[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32538-32577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15767]
[[Page 32537]]
_______________________________________________________________________
Part III
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Part 902; 50 CFR Part 600 et al.
Magnuson Act Provisions; Consolidation and Update of Regulations;
Collection-of-Information Approval; Final Rule
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules
and Regulations
[[Page 32538]]
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.
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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order, duplicative and outdated provisions are eliminated, and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-of-information 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-consecutive-term 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 Sec. 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 Sec. 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,
[[Page 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 Sec. 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 Sec. 600.205(b) to eliminate the reference to
subordinate.
(2) Revised Sec. 600.10 definition of ``authorized officer'' to
include ``any other statute administered by NOAA.''
(3) Added definitions to Sec. 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 Sec. 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 Sec. 600.10 definition of ``round weight'' to include
``before processing or removal of any part.''
(6) Revised Sec. 600.10 definition of ``state'' by adding ``the
Northern Mariana Islands.''
(7) Removed definition for ``state employee'' from Sec. 600.10
because the deletion of reference to ``subordinate'' in Sec. 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 Sec. 600.210(a) to count service of 18 months or more
during a term as service for the entire term.
(10) Revised Sec. 600.210(c) to clarify the current procedures for
reappointment after a Council member has served three consecutive
terms.
(11) Revised Sec. 600.215(g)(3) to clarify the current procedures
for filling an at-large vacancy.
(12) Deleted Secs. 600.507 (f) and (g) and combined text with
Secs. 600.507 (h) and (i).
(13) Added ``or any other statute administered by NOAA'' to
Secs. 600.725 (a), (d), (f), (g), (j), and (k) after Magnuson Act.
(14) Added a general prohibition to Sec. 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 Sec. 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-of-information requirements subject
to the Paperwork Reduction Act (PRA).
Approved Collection-of-Information Requirements
The following collection-of-information 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
[[Page 32540]]
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-of-information 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 Sec. 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:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB control number
CFR part or section where the information (all numbers begin with 0648-
collection requirement is located )
------------------------------------------------------------------------
* * * * *
50 CFR
* * * * *
600.205................................. -0314
600.215................................. -0314
600.235................................. -0192
600.501................................. -0089
600.502................................. -0075
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.
[[Page 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.
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
[[Page 32542]]
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,
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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 Sec. 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 Sec. 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 Sec. 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. At-sea 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
[[Page 32544]]
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 straight-line 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.
Sec. 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
Sec. 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 deg.18'16.249'' N. lat. and 71 deg.54'28.477'' W. long. and proceeds
south 37 deg.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 deg.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 deg.00'
W. long., proceeds northward along that meridian to 24 deg.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.
Sec. 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
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``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.
Sec. 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.
Sec. 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.
Sec. 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.)
Sec. 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 Sec. 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
Sec. 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.
Sec. 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.
Sec. 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;
[[Page 32546]]
(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 at-large 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 at-large 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.
Sec. 600.220 Oath of office.
Each member appointed to a Council must take an oath of office.
Sec. 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.
[[Page 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 Sec. 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 Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
[[Page 32548]]
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
Sec. 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.
Sec. 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,
[[Page 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 Sec. 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 mixed-species fishery.
Since MSY is a long-term 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 Sec. 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
[[Page 32550]]
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 large-scale
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.
[[Page 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.
Sec. 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 Secs. 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.
Sec. 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
[[Page 32552]]
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.
Sec. 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,
per-vessel 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
[[Page 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.
Sec. 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 Sec. 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 limited-entry 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.
Sec. 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
[[Page 32554]]
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 policy-setter 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.
Sec. 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
Sec. 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 self-regulation, 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
[[Page 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
Sec. 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.
Sec. 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.
Sec. 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 Sec. 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 non-
confidential 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.
Sec. 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.
Sec. 600.425 Release of statistics.
(a) The Assistant Administrator will not release to the public any
statistics
[[Page 32556]]
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
Sec. 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 Sec. 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 Sec. 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
[[Page 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 Sec. 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.
Sec. 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
[[Page 32558]]
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-by-vessel basis. Requests for
corrections to previous reports must be submitted through the Nation's
designated representative and mailed or hand-delivered, together with a
written explanation of the reasons for the errors. The appropriate
Regional or Science and Research Director may accept or
[[Page 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 Sec. 600.502.--Addresses
------------------------------------------------------------------------
NMFS science and U.S. Coast Guard
NMFS regional directors research directors commanders
------------------------------------------------------------------------
Director, Northeast Region, Director, Northeast Commander, Atlantic
National Marine Fisheries Fisheries Science Area, U.S. Coast
Service, NOAA, One Center, National Guard, 431 Crawford
Blackburn drive, Marine Fisheries Street, Portsmouth,
Gloucester, MA 01930-2298. Service, NOAA, 166 VA 23704.
Water Street, Woods
Hole, MA 02543-1097.
Director, Southeast Region, Director, Southeast Commander, Atlantic
National Marine Fisheries Fisheries Science Area, U.S. Coast
Service, NOAA, 9721 Exec. Center, National Guard, Governor's
Center Drive N., St. Marine Fisheries Island, New York,
Petersburg, FL 33702. Service, NOAA, 75 NY 10004.
Virginia Beach
Drive, Miami, FL
33149-1003.
Director, Northwest Region, Director, Northwest Commander, Pacific
National Marine Fisheries Fisheries Science Area, U.S. Coast
Service, NOAA, 7600 Sand Center, National Guard, Government
Point Way, NE, BIN C15700, Marine Fisheries Island, Alameda, CA
Bldg. 1, Seattle, WA 98115. Service, NOAA, 2725 94501.
Montlake Boulevard
East, Seattle, WA
98112-2097.
Director, Alaska Region, Director, Alaska Commander,
National Marine Fisheries Fisheries Science Seventeenth Coast
Service, NOAA, P.O. Box Center, National Guard District,
21668, Juneau, AK 99802- Marine Fisheries P.O. Box 25517,
1668. Service, NOAA, 7600 Juneau, AK 99802.
Sand Point Way, NE,
BIN C15700, Bldg.
4, Seattle, WA
98115-0070.
Director, Southwest Region Director, Southwest Commander,
National Marine Fisheries Fisheries Science Fourteenth Coast
Service, NOAA, 501 West Center, National Guard District, 300
Ocean Blvd, Suite 4200, Marine Fisheries Ala Moana Blvd.,
Long Beach, CA 90802-4213. Service, NOAA, P.O. Honolulu, HI 96850.
Box 271, La Jolla,
CA 92038-0271.
------------------------------------------------------------------------
Table 2 to Sec. 600.502.--Areas of Responsibility of NMFS and U.S.
Coast Guard Offices
------------------------------------------------------------------------
Area of responsibility/ National Marine
fishery Fisheries Service U.S. Coast Guard
------------------------------------------------------------------------
Atlantic Ocean North of Cape Director, Northeast Commander, Atlantic
Hatteras. Center, Attn: Area.
Observer Program.
Atlantic Ocean South of Cape Director, Northeast Commander, Atlantic
Hatteras. Center, Attn: Area.
Observer Program.
Atlantic Tunas, Swordfish, Director, Office of Commander, Atlantic
Billfish and Sharks. Fisheries Area.
Conservation and
Management.
Gulf of Mexico and Caribbean Director, Southeast Commander, Atlantic
Sea. Region. Area.
Pacific Ocean off the States Director, Northwest Commander, Pacific
of California, Oregon, and Region. Area.
Washington.
North Pacific Ocean and Director, Alaska Commander,
Bering Sea off Alaska. Region. Seventeenth Coast
Guard District.
[[Page 32560]]
Pacific Ocean off Hawaii and Director, Southwest Commander,
Other U.S. Insular Region. Fourteenth Coast
Possessions in the Central Guard District.
and Western Pacific.
------------------------------------------------------------------------
Table 3 to Sec. 600.502.--U.S. Coast Guard Communications Stations and Frequencies
----------------------------------------------------------------------------------------------------------------
Radiotelephone
U.S. Coast Guard communications ---------------------------------------------------------------------------
station 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, NMC A-D All.
CA).
...................... 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
------------------------------------------------------------------------
Sec. 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
[[Page 32561]]
displayed for the FFV's activity and are properly functioning.
Sec. 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 Sec. 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 Sec. 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 deg.. 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
[[Page 32562]]
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 non-product 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.
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 600.511;
(25) Fail to maintain health and safety standards set forth in
Sec. 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 Sec. 600.501.
Sec. 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 Sec. 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
[[Page 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, rocket-propelled, 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 Sec. 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
[[Page 32564]]
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
Sec. 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
Sec. 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).
[[Page 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.
Sec. 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 Sec. 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 Sec. 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
[[Page 32566]]
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 Sec. 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
[[Page 32567]]
Director and the USCG commander (see tables 1 and 2 to Sec. 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.
Sec. 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 Sec. 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.
Sec. 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.
Sec. 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
Sec. 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 Sec. 600.502, and give the
information required in paragraph (b) of this section.
Sec. 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 Sec. 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 Sec. 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
[[Page 32568]]
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 Sec. 600.518(b)(2) is
reestablished.
Sec. 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.
Sec. 600.513 Recreational fishing.
(a) Foreign vessels conducting recreational fishing must comply
only with this section, and Secs. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 600.518 Fee schedule for foreign fishing.
(a) Permit application fees. Each vessel permit application
submitted under Sec. 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
[[Page 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]
------------------------------------------------------------------------
Poundage
Species fees 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 Sec. 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 Sec. 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.
Sec. 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 deg.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 deg.00' N. lat., and north and east of a line beginning at the
shore at 44 deg.22' N. lat., 67 deg.52' W. long. and intersecting the
boundary of the EEZ at 44 deg.11'12'' N. lat., 67 deg.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
[[Page 32570]]
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
Sec. 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 Sec. 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
[[Page 32571]]
Figure 1 to Sec. 600.520--Fishing Areas of the Northwest Atlantic
Ocean Fisheries
[GRAPHIC] [TIFF OMITTED] TR24JN96.000
BILLING CODE 3510-22-C
[[Page 32572]]
Sec. 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)
Sec. 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.
Sec. 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.
Sec. 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 Sec. 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.
Sec. 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
Sec. 600.615) and prior to the Secretary's decision (Sec. 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 Secs. 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.
Sec. 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 Sec. 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
Sec. 600.615(d).
[[Page 32573]]
Sec. 600.630 Application for reinstatement of state authority.
(a) Application or notice. (1) At any time after the promulgation
of regulations under Sec. 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
Sec. 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
Sec. 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
Sec. 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.
Sec. 600.710 Permits.
Regulations pertaining to permits required for certain fisheries
are set forth in the parts of this chapter governing those fisheries.
Sec. 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.
Sec. 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.
Sec. 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 Sec. 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.
[[Page 32574]]
(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.
Sec. 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.''
Sec. 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.
Sec. 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
[[Page 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.
Sec. 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.
[[Page 32576]]
(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
[[Page 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
