, and time of the

previous report, adding the word ‘‘TO’’

and the complete revised text of the new

report (action code ‘‘CHANGE TO’’).

Changes to reports specifying an early

beginning of fishing by an FFV or other

changes to reports contained in

paragraphs (c)(1) through (c)(9) of this

section must be transmitted and

delivered as if the ‘‘CHANGE’’ report

were the original message.

(11) ‘‘CANCEL’’. Each operator

wanting to ‘‘CANCEL’’ a previous report

may do so by sending a revised message,

and inserting the word ‘‘CANCEL’’ in

front of the previous report’s vessel

name, IRCS, date, time and action code

canceled (action code ‘‘CANCEL’’). The

message must be transmitted and

delivered prior to the date and time of

the event in the original message.

(d) The operator of an FFV will be in

violation of paragraphs (c)(1) through

(c)(9) of this section if the FFV does not

pass within 5 nautical miles (9.26 km)

of the position given in the report

within 4 hours of the time given in the

report.

(e) The notices required by this

section may be provided for individual

or groups of FFV’s (on a vessel-by-vessel

basis) by authorized persons. An FFV

operator may retransmit reports on the

behalf of another FFV, if authorized by

that FFV’s operator. This does not

relieve the individual vessel operator of

the responsibility of filing required

reports. In these cases, the message

format should be modified so that each

line of text under ‘‘VESREP’’ is a

separate vessel report.

(f) Weekly reports. (1) The operator of

each FFV in the EEZ must submit

appropriate weekly reports through the

Nation’s designated representative. The

report must arrive at the address and

time specified in paragraph (g) of this

section. The reports may be sent by

facsimile or Telex, but a completed copy

of the report form must be mailed or

hand delivered to confirm the Telex.

Appropriate forms, instructions, codes,

and examples are contained in the

conditions and restrictions of the FFV’s

permit. Designated representatives may

include more than one vessel report in

a facsimile or Telex message, if the

information is submitted on a vessel-byvessel basis. Requests for corrections to

previous reports must be submitted

through the Nation’s designated

representative and mailed or handdelivered, together with a written

explanation of the reasons for the errors.

The appropriate Regional or Science

and Research Director may accept or
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32559

reject any correction and initiate any

appropriate civil penalty actions.

(2) Weekly catch report (CATREP).

The operator of each FFV must submit

a weekly catch report stating any catch

(Activity Code 1) in round weight of

each species or species group allocated

to that Nation by area and days fished

in each area for the weekly period

Sunday through Saturday, GMT, as

modified by the fishery in which the

FFV is engaged. Foreign vessels

delivering unsorted, unprocessed fish to

a processing vessel are not required to

submit CATREP’s, if that processing

vessel (Activity Code 2) submits

consolidated CATREP’s for all fish

received during each weekly period. No

report is required for FFV’s that do not

catch or receive foreign-caught fish

during the reporting period.

(3) Weekly receipts report (RECREP).

The operator of each FFV must submit

a weekly report stating any receipts of

U.S.-harvested fish in a joint venture

(Activity Code 4) for the weekly period

Sunday through Saturday, GMT, as

modified by the fishery in which the

FFV is engaged, for each fishing area, by

authorized or prohibited species or

species group; days fish received; round

weight retained or returned to the U.S.

fishing vessel; number of codends

received; and number of vessels

transferring codends. The report must

also include the names of U.S. fishing

vessels transferring codends during the

week. No report is required for FFV’s

that do not receive any U.S.-harvested

fish during the reporting period.

(4) Marine mammal report

(MAMREP). The operator of each FFV

must submit a weekly report stating any

incidental catch or receipt of marine

mammals (Activity Codes 1 or 2 and/or

4), the geographical position caught, the

condition of the animal, number caught

(if more than one of the same species

and condition), and nationality of the

catching vessel for the period Sunday

through Saturday, GMT, as modified by

the fishery in which the vessel is

engaged. Foreign catching vessels

delivering unsorted, unprocessed fish to

processing vessel are not required to

submit MAMREP’s, provided that the

processing or factory vessel (Activity

Code 2) submits consolidated

MAMREP’s for all fish received during

each weekly period. FFV’s receiving

U.S.-harvested fish in a joint venture

(Activity Code 4) must submit

consolidated reports for U.S. vessels

operating in the joint venture. No report

is required for FFV’s that do not catch

or receive marine mammals during the

reporting period.

(g) Submission instructions for weekly

reports. The designated representative

for each FFV must submit weekly

reports in the prescribed format to the

appropriate Regional or Science and

Research Director of NMFS by 1900

GMT on the Wednesday following the

end of the reporting period. However,

by agreement with the appropriate

Director, the designated representative

may submit weekly reports to some

other facility of NMFS.

TABLE 1 TO § 600.502.—ADDRESSES

NMFS regional directors NMFS science and research

directors

U.S. Coast Guard

commanders

Director, Northeast Region, National Marine

Fisheries Service, NOAA, One Blackburn

drive, Gloucester, MA 01930–2298.

Director, Northeast Fisheries Science Center,

National Marine Fisheries Service, NOAA,

166 Water Street, Woods Hole, MA 02543–

1097.

Commander, Atlantic Area, U.S. Coast Guard,

431 Crawford Street, Portsmouth, VA

23704.

Director, Southeast Region, National Marine

Fisheries Service, NOAA, 9721 Exec. Center Drive N., St. Petersburg, FL 33702.

Director, Southeast Fisheries Science Center,

National Marine Fisheries Service, NOAA,

75 Virginia Beach Drive, Miami, FL 33149–

1003.

Commander, Atlantic Area, U.S. Coast Guard,

Governor’s Island, New York, NY 10004.

Director, Northwest Region, National Marine

Fisheries Service, NOAA, 7600 Sand Point

Way, NE, BIN C15700, Bldg. 1, Seattle, WA

98115.

Director, Northwest Fisheries Science Center,

National Marine Fisheries Service, NOAA,

2725 Montlake Boulevard East, Seattle, WA

98112–2097.

Commander, Pacific Area, U.S. Coast Guard,

Government Island, Alameda, CA 94501.

Director, Alaska Region, National Marine Fisheries Service, NOAA, P.O. Box 21668, Juneau, AK 99802–1668.Director, Alaska Fisheries Science Center, National Marine Fisheries Service, NOAA,

7600 Sand Point Way, NE, BIN C15700,

Bldg. 4, Seattle, WA 98115–0070.

Commander, Seventeenth Coast Guard District, P.O. Box 25517, Juneau, AK 99802.

Director, Southwest Region National Marine

Fisheries Service, NOAA, 501 West Ocean

Blvd, Suite 4200, Long Beach, CA 90802–

4213.

Director, Southwest Fisheries Science Center,

National Marine Fisheries Service, NOAA,

P.O. Box 271, La Jolla, CA 92038–0271.

Commander, Fourteenth Coast Guard District,

300 Ala Moana Blvd., Honolulu, HI 96850.

TABLE 2 TO § 600.502.—AREAS OF RESPONSIBILITY OF NMFS AND U.S. COAST GUARD OFFICES

Area of responsibility/fishery National Marine Fisheries

Service U.S. Coast Guard

Atlantic Ocean North of Cape Hatteras ............ Director, Northeast Center, Attn: Observer

Program.

Commander, Atlantic Area.

Atlantic Ocean South of Cape Hatteras ........... Director, Northeast Center, Attn: Observer

Program.

Commander, Atlantic Area.

Atlantic Tunas, Swordfish, Billfish and Sharks Director, Office of Fisheries Conservation and

Management.

Commander, Atlantic Area.

Gulf of Mexico and Caribbean Sea .................. Director, Southeast Region .............................. Commander, Atlantic Area.

Pacific Ocean off the States of California, Oregon, and Washington.Director, Northwest Region .............................. Commander, Pacific Area.

North Pacific Ocean and Bering Sea off Alaska Director, Alaska Region .................................... Commander, Seventeenth Coast Guard District.
32560 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

TABLE 2 TO § 600.502.—AREAS OF RESPONSIBILITY OF NMFS AND U.S. COAST GUARD OFFICES—Continued

Area of responsibility/fishery National Marine Fisheries

Service U.S. Coast Guard

Pacific Ocean off Hawaii and Other U.S. Insular Possessions in the Central and Western

Pacific.

Director, Southwest Region .............................. Commander, Fourteenth Coast Guard District.

TABLE 3 TO § 600.502.—U.S. COAST GUARD COMMUNICATIONS STATIONS AND FREQUENCIES

U.S. Coast Guard communications station

Radiotelephone

IRCS Channel 1 GMT time

Boston ........................................................................................................................................ NMF A–E 2330–1100.

B,C All.

D 1100–2330.

E (On request).

CAMSLANT Chesapeake (Portsmouth, VA) ............................................................................. NMN A 2330–1100.

B,C All.

D 1100–2330.

E (On request).

New Orleans .............................................................................................................................. NMG A 2330–1100.

B,C All.

D 1100–2330.

E (On request).

CAMSPAC Point Reyes (San Francisco, CA) ........................................................................... NMC A–D All.

E (On request).

Honolulu ..................................................................................................................................... NMO A–D All.

E (On request).

Kodiak ........................................................................................................................................ NOJ A–D All.

E (On request). .

1 Carrier frequencies of duplex, high-frequency single-sideband channels are:

Letter Shore transmit Ship transmit

A ................................................................................................................................................................... 4426.0 4134.0

B ................................................................................................................................................................... 6501.0 6200.0

C ................................................................................................................................................................... 8764.0 8240.0

D ................................................................................................................................................................... 13089.0 12242.0

E ................................................................................................................................................................... 17314.0 16432.0

§ 600.503 Vessel and gear identification.

(a) Vessel identification. (1) The

operator of each FFV assigned an IRCS

must display that call sign amidships on

both the port and starboard sides of the

deckhouse or hull, so that it is visible

from an enforcement vessel, and on an

appropriate weather deck so it is visible

from the air.

(2) The operator of each FFV not

assigned an IRCS, such as a small

trawler associated with a mothership or

one of a pair of trawlers, must display

the IRCS of the associated vessel,

followed by a numerical suffix. (For

example, JCZM–1, JCZM–2, etc., would

be displayed on small trawlers not

assigned an IRCS operating with a

mothership whose IRCS is JCZM; JANP–

1 would be displayed by a pair trawler

not assigned an IRCS operating with a

trawler whose IRCS is JANP.)

(3) The vessel identification must be

in a color in contrast to the background

and must be permanently affixed to the

FFV in block Roman alphabet letters

and Arabic numerals at least 1 m in

height for FFV’s over 20 m in length,

and at least 0.5 m in height for all other

FFV’s.

(b) Navigational lights and shapes.

Each FFV must display the lights and

shapes prescribed by the International

Regulations for Preventing Collisions at

Sea, 1972 (TIAS 8587, and 1981

amendment TIAS 10672), for the

activity in which the FFV is engaged (as

described at 33 CFR part 81).

(c) Gear identification. (1) The

operator of each FFV must ensure that

all deployed fishing gear that is not

physically and continuously attached to

an FFV:

(i) Is clearly marked at the surface

with a buoy displaying the vessel

identification of the FFV (see paragraph

(a) of this section) to which the gear

belongs.

(ii) Has attached a light visible for 2

nautical miles (3.70 km) at night in good

visibility.

(iii) Has a radio buoy.

Trawl codends passed from one vessel

to another are considered continuously

attached gear and are not required to be

marked.

(2) The operator of each FFV must

ensure that deployed longlines, strings

of traps or pots, and gillnets are marked

at the surface at each terminal end with:

(see paragraphs (c)(1)(i) through

(c)(1)(iii) of this section).

(3) Additional requirements may be

specified for the fishery in which the

vessel is engaged.

(4) Unmarked or incorrectly identified

fishing gear may be considered

abandoned and may be disposed of in

accordance with applicable Federal

regulations by any authorized officer.

(d) Maintenance. The operator of each

FFV must—

(1) Keep the vessel and gear

identification clearly legible and in good

repair.

(2) Ensure that nothing on the FFV

obstructs the view of the markings from

an enforcement vessel or aircraft.

(3) Ensure that the proper

navigational lights and shapes are
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32561

displayed for the FFV’s activity and are

properly functioning.

§ 600.504 Facilitation of enforcement.

(a) General. (1) The owner, operator,

or any person aboard any FFV subject to

this subpart must immediately comply

with instructions and signals issued by

an authorized officer to stop the FFV; to

move the FFV to a specified location;

and to facilitate safe boarding and

inspection of the vessel, its gear,

equipment, records, and fish and fish

products on board for purposes of

enforcing the Magnuson Act and this

subpart.

(2) The operator of each FFV must

provide vessel position or other

information when requested by an

authorized officer within the time

specified in the request.

(b) Communications equipment. (1)

Each FFV must be equipped with a

VHF–FM radiotelephone station located

so that it may be operated from the

wheelhouse. Each operator must

maintain a continuous listening watch

on channel 16 (156.8 mHz).

(2) Each FFV must be equipped with

a radiotelephone station capable of

communicating via 2182 kHz (SSB)

radiotelephony and at least one set of

working frequencies identified in table

3 to § 600.502 appropriate to the fishery

in which the FFV is operating. Each

operator must monitor and be ready to

communicate via 2182 kHz (SSB)

radiotelephone each day from 0800

GMT to 0830 GMT and 2000 to 2030

GMT, and in preparation for boarding.

(3) FFV’s that are not equipped with

processing facilities and that deliver all

catches to a foreign processing vessel

are exempt from the requirements of

paragraph (b)(2) of this section.

(4) FFV’s with no IRCS that do not

catch fish and are used as auxiliary

vessels to handle codends, nets,

equipment, or passengers for a

processing vessel are exempt from the

requirements of paragraphs (b)(1) and

(b)(2) of this section.

(5) The appropriate Regional Director,

with the agreement of the appropriate

USCG commander, may, upon request

by a foreign nation, accept alternatives

to the radio requirements of this section

to certain FFV’s or types of FFV’s

operating in a fishery, provided they are

adequate for the communications needs

of the fishery.

(c) Communications procedures. (1)

Upon being approached by a USCG

vessel or aircraft, or other vessel or

aircraft with an authorized officer

aboard, the operator of any FFV subject

to this subpart must be alert for

communications conveying enforcement

instructions. The enforcement unit may

communicate by channel 16 VHF–FM

radiotelephone, 2182 kHz (SSB)

radiotelephone, message block from an

aircraft, flashing light or flag signals

from the International Code of Signals,

hand signal, placard, loudhailer, or

other appropriate means. The following

signals, extracted from the International

Code of Signals, are among those that

may be used.

(i) ‘‘AA, AA, AA, etc.’’, which is the

call for an unknown station. The

signaled vessel should respond by

identifying itself or by illuminating the

vessel identification required by

§ 600.505.

(ii) ‘‘RY–CY’’, meaning ‘‘You should

proceed at slow speed, a boat is coming

to you’’.

(iii) ‘‘SQ3’’, meaning ‘‘You should

stop or heave to; I am going to board

you’’.

(iv) ‘‘L’’, meaning ‘‘You should stop

your vessel instantly.’’

(2) Failure of an FFV’s operator to

stop the vessel when directed to do so

by an authorized officer using VHF–FM

radiotelephone (channel 16), 2182 kHz

(SSB) radiotelephone (where required),

message block from an aircraft, flashing

light signal, flaghoist, or loudhailer

constitutes a violation of this subpart.

(3) The operator of or any person

aboard an FFV who does not understand

a signal from an enforcement unit and

who is unable to obtain clarification by

radiotelephone or other means must

consider the signal to be a command to

stop the FFV instantly.

(d) Boarding. The operator of an FFV

signaled for boarding must—

(1) Monitor 2182 kHz (SSB)

radiotelephone and channel 16 (156.8

mHz) VHF–FM radiotelephone.

(2) Stop immediately and lay to or

maneuver in such a way as to maintain

the safety of the FFV and facilitate

boarding by the authorized officer and

the boarding party or an observer.

(3) Provide the authorized officer,

boarding party, or observer a safe pilot

ladder. The operator must ensure the

pilot ladder is securely attached to the

FFV and meets the construction

requirements of Regulation 17, Chapter

V of the International Convention for

the Safety of Life at Sea (SOLAS), 1974

(TIAS 9700 and 1978 Protocol, TIAS

10009), or a substantially equivalent

national standard approved by letter

from the Assistant Administrator, with

agreement with the USCG. Safe pilot

ladder standards are summarized below:

(i) The ladder must be of a single

length of not more than 9 m (30 ft),

capable of reaching the water from the

point of access to the FFV, accounting

for all conditions of loading and trim of

the FFV and for an adverse list of 15°.

Whenever the distance from sea level to

the point of access to the ship is more

than 9 m (30 ft), access must be by

means of an accommodation ladder or

other safe and convenient means.

(ii) The steps of the pilot ladder must

be—

(A) Of hardwood, or other material of

equivalent properties, made in one

piece free of knots, having an efficient

non-slip surface; the four lowest steps

may be made of rubber of sufficient

strength and stiffness or of other

suitable material of equivalent

characteristics.

(B) Not less than 480 mm (19 inches)

long, 115 mm (4.5 inches) wide, and 25

mm (1 inch) in depth, excluding any

non-slip device.

(C) Equally spaced not less than 300

millimeters (12 inches) nor more than

380 mm (15 inches) apart and secured

in such a manner that they will remain

horizontal.

(iii) No pilot ladder may have more

than two replacement steps that are

secured in position by a method

different from that used in the original

construction of the ladder.

(iv) The side ropes of the ladder must

consist of two uncovered manila ropes

not less than 60 mm (2.25 inches) in

circumference on each side (or synthetic

ropes of equivalent size and equivalent

or greater strength). Each rope must be

continuous, with no joints below the top

step.

(v) Battens made of hardwood, or

other material of equivalent properties,

in one piece and not less than 1.80 m

(5 ft 10 inches) long must be provided

at such intervals as will prevent the

pilot ladder from twisting. The lowest

batten must be on the fifth step from the

bottom of the ladder and the interval

between any batten and the next must

not exceed nine steps.

(vi) Where passage onto or off the ship

is by means of a bulwark ladder, two

handhold stanchions must be fitted at

the point of boarding or leaving the FFV

not less than 0.70 m (2 ft 3 inches) nor

more than 0.80 m (2 ft 7 inches) apart,

not less than 40 mm (2.5 inches) in

diameter, and must extend not less than

1.20 m (3 ft 11 inches) above the top of

the bulwark.

(4) When necessary to facilitate the

boarding or when requested by an

authorized officer or observer, provide a

manrope, safety line, and illumination

for the ladder; and

(5) Take such other actions as

necessary to ensure the safety of the

authorized officer and the boarding

party and to facilitate the boarding and

inspection.

(e) Access and records. (1) The owner

and operator of each FFV must provide
32562 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

authorized officers access to all spaces

where work is conducted or business

papers and records are prepared or

stored, including but not limited to,

personal quarters and areas within

personal quarters.

(2) The owner and operator of each

FFV must provide to authorized officers

all records and documents pertaining to

the fishing activities of the vessel,

including but not limited to, production

records, fishing logs, navigation logs,

transfer records, product receipts, cargo

stowage plans or records, draft or

displacement calculations, customs

documents or records, and an accurate

hold plan reflecting the current

structure of the vessel’s storage and

factory spaces.

(f) Product storage. The operator of

each permitted FFV storing fish or fish

products in a storage space must ensure

that all non-fish product items are

neither stowed beneath nor covered by

fish products, unless required to

maintain the stability and safety of the

vessel. These items include, but are not

limited to, portable conveyors, exhaust

fans, ladders, nets, fuel bladders, extra

bin boards, or other movable nonproduct items. These items may be in

the space when necessary for safety of

the vessel or crew or for storage of the

product. Lumber, bin boards, or other

dunnage may be used for shoring or

bracing of product to ensure safety of

crew and to prevent shifting of cargo

within the space.

§ 600.505 Prohibitions.

(a) It is unlawful for any person to do

any of the following:

(1) Ship, transport, offer for sale, sell,

purchase, import, export, or have

custody, control, or possession of any

fish taken or retained in violation of the

Magnuson Act, the applicable GIFA,

this subpart, or any permit issued under

this subpart;

(2) Refuse to allow an authorized

officer to board an FFV for purposes of

conducting any search or inspection in

connection with the enforcement of the

Magnuson Act, the applicable GIFA,

this subpart, or any other permit issued

under this subpart;

(3) Assault, resist, oppose, impede,

intimidate, or interfere with any

authorized officer in the conduct of any

inspection or search described in

paragraph (a)(2) of this section;

(4) Resist a lawful arrest for any act

prohibited by the Magnuson Act, the

applicable GIFA, this subpart, or any

permit issued under this subpart;

(5) Interfere with, delay, or prevent by

any means the apprehension or arrest of

another person with the knowledge that

such other person has committed any

act prohibited by the Magnuson Act, the

applicable GIFA, this subpart, or any

permit issued under this subpart;

(6) Interfere with, obstruct, delay,

oppose, impede, intimidate, or prevent

by any means any boarding,

investigation or search, wherever

conducted, in the process of enforcing

the Magnuson Act, the applicable GIFA,

this subpart, or any permit issued under

this subpart;

(7) Engage in any fishing activity for

which the FFV does not have a permit

as required under § 600.501;

(8) Engage in any fishing activity

within the EEZ without a U.S. observer

aboard the FFV, unless the requirement

has been waived by the appropriate

Regional Director;

(9) Retain or attempt to retain within

the EEZ, directly or indirectly, any U.S.

harvested fish, unless the FFV has a

permit for Activity Codes 4 or 6.

(10) Use any fishing vessel to engage

in fishing after the revocation, or during

the period of suspension, of an

applicable permit issued under this

subpart;

(11) Violate any provision of the

applicable GIFA;

(12) Falsely or incorrectly complete

(including by omission) a permit

application or permit form as specified

in § 600.501 (d) and (k);

(13) Fail to report to the Assistant

Administrator within 15 days any

change in the information contained in

the permit application for a FFV, as

specified in § 600.501(k);

(14) Assault, resist, oppose, impede,

intimidate, or interfere with an observer

placed aboard an FFV under this

subpart;

(15) Interfere with or bias the

sampling procedure employed by an

observer, including sorting or discarding

any catch prior to sampling, unless the

observer has stated that sampling will

not occur; or tamper with, destroy, or

discard an observer’s collected samples,

equipment, records, photographic film,

papers, or effects without the express

consent of the observer;

(16) Prohibit or bar by command,

impediment, threat, coercion, or refusal

of reasonable assistance, an observer

from collecting samples, conducting

product recovery rate determinations,

making observations, or otherwise

performing the observer’s duties;

(17) Harass or sexually harass an

authorized officer or observer;

(18) Fail to provide the required

assistance to an observer as described at

§ 600.506 (c) and (e);

(19) Fail to identify, falsely identify,

fail to properly maintain, or obscure the

identification of the FFV or its gear as

required by this subpart;

(20) Falsify or fail to make, keep,

maintain, or submit any record or report

required by this subpart;

(21) Fail to return to the sea or fail to

otherwise treat prohibited species as

required by this subpart;

(22) Fail to report or falsely report any

gear conflict;

(23) Fail to report or falsely report any

loss, jettisoning, or abandonment of

fishing gear or other article into the EEZ

that might interfere with fishing,

obstruct fishing gear or vessels, or cause

damage to any fishery resource or

marine mammals;

(24) Continue Activity Codes 1

through 4 after those activity codes have

been canceled under § 600.511;

(25) Fail to maintain health and safety

standards set forth in § 600.506(d);

(26) Violate any provisions of

regulations for specific fisheries of this

subpart;

(27) On a scientific research vessel,

engage in fishing other than recreational

fishing authorized by applicable state,

territorial, or Federal regulations;

(28) Violate any provision of this

subpart, the Magnuson Act, the

applicable GIFA, any notice issued

under this subpart or any permit issued

under this subpart; or

(29) Attempt to do any of the

foregoing.

(b) It is unlawful for any FFV, and for

the owner or operator of any FFV except

an FFV engaged only in recreational

fishing, to fish—

(1) Within the boundaries of any state,

unless the fishing is authorized by the

Governor of that state as permitted by

section 306(c) of the Magnuson Act to

engage in a joint venture for processing

and support with U.S. fishing vessels in

the internal waters of that state; or

(2) Within the EEZ, or for any

anadromous species or continental shelf

fishery resources beyond the EEZ,

unless the fishing is authorized by, and

conducted in accordance with, a valid

permit issued under § 600.501.

§ 600.506 Observers.

(a) General. To carry out such

scientific, compliance monitoring, and

other functions as may be necessary or

appropriate to carry out the purposes of

the Magnuson Act, the appropriate

Regional or Science and Research

Director (see table 2 to § 600.502) may

assign U.S. observers to FFV’s. Except as

provided for in section 201(i)(2) of the

Magnuson Act, no FFV may conduct

fishing operations within the EEZ

unless a U.S. observer is aboard.

(b) Effort plan. To ensure the

availability of an observer as required by

this section, the owners and operators of

FFV’s wanting to fish within the EEZ
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32563

will submit to the appropriate Regional

Director or Science and Research

Director; and also to the Chief, Office of

Enforcement, NMFS, Silver Spring, MD,

a schedule of fishing effort 30 days prior

to the beginning of each quarter. A

quarter is a time period of 3 consecutive

months beginning January 1, April 1,

July 1, and October 1 of each year. The

schedule will contain the name and

IRCS of each FFV intending to fish

within the EEZ during the upcoming

quarter, and each FFV’s expected date of

arrival and expected date of departure.

(1) The appropriate Regional or

Science and Research Director must be

notified immediately of any substitution

of vessels or any cancellation of plans

to fish in the EEZ for FFV’s listed in the

effort plan required by this section.

(2) If an arrival date of an FFV will

vary more than 5 days from the date

listed in the quarterly schedule, the

appropriate Regional or Science and

Research Director must be notified at

least 10 days in advance of the

rescheduled date of arrival. If the notice

required by this paragraph (b)(2) is not

given, the FFV may not engage in

fishing until an observer is available and

has been placed aboard the vessel or the

requirement has been waived by the

appropriate Regional or Science and

Research Director.

(c) Assistance to observers. To assist

the observer in the accomplishment of

his or her assigned duties, the owner

and operator of an FFV to which an

observer is assigned must—

(1) Provide, at no cost to the observer

or the United States, accommodations

for the observer aboard the FFV that are

equivalent to those provided to the

officers of that vessel.

(2) Cause the FFV to proceed to such

places and at such times as may be

designated by the appropriate Regional

or Science and Research Director for the

purpose of embarking and debarking the

observer.

(3) Allow the observer to use the

FFV’s communications equipment and

personnel upon demand for the

transmission and receipt of messages.

(4) Allow the observer access to and

use of the FFV’s navigation equipment

and personnel upon demand to

determine the vessel’s position.

(5) Allow the observer free and

unobstructed access to the FFV’s bridge,

trawl, or working decks, holding bins,

processing areas, freezer spaces, weight

scales, cargo holds and any other space

that may be used to hold, process,

weigh, or store fish or fish products at

any time.

(6) Allow the observer to inspect and

copy the FFV’s daily log,

communications log, transfer log, and

any other log, document, notice, or

record required by these regulations.

(7) Provide the observer copies of any

records required by these regulations

upon demand.

(8) Notify the observer at least 15

minutes before fish are brought on board

or fish or fish products are transferred

from the FFV to allow sampling the

catch or observing the transfer, unless

the observer specifically requests not to

be notified.

(9) Provide all other reasonable

assistance to enable the observer to

carry out his or her duties.

(d) Health and safety standards. All

foreign fishing vessels to which an

observer is deployed must maintain, at

all times that the vessel is in the EEZ,

the following:

(1) At least one working radar.

(2) Functioning navigation lights as

required by international law.

(3) A watch on the bridge by

appropriately trained and experienced

personnel while the vessel is underway.

(4) Lifeboats and/or inflatable life rafts

with a total carrying capacity equal to or

greater than the number of people

aboard the vessel. Lifeboats and

inflatable life rafts must be maintained

in good working order and be readily

available.

(5) Life jackets equal or greater in

number to the total number of persons

aboard the vessel. Life jackets must be

stowed in readily accessible and plainly

marked positions throughout the vessel,

and maintained in a state of good repair.

(6) At least one ring life buoy for each

25 ft (7.6 m) of vessel length, equipped

with automatic water lights. Ring life

buoys must have an outside diameter of

not more than 32 inches (81.3 cm) nor

less than 30 inches (76.2 cm), and must

be maintained in a state of good repair.

Ring life buoys must be readily

available, but not positioned so they

pose a threat of entanglement in work

areas. They must be secured in such a

way that they can be easily cast loose in

the event of an emergency.

(7) At least one VHF–FM radio with

a functioning channel 16 (156.8 mHz),

International Distress, Safety and

Calling Frequency, and one functioning

AM radio (SSB-Single Side Band)

capable of operating at 2182 kHz (SSB).

Radios will be maintained in a radio

room, chartroom, or other suitable

location.

(8) At least one Emergency Position

Indicating Radio Beacon (EPIRB),

approved by the USCG for offshore

commercial use, stowed in a location so

as to make it readily available in the

event of an emergency.

(9) At least six hand-held, rocketpropelled, parachute, red-flare distress

signals, and three orange-smoke distress

signals stowed in the pilothouse or

navigation bridge in portable watertight

containers.

(10) All lights, shapes, whistles,

foghorns, fog bells and gongs required

by and maintained in accordance with

the International Regulations for

Preventing Collisions at Sea.

(11) Clean and sanitary conditions in

all living spaces, food service and

preparation areas and work spaces

aboard the vessel.

(e) Observer transfers. (1) The

operator of the FFV must ensure that

transfers of observers at sea via small

boat or raft are carried out during

daylight hours as weather and sea

conditions allow, and with the

agreement of the observer involved. The

FFV operator must provide the observer

3 hours advance notice of at-sea

transfers, so that the observer may

collect personal belongings, equipment,

and scientific samples.

(2) The FFV’s involved must provide

a safe pilot ladder and conduct the

transfer according to the procedures of

§ 600.504(d) to ensure the safety of the

during the transfer.

(3) An experienced crew member

must assist the observer in the small

boat or raft in which the transfer is

made.

(f) Supplementary observers. In the

event funds are not available from

Congressional appropriations of fees

collected to assign an observer to a

foreign fishing vessel, the appropriate

Regional or Science and Research

Director will assign a supplementary

observer to that vessel. The costs of

supplementary observers will be paid

for by the owners and operators of

foreign fishing vessels as provided for in

paragraph (h) of this section.

(g) Supplementary observer authority

and duties. (1) A supplementary

observer aboard a foreign fishing vessel

has the same authority and must be

treated in all respects as an observer

who is employed by NMFS, either

directly or under contract.

(2) The duties of supplementary

observers and their deployment and

work schedules will be specified by the

appropriate Regional or Science and

Research Director.

(3) All data collected by

supplementary observers will be under

the exclusive control of the Assistant

Administrator.

(h) Supplementary observer

payment—(1) Method of payment. The

owners and operators of foreign fishing

vessels must pay directly to the

contractor the costs of supplementary

observer coverage. Payment must be

made to the contractor supplying
32564 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

supplementary observer coverage either

by letter of credit or certified check

drawn on a federally chartered bank in

U.S. dollars, or other financial

institution acceptable to the contractor.

The letter of credit used to pay

supplementary observer fees to

contractors must be separate and

distinct from the letter of credit required

by § 600.518(b)(2). Billing schedules

will be specified by the terms of the

contract between NOAA and the

contractors. Billings for supplementary

observer coverage will be approved by

the appropriate Regional or Science and

Research Director and then transmitted

to the owners and operators of foreign

fishing vessels by the appropriate

designated representative. Each country

will have only one designated

representative to receive observer bills

for all vessels of that country, except as

provided for by the Assistant

Administrator. All bills must be paid

within 10 working days of the billing

date. Failure to pay an observer bill will

constitute grounds to revoke fishing

permits. All fees collected under this

section will be considered interim in

nature and subject to reconciliation at

the end of the fiscal year in accordance

with paragraph (h)(4) of this section and

§ 600.518(d).

(2) Contractor costs. The costs

charged for supplementary observer

coverage to the owners and operators of

foreign fishing vessels may not exceed

the costs charged to NMFS for the same

or similar services, except that

contractors may charge to the owners

and operators of foreign fishing vessels

an additional fee to cover the

administrative costs of the program not

ordinarily part of contract costs charged

to NMFS. The costs charged foreign

fishermen for supplementary observers

may include, but are not limited to the

following:

(i) Salary and benefits, including

overtime, for supplementary observers.

(ii) The costs of post-certification

training required by paragraph (j)(2) of

this section.

(iii) The costs of travel, transportation,

and per diem associated with deploying

supplementary observers to foreign

fishing vessels including the cost of

travel, transportation, and per diem

from the supplementary observer’s post

of duty to the point of embarkation to

the foreign fishing vessel, and then from

the point of disembarkation to the post

of duty from where the trip began. For

the purposes of these regulations, the

appropriate Regional or Science and

Research Director will designate posts of

duty for supplementary observers.

(iv) The costs of travel, transportation,

and per diem associated with the

debriefing following deployment of a

supplementary observer by NMFS

officials.

(v) The administrative and overhead

costs incurred by the contractor and, if

appropriate, a reasonable profit.

(3) NMFS costs. The owners and

operators of foreign fishing vessels must

also pay to NMFS as part of the

surcharge required by section 201(i)(4)

of the Magnuson Act, the following

costs:

(i) The costs of certifying applicants

for the position of supplementary

observer.

(ii) The costs of any equipment,

including safety equipment, sampling

equipment, operations manuals, or other

texts necessary to perform the duties of

a supplementary observer. The

equipment will be specified by the

appropriate Regional or Science and

Research Director according to the

requirements of the fishery to which the

supplementary observer will be

deployed.

(iii) The costs associated with

communications with supplementary

observers for transmission of data and

routine messages.

(iv) For the purposes of monitoring

the supplementary observer program,

the costs for the management and

analysis of data.

(v) The costs for data editing and

entry.

(vi) Any costs incurred by NMFS to

train, deploy or debrief a supplementary

observer.

(vii) The cost for U.S. Customs

inspection for supplementary observers

disembarking after deployment.

(4) Reconciliation. Fees collected by

the contractor in excess of the actual

costs of supplementary observer

coverage will be refunded to the owners

and operators of foreign fishing vessels,

or kept on deposit to defray the costs of

future supplementary observer coverage.

Refunds will be made within 60 days

after final costs are determined and

approved by NMFS.

(i) Supplementary observer

contractors—(1) Contractor eligibility.

Supplementary observers will be

obtained by NMFS from persons or

firms having established contracts to

provide NMFS with observers. In the

event no such contract is in place,

NMFS will use established, competitive

contracting procedures to select persons

or firms to provide supplementary

observers. The services supplied by the

supplementary observer contractors will

be as described within the contract and

as specified below.

(2) Supplementary observer

contractors must submit for the

approval of the Assistant Administrator

the following:

(i) A copy of any contract, including

all attachments, amendments, and

enclosures thereto, between the

contractor and the owners and operators

of foreign fishing vessels for whom the

contractor will provide supplementary

observer services.

(ii) All application information for

persons whom the contractor desires to

employ as certified supplementary

observers.

(iii) Billing schedules and billings to

the owners and operators of foreign

fishing vessels for further transmission

to the designated representative of the

appropriate foreign nation.

(iv) All data on costs.

(j) Supplementary observers—

certification, training—(1) Certification.

The appropriate Regional or Science

and Research Director will certify

persons as qualified for the position of

supplementary observer once the

following conditions are met:

(i) The candidate is a citizen or

national of the United States.

(ii) The candidate has education or

experience equivalent to the education

or experience required of persons used

as observers by NMFS as either Federal

personnel or contract employees. The

education and experience required for

certification may vary according to the

requirements of managing the foreign

fishery in which the supplementary

observer is to be deployed.

Documentation of U.S. citizenship or

nationality, and education or experience

will be provided from personal

qualification statements on file with

NMFS contractors who provide

supplementary observer services, and

will not require the submission of

additional information to NMFS.

(2) Training. Prior to deployment to

foreign fishing vessels, certified

supplementary observers must also meet

the following conditions:

(i) Each certified supplementary

observer must satisfactorily complete a

course of training approved by the

appropriate Regional or Science and

Research Director as equivalent to that

received by persons used as observers

by NMFS as either Federal personnel or

contract employees. The course of

training may vary according to the

foreign fishery in which the

supplementary observer is to be

deployed.

(ii) Each certified supplementary

observer must agree in writing to abide

by standards of conduct as set forth in

Department of Commerce

Administrative Order 202–735 (as

provided by the contractor).
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32565

(k) Supplementary observer

certification suspension or revocation.

(1) Certification of a supplementary

observer may be suspended or revoked

by the Assistant Administrator under

the following conditions:

(i) A supplementary observer fails to

perform the duties specified in

paragraph (g)(2) of this section.

(ii) A supplementary observer fails to

abide by the standards of conduct

described by Department of Commerce

Administrative Order 202–735.

(2) The suspension or revocation of

the certification of a supplementary

observer by the Assistant Administrator

may be based on the following:

(i) Boarding inspection reports by

authorized officers of the USCG or

NMFS, or other credible information,

that indicate a supplementary observer

has failed to abide by the established

standards of conduct; or

(ii) An analysis by NMFS of the data

collected by a supplementary observer

indicating improper or incorrect data

collection or recording. The failure to

properly collect or record data is

sufficient to justify decertification of

supplementary observers; no intent to

defraud need be demonstrated.

(3) The Assistant Administrator will

notify the supplementary observer, in

writing, of the Assistant Administrator’s

intent to suspend or revoke certification,

and the reasons therefor, and provide

the supplementary observer a

reasonable opportunity to respond. If

the Assistant Administrator determines

that there are disputed questions of

material fact, then the Assistant

Administrator may in this respect

appoint an examiner to make an

informal fact-finding inquiry and

prepare a report and recommendations.

§ 600.507 Recordkeeping.

(a) General. The owner and operator

of each FFV must maintain timely and

accurate records required by this section

as modified by the regulations for the

fishery in which the FFV is engaged.

(1) The owner and operator of each

FFV must maintain all required records

in English, based on Greenwich mean

time (GMT) unless otherwise specified

in the regulation, and make them

immediately available for inspection

upon the request of an authorized

officer or observer.

(2) The owner and operator of each

FFV must retain all required records on

board the FFV whenever it is in the

EEZ, for 3 years after the end of the

permit period.

(3) The owner and operator of each

FFV must retain the required records

and make them available for inspection

upon the request of an authorized

officer at any time during the 3 years

after the end of the permit period,

whether or not such records are on

board the vessel.

(4) The owner and operator of each

FFV must provide to the Assistant

Administrator, in the form and at the

times prescribed, any other information

requested that the Assistant

Administrator determines is necessary

to fulfill the fishery conservation,

management and enforcement purposes

of the Magnuson Act.

(b) Communications log. The owner

and operator of each FFV must record

in a separate communications log, at the

time of transmittal, the time and content

of each notification made under

§ 600.504.

(c) Transfer log. Except for the

transfer of unsorted, unprocessed fish

via codend from a catching vessel to a

processing vessel (Activity Code 2 or 4),

the owner and operator of each FFV

must record, in a separate transfer log,

each transfer or receipt of any fish or

fishery product, including quantities

transferred or offloaded outside the EEZ.

The operator must record in the log

within 12 hours of the completion of the

transfer:

(1) The time and date (GMT) and

location (in geographic coordinates) the

transfer began and was completed.

(2) The product weight, by species

and product (use species and product

codes), of all fish transferred, to the

nearest 0.01 mt.

(3) The name, IRCS, and permit

number of both the FFV offloading the

fish and the FFV receiving the fish.

(d) Daily fishing log. (1) The owner or

operator of each FFV authorized to

catch fish (Activity Code 1) must

maintain a daily fishing log of the effort,

catch and production of the FFV, as

modified by paragraph (d)(2) of this

section and the regulations for the

fishery in which the FFV is engaged.

The operator must maintain on a daily

and cumulative basis for the permit

period a separate log for each fishery

(see table 2 to § 600.502) in which the

FFV is engaged according to this section

and in the format specified in the

instructions provided with the permit or

other format authorized under

paragraph (i) of this section. Daily effort

entries are required for each day the

vessel conducts fishing operations

within the EEZ. Daily entries are not

required whenever the FFV is in port or

engaged in a joint venture in the

internal waters of a state. Each page of

log may contain entries pertaining to

only one day’s fishing operations or one

gear set, whichever is longer.

(2) The owner or operator of each FFV

authorized to catch fish (Activity Code

1) and that delivers all catches to a

processing vessel, must maintain only

‘‘SECTION ONE-EFFORT’’, of the daily

fishing log, provided the processing

vessel maintains a daily consolidated

fishing log as described in paragraphs (f)

and (g) of this section.

(e) Daily fishing log—contents. The

daily fishing log must contain the

following information, as modified by

paragraph (d)(2) of this section and the

regulations for the fishery in which the

FFV is engaged, and be completed

according to the format and instructions

provided with the permit or other

format authorized under paragraph (i) of

this section.

(1) ‘‘SECTION ONE-EFFORT’’ must

contain on a daily basis—

(i) A consecutive page number,

beginning with the first day the vessel

started fishing operations within the

EEZ and continuing throughout the log.

(ii) The date (based on GMT).

(iii) The FFV’s name.

(iv) The FFV’s IRCS.

(v) The FFV’s U.S. permit number.

(vi) The FFV’s noon (1200 GMT)

position in geographic coordinates.

(vii) The master or operator’s

signature or title.

(2) ‘‘SECTION ONE-EFFORT’’ must

contain, for each trawl or set, as

appropriate to the gear type employed—

(i) The consecutive trawl or set

number, beginning with the first set of

the calendar year.

(ii) The fishing area in which the

trawl or set was completed.

(iii) The gear type.

(iv) The time the gear was set.

(v) The position of the set.

(vi) The course of the set.

(vii) The sea depth.

(viii) The depth of the set.

(ix) The duration of the set.

(x) The hauling time.

(xi) The position of the haul.

(xii) The number of pots or longline

units (where applicable).

(xiii) The average number of hooks

per longline unit (where applicable).

(xiv) The trawl speed (where

applicable).

(xv) The mesh size of the trawl’s

codend (where applicable).

(xvi) The estimated total weight of the

catch for the trawl of set, to at least the

nearest metric ton round weight.

(3) ‘‘SECTION TWO-CATCH’’ must

contain, for each trawl or set—

(i) The consecutive set or trawl

number from ‘‘SECTION ONE’’.

(ii) The catch of each allocated

species or species group to at least the

nearest 0.1 mt round weight.

(iii) The prohibited species catch to at

least the nearest 0.1 mt round weight or

by number, as required by the
32566 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

regulations for the fishery in which the

FFV is engaged.

(iv) The species code of each marine

mammal caught and its condition when

released.

(4) ‘‘SECTION TWO-CATCH’’ must

contain, on a daily basis—

(i) The species codes for all allocated

or prohibited species or species groups

caught.

(ii) For each allocated species—the

amount, to at least the nearest 0.1 mt,

and the daily disposition, either

processed for human consumption, used

for fishmeal, or discarded; the daily

catch by fishing area; the daily catch for

all fishing areas; and the cumulative

total catch.

(iii) For the total catch of allocated

species—the amount to at least the

nearest 0.1 mt and the daily disposition,

daily total catch by fishing area, daily

total catch for all fishing areas, and

cumulative total catch.

(iv) The catch by fishing area, daily

total, and cumulative total of each

prohibited species.

(5) ‘‘SECTION THREE—

PRODUCTION’’ must contain, on a

daily basis, for each allocated species

caught and product produced—

(i) The product by species code and

product type.

(ii) The daily product recovery rate of

each species and product.

(iii) The daily total product produced

by species to at least the nearest 0.01 mt.

(iv) The cumulative total of each

product to at least the nearest 0.01 mt.

(v) The cumulative amount of product

transferred.

(vi) The balance of product remaining

aboard the FFV.

(vii) The total daily amount,

cumulative amount, transferred product

and balance of frozen product aboard

the FFV to the nearest 0.01 mt.

(viii) Transferred amount and balance

of fishmeal and fish oil aboard to at least

the nearest 0.01 mt.

(f) Daily consolidated fishing or joint

venture log. The operator of each FFV

that receives unsorted, unprocessed fish

from foreign catching vessels (Activity

Code 2) for processing or receives U.S.-

harvested fish from U.S. fishing vessels

in a joint venture (Activity Code 4) must

maintain a daily joint venture log of the

effort, catch and production of its

associated U.S. or foreign fishing vessels

and the processing vessel as modified

by the regulations for the fishery in

which the FFV is engaged. This log is

separate and in addition to the log

required by paragraph (d) of this

section. The operator must maintain a

separate log for each fishery in which

the FFV is engaged, on a daily and

cumulative basis, according to this

section and in the format specified in

the instructions provided with the

permit or other format authorized under

paragraph (i) of this section. Receipts of

fish caught outside the EEZ must be

included. Each page of the log may

contain entries pertaining to only one

day’s fishing operations.

(g) Daily joint venture log—contents.

Daily joint venture logs must contain

the following information, as modified

by the fishery in which the vessel is

engaged, and be completed according to

the format and instructions provided

with the permit or other format

authorized under paragraph (i) of this

section.

(1) ‘‘SECTION ONE-EFFORT’’ must

contain, on a daily basis, that

information required in paragraph (e)(1)

of this section.

(2) ‘‘SECTION ONE-EFFORT’’ must

contain for each receipt of a codend—

(i) The consecutive codend number,

beginning with the first codend received

for the calendar year.

(ii) The name of the U.S. fishing

vessel or the name and IRCS of the

foreign fishing vessel the codend was

received from.

(iii) The fishing area where the

codend was received.

(iv) The time the codend was

received.

(v) The position the codend was

received.

(vi) The estimated weight of the

codend to at least the nearest metric ton

round weight.

(3) ‘‘SECTION TWO-CATCH’’ must

contain, for each codend received—

(i) The consecutive codend number

from ‘‘SECTION ONE’’.

(ii) The receipts of each authorized

species or species group and its

disposition, either processed for human

consumption, used for fishmeal,

discarded, or returned to the U.S.

fishing vessel, to at least the nearest 0.1

mt round weight.

(iii) The estimated receipts of each

prohibited species or species group and

its disposition, either discarded or

returned to the U.S. fishing vessel if

authorized in the fishery in which the

U.S. vessel is engaged, to at least the

nearest 0.1 mt round weight.

(iv) The species code of each marine

mammal received and its condition

when released.

(4) ‘‘SECTION TWO-CATCH’’ must

contain on a daily basis—

(i) The species codes of all authorized

or prohibited species or species groups

received.

(ii) The daily disposition, as described

in paragraph (g)(3)(ii) of this section,

daily total, and cumulative total receipts

of each authorized species or species

groups.

(iii) The daily disposition, daily total

and cumulative total receipts of all

authorized species or species groups.

(iv) The daily and cumulative total

receipts of prohibited species groups

and their disposition as described in

paragraph (g)(3)(iii) of this section.

(5) ‘‘SECTION THREE—

PRODUCTION’’ must contain, on a

daily basis, for each authorized species

or species group received and product

produced, that information required in

paragraph (e)(5) of this section.

(h) Daily log maintenance. The logs

required by paragraphs (e) through (g) of

this section must be maintained

separately for each fishery (see table 2

to § 600.502).

(1) The effort section (all of

‘‘SECTION ONE’’) of the daily logs must

be updated within 2 hours of the

hauling or receipt time. The catch or

receipt by trawl or set (‘‘SECTION

TWO’’) must be entered within 12 hours

of the hauling or receipt time. The daily

and cumulative total catch or receipts

(‘‘SECTION TWO’’) and the production

portion (‘‘SECTION THREE’’) of the log

must be updated within 12 hours of the

end of the day on which the catch was

taken. The date of catch is the day and

time (GMT) the gear is hauled.

(2) Entries for total daily and

cumulative catch or receipt weights

(disposition ‘‘C’’ or ‘‘M’’) must be based

on the most accurate method available

to the vessel, either scale round weights

or factory weights converted to round

weights. Entries for daily and

cumulative weights of discarded or

returned fish (disposition ‘‘D’’ or ‘‘R’’)

must be based on the most accurate

method available to the vessel, either

actual count, scale round weight, or

estimated deck weights. Entries for

product weights must be based on the

number of production units (pans,

boxes, blocks, trays, cans, or bags) and

the average weight of the production

unit, with reasonable allowances for

water added. Allowances for water

added cannot exceed 5 percent of the

unit weight. Product weights cannot be

based on the commercial or arbitrary

wholesale weight of the product, but

must be based on the total actual weight

of the product as determined by

representative samples.

(3) The owner or operator must make

all entries in indelible ink, with

corrections to be accomplished by lining

out and rewriting, rather than erasure.

(i) Alternative log formats. As an

alternative to the use of the specific

formats provided, a Nation may submit

a proposed log format for FFV’s of that

Nation for a general type of fishery

operation in a fishery (i.e., joint venture

operations) to the appropriate Regional
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32567

Director and the USCG commander (see

tables 1 and 2 to § 600.502). With the

agreement of the USCG commander, the

Regional Director may authorize the use

of that log format for vessels of the

requesting Nation.

§ 600.508 Fishing operations.

(a) Catching. Each FFV authorized for

activity code 1 may catch fish. An FFV

may retain its catch of any species or

species group for which there is an

unfilled national allocation. All fish

caught will be counted against the

national allocation, even if the fish are

discarded, unless exempted by the

regulations of the fishery in which the

FFV is engaged. Catching operations

may be conducted as specified by the

regulations of the fishery in which the

FFV is engaged and as modified by the

FFV’s permit.

(b) Scouting. Each FFV authorized for

Activity Codes 1 through 6 may scout

for fish. Scouting may be conducted

only in the fisheries area authorized by

the scouting vessel’s permit and under

such other circumstances as may be

designated in this subpart or the permit.

(c) Processing. Each FFV with

Activity Code 1 or 2 may process fish.

Processing may only be conducted

whenever and wherever catching

operations for FFV’s of that Nation are

permitted, whenever and wherever joint

venture operations are authorized by an

FFV’s permit under Activity Code 4,

and under such other circumstances as

may be designated in this subpart or the

permit.

(d) Support. Each FFV with Activity

Codes 1, 2, 3, 5, or 8 may support other

permitted FFV’s. Each FFV with

Activity Codes 4 or 6 may support U.S.

vessels. Support operations may be

conducted only in the fisheries areas

authorized by the supporting vessel’s

permit, and under such other

circumstances as may be designated in

this subpart or the permit.

(e) Joint ventures. Each FFV with

Activity Code 4 in addition to Activity

Codes 1 or 2 may also conduct

operations with U.S. fishing vessels.

These joint venture operations with U.S.

fishing vessels may be conducted

throughout the EEZ, and under such

other circumstances as may be

designated in these regulations or the

permit. FFV’s with activity code 4 may

continue operations assisting U.S.

fishing vessels, despite closures under

§ 600.511(a).

(f) Each FFV authorized by the

Governor of a state under section 306(c)

of the Magnuson Act may engage in

processing and support of U.S. fishing

vessels within the internal waters of that

state in compliance with terms and

conditions set by the authorizing

Governor.

§ 600.509 Prohibited species.

(a) The owner or operator of each FFV

must minimize its catch or receipt of

prohibited species.

(b) After allowing for sampling by an

observer (if any), the owner or operator

of each FFV must sort its catch of fish

received as soon as possible and return

all prohibited species and species parts

to the sea immediately with a minimum

of injury, regardless of condition, unless

a different procedure is specified by the

regulations for the fishery in which the

FFV is engaged. All prohibited species

must be recorded in the daily fishing log

and other fishing logs as specified by

the regulations for the fishery in which

the FFV is engaged.

(c) All species of fish that an FFV has

not been specifically allocated or

authorized under this subpart to retain,

including fish caught or received in

excess of any allocation or

authorization, are prohibited species.

(d) It is a rebuttable presumption that

any prohibited species or species part

found on board an FFV was caught and

retained in violation of this section.

§ 600.510 Gear avoidance and disposal.

(a) Vessel and gear avoidance. (1)

FFV’s arriving on fishing grounds where

fishing vessels are already fishing or

have set their gear for that purpose must

ascertain the position and extent of gear

already placed in the sea and must not

place themselves or their fishing gear so

as to interfere with or obstruct fishing

operations already in progress. Vessels

using mobile gear must avoid fixed

fishing gear.

(2) The operator of each FFV must

maintain on its bridge a current plot of

broadcast fixed-gear locations for the

area in which it is fishing, as required

by the regulations for the fishery in

which the FFV is engaged.

(b) Gear conflicts. The operator of

each FFV that is involved in a conflict

or that retrieves the gear of another

vessel must immediately notify the

appropriate USCG commander

identified in tables 1 and 2 to § 600.502

and request disposal instructions. Each

report must include:

(1) The name of the reporting vessel.

(2) A description of the incident and

articles retrieved, including the amount,

type of gear, condition, and

identification markings.

(3) The location of the incident.

(4) The date and time of the incident.

(c) Disposal of fishing gear and other

articles. (1) The operator of an FFV in

the EEZ may not dump overboard,

jettison or otherwise discard any article

or substance that may interfere with

other fishing vessels or gear, or that may

catch fish or cause damage to any

marine resource, including marine

mammals and birds, except in cases of

emergency involving the safety of the

ship or crew, or as specifically

authorized by communication from the

appropriate USCG commander or other

authorized officer. These articles and

substances include, but are not limited

to, fishing gear, net scraps, bale straps,

plastic bags, oil drums, petroleum

containers, oil, toxic chemicals or any

manmade items retrieved in an FFV’s

gear.

(2) The operator of an FFV may not

abandon fishing gear in the EEZ.

(3) If these articles or substances are

encountered, or in the event of

accidental or emergency placement into

the EEZ, the vessel operator must

immediately report the incident to the

appropriate USCG Commander

indicated in tables 1 and 2 to § 600.502,

and give the information required in

paragraph (b) of this section.

§ 600.511 Fishery closure procedures.

(a) Activity Codes 1 and 2 for a fishery

are automatically canceled in the

following cases, unless otherwise

specified by regulations specific to a

fishery, when—

(1) The OY for any allocated species

or species group has been reached in

that fishery;

(2) The TALFF or catch allowance for

any allocated species or species group

has been reached in that fishery;

(3) The foreign nation’s allocation for

any allocated species or species group

has been reached; or

(4) The letter of credit required in

§ 600.518(b)(2) is not established and

maintained.

(b) Activity Code 4 is automatically

canceled when—

(1) The OY for a species with a JVP

amount is reached;

(2) The JVP amount for a species or

species group is reached; or

(3) The letter of credit required in

§ 600.518(b)(2) is not established and

maintained.

(c) Notification. (1) The Regional

Director is authorized to close a fishery

on behalf of NMFS. The Regional

Director will notify each FFV’s

designated representative of closures.

(2) If possible, notice will be given 48

hours before the closure. However, each

Nation and the owners and operators of

all FFV’s of that Nation are responsible

for ending fishing operations when an

allocation is reached.

(d) Catch reconciliation. Vessel

activity reports, U.S. surveillance

observations, observer reports, and
32568 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

foreign catch and effort reports will be

used to make the determination listed in

paragraphs (a) and (b) of this section. If

NMFS estimates of catch or other values

made during the season differ from

those reported by the foreign fleets,

efforts may be initiated by the

designated representative of each Nation

to resolve such differences with NMFS.

If, however, differences still persist after

such efforts have been made, NMFS

estimates will be the basis for decisions

and will prevail.

(e) Duration. Any closure under this

section will remain in effect until an

applicable new or increased allocation

or JVP becomes available or the letter of

credit required by § 600.518(b)(2) is

reestablished.

§ 600.512 Scientific research.

(a) Scientific research activity.

Persons planning to conduct scientific

research activities in the EEZ that may

be confused with fishing are encouraged

to submit to the appropriate Regional

Director, Director, or designee, 60 days

or as soon as practicable prior to its

start, a scientific research plan for each

scientific cruise. The Regional Director,

Director, or designee 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 required under

any other applicable law. If the Regional

Director, Director, or designee, after

review of a research plan, determines

that it does not constitute scientific

research activity, but rather fishing, the

Regional Director, Director, or designee

will inform the applicant as soon as

practicable and in writing. The Regional

Director, Director, or designee may also

make recommendations to revise the

research plan to make the cruise

acceptable as scientific research activity.

In order to facilitate identification of

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. Activities conducted in

accordance with a scientific research

plan acknowledged by such a letter are

presumed to be scientific research

activities. The presumption may be

overcome 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) Reports. Persons conducting

scientific research are requested to

submit a copy of any cruise report or

other publication created as a result of

the cruise, including the amount,

composition, and disposition of their

catch, to the appropriate Science and

Research Director.

§ 600.513 Recreational fishing.

(a) Foreign vessels conducting

recreational fishing must comply only

with this section, and §§ 600.10,

600.504(a)(1), and 600.505 (as

applicable). Such vessels may conduct

recreational fishing within the EEZ and

within the boundaries of a state. Any

fish caught may not be sold, bartered, or

traded.

(b) The owners or operator and any

other person aboard any foreign vessel

conducting recreational fishing must

comply with any Federal laws or

regulations applicable to the domestic

fishery while in the EEZ, and any state

laws or regulations applicable while in

state waters.

§ 600.514 Relation to other laws.

(a) Persons affected by these

regulations should be aware that other

Federal and state statutes may apply to

their activities.

(b) Fishing vessel operators must

exercise due care in the conduct of

fishing activities near submarine cables.

Damage to submarine cables resulting

from intentional acts or from the failure

to exercise due care in the conduct of

fishing operations subjects the fishing

vessel operator to enforcement action

under the International Convention for

the Protection of Submarine Cables, and

to the criminal penalties prescribed by

the Submarine Cable Act (47 U.S.C. 21)

and other laws that implement that

Convention. Fishing vessel operators

also should be aware that the Submarine

Cable Act prohibits fishing operations at

a distance of less than 1 nautical mile

(1.85 km) from a vessel engaged in

laying or repairing a submarine cable; or

at a distance of less than 0.25 nautical

mile (0.46 km) from a buoy or buoys

intended to mark the position of a cable

when being laid, or when out of order,

or broken.

§ 600.515 Interpretation of 16 U.S.C.

1857(4).

Section 307(4) of the Magnuson Act

prohibits any fishing vessel other than

a vessel of the United States (foreign

fishing vessel) from operating in the

EEZ if all of the fishing gear on board

the vessel is not stowed in compliance

with that section ‘‘unless such vessel is

authorized to engage in fishing in the

area in which the vessel is operating.’’

If such a vessel has a permit

authorization that is limited to fishing

activities other than catching, taking or

harvesting (such as support, scouting or

processing activities), it must have all of

its fishing gear stowed at all times while

it is in the EEZ. If such a vessel has a

permit authorization to engage in

catching, taking or harvesting activities,

but such authorization is limited to a

specific area within the EEZ, and/or to

a specific period of time, the vessel

must have all of its fishing gear stowed

while it is in the EEZ, except when it

is in the specific area authorized, and/

or during the specific period of time

authorized.

§ 600.516 Total allowable level of foreign

fishing (TALFF).

(a) The TALFF, if any, with respect to

any fishery subject to the exclusive

fishery management authority of the

United States, is that portion of the OY

of such fishery that will not be caught

by vessels of the United States.

(b) Each specification of OY and each

assessment of the anticipated U.S.

harvest will be reviewed during each

fishing season. Adjustments to TALFF’s

will be made based on updated

information relating to status of stocks,

estimated and actual performance of

domestic and foreign fleets, and other

relevant factors.

(c) Specifications of OY and the initial

estimates of U.S. harvests and TALFF’s

at the beginning of the relevant fishing

year will be published in the Federal

Register. Adjustments to those numbers

will be published in the Federal

Register upon occasion or as directed by

regulations implementing FMPs. For

current apportionments, contact the

appropriate Regional Director or the

Director.

§ 600.517 Allocations.

The Secretary of State, in cooperation

with the Secretary, determines the

allocation among foreign nations of fish

species and species groups. The

Secretary of State officially notifies each

foreign nation of its allocation. The

burden of ascertaining and accurately

transmitting current allocations and

status of harvest of an applicable

allocation to fishing vessels is upon the

foreign nation and the owner or operator

of the FFV.

§ 600.518 Fee schedule for foreign fishing.

(a) Permit application fees. Each

vessel permit application submitted

under § 600.501 must be accompanied

by a fee of $354 per vessel, plus the

surcharge, if required under paragraph

(e) of this section, rounded to the

nearest dollar. At the time the

application is submitted to the DOS, a

check for the fees, drawn on a U.S.

bank, made out to ‘‘Department of

Commerce, NOAA,’’ must be sent to the
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32569

Director. The permit fee payment must

be accompanied by a list of the vessels

for which the payment is made.

(b) Poundage fees—(1) Rates. If a

Nation chooses to accept an allocation,

poundage fees must be paid at the rate

specified in the following table, plus the

surcharge required by paragraph (c) of

this section.

TABLE—SPECIES AND POUNDAGE

FEES

[Dollars per metric ton, unless otherwise

noted]

Species fees Poundage fees

Northwest Atlantic Ocean fisheries:

1. Butterfish ............................... 274.61

2. Hake, red .............................. 163.97

3. Hake, silver ........................... 174.63

4. Herring .................................. 61.76

5. Mackerel, Atlantic .................. 58.33

6. Other groundfish ................... 119.09

7. Squid, Illex ............................ 103.98

8. Squid, Loligo ......................... 245.73

(2) Method of payment of poundage

fees, surcharges and observer fees. (i) If

a Nation chooses to accept an allocation,

a revolving letter of credit (L/C) must be

established and maintained to cover the

poundage fees for at least 25 percent of

the previous year’s total allocations at

the rate in paragraph (b)(1) of this

section, or as determined by the

Assistant Administrator, plus the

surcharges and observer fees required by

paragraphs (c) and (d) of this section.

The L/C must—

(A) Be irrevocable.

(B) Be with a bank subscribing to ICC

Pub. 290.

(C) Designate ‘‘Department of

Commerce, NOAA’’ as beneficiary;

(D) Allow partial withdrawals.

(E) Be confirmed by a U.S. bank.

(ii) The customer must pay all

commissions, transmission, and service

charges. No fishing will be allowed until

the L/C is established, and authorized

written notice of its issuance is

provided to the Assistant Administrator.

(3) Assessment of poundage fees.

Poundage fees will be assessed quarterly

for the actual catch during January

through March, April through June, July

through September, and October

through December. The appropriate

Regional Director will reconcile catch

figures with each country following the

procedures of § 600.511(d). When the

catch figures are agreed upon, NOAA

will present a bill for collection as the

documentary demand for payment to

the confirming bank. If, after 45 days

from the end of the quarter, catches

have not been reconciled, the estimate

of the Regional Director will stand and

a bill will be issued for that amount. If

necessary, the catch figures may be

refined by the Regional Director during

the next 60 days, and any modifications

will be reflected in the next quarter’s

bill.

(c) Surcharges. The owner or operator

of each foreign vessel who accepts and

pays permit application or poundage

fees under paragraph (a) or (b) of this

section must also pay a surcharge. The

Assistant Administrator may reduce or

waive the surcharge if it is determined

that the Fishing Vessel and Gear

Damage Compensation Fund is

capitalized sufficiently. The Assistant

Administrator also may increase the

surcharge during the year to a maximum

level of 20 percent, if needed, to

maintain capitalization of the fund. The

Assistant Administrator has effectively

waived the surcharge until further

notice.

(d) Observer fees. The Assistant

Administrator will notify the owners or

operators of FFV’s of the estimated

annual costs of placing observers aboard

their vessels. The owners or operators of

any such vessel must provide for

repayment of those costs by including

one-fourth of the estimated annual

observer fee as determined by the

Assistant Administrator in a L/C as

prescribed in § 600.518(b)(2). During the

fiscal year, payment will be withdrawn

from the L/C as required to cover

anticipated observer coverage for the

upcoming fishery. The Assistant

Administrator will reconcile any

differences between the estimated cost

and actual costs of observer coverage

within 90 days after the end of the fiscal

year.

(e) Financial assurances. (1) A foreign

nation, or the owners and operators of

certain vessels of that foreign nation,

may be required by the Assistant

Administrator to provide financial

assurances. Such assurances may be

required if—

(i) Civil and criminal penalties

assessed against fishing vessels of the

Nation have not effectively deterred

violations;

(ii) Vessels of that Nation have

engaged in fishing in the EEZ without

proper authorization to conduct such

activities;

(iii) The Nation’s vessel owners have

refused to answer administrative

charges or summons to appear in court;

or

(iv) Enforcement of Magnuson Act

civil or criminal judgments in the courts

of a foreign nation is unattainable.

(2) The level of financial assurances

will be guided by the level of penalties

assessed and costs to the U.S.

Government.

§ 600.520 Northwest Atlantic Ocean

fishery.

(a) Purpose. Sections 600.520 and

600.525 regulate all foreign fishing

conducted under a GIFA within the EEZ

in the Atlantic Ocean north of 35°00′ N.

lat.

(b) Authorized fishery—(1)

Allocations. Foreign vessels may engage

in fishing only in accordance with

applicable national allocations.

(2) Time and area restrictions. (i)

Fishing, including processing, scouting,

and support of foreign or U.S. vessels,

is prohibited south of 35°00′ N. lat., and

north and east of a line beginning at the

shore at 44°22′ N. lat., 67°52′ W. long.

and intersecting the boundary of the

EEZ at 44°11′12′′ N. lat., 67°16′46′′ W.

long.

(ii) The Regional Director will consult

with the Council prior to giving notice

of any area or time restriction. NMFS

will also consult with the USCG if the

restriction is proposed to reduce gear

conflicts. If NMFS determines after such

consultation that the restriction appears

to be appropriate, NMFS will publish

the proposed restriction in the Federal

Register, together with a summary of the

information on which the restriction is

based. Following a 30-day comment

period, NMFS will publish a final

action.

(iii) The Regional Director may

rescind any restriction if he/she

determines that the basis for the

restriction no longer exists.

(iv) Any notice of restriction shall

operate as a condition imposed on the

permit issued to the foreign vessels

involved in the fishery.

(3) TALFF. The TALFFs for the

fisheries of the Northwest Atlantic

Ocean are published in the Federal

Register. Current TALFFs are also

available from the Regional Director.

(4) Species definitions. The category

‘‘other finfish’’ used in TALFFs and in

allocations includes all species except:

(i) The other allocated species,

namely: Short-finned squid, long-finned

squid, Atlantic herring, Atlantic

mackerel, river herring (includes

alewife, blueback herring, and hickory

shad), and butterfish.

(ii) The prohibited species, namely:

American plaice, American shad,

Atlantic cod, Atlantic menhaden,

Atlantic redfish, Atlantic salmon, all

marlin, all spearfish, sailfish, swordfish,

black sea bass, bluefish, croaker,

haddock, ocean pout, pollock, red hake,

scup, sea turtles, sharks (except

dogfish), silver hake, spot, striped bass,

summer flounder, tilefish, yellowtail
32570 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

flounder, weakfish, white hake,

windowpane flounder, winter flounder,

witch flounder, Continental Shelf

fishery resources, and other

invertebrates (except nonallocated

squids).

(5) Closures. The taking of any species

for which a Nation has an allocation is

permitted, provided that:

(i) The vessels of the foreign nation

have not caught the allocation of that

Nation for any species or species group

(e.g., ‘‘other finfish’’). When vessels of a

foreign nation have caught an applicable

allocation of any species, all further

fishing other than scouting, processing,

or support by vessels of that Nation

must cease, even if other allocations

have not been reached. Therefore, it is

essential that foreign nations plan their

fishing strategy to ensure that the

reaching of an allocation for one species

does not result in the premature closing

of a Nation’s fishery for other allocated

species.

(ii) The fishery has not been closed for

other reasons under § 600.511.

(6) Allocation utilization. Foreign

fishing vessels may elect to retain or

discard allocated species; however, the

computation of allocation utilization

and fee refunds will be based on the

total quantity of that species that was

caught. Prohibited species must always

be returned to the sea as required under

§ 600.509.

(c) Fishing areas. For the purposes of

the Northwest Atlantic Ocean fishery,

fishing areas are that portion of the EEZ

shown inside the boundaries of the

‘‘three digit statistical areas’’ described

in Figure 1 to this section.

BILLING CODE 3510–22–W
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32571

Figure 1 to § 600.520—Fishing Areas of the Northwest Atlantic Ocean Fisheries

BILLING CODE 3510–22–C
32572 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

§ 600.525 Atlantic herring fishery.

(a) Initial specifications. The initial

specifications of OY, DAH, DAP, JVP,

TALFF, and reserve (if any) have been

established by the PMP for Atlantic

herring approved on July 6, 1995. These

annual specifications will remain in

effect unless adjusted pursuant to the

provisions specified in paragraph (b) of

this section.

(b) Procedures to adjust initial

specifications. NMFS may adjust these

initial specifications upward or

downward to produce the greatest

overall benefit to the United States at

any time prior to or during the fishing

years for which the initial specifications

are set by publishing notification in the

Federal Register with the reasons for

such adjustments. Any notice of

adjustment may provide for public

comment. Adjustments to the initial

specifications may take into account the

following information:

(1) The estimated domestic processing

capacity and extent to which it will be

used.;

(2) Landings and catch statistics.;

(3) Stock assessments.

(4) Relevant scientific information.

Subpart G—Preemption of State

Authority Under Section 306(b)

§ 600.605 General policy.

It is the policy of the Secretary that

preemption proceedings will be

conducted expeditiously. The

administrative law judge and counsel or

other representative for each party are

encouraged to make every effort at each

stage of the proceedings to avoid delay.

§ 600.610 Factual findings for Federal

preemption.

(a) The two factual findings for

Federal preemption of state

management authority over a fishery

are:

(1) The fishing in a fishery that is

covered by an FMP implemented under

the Magnuson Act is engaged in

predominately within the EEZ and

beyond such zone.

(2) A state has taken any action, or

omitted to take any action, the results of

which will substantially and adversely

affect the carrying out of such FMP.

(b) Whether fishing is engaged in

‘‘predominately’’ within or beyond the

EEZ will be determined after

consideration of relevant factors,

including but not limited to, the catch

(based on numbers, value, or weight of

fish caught, or other relevant factors) or

fishing effort during the appropriate

period, and in light of historical patterns

of the distribution of catch or fishing

effort for such stock or stocks of fish.

(c) Whether relevant effects are

substantial will be determined after

consideration of the magnitude of such

actual or potential effects. Relevant to

this determination are various factors,

including but not limited to, the

proportion of the fishery (stock or stocks

of fish and fishing for such stocks) that

is subject to the effects of a particular

state’s action or omission, the

characteristics and status (including

migratory patterns and biological

condition) of the stock or stocks of fish

in the fishery, and the similarity or

dissimilarity between the goals,

objectives, or policies of the state’s

action or omission and the management

goals or objectives specified in the FMP

for the fishery or between the state and

Federal conservation and management

measures of the fishery.

§ 600.615 Commencement of proceedings.

(a) Notice of proposed preemption. (1)

If a proceeding under this part is

deemed necessary, the Administrator

must issue a notice of proposed

preemption to the Attorney General of

the State or States concerned. The

notice will contain:

(i) A recital of the legal authority and

jurisdiction for instituting the

proceeding.

(ii) A concise statement of the

§ 600.610 factual findings for Federal

preemption upon which the notice is

based.

(iii) The time, place, and date of the

hearing.

(2) The notice of proposed

preemption will also be published in

the Federal Register. This notification

may be combined with any notice of

proposed rulemaking published under

paragraph (d)(1) of this section.

(b) Response. The state will have the

opportunity to respond in writing to the

notice of proposed preemption.

(c) Amendment. The Administrator

may, at any time prior to the Secretary’s

decision, withdraw the notice of

proposed preemption. Upon motion of

either party before the record is closed,

the administrative law judge may

amend the notice of proposed

preemption.

(d) Proposed regulations—(1) In

general. If additional regulations are

required to govern fishing within the

boundaries of a state, the Administrator

may publish proposed regulations in the

Federal Register concurrently with

issuing the notification indicated in

paragraph (a) of this section.

(2) Emergency actions. Nothing in this

section will prevent the Secretary from

taking emergency action under section

305(e) of the Magnuson Act.

§ 600.620 Rules pertaining to the hearing.

(a) The civil procedure rules of the

NOAA currently set forth in 15 CFR part

904, subpart C (or as subsequently

amended), apply to the proceeding after

its commencement by service of notice

(pursuant to § 600.615) and prior to the

Secretary’s decision (§ 600.625), except

that the following sections will not

apply:

(1) 15 CFR 904.201 (Definitions);

(2) 15 CFR 904.206(a)(1) (Duties and

powers of Judge); and

(3) 15 CFR 904.272 (Administrative

review of decision).

(b) Additional duties and powers of

judge—(1) Time periods. The

administrative law judge is authorized

to modify all time periods pertaining to

the course of the hearing (under

§§ 600.615 and 600.620) to expedite the

proceedings, upon application and

appropriate showing of need or

emergency circumstances by a party.

(2) Intervention. Intervention by

persons not parties is not allowed.

§ 600.625 Secretary’s decision.

(a) The Secretary will, on the basis of

the hearing, record the administrative

law judge’s recommended decision:

(1) Accept or reject any of the findings

or conclusions of the administrative law

judge and decide whether the factual

findings exist for Federal preemption of

a state’s authority within its boundaries

(other than in its internal waters) with

respect to the fishery in question;

(2) Reserve decision on the merits or

withdraw the notice of proposed

preemption; or

(3) Remand the case to the

administrative law judge for further

proceedings as may be appropriate,

along with a statement of reasons for the

remand.

(b) Notification. (1) If the factual

findings for Federal preemption are

determined to exist, the Secretary will

notify in writing the Attorney General of

that state and the appropriate Council(s)

of the preemption of that state’s

authority. The Secretary will also direct

the Administrator to promulgate

appropriate regulations proposed under

§ 600.615(d) and otherwise to begin

regulating the fishery within the state’s

boundaries (other than in its internal

waters).

(2) If the factual findings for Federal

preemption are determined not to exist,

the Secretary will notify, in writing, the

Attorney General of the state and the

appropriate Council(s) of that

determination. The Secretary will also

direct the Administrator to issue a

notice withdrawing any regulations

proposed under § 600.615(d).
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32573

§ 600.630 Application for reinstatement of

state authority.

(a) Application or notice. (1) At any

time after the promulgation of

regulations under § 600.625(b)(1) to

regulate a fishery within a state’s

boundaries, the affected state may apply

to the Secretary for reinstatement of

state authority. The Secretary may also

serve upon such state a notice of intent

to terminate such Federal regulation. A

state’s application must include a clear

and concise statement of:

(i) The action taken by the State to

correct the action or omission found to

have substantially and adversely

affected the carrying out of the FMP; or

(ii) Any changed circumstances that

affect the relationship of the state’s

action or omission to take action to the

carrying out of the FMP (including any

amendment to such plan); and

(iii) Any laws, regulations, or other

materials that the state believes support

the application.

(2) Any such application received by

the Secretary or notice issued to the

State will be published in the Federal

Register.

(b) Informal response. The Secretary

has sole discretion to accept or reject the

application or response. If the Secretary

accepts the application or rejects any

responses and finds that the reasons for

regulation of the fishery within the

boundaries of the state no longer

prevail, the Secretary will promptly

terminate such regulation and publish

in the Federal Register any regulatory

amendments necessary to accomplish

that end.

(c) Hearing. The Secretary has sole

discretion to direct the Administrator to

schedule hearings for the receipt of

evidence by an administrative law

judge. Hearings before the

administrative law judge to receive such

evidence will be conducted in

accordance with § 600.620. Upon

conclusion of such hearings, the

administrative law judge will certify the

record and a recommended decision to

the Secretary. If the Secretary, upon

consideration of the state’s application

or any response to the notice published

under § 600.630(a)(2), the hearing

record, the recommended decision, and

any other relevant materials finds that

the reasons for regulation of the fishery

within the boundaries of the state no

longer prevail, the Secretary will

promptly terminate such regulation and

publish in the Federal Register any

regulatory amendments necessary to

accomplish that end.

Subpart H—General Provisions for

Domestic Fisheries

§ 600.705 Relation to other laws.

(a) General. Persons affected by these

regulations should be aware that other

Federal and state statutes and

regulations may apply to their activities.

Vessel operators may wish to refer to

USCG regulations found in the Code of

Federal Regulations title 33—Navigation

and Navigable Waters and 46—

Shipping; 15 CFR part 904, subpart D—

Permit Sanctions and Denials; and title

43—Public Lands (in regard to marine

sanctuaries).

(b) State responsibilities. Certain

responsibilities relating to data

collection and enforcement may be

performed by authorized state personnel

under a state/Federal agreement for data

collection and a tripartite agreement

among the state, the USCG, and the

Secretary for enforcement.

(c) Submarine cables. Fishing vessel

operators must exercise due care in the

conduct of fishing activities near

submarine cables. Damage to the

submarine cables resulting from

intentional acts or from the failure to

exercise due care in the conduct of

fishing operations subjects the fishing

vessel operator to the criminal penalties

prescribed by the Submarine Cable Act

(47 U.S.C. 21) which implements the

International Convention for the

Protection of Submarine Cables. Fishing

vessel operators also should be aware

that the Submarine Cable Act prohibits

fishing operations at a distance of less

than 1 nautical mile (1.85 km) from a

vessel engaged in laying or repairing a

submarine cable; or at a distance of less

than 0.25 nautical mile (0.46 km) from

a buoy or buoys intended to mark the

position of a cable when being laid or

when out of order or broken.

(d) Marine mammals. Regulations

governing exemption permits and the

recordkeeping and reporting of the

incidental take of marine mammals are

set forth in part 229 of this title.

(e) Halibut fishing. Fishing for halibut

is governed by regulations of the

International Pacific Halibut

Commission set forth at part 300 of this

title.

(f) Marine sanctuaries. All fishing

activity, regardless of species sought, is

prohibited under 15 CFR part 924 in the

U.S.S. Monitor Marine Sanctuary,

which is located approximately 15 miles

southwest of Cape Hatteras off the coast

of North Carolina.

§ 600.710 Permits.

Regulations pertaining to permits

required for certain fisheries are set

forth in the parts of this chapter

governing those fisheries.

§ 600.715 Recordkeeping and reporting.

Regulations pertaining to records and

reports required for certain fisheries are

set forth in the parts of this chapter

governing those fisheries.

§ 600.720 Vessel and gear identification.

Regulations pertaining to special

vessel and gear markings required for

certain fisheries are set forth in the parts

of this chapter governing those fisheries.

§ 600.725 General prohibitions.

It is unlawful for any person to do any

of the following:

(a) Possess, have custody or control

of, ship, transport, offer for sale, sell,

purchase, land, import, or export, any

fish or parts thereof taken or retained in

violation of the Magnuson Act or any

other statute administered by NOAA

and/or any regulation or permit issued

under the Magnuson Act.

(b) Transfer or attempt to transfer,

directly or indirectly, any U.S.-

harvested fish to any foreign fishing

vessel, while such vessel is in the EEZ,

unless the foreign fishing vessel has

been issued a permit under section 204

of the Magnuson Act, which authorizes

the receipt by such vessel of U.S.-

harvested fish.

(c) Fail to comply immediately with

enforcement and boarding procedures

specified in § 600.730.

(d) Refuse to allow an authorized

officer to board a fishing vessel or to

enter areas of custody for purposes of

conducting any search, inspection, or

seizure in connection with the

enforcement of the Magnuson Act or

any other statute administered by

NOAA.

(e) Dispose of fish or parts thereof or

other matter in any manner, after any

communication or signal from an

authorized officer, or after the approach

by an authorized officer or an

enforcement vessel or aircraft.

(f) Assault, resist, oppose, impede,

intimidate, threaten, or interfere with

any authorized officer in the conduct of

any search, inspection, or seizure in

connection with enforcement of the

Magnuson Act or any other statute

administered by NOAA.

(g) Interfere with, delay, or prevent by

any means, the apprehension of another

person, knowing that such person has

committed any act prohibited by the

Magnuson Act or any other statute

administered by NOAA.

(h) Resist a lawful arrest for any act

prohibited under the Magnuson Act or

any other statute administered by

NOAA.
32574 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

(i) Make any false statement, oral or

written, to an authorized officer

concerning the taking, catching,

harvesting, landing, purchase, sale, offer

of sale, possession, transport, import,

export, or transfer of any fish, or

attempts to do any of the above.

(j) Interfere with, obstruct, delay, or

prevent by any means an investigation,

search, seizure, or disposition of seized

property in connection with

enforcement of the Magnuson Act or

any other statute administered by

NOAA.

(k) Fish in violation of the terms or

conditions of any permit or

authorization issued under the

Magnuson Act or any other statute

administered by NOAA.

(l) Fail to report catches as required

while fishing pursuant to an exempted

fishing permit.

(m) On a scientific research vessel,

engage in fishing other than recreational

fishing authorized by applicable state or

Federal regulations.

(n) Trade, barter, or sell; or attempt to

trade, barter, or sell fish possessed or

retained while fishing pursuant to an

authorization for an exempted

educational activity.

(o) Harass or sexually harass an

authorized officer or an observer.

(p) It is prohibited to violate any other

provision of this part, the Magnuson Act

or any other statute administered by

NOAA, any notice issued under this

part, or any other regulation

promulgated under the Magnuson Act

or any other statute administered by

NOAA.

§ 600.730 Facilitation of enforcement.

(a) General. The operator of, or any

other person aboard, any fishing vessel

subject to parts 625 through 699 of this

chapter must immediately comply with

instructions and signals issued by an

authorized officer to stop the vessel and

with instructions to facilitate safe

boarding and inspection of the vessel,

its gear, equipment, fishing record

(where applicable), and catch for

purposes of enforcing the Magnuson Act

or any other statute administered by

NOAA and this chapter.

(b) Communications. (1) Upon being

approached by a USCG vessel or

aircraft, or other vessel or aircraft with

an authorized officer aboard, the

operator of a fishing vessel must be alert

for communications conveying

enforcement instructions.

(2) VHF–FM radiotelephone is the

preferred method for communicating

between vessels. If the size of the vessel

and the wind, sea, and visibility

conditions allow, a loudhailer may be

used instead of the radio. Hand signals,

placards, high frequency

radiotelephone, or voice may be

employed by an authorized officer, and

message blocks may be dropped from an

aircraft.

(3) If other communications are not

practicable, visual signals may be

transmitted by flashing light directed at

the vessel signaled. USCG units will

normally use the flashing light signal

‘‘L’’ as the signal to stop. In the

International Code of Signals, ‘‘L’’ (.–..)

means ‘‘you should stop your vessel

instantly.’’ (Period (.) means a short

flash of light; dash (–) means a long

flash of light.)

(4) Failure of a vessel’s operator

promptly to stop the vessel when

directed to do so by an authorized

officer using loudhailer, radiotelephone,

flashing light signal, or other means

constitutes prima facie evidence of the

offense of refusal to permit an

authorized officer to board.

(5) The operator of a vessel who does

not understand a signal from an

enforcement unit and who is unable to

obtain clarification by loudhailer or

radiotelephone must consider the signal

to be a command to stop the vessel

instantly.

(c) Boarding. The operator of a vessel

directed to stop must:

(1) Guard Channel 16, VHF–FM, if so

equipped.

(2) Stop immediately and lay to or

maneuver in such a way as to allow the

authorized officer and his/her party to

come aboard.

(3) Except for those vessels with a

freeboard of 4 ft (1.2 m) or less, provide

a safe ladder, if needed, for the

authorized officer and his/her party to

come aboard.

(4) When necessary to facilitate the

boarding or when requested by an

authorized officer or observer, provide a

manrope or safety line, and illumination

for the ladder.

(5) Take such other actions as

necessary to facilitate boarding and to

ensure the safety of the authorized

officer and the boarding party.

(d) Signals. The following signals,

extracted from the International Code of

Signals, may be sent by flashing light by

an enforcement unit when conditions

do not allow communications by

loudhailer or radiotelephone.

Knowledge of these signals by vessel

operators is not required. However,

knowledge of these signals and

appropriate action by a vessel operator

may preclude the necessity of sending

the signal ‘‘L’’ and the necessity for the

vessel to stop instantly. (Period (.)

means a short flash of light; dash (-)

means a long flash of light.)

(1) ‘‘AA’’ repeated (.-.-) is the call to

an unknown station. The operator of the

signaled vessel should respond by

identifying the vessel by radiotelephone

or by illuminating the vessel’s

identification.

(2) ‘‘RY–CY’’ (.-. -.— -.-. -.—) means

‘‘you should proceed at slow speed, a

boat is coming to you.’’ This signal is

normally employed when conditions

allow an enforcement boarding without

the necessity of the vessel being boarded

coming to a complete stop, or, in some

cases, without retrieval of fishing gear

which may be in the water.

(3) ‘‘SQ3’’ (... —.- ...—) means ‘‘you

should stop or heave to; I am going to

board you.’’

§ 600.735 Penalties.

Any person committing, or fishing

vessel used in the commission of a

violation of the Magnuson Act or any

other statute administered by NOAA

and/or any regulation issued under the

Magnuson Act, is subject to the civil

and criminal penalty provisions and

civil forfeiture provisions of the

Magnuson Act, to this section, to 15

CFR part 904 (Civil Procedures), and to

other applicable law.

§ 600.740 Enforcement policy.

(a) The Magnuson Act provides four

basic enforcement remedies for

violations, in ascending order of

severity, as follows:

(1) Issuance of a citation (a type of

warning), usually at the scene of the

offense (see 15 CFR part 904, subpart E).

(2) Assessment by the Administrator

of a civil money penalty.

(3) For certain violations, judicial

forfeiture action against the vessel and

its catch.

(4) Criminal prosecution of the owner

or operator for some offenses. It shall be

the policy of NMFS to enforce

vigorously and equitably the provisions

of the Magnuson Act by utilizing that

form or combination of authorized

remedies best suited in a particular case

to this end.

(b) Processing a case under one

remedial form usually means that other

remedies are inappropriate in that case.

However, further investigation or later

review may indicate the case to be

either more or less serious than initially

considered, or may otherwise reveal that

the penalty first pursued is inadequate

to serve the purposes of the Magnuson

Act. Under such circumstances, the

Agency may pursue other remedies

either in lieu of or in addition to the

action originally taken. Forfeiture of the

illegal catch does not fall within this

general rule and is considered in most

cases as only the initial step in
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32575

remedying a violation by removing the

ill-gotten gains of the offense.

(c) If a fishing vessel for which a

permit has been issued under the

Magnuson Act is used in the

commission of an offense prohibited by

section 307 of the Magnuson Act,

NOAA may impose permit sanctions,

whether or not civil or criminal action

has been undertaken against the vessel

or its owner or operator. In some cases,

the Magnuson Act requires permit

sanctions following the assessment of a

civil penalty or the imposition of a

criminal fine. In sum, the Magnuson Act

treats sanctions against the fishing

vessel permit to be the carrying out of

a purpose separate from that

accomplished by civil and criminal

penalties against the vessel or its owner

or operator.

§ 600.745 Scientific research activity,

exempted fishing, and exempted

educational activity.

(a) Scientific research activity.

Nothing in this section is intended to

inhibit or prevent any scientific research

activity conducted by a scientific

research vessel. Persons planning to

conduct scientific research activities in

the EEZ are encouraged to submit to the

appropriate Regional Director, Director,

or designee, 60 days or as soon as

practicable prior to its start, a scientific

research plan for each scientific cruise.

The Regional Director, Director, or

designee 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 required by

any other applicable law. If the Regional

Director, Director, or designee, after

review of a research plan, determines

that it does not constitute scientific

research but rather fishing, the Regional

Director, Director, or designee will

inform the applicant as soon as

practicable and in writing. The Regional

Director, Director, or designee may also

make recommendations to revise the

research plan to make the cruise

acceptable as scientific research activity

or recommend the applicant request an

EFP. In order to facilitate identification

of 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. Activities conducted in

accordance with a scientific research

plan acknowledged by such a letter are

presumed to be scientific research

activity. The presumption may be

overcome 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) Exempted fishing.—(1) General. A

NMFS Regional Director or Director may

authorize, for limited testing, public

display, data collection, exploratory,

health and safety, 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 Director or Director in

accordance with the criteria and

procedures specified in this section. The

Regional Director 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 Director or

Director to find out the applicable fee.

(2) Application. An applicant for an

EFP shall submit a completed

application package to the appropriate

Regional Director or Director, as soon as

practicable and at least 60 days before

the desired effective date of the EFP.

Submission of an EFP application less

than 60 days before the desired effective

date of the EFP may result in a delayed

effective date because of review

requirements. The application package

must include payment of any required

fee as specified by paragraph (b)(1) of

this section, and a written application

that includes, but is not limited to, the

following information:

(i) The date of the application.

(ii) The applicant’s name, mailing

address, and telephone number.

(iii) A statement of the purposes and

goals of the exempted fishery for which

an EFP is needed, including justification

for issuance of the EFP.

(iv) For each vessel to be covered by

the EFP, as soon as the information is

available and before operations begin

under the EFP:

(A) A copy of the USCG

documentation, state license, or

registration of each vessel, or the

information contained on the

appropriate document.

(B) The current name, address, and

telephone number of the owner and

master, if not included on the document

provided for the vessel.

(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

marine mammals or endangered species.

(vi) For each vessel covered by the

EFP, the approximate time(s) and

place(s) fishing will take place, and the

type, size, and amount of gear to be

used.

(vii) The signature of the applicant.

(viii) The Regional Director or

Director, as appropriate, may request

from an applicant additional

information necessary to make the

determinations required under this

section. An incomplete application or

an application for which the appropriate

fee has not been paid will not be

considered until corrected in writing

and the fee paid. An applicant for an

EFP need not be the owner or operator

of the vessel(s) for which the EFP is

requested.

(3) Issuance. (i) The Regional Director

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 Director or Director finds

that any application does not 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 Director 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, and the intent of NMFS to

issue an EFP. Interested persons will be

given a 15- to 45-day opportunity to

comment and/or comments will be

requested during public testimony at a

Council meeting. 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 Director or

Director also will forward copies of the

application to the Council(s), the USCG,

and the appropriate fishery management

agencies of affected states, accompanied

by the following information:

(A) The effect of the proposed EFP on

the target and incidental species,

including the effect on any TAC.

(B) A citation of the regulation or

regulations that, without the EFP, would

prohibit the proposed activity.

(C) Biological information relevant to

the proposal, including appropriate

statements of environmental impacts,

including impacts on marine mammals

and threatened or endangered species.
32576 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

(ii) If the application is complete and

warrants additional consultation, the

Regional Director 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 Director or Regional Director shall

notify the applicant in advance of any

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 responses from 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 Director or

Director shall notify the applicant in

writing of the decision to grant or deny

the EFP, and, if denied, the reasons for

the denial. Grounds for denial of an EFP

include, but are not limited to, the

following:

(A) The applicant has failed to

disclose material information required,

or has made false statements as to any

material fact, in connection with his or

her application; or

(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, or threatened or

endangered species in a significant way;

or

(C) Issuance of the EFP would have

economic allocation as its sole purpose;

or

(D) Activities to be conducted under

the EFP would be inconsistent with the

intent of this section, the management

objectives of the FMP, or other

applicable law; or

(E) The applicant has failed to

demonstrate a valid justification for the

permit; or

(F) The activity proposed under the

EFP could create a significant

enforcement problem.

(iv) The decision of a Regional

Director or Director to grant or deny an

EFP is the final action of NMFS. If the

permit, as granted, is significantly

different from the original application,

or is denied, NMFS may publish

notification in the Federal Register

describing the exempted fishing to be

conducted under the EFP or the reasons

for denial.

(v) The Regional Director or Director

may attach terms and conditions to the

EFP consistent with the purpose of the

exempted fishing, including, but not

limited to:

(A) The maximum amount of each

regulated species that can be harvested

and landed during the term of the EFP,

including trip limitations, where

appropriate.

(B) The number, size(s), name(s), and

identification number(s) of the vessel(s)

authorized to conduct fishing activities

under the EFP.

(C) The time(s) and place(s) where

exempted fishing may be conducted.

(D) The type, size, and amount of gear

that may be used by each vessel

operated under the EFP.

(E) The condition that observers, a

vessel monitoring system, or other

electronic equipment be carried on

board vessels operated under an EFP,

and any necessary conditions, such as

predeployment notification

requirements.

(F) Reasonable data reporting

requirements.

(G) Other conditions as may be

necessary to assure compliance with the

purposes of the EFP, consistent with the

objectives of the FMP and other

applicable law.

(H) Provisions for public release of

data obtained under the EFP that are

consistent with NOAA confidentiality of

statistics procedures at set out in

subpart E. An applicant may be required

to waive the right to confidentiality of

information gathered while conducting

exempted fishing as a condition of an

EFP.

(4) Duration. Unless otherwise

specified in the EFP or a superseding

notice or regulation, an EFP is effective

for no longer than 1 year, unless

revoked, suspended, or modified. EFPs

may be renewed following the

application procedures in this section.

(5) Alteration. Any permit that has

been altered, erased, or mutilated is

invalid.

(6) Transfer. EFPs issued under this

section are not transferable or

assignable. An EFP is valid only for the

vessel(s) for which it is issued.

(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.

(8) Sanctions. Failure of a permittee to

comply with the terms and conditions

of an EFP may be grounds for

revocation, suspension, or modification

of the EFP with respect to all persons

and vessels conducting activities under

the EFP. Any action taken to revoke,

suspend, or modify an EFP for

enforcement purposes will be governed

by 15 CFR part 904, subpart D.

(c) Reports. (1) Persons conducting

scientific research activity are requested

to submit a copy of any cruise report or

other publication created as a result of

the cruise, including the amount,

composition, and disposition of their

catch, to the appropriate Science and

Research Director.

(2) Persons fishing under an EFP are

required to report their catches to the

appropriate Regional Director or

Director, as specified in the EFP.

(d) Exempted educational activities—

(1) General. A NMFS Regional Director

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

decision of a Regional Director 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 Director or Director in

accordance with the criteria and

procedures specified in this section.

Such authorization will be issued

without charge.

(2) Application. An applicant for an

exempted educational activity

authorization shall submit to the

appropriate Regional Director or

Director, at least 15 days before the

desired effective date of the

authorization, a written application that

includes, but is not limited to, the

following information:

(i) The date of the application.

(ii) The applicant’s name, mailing

address, and telephone number.

(iii) A brief statement of the purposes

and goals of the exempted educational

activity for which authorization is

requested, including a general

description of the arrangements for

disposition of all species collected.

(iv) Evidence that the sponsoring

institution is a valid educational

institution, such as accreditation by a

recognized national or international

accreditation body.

(v) The scope and duration of the

activity.

(vi) For each vessel to be covered by

the authorization:

(A) A copy of the U.S. Coast Guard

documentation, state license, or

registration of the vessel, or the

information contained on the

appropriate document.

(B) The current name, address, and

telephone number of the owner and

master, if not included on the document

provided for the vessel.

(vii) The species and amounts

expected to be caught during the

exempted educational activity.

(viii) For each vessel covered by the

authorization, the approximate time(s)

and place(s) fishing will take place, and
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32577

the type, size, and amount of gear to be

used.

(ix) The signature of the applicant.

(x) The Regional Director or Director

may request from an applicant

additional information necessary to

make the determinations required under

this section. An incomplete application

will not be considered until corrected in

writing.

(3) Issuance. (i) The Regional Director

or Director, as appropriate, will review

each application and will make a

determination whether the application

contains all of the required information,

is consistent with the goals, objectives,

and requirements of the FMP or

regulations and other applicable law,

and constitutes a valid exempted

educational activity. The applicant will

be notified in writing of the decision

within 5 working days of receipt of the

application.

(ii) The Regional Director or Director

may attach terms and conditions to the

authorization, consistent with the

purpose of the exempted educational

activity, including, but not limited to:

(A) The maximum amount of each

regulated species that may be harvested.

(B) The time(s) and place(s) where the

exempted educational activity may be

conducted.

(C) The type, size, and amount of gear

that may be used by each vessel

operated under the authorization.

(D) Reasonable data reporting

requirements.

(E) Such other conditions as may be

necessary to assure compliance with the

purposes of the authorization,

consistent with the objectives of the

FMP or regulations.

(F) Provisions for public release of

data obtained under the authorization,

consistent with NOAA confidentiality of

statistics procedures in subpart E. An

applicant may be required to waive the

right to confidentiality of information

gathered while conducting exempted

educational activities as a condition of

the authorization.

(iii) The authorization will specify the

scope of the authorized activity and will

include, at a minimum, the duration,

vessel(s), species and gear involved in

the activity, as well as any additional

terms and conditions specified under

paragraph (d)(3)(ii) of this section.

(4) Duration. Unless otherwise

specified, authorization for an exempted

educational activity is effective for no

longer than 1 year, unless revoked,

suspended, or modified. Authorizations

may be renewed following the

application procedures in this section.

(5) Alteration. Any authorization that

has been altered, erased, or mutilated is

invalid.

(6) Transfer. Authorizations issued

under this paragraph (d) are not

transferable or assignable.

(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 possession of the

applicant to which it was issued 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.

PARTS 601, 602, 603, 605, 611, 619,

620, and 621 [REMOVED]

4. Under the authority of 16 U.S.C.

1801 et seq., parts 601, 602, 603, 605,

611, 619, 620, and 621 are removed.

[FR Doc. 96–15767 Filed 6–21–96; 8:45 am]

BILLING CODE 3510–22–W