5 Part 600—Magnuson-Stevens Act

PART 600—MAGNUSON-STEVENS 600.350 National Standard 9—Bycatch. 600.355 National Standard 10—Safety of Life ACT PROVISIONS at Sea.

Subpart A—General Subpart E—Confidentiality of Statistics Sec. 600.405 Types of statistics covered. 600.5 Purpose and scope. 600.410 Collection and maintenance of sta- 600.10 Definitions. tistics. 600.15 Other acronyms. 600.415 Access to statistics. 600.420 Control system. Subpart B—Regional Fishery Management 600.425 Release of statistics. Councils 600.105 Intercouncil boundaries. Subpart F—Foreign Fishing 600.110 Intercouncil fisheries. 600.501 Vessel permits. 600.115 Statement of organization, prac- 600.502 Vessel reports. tices, and procedures (SOPP). 600.503 Vessel and gear identification. 600.117 Council coordination committee 600.504 Facilitation of enforcement. (CCC). 600.505 Prohibitions. 600.120 Employment practices. 600.506 Observers. 600.125 Budgeting, funding, and accounting. 600.507 Recordkeeping. 600.130 Protection of confidentiality of sta- 600.508 Fishing operations. tistics. 600.509 Prohibited species. 600.133 Scientific and Statistical Committee 600.510 Gear avoidance and disposal. (SSC). 600.511 Fishery closure procedures. 600.134 Stipends. 600.512 Scientific research. 600.135 Meeting procedures. 600.513 Recreational fishing. 600.140 Procedure for proposed regulations. 600.514 Relation to other laws. 600.150 Disposition of records. 600.515 Interpretation of 16 U.S.C. 1857(4). 600.155 Freedom of Information Act (FOIA) 600.516 Total allowable level of foreign fish- requests. ing (TALFF). 600.517 Allocations. Subpart C—Council Membership 600.518 Fee schedule for foreign fishing. 600.205 Principal state officials and their 600.520 Northwest Atlantic Ocean fishery. designees. 600.525 Applicability of Subpart F to Cana- 600.207 Pacific Fishery Management Council dian Albacore Fishing Vessels off the Tribal Indian representative and alter- West Coast. nate. 600.530 Pacific albacore fishery. 600.210 Terms of Council members. 600.215 Council nomination and appoint- Subpart G—Preemption of State Authority ment procedures. Under Section 306(b) 600.220 Oath of office. 600.225 Rules of conduct. 600.605 General policy. 600.227 Lobbying. 600.610 Factual findings for Federal preemp- 600.230 Removal. tion. 600.235 Financial disclosure. 600.615 Commencement of proceedings. 600.240 Security assurances. 600.620 Rules pertaining to the hearing. 600.245 Council member compensation. 600.625 Secretary’s decision. 600.250 Council member training. 600.630 Application for reinstatement of state authority. Subpart D—National Standards Subpart H—General Provisions for 600.305 General. Domestic Fisheries 600.310 National Standard 1—Optimum Yield. 600.705 Relation to other laws. 600.315 National Standard 2—Scientific In- 600.710 Permits. formation. 600.715 Recordkeeping and reporting. 600.320 National Standard 3—Management 600.720 Vessel and gear identification. Units. 600.725 General prohibitions. 600.325 National Standard 4—Allocations. 600.730 Facilitation of enforcement. 600.330 National Standard 5—Efficiency. 600.735 Penalties. 600.335 National Standard 6—Variations and 600.740 Enforcement policy. Contingencies. 600.745 Scientific research activity, exempt- 600.340 National Standard 7—Costs and Ben- ed fishing, and exempted educational ac- efits. tivity. 600.345 National Standard 8—Communities. 600.746 Observers.

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600.747 Guidelines and procedures for deter- 600.1012 Reduction loan. mining new fisheries and gear. 600.1013 Fee payment and collection. 600.1014 Fee collection deposits, disburse- Subpart I—Fishery Negotiation Panels ments, records, and reports. 600.1015 Late charges. 600.750 Definitions. 600.1016 Enforcement. 600.751 Determination of need for a fishery 600.1017 Prohibitions and penalties. negotiation panel. 600.752 Use of conveners and facilitators. Subpart M—Specific Fishery or Program 600.753 Notice of intent to establish a fish- Fishing Capacity Reduction Regulations ery negotiation panel. 600.754 Decision to establish a fishery nego- 600.1100 General. [Reserved] tiation panel. 600.1101 Inshore fee system for repayment of 600.755 Establishment of a fishery negotia- the loan to harvesters of Pollock from tion panel. the directed fishing allowance allocated 600.756 Conduct and operation of a fishery to the inshore component under section negotiation panel. 206(b)(1) of the AFA. 600.757 Operational protocols. 600.1102 Pacific Coast groundfish fee. 600.758 Preparation of report. 600.1103 Bering Sea and Aleutian Islands 600.759 Use of report. (BSAI) Crab species program. 600.760 Fishery Negotiation Panel lifetime. 600.1104 Bering Sea and Aleutian Islands (BSAI) crab species fee payment and col- Subpart J—Essential Fish Habitat (EFH) lection system. 600.805 Purpose and scope. 600.1105 Longline catcher processor sub- 600.810 Definitions and word usage. sector of the Bering Sea and Aleutian Is- 600.815 Contents of Fishery Management lands (BSAI) non-pollock groundfish fish- Plans. ery program. 600.1106 Longline catcher processor sub- Subpart K—EFH Coordination, Consultation, sector Bering Sea and Aleutian Islands and Recommendations (BSAI) non-pollock groundfish species fee payment and collection system. 600.905 Purpose, scope, and NMFS/Council 600.1107 Southeast Alaska Purse Seine cooperation. Salmon Fishery capacity reduction pro- 600.910 Definitions and word usage. gram, including fee payment and collec- 600.915 Coordination for the conservation tion system. and enhancement of EFH. 600.1108 Longline catcher processor sub- 600.920 Federal agency consultation with sector of the Bering Sea and Aleutian Is- the Secretary. lands (BSAI) non-pollock groundfish fish- 600.925 NMFS EFH Conservation Rec- ery program. ommendations to Federal and state agencies. Subpart N—Shark Finning 600.930 Council comments and recommendations to Federal and state agencies. 600.1200 Purpose and scope. 600.1201 Relation to other laws. Subpart L—Fishing Capacity Reduction 600.1202 Definitions. Framework 600.1203 Prohibitions. 600.1204 Shark finning; possession at sea and 600.1000 Definitions. landing of shark fins. 600.1001 Requests. 600.1002 General requirements. Subpart O—Limited Access Privilege 600.1003 Content of a request for a financed Programs program. 600.1004 Accepting a request for, and deter- 600.1300–600.1309 [Reserved] minations about initiating, a financed 600.1310 New England and Gulf of Mexico In- program. dividual Fishing Quota Referenda. 600.1005 Content of a request for a subsidized program. Subpart P—Marine Recreational Fisheries 600.1006 Accepting a request for, and deter- of the United States minations about conducting, a subsidized program. 600.1400 Definitions. 600.1007 Reduction amendments. 600.1405 Angler registration. 600.1008 Implementation plan and imple- 600.1410 Registry process. mentation regulations. 600.1415 Procedures for designating exempt- 600.1009 Bids. ed states-general provisions. 600.1010 Referenda. 600.1416 Requirements for exempted state 600.1011 Reduction methods and other con- designation based on submission of state ditions. license holder data.

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600.1417 Requirements for exempted state Council’s minutes, to assist it in car- designation based on submission of rec- rying out its functions. An AP may in- reational survey data. clude individuals who are not members AUTHORITY: 5 U.S.C. 561 and 16 U.S.C. et of the Council. seq. Agent, for the purpose of foreign fish- SOURCE: 61 FR 32540, June 24, 1996, unless ing (subpart F), means a person ap- otherwise noted. pointed and maintained within the United States who is authorized to re- Subpart A—General ceive and respond to any legal process issued in the United States to an owner § 600.5 Purpose and scope. and/or operator of a vessel operating (a) This part contains general provi- under a permit and of any other vessel sions governing the operation of the of that Nation fishing subject to the ju- eight Regional Fishery Management risdiction of the United States. Any Councils established by the Magnuson- diplomatic official accepting such an Stevens Act and describes the Sec- appointment as designated agent retary’s role and responsibilities under waives diplomatic or other immunity the Act. The Councils are institutions in connection with such process. created by Federal law and must con- Aggregate or summary form means conform to the uniform standards estab- fidential data structured in such a way lished by the Secretary in this part. that the identity of the submitter can- (b) This part also governs all foreign not be determined either from the fishing under the Magnuson-Stevens present release of the data or in com- Act, prescribes procedures for the con- bination with other releases. duct of preemption hearings under sec- Albacore means the species Thunnus tion 306(b) of the Magnuson-Stevens alalunga, or a part thereof. Act, and collects the general provisions Allocated species means any species or common to all domestic fisheries gov- species group allocated to a foreign na- erned by this chapter. tion under § 600.517 for catching by ves- (c) This part also governs fishing ca- sels of that Nation. pacity reduction programs under the Allocation means direct and delib- Magnuson-Stevens Act. erate distribution of the opportunity to participate in a fishery among identifi- [61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 65 FR 31443, May 18, able, discrete user groups or individ- 2000] uals. Allowable chemical means a substance, § 600.10 Definitions. generally used to immobilize marine Unless defined otherwise in other life so it can be captured alive, that, parts of Chapter VI, the terms in this when introduced into the water, does chapter have the following meanings: not take Gulf and South Atlantic pro- Administrator means the Adminis- hibited coral (as defined at 50 CFR trator of NOAA (Under Secretary of 622.2) and is allowed by Florida or Ha- Commerce for Oceans and Atmosphere) waii or the U.S. Pacific Insular Area or a designee. for the harvest of tropical fish. Advisory group means a Scientific and Anadromous species means species of Statistical Committee (SSC), Fishing fish that spawn in fresh or estuarine Industry Advisory Committee (FIAC), waters of the United States and that or Advisory Panel (AP) established by migrate to ocean waters. a Council under the Magnuson-Stevens Angling means fishing for, attempt- Act. ing to fish for, catching or attempting Advisory panel (AP) means a com- to catch fish by any person (angler) mittee formed, selected, and formally with a hook attached to a line that is designated as a Magnuson-Stevens Act hand-held or by rod and reel made for Section 302(g)(2) advisory panel by the this purpose. Council’s Statement of organization, Area of custody means any vessel, practices, and procedures (SOPP), or by building, vehicle, live car, pound, pier a formal charge to the committee or dock facility where fish might be made by the chair and recorded in the found.

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Assistant Administrator means the As- are on the lines at or near the end. The sistant Administrator for Fisheries, float and line(s) drift freely and are re- NOAA, or a designee. trieved periodically to remove catch Atlantic tunas means bluefin, alba- and rebait hooks. core, bigeye, skipjack, and yellowfin Carcass means a fish in whole condi- tunas found in the Atlantic Ocean. tion or that portion of a fish that has Atlantic Tunas Convention Act means been gilled and/or gutted and the head the Atlantic Tunas Convention Act of and some or all fins have been re- 1975, 16 U.S.C. 971–971h. moved, but that is otherwise in whole Authorized officer means: condition. (1) Any commissioned, warrant, or Cast net means a circular net with petty officer of the USCG; weights attached to the perimeter. (2) Any special agent or fishery en- Catch limit means the total allowable forcement officer of NMFS; harvest or take from a single fishing (3) Any officer designated by the head trip or day, as defined in this section. of any Federal or state agency that has Catch, take, or harvest includes, but is entered into an agreement with the not limited to, any activity that re- Secretary and the Commandant of the sults in killing any fish or bringing any USCG to enforce the provisions of the live fish on board a vessel. Magnuson-Stevens Act or any other Center means one of the five NMFS statute administered by NOAA; or Fisheries Science Centers. (4) Any USCG personnel accom- Charter boat means a vessel less than panying and acting under the direction 100 gross tons (90.8 mt) that meets the of any person described in paragraph requirements of the U.S. Coast Guard (1) of this definition. to carry six or fewer passengers for Authorized species means any species hire. or species group that a foreign vessel is Coast Guard Commander means one of authorized to retain in a joint venture the commanding officers of the Coast by a permit issued under Activity Code Guard units specified in Table 1 of 4 as described by § 600.501(c). § 600.502, or a designee. Automatic reel means a reel that re- Codend means the terminal, closed mains attached to a vessel when in use end of a trawl net. from which a line and attached hook(s) Compensation fishing means fishing are deployed. The line is payed out conducted for the purpose of recovering from and retrieved on the reel elec- costs associated with resource surveys trically or hydraulically. and scientific studies that support the Bandit gear means vertical hook and management of a fishery, or to provide line gear with rods that are attached to incentive for participation in such the vessel when in use. Lines are re- studies. Compensation fishing may in- trieved by manual, electric, or hydrau- clude fishing during or subsequent to lic reels. such surveys or studies. Barrier net means a small-mesh net Confidential statistics are those sub- used to capture coral reef or coastal pe- mitted as a requirement of an FMP and lagic fishes. that reveal the business or identity of Bigeye tuna means the species the submitter. Thunnus obesus, or a part thereof. Conservation engineering means the Billfish means Atlantic billfish (blue development and assessment of fishing marlin, white marlin, sailfish, longbill technologies and fishing techniques de- spearfish, or roundscale spearfish). signed to conserve target and non-tar- Bluefin tuna means the species get species, and may include the study Thunnus thynnus, or a part thereof. of fish behavior and the development Blue marlin means the species and testing of new gear technologies Makaira nigricans, or a part thereof. and fishing techniques to minimize by- Bully net means a circular frame at- catch and any adverse effects on essen- tached at right angles to a pole and tial fish habitat and promote efficient supporting a conical bag of webbing. harvest of target species. Conservation Buoy gear means fishing gear con- engineering may include the assess- sisting of a float and one or more lines ment of existing fishing technologies suspended therefrom. A hook or hooks applied in novel ways. An example

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would be assessing the ability of a by- properties that are used by fish and catch reduction device (BRD), designed may include aquatic areas historically and proven in one fishery, to reduce by- used by fish where appropriate; ‘‘sub- catch in another fishery. Conservation strate’’ includes sediment, hard bot- engineering meeting the definition of tom, structures underlying the waters, scientific research activity is not fish- and associated biological communities; ing. ‘‘necessary’’ means the habitat re- Continental shelf fishery resources quired to support a sustainable fishery means the species listed under section and the managed species’ contribution 3(7) of the Magnuson-Stevens Act. to a healthy ecosystem; and ‘‘spawn- Council means one of the eight Re- ing, breeding, feeding, or growth to ma- gional Fishery Management Councils turity’’ covers a species’ full life cycle. established by the Magnuson-Stevens Exclusive economic zone (EEZ) means Act. the zone established by Presidential Data, statistics, and information are Proclamation 5030, 3 CFR part 22, dated used interchangeably. March 10, 1983, and is that area adja- Dealer means the person who first recent to the United States which, except ceives fish by way of purchase, barter, where modified to accommodate inter- or trade. national boundaries, encompasses all Designated representative means the waters from the seaward boundary of person appointed by a foreign nation each of the coastal states to a line on and maintained within the United which each point is 200 nautical miles States who is responsible for transmit- (370.40 km) from the baseline from ting information to and submitting re- which the territorial sea of the United ports from vessels of that Nation and States is measured. establishing observer transfer arrange- Exempted educational activity means ments for vessels in both directed and an activity that would otherwise be joint venture activities. considered fishing, conducted by an Dip net means a small mesh bag, educational institution accredited by a sometimes attached to a handle, recognized national or international shaped and framed in various ways. It accreditation body, of limited scope is operated by hand or partially by me- and duration, that is otherwise prohib- chanical power to capture the fish. ited by this chapter VI, but that is au- Directed fishing, for the purpose of thorized by the appropriate Regional foreign fishing (subpart F), means any Administrator or Director for edu- fishing by the vessels of a foreign na- cational purposes, i.e., the instruction tion for allocations of fish granted that of an individual or group, and author- Nation under § 600.517. ized capture of only the amount of fish Director means the Director of the Of- necessary to demonstrate the lesson. fice of Sustainable Fisheries, 1315 East- Exempted or experimental fishing West Highway, Silver Spring, MD 20910. means fishing from a vessel of the Discard means to release or return United States that involves activities fish to the sea, whether or not such fish otherwise prohibited by this chapter are brought fully on board a fishing VI, but that are authorized under an vessel. exempted fishing permit (EFP). The Dredge means a gear consisting of a regulations in § 600.745 refer exclusively mouth frame attached to a holding bag to exempted fishing. References else- constructed of metal rings or mesh. where in this chapter to experimental Drop net means a small, usually cir- fishing mean exempted fishing under cular net with weight around the pe- this part. rimeter and a float in the center. Fillet means to remove slices of fish Essential fish habitat (EFH) means flesh from the carcass by cuts made those waters and substrate necessary parallel to the backbone. to fish for spawning, breeding, feeding, Fish means: or growth to maturity. For the purpose (1) When used as a noun, means any of interpreting the definition of essen- finfish, mollusk, crustacean, or parts tial fish habitat: ‘‘Waters’’ include thereof, and all other forms of marine aquatic areas and their associated animal and plant life other than ma- physical, chemical, and biological rine mammals and birds.

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(2) When used as a verb, means to en- supply, storage, refrigeration, trans- gage in ‘‘fishing,’’ as defined below. portation, or processing. Fishery means: Fish weir means a large catching ar- (1) One or more stocks of fish that rangement with a collecting chamber can be treated as a unit for purposes of that is made of non-textile material conservation and management and (wood, wicker) instead of netting as in that are identified on the basis of geo- a pound net. graphic, scientific, technical, rec- Foreign fishing means fishing by a for- reational, or economic characteristics, eign fishing vessel. or method of catch; or Foreign fishing vessel (FFV) means any (2) Any fishing for such stocks. fishing vessel other than a vessel of the Fishery management unit (FMU) United States, except those foreign means a fishery or that portion of a vessels engaged in recreational fishing, fishery identified in an FMP relevant as defined in this section. to the FMP’s management objectives. Gear conflict means any incident at The choice of an FMU depends on the sea involving one or more fishing ves- focus of the FMP’s objectives, and may sels: be organized around biological, geo- (1) In which one fishing vessel or its graphic, economic, technical, social, or gear comes into contact with another ecological perspectives. vessel or the gear of another vessel; Fishery resource means any fish, any and stock of fish, any species of fish, and (2) That results in the loss of, or any habitat of fish. damage to, a fishing vessel, fishing Fishing, or to fish means any activity, gear, or catch. other than scientific research con- Gillnet means a panel of netting, sus- ducted by a scientific research vessel, pended vertically in the water by floats that involves: along the top and weights along the (1) The catching, taking, or har- bottom, to entangle fish that attempt vesting of fish; to pass through it. (2) The attempted catching, taking, Governing International Fishery Agree- or harvesting of fish; ment (GIFA) means an agreement be- (3) Any other activity that can rea- tween the United States and a foreign sonably be expected to result in the nation or Nations under section 201(c) catching, taking, or harvesting of fish; of the Magnuson-Stevens Act. or (4) Any operations at sea in support Grants Officer means the NOAA offi- of, or in preparation for, any activity cial authorized to sign, on behalf of the described in paragraphs (1), (2), or (3) of Government, the cooperative agree- this definition. ment providing funds to support the Fishing industry advisory committee Council’s operations and functions. (FIAC) means an advisory group formed Greenwich mean time (GMT) means the and selected by a regional fishery man- local mean time at Greenwich, Eng- agement council under the authority of land. All times in this part are GMT the Magnuson-Stevens Act section unless otherwise specified. 302(g)(3)(A) and formally designated in Handgear means handline, harpoon, the Council’s SOPP or by a formal or rod and reel. charge to the FIAC made by the chair Hand harvest means harvesting by and recorded in the Council’s minutes. hand. A FIAC is not an ‘‘advisory panel’’ as Handline means fishing gear that is defined under this section. set and pulled by hand and consists of Fishing vessel means any vessel, boat, one vertical line to which may be at- ship, or other craft that is used for, tached leader lines with hooks. equipped to be used for, or of a type Harass means to unreasonably inter- that is normally used for: fere with an individual’s work perform- (1) Fishing; or ance, or to engage in conduct that cre- (2) Aiding or assisting one or more ates an intimidating, hostile, or offen- vessels at sea in the performance of sive environment. any activity relating to fishing, includ- Harpoon or harpoon gear means fishing, but not limited to, preparation, ing gear consisting of a pointed dart or

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iron attached to the end of a line sev- and Management Act, as amended (16 eral hundred feet in length, the other U.S.C. 1801 et seq.), formerly known as end of which is attached to a floatation the Magnuson Act. device. Harpoon gear is attached to a Metric ton (mt) means 1,000 kg (2,204.6 pole or stick that is propelled only by lb). hand, and not by mechanical means. nm means nautical mile (6,076 ft (1,852 Headboat means a vessel that holds a m)). valid Certificate of Inspection issued Official number means the docu- by the U.S. Coast Guard to carry pas- mentation number issued by the USCG sengers for hire. or the certificate number issued by a Hook and line means one or more state or by the USCG for an undocu- hooks attached to one or more lines mented vessel. (can include a troll). Operator, with respect to any vessel, Hoop net means a cone-shaped or flat means the master or other individual net which may or may not have throats aboard and in charge of that vessel. and flues stretched over a series of Optimum yield (OY) means the rings or hoops for support. amount of fish that: Industry means both recreational and (1) Will provide the greatest overall commercial fishing, and includes the benefit to the Nation, particularly with harvesting, processing, and marketing respect to food production and rec- sectors. reational opportunities, and taking International radio call sign (IRCS) into account the protection of marine means the unique radio identifier as- ecosystems; signed a vessel by the appropriate au- (2) Is prescribed as such on the basis thority of the flag state. of the maximum sustainable yield from Joint venture means any operation by the fishery, as reduced by any relevant a foreign vessel assisting fishing by economic, social, or ecological factor; U.S. fishing vessels, including catch- and ing, scouting, processing and/or sup- (3) In the case of an overfished fish- port. (A joint venture generally entails ery, provides for rebuilding to a level a foreign vessel processing fish re- consistent with producing the max- ceived from U.S. fishing vessels and imum sustainable yield in such fishery. conducting associated support activi- Owner, with respect to any vessel, ties.) means: Lampara net means a surround net (1) Any person who owns that vessel with the sections of netting made and in whole or in part; joined to create bagging. It is hauled (2) Any charterer of the vessel, with purse rings and is generally much whether bareboat, time, or voyage; smaller in size than a purse seine net. (3) Any person who acts in the capac- Land means to begin offloading fish, ity of a charterer, including, but not to offload fish, or to arrive in port or at limited to, parties to a management a dock, berth, beach, seawall, or ramp. agreement, operating agreement, or Limited access system means a system any similar agreement that bestows that limits participation in a fishery to control over the destination, function, those satisfying certain eligibility cri- or operation of the vessel; or teria or requirements contained in a (4) Any agent designated as such by a fishery management plan or associated person described in paragraph (1), (2), regulation. or (3) of this definition. Longbill spearfish means the species Pelagic longline means a longline that Tetrapturus pfluegeri, or a part thereof. is suspended by floats in the water col- Longline means a line that is de- umn and that is not fixed to or in con- ployed horizontally and to which tact with the ocean bottom. gangions and hooks or pots are at- Plan Team means a Council working tached. Longlines can be stationary, group selected from agencies, institu- anchored, or buoyed lines that may be tions, and organizations having a role hauled manually, electrically, or hy- in the research and/or management of draulically. fisheries, whose primary purpose is to Magnuson-Stevens Act means the Mag- assist the Council in the preparation nuson-Stevens Fishery Conservation and/or review of FMPs, amendments,

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and supporting documents for the entific research. It may not involve the Council, and/or SSC and AP. sale, barter, or trade of part or all of Postmark means independently the catch (see § 600.513). verifiable evidence of the date of mail- Retain on board means to fail to re- ing, such as a U.S. Postal Service post- turn fish to the sea after a reasonable mark, or other private carrier post- opportunity to sort the catch. mark, certified mail receipt, overnight Region means one of six NMFS Re- mail receipt, or a receipt issued upon gional Offices responsible for admin- hand delivery to a representative of istering the management and develop- NMFS authorized to collect fishery ment of marine resources of the United statistics. States in their respective geographical Pot means trap. regions. Powerhead means any device with an Regional Administrator means the Ad- explosive charge, usually attached to a ministrator of one of the six NMFS Re- spear gun, spear, pole, or stick, that gions described in Table 1 to § 600.502, may or may not fire a projectile upon or a designee. contact. Regional Program Officer means the Predominately means, with respect to NMFS official designated in the terms fishing in a fishery, that more fishing and conditions of the grant award re- on a stock or stocks of fish covered by sponsible for monitoring, recom- the FMP occurs, or would occur in the mending, and reviewing any technical absence of regulations, within or be- aspects of the application for Federal yond the EEZ than occurs in the aggre- assistance and the award. gate within the boundaries of all states Rod and reel means a hand-held (in- off the coasts of which the fishery is cluding rod holder) fishing rod with a conducted. manually or electrically operated reel Processing, for the purpose of foreign attached. fishing (subpart F), means any oper- Round means a whole fish—one that ation by an FFV to receive fish from has not been gilled, gutted, beheaded, foreign or U.S. fishing vessels and/or or definned. the preparation of fish, including, but Roundscale spearfish means the spe- not limited to, cleaning, cooking, can- cies Tetrapturus georgii, or a part there- ning, smoking, salting, drying, or of. freezing, either on the FFV’s behalf or Round weight means the weight of the to assist other foreign or U.S. fishing whole fish before processing or removal vessels. of any part. Product recovery rate (PRR) means a Sailfish means the species Istiophorus ratio expressed as a percentage of the platypterus, or a part thereof. weight of processed product divided by Sale or sell means the act or activity the round weight of fish used to of transferring property for money or produce that amount of product. credit, trading, or bartering, or at- Prohibited species, with respect to a tempting to so transfer, trade, or bar- foreign vessel, means any species of ter. fish that that vessel is not specifically Science and Research Director (also re- allocated or authorized to retain, inferred to as ‘‘Center Director’’) means the cluding fish caught or received in ex- Director of one of the six NMFS Fish- cess of any allocation or authorization. eries Science Centers described in Purchase means the act or activity of Table 1 to § 600.502, or a designee. buying, trading, or bartering, or at- Scientific cruise means the period of tempting to buy, trade, or barter. time during which a scientific research Purse seine means a floated and vessel is operated in furtherance of a weighted encircling net that is closed scientific research project, beginning by means of a drawstring threaded when the vessel leaves port to under- through rings attached to the bottom take the project and ending when the of the net. vessel completes the project as pro- Recreational fishing, with respect to a vided for in the applicable scientific re- foreign vessel, means any fishing from search plan. a foreign vessel not operated for profit Scientific research activity is, for the and not operated for the purpose of sci- purposes of this part, an activity in

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furtherance of a scientific fishery in- (4) The expected date of first appear- vestigation or study that would meet ance and final departure of the re- the definition of fishing under the Mag- search vessel(s) to be employed, and de- nuson-Stevens Act, but for the exemp- ployment and removal of equipment, as tion applicable to scientific research appropriate. activity conducted from a scientific re- (5) The expected quantity and species search vessel. Scientific research activ- of fish to be taken and their intended ity includes, but is not limited to, sam- disposition, and, if significant amounts pling, collecting, observing, or sur- of a managed species or species other- veying the fish or fishery resources wise restricted by size or sex are need- within the EEZ, at sea, on board sci- ed, an explanation of such need. entific research vessels, to increase sci- (6) The name, address, and telephone/ entific knowledge of the fishery re- telex/fax number of the sponsoring or- sources or their environment, and to ganization and its director. test a hypothesis as part of a planned, (7) The name, address, and telephone/ directed investigation or study con- telex/fax number, and curriculum vitae ducted according to methodologies of the person in charge of the project generally accepted as appropriate for and, where different, the person in scientific research. At-sea scientific charge of the research project on board fishery investigations address one or the vessel. more topics involving taxonomy, biol- (8) The identity of any vessel(s) to be ogy, physiology, behavior, disease, used including, but not limited to, the aging, growth, mortality, migration, vessel’s name, official documentation recruitment, distribution, abundance, number and IRCS, home port, and ecology, stock structure, bycatch or name, address, and telephone number other collateral effects of fishing, con- of the owner and master. servation engineering, and catch esti- Scientific research vessel means a ves- mation of fish species considered to be sel owned or chartered by, and con- a component of the fishery resources trolled by, a foreign government agen- within the EEZ. Scientific research ac- cy, U.S. Government agency (including tivity does not include the collection NOAA or institutions designated as and retention of fish outside the scope federally funded research and develop- of the applicable research plan, or the ment centers), U.S. state or territorial testing of fishing gear. Data collection agency, university (or other edu- designed to capture and land quantities cational institution accredited by a of fish for product development, mar- recognized national or international accreditation body), international ket research, and/or public display are treaty organization, or scientific insti- not scientific research activities. For tution. In order for a domestic com- foreign vessels, such data collection ac- mercial fishing vessel to meet this defi- tivities are considered scientific re- nition, it must be under the control of search if they are carried out in full co- a qualifying agency or institution, and operation with the United States. operate in accordance with a scientific Scientific research plan means a de- research plan, for the duration of the tailed, written formulation, prepared scientific research activity. In order in advance of the research, for the ac- for a vessel that is owned or chartered complishment of a scientific research and controlled by a foreign government project. At a minimum, a sound sci- to meet this definition, the vessel must entific research plan should include: have scientific research as its exclusive (1) A description of the nature and mission during the scientific activity objectives of the project, including the in question, and the vessel operations hypothesis or hypotheses to be tested. must be conducted in accordance with (2) The experimental design of the a scientific research plan. project, including a description of the Scouting means any operation by a methods to be used, the type and class vessel exploring (on the behalf of an of any vessel(s) to be used, and a de- FFV or U.S. fishing vessel) for the scription of sampling equipment. presence of fish by visual, acoustic, or (3) The geographical area(s) in which other means that do not involve the the project is to be conducted. catching of fish.

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Secretary means the Secretary of documents that provides Councils with Commerce or a designee. a summary of the most recent biologi- Seine means a net with long narrow cal condition of species in an FMU, and wings, that is rigged with floats and the social and economic condition of weights. the recreational and commercial fish- Skipjack tuna means the species ing industries and the fish processing Katsuwonus pelamis, or a part thereof. industries. It summarizes, on a periodic Slurp gun means a tube-shaped suc- basis, the best available scientific in- tion device that operates somewhat formation concerning the past, present, like a syringe by sucking up the fish. and possible future condition of the Snare means a device consisting of a stocks and fisheries being managed pole to which is attached a line form- under Federal regulation. ing at its end a loop with a running Submersible means a manned or un- knot that tightens around the fish manned device that functions or oper- when the line is pulled. ates primarily underwater and is used Spear means a sharp, pointed, or to harvest fish, i.e., precious corals, barbed instrument on a shaft. Spears with mechanical arms. can be operated manually or shot from Substantially (affects) means, for the a gun or sling. purpose of subpart G, with respect to State means each of the several whether a state’s action or omission states, the District of Columbia, the will substantially affect the carrying Commonwealth of Puerto Rico, Amer- out of an FMP for a fishery, that those ican Samoa, the Virgin Islands, Guam, effects are important or material, or the Northern Mariana Islands, and any considerable in degree. The effects of a other Commonwealth, territory, or state’s action or omission for purposes possession of the United States. of this definition include effects upon: State employee means any employee of (1) The achievement of the FMP’s the state agency responsible for devel- goals or objectives for the fishery; oping and monitoring the state’s pro- (2) The achievement of OY from the gram for marine and/or anadromous fishery on a continuing basis; fisheries. (3) The attainment of the national Statement of Organization, Practices, standards for fishery conservation and and Procedures (SOPP) means a state- management (as set forth in section ment by each Council describing its or- 301(a) of the Magnuson-Stevens Act) ganization, practices, and procedures and compliance with other applicable as required under section 302(f)(6) of law; or the Magnuson-Stevens Act. (4) The enforcement of regulations Stock assessment means the process of implementing the FMP. collecting and analyzing biological and Support means any operation by a statistical information to determine vessel assisting fishing by foreign or the changes in the abundance of fishery U.S. vessels, including supplying water, stocks in response to fishing, and, to fuel, provisions, fish processing equip- the extent possible, to predict future ment, or other supplies to a fishing trends of stock abundance. Stock as- vessel. sessments are based on resource sur- Swordfish means the species Xiphias veys; knowledge of the habitat require- gladius, or a part thereof. ments, life history, and behavior of the Tangle net dredge means dredge gear species; the use of environmental indi- consisting of weights and flimsy net- ces to determine impacts on stocks; ting that hangs loosely in order to im- and catch statistics. Stock assessments mediately entangle fish. are used as a basis to ‘‘assess and speci- Total length (TL) means the straight- fy the present and probable future con- line distance from the tip of the snout dition of a fishery’’ (as is required by to the tip of the tail (caudal fin) while the Magnuson-Stevens Act), and are the fish is lying on its side, normally summarized in the Stock Assessment extended. and Fishery Evaluation or similar doc- Trammel net means a net consisting of ument. two or more panels of netting, sus- Stock Assessment and Fishery Evalua- pended vertically in the water column tion (SAFE) means a document or set of by a common float line and a common

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weight line. One panel of netting has a (2) ATCA–Atlantic Tunas Convention larger mesh size than the other(s) in Act order to entrap fish in a pocket. (3) BFT (Atlantic bluefin tuna) means Transship means offloading and the subspecies of bluefin tuna, Thunnus onloading or otherwise transferring thynnus thynnus, or a part thereof, that fish or fish products and/or trans- occurs in the Atlantic Ocean. porting fish or products made from (4) BSD means the ICCAT bluefin fish. tuna statistical document. Trap means a portable, enclosed de- (5) CCC–Council coordination com- vice with one or more gates or en- mittee trances and one or more lines attached (6) DAH—estimated domestic annual to surface floats. Also called a pot. harvest Trawl means a cone or funnel-shaped (7) DAP—estimated domestic annual net that is towed through the water, processing and can include a pair trawl that is (8) EIS—environmental impact state- towed simultaneously by two boats. ment Trip means the time period that be- (9) EY—equilibrium yield gins when a fishing vessel departs from (10) FIAC–Fishing industry advisory a dock, berth, beach, seawall, ramp, or committee port to carry out fishing operations (11) FMP—fishery management plan and that terminates with a return to a (12) ICCAT means the International dock, berth, beach, seawall, ramp, or Commission for the Conservation of port. Atlantic Tunas. U.S. observer or observer means any (13) JVP—joint venture processing person serving in the capacity of an ob- (14) MSY—maximum sustainable server employed by NMFS, either di- yield rectly or under contract, or certified as (15) PMP—preliminary FMP a supplementary observer by NMFS. (16) TAC—total allowable catch Vessel of the United States or U.S. ves- (17) TALFF—total allowable level of sel means: foreign fishing (1) Any vessel documented under (b) Legislation. (1) APA—Administra- chapter 121 of title 46, United States tive Procedure Act Code; (2) CZMA—Coastal Zone Management (2) Any vessel numbered under chap- Act ter 123 of title 46, United States Code, (3) ESA—Endangered Species Act and measuring less than 5 net tons; (4) FACA—Federal Advisory Com- (3) Any vessel numbered under chap- mittee Act ter 123 of title 46, United States Code, (5) FOIA—Freedom of Information and used exclusively for pleasure; or Act (4) Any vessel not equipped with pro- (6) FLSA—Fair Labor Standards Act pulsion machinery of any kind and (7) MMPA—Marine Mammal Protec- used exclusively for pleasure. tion Act White Marlin means the species (8) MPRSA—Marine Protection, Re- Kajikia albidus, or a part thereof. search, and Sanctuaries Act Yellowfin tuna means the species (9) NEPA—National Environmental Thunnus albacares, or a part thereof. Policy Act (10) PA—Privacy Act [61 FR 32540, June 24, 1996, as amended at 62 (11) PRA—Paperwork Reduction Act FR 14646, Mar. 27, 1997; 62 FR 66551, Dec. 19, (12) RFA—Regulatory Flexibility Act 1997; 63 FR 7073, 7075, Feb. 12, 1998; 64 FR 4036, Jan. 27, 1999; 64 FR 29133, May 28, 1999; 64 FR (c) Federal agencies. (1) CEQ—Council 67516, Dec. 2, 1999; 67 FR 2375, Jan. 17, 2002; 67 on Environmental Quality FR 64312, Oct. 18, 2002; 69 FR 30240, May 27, (2) DOC—Department of Commerce 2004; 73 FR 67810, Nov. 17, 2008; 74 FR 42792, (3) DOI—Department of the Interior Aug. 25, 2009; 75 FR 59149, Sept. 27, 2010; 75 FR (4) DOS—Department of State 57701, Sept. 22, 2010] (5) EPA—Environmental Protection Agency § 600.15 Other acronyms. (6) FWS—Fish and Wildlife Service (a) Fishery management terms. (1) (7) GSA—General Services Adminis- ABC—acceptable biological catch tration

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(8) NMFS—National Marine Fisheries and the mainland, are within the Gulf Service of Mexico. (9) NOAA—National Oceanic and At- [61 FR 32540, June 24, 1996, as amended at 63 mospheric Administration FR 7075, Feb. 12, 1998; 75 FR 59149, Sept. 27, (10) OMB—Office of Management and 2010] Budget (11) OPM—Office of Personnel Man- § 600.110 Intercouncil fisheries. agement If any fishery extends beyond the (12) SBA—Small Business Adminis- geographical area of authority of any tration one Council, the Secretary may— (13) USCG—United States Coast (a) Designate a single Council to prepare the FMP for such fishery and any Guard amendments to such FMP, in consulta- [61 FR 32540, June 24, 1996, as amended at 63 tion with the other Councils concerned; FR 7073, Feb. 12, 1998; 64 FR 29134, May 28, or 1999; 75 FR 59149, Sept. 27, 2010] (b) Require that the FMP and any amendments be prepared jointly by all Subpart B—Regional Fishery the Councils concerned. Management Councils (1) A jointly prepared FMP or amendment must be adopted by a majority of § 600.105 Intercouncil boundaries. the voting members, present and voting, of each participating Council. Dif- (a) New England and Mid-Atlantic ferent conservation and management Councils. The boundary begins at the measures may be developed for specific intersection point of Connecticut, geographic areas, but the FMP should Rhode Island, and New York at address the entire geographic range of 41°18′16.249″ N. lat. and 71°54′28.477″ W. the stock(s). long. and proceeds south 37°22′32.75″ (2) In the case of joint FMP or East to the point of intersection with amendment preparation, one Council the outward boundary of the EEZ as will be designated as the ‘‘administra- specified in the Magnuson-Stevens Act. tive lead.’’ The ‘‘administrative lead’’ (b) Mid-Atlantic and South Atlantic Council is responsible for the prepara- Councils. The boundary begins at the tion of the FMP or any amendments seaward boundary between the States and other required documents for sub- of Virginia and North Carolina mission to the Secretary. (36°33′01.0″ N. lat), and proceeds due (3) None of the Councils involved in east to the point of intersection with joint preparation may withdraw with- the outward boundary of the EEZ as out Secretarial approval. If Councils specified in the Magnuson-Stevens Act. cannot agree on approach or manage- (c) South Atlantic and Gulf of Mexico ment measures within a reasonable pe- Councils. The boundary coincides with riod of time, the Secretary may designate a single Council to prepare the the line of demarcation between the FMP or may issue the FMP under Sec- Atlantic Ocean and the Gulf of Mexico, retarial authority. which begins at the intersection of the outer boundary of the EEZ, as specified § 600.115 Statement of organization, in the Magnuson-Stevens Act, and practices, and procedures (SOPP). ° ′ 83 00 W. long., proceeds northward (a) Councils are required to publish ° ′ along that meridian to 24 35 N. lat., and make available to the public a (near the Dry Tortugas Islands), thence SOPP in accordance with such uniform eastward along that parallel, through standards as are prescribed by the Sec- Rebecca Shoal and the Quicksand retary (section 302(f)(6)) of the Magnu- Shoal, to the Marquesas Keys, and then son-Stevens Act. The purpose of the through the Florida Keys to the main- SOPP is to inform the public how the land at the eastern end of Florida Bay, Council operates within the framework the line so running that the narrow wa- of the Secretary’s uniform standards. ters within the Dry Tortugas Islands, (b) Amendments to current SOPPs the Marquesas Keys and the Florida must be consistent with the guidelines Keys, and between the Florida Keys in this section, subpart C of this part,

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the terms and conditions of the cooper- the pay rates established for General ative agreement (the funding agree- Schedule Federal employees as set ment between the Council and NOAA forth in 5 U.S.C. 5332, and the Alter- that establishes Council funding and native Personnel Management System mandates specific requirements regard- for the U.S. Department of Commerce ing the use of those funds), the statu- (62 FR 67434). The Councils have the tory requirements of the Magnuson- discretion to adjust pay rates and pay Stevens Act, and other applicable law. increases based on cost of living Upon approval of a Council’s SOPP (COLA) differentials in their geo- amendment by the Secretary, a notice graphic locations. COLA adjustments of availability must be published in the in pay rates and pay increases may be FEDERAL REGISTER that includes an provided for staff members whose post Internet address from which the of duty is located in Alaska, Hawaii, amended SOPP may be read and Guam, the U.S. Virgin Islands, the downloaded and a mailing address to Northern Mariana Islands, and Puerto which the public may write to request Rico. copies. (c) Councils may deviate, where law- (1) No pay adjustment based on geo- ful, from the guidelines with appro- graphic location shall exceed the COLA priate supporting rationale, and Secre- and locality pay adjustments available tarial approval of each amendment to a to Federal employees in the same geo- SOPP would constitute approval of any graphic area. such deviations for that particular (2) [Reserved] Council. (c) Salary increases funded in lieu of life and medical/dental policies are not [61 FR 32540, June 24, 1996, as amended at 63 permitted. FR 7075, Feb. 12, 1998; 75 FR 59149, Sept. 27, 2010] (d) Unused sick leave may be accumulated without limit, or up to a max- § 600.117 Council coordination com- imum number of days and contribution mittee (CCC). per day, as specified by the Council in (a) The Councils may establish a its SOPP. Distributions of accumulated Council coordination committee (CCC) funds for unused sick leave may be consisting of the chairs, vice chairs, made to the employee upon his or her and executive directors of each of the retirement, or to his or her estate upon eight Councils or other Council mem- his or her death, as established by the bers or staff, in order to discuss issues Council in its SOPP. of relevance to all Councils. (e) Each Council may pay for unused (b) The CCC is not subject to the re- annual leave upon separation, retire- quirements of the Federal Advisory ment, or death of an employee. Committee Act (5 U.S.C. App. 2). Proce- (f) One or more accounts shall be dures for announcing and conducting maintained to pay for unused sick or open and closed meetings of the CCC annual leave as authorized under para- shall be in accordance with § 600.135. graphs (d) and (e) of this section, and [75 FR 59150, Sept. 27, 2010] will be funded from the Council’s annual operating allowances. Councils § 600.120 Employment practices. have the option to deposit funds into (a) Council staff positions must be these account(s) at the end of the budg- filled solely on the basis of merit, fit- et period if unobligated balances re- ness for duty, competence, and quali- main. Interest earned on these ac- fications. Employment actions must be count(s) will be maintained in the ac- free from discrimination based on race, count(s), along with the principal, for religion, color, national origin, sex, the purpose of payment of unused an- age, disability, reprisal, sexual orienta- nual and sick leave only. These action, status as a parent, or on any addi- count(s), including interest, may be tional bases protected by applicable carried over from year to year. Budg- Federal, state, or local law. eting for accrued leave will be identi- (b) The annual pay rates for Council fied in the ‘‘Other’’ object class cat- staff positions shall be consistent with egories section of the SF–424A.

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(g) A Council must notify the NOAA (a) Procedures for the restriction of Office of General Counsel before seek- Council member, employee, or advisory ing outside legal advice, which may be group access and the prevention of con- for technical assistance not available flicts of interest, except that such pro- from NOAA. If the Council is seeking cedures must be consistent with proce- legal services in connection with an dures of the Secretary. employment practices question, the (b) In the case of statistics submitted Council must first notify the Depart- to the Council by a state, the confiden- ment of Commerce’s Office of the As- tiality laws and regulations of that sistant General Counsel for Adminis- state. tration, Employment and Labor Law Division. A Council may not contract § 600.133 Scientific and Statistical for the provision of legal services on a Committee (SSC). continuing basis. (a) Each Council shall establish, [66 FR 57886, Nov. 19, 2001] maintain, and appoint the members of an SSC to assist it in the development, § 600.125 Budgeting, funding, and accounting. collection, evaluation, and peer review of such statistical, biological, eco- (a) Council grant activities are gov- nomic, social, and other scientific in- erned by 15 CFR part 14 (Uniform Ad- formation as is relevant to such Coun- ministrative Requirements for Grants cil’s development and amendment of and Agreements with Institutions of any fishery management plan. Higher Education, Hospitals, and other Non-Profit and Commercial Organiza- (b) Each SSC shall provide its Coun- tions), 2 CFR part 230 (Cost Principles cil ongoing scientific advice for fishery for Non-Profit Organizations), 15 CFR management decisions, including rec- part 14 (Audit Requirements for Insti- ommendations for acceptable biologi- tutions of Higher Education and Other cal catch, preventing overfishing, max- Non-Profit Organizations), and the imum sustainable yield, and achieving terms and conditions of the coopera- rebuilding targets, and reports on tive agreement. stock status and health, bycatch, habi- (b) Councils may not independently tat status, social and economic im- enter into agreements, including pacts of management measures, and grants, contracts, or cooperative agree- sustainability of fishing practices. ments, whereby they will receive funds (c) Members appointed by the Coun- for services rendered. All such agree- cils to the SSCs shall be Federal em- ments must be approved and entered ployees, State employees, academi- into by NOAA on behalf of the Coun- cians, or independent experts and shall cils. have strong scientific or technical cre- (c) Councils are not authorized to ac- dentials and experience. cept gifts or contributions directly. All (d) An SSC shall hold its meetings in such donations must be directed to the conjunction with the meetings of the NMFS Regional Administrator in ac- Council, to the extent practicable. cordance with applicable Department of Commerce regulations. [75 FR 59150, Sept. 27, 2010]

[66 FR 57887, Nov. 19, 2001, as amended at 75 § 600.134 Stipends. FR 59150, Sept. 27, 2010] Stipends are available, subject to the § 600.130 Protection of confidentiality availability of appropriations, to mem- of statistics. bers of committees formally designated Each Council must establish appro- as SSCs under Sec. 301(g)(1)(a) or APs priate procedures for ensuring the con- under Sec. 302(g)(2) of the Magnuson- fidentiality of the statistics that may Stevens Act who are not employed by be submitted to it by Federal or state the Federal Government or a State ma- authorities and may be voluntarily rine fisheries agency. For the purposes submitted to it by private persons, in- of this section, a state marine fisheries cluding, but not limited to (also see agency includes any state or tribal § 600.405):

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agency that has conservation, manage- place of the meeting and the reason for ment, or enforcement responsibility for closing any meeting or portion thereof any marine fishery resource. to the public, a Council, CCC, SSC, AP, [75 FR 59150, Sept. 27, 2010] FIAC, or other committees: (1) Must close any meeting, or por- § 600.135 Meeting procedures. tion thereof, that concerns information (a) Regular meetings. Public notice of bearing a national security classifica- a regular meeting, including the meet- tion. ing agenda, of each Council, CCC, SSC, (2) May close any meeting, or portion AP, FIAC, or other committees estab- thereof, that concerns matters or infor- lished under Magnuson-Stevens Act, mation pertaining to national security, Sec. 302(g), must be published in the employment matters, or briefings on FEDERAL REGISTER at least 14 calendar litigation in which the Council is inter- days prior to the meeting date. Appro- ested. priate notice by any means that will (3) May close any meeting, or portion result in wide publicity in the major thereof, that concerns internal admin- fishing ports of the region (and in other istrative matters other than employ- major fishing ports having a direct in- ment. Examples of other internal ad- terest in the affected fishery) must be given. E-mail notification and website ministrative matters include can- postings alone are not sufficient. The didates for appointment to AP, SSC, published agenda of a regular meeting and other subsidiary bodies and public may not be modified to include addi- decorum or medical conditions of mem- tional matters for Council action with- bers of a Council or its subsidiary bod- out public notice given at least 14 cal- ies. In deciding whether to close a por- endar days prior to the meeting date, tion of a meeting to discuss internal unless such modification is necessary administrative matters, the Council, to address an emergency under section CCC, SSC, AP, FIAC, or other commit- 305(c) of the Magnuson-Stevens Act, in tees should consider not only the pri- which case public notice shall be given vacy interests of individuals whose immediately. Drafts of all regular pub- conduct or qualifications may be dis- lic meeting notices must be received by cussed, but also the interest of the pub- NMFS headquarters office at least 23 lic in being informed of Council oper- calendar days before the first day of ations and actions. the regular meeting. Councils must en- (d) Without the notice required by sure that all public meetings are acces- paragraph (c) of this section, a Council, sible to persons with disabilities, and that the public can make timely re- CCC, SSC, AP, FIAC, or other commit- quests for language interpreters or tees may briefly close a portion of a other auxiliary aids at public meetings. meeting to discuss employment or (b) Emergency meetings. Drafts of other internal administrative matters. emergency public notices must be The closed portion of a meeting that is transmitted to the NMFS headquarters closed without notice may not exceed office at least 5 working days prior to two hours. the first day of the emergency meeting. (e) Before closing a meeting or por- Although notices of and agendas for tion thereof, the Council, CCC, SSC, emergency meetings are not required AP, FIAC, or other committees should to be published in the FEDERAL REG- consult with the NOAA Office of Gen- ISTER, notices of emergency meetings eral Counsel to ensure that the matters must be promptly announced through to be discussed fall within the excep- any means that will result in wide pub- tions to the requirement to hold public licity in the major fishing ports of the meetings described in paragraph (c) of region. E-mail notification and website this section. postings alone are not sufficient. (f) Actions that affect the public, al- (c) Closed meetings. After proper notification by any means that will result though based on discussions in closed in wide publicity in the major fishing meetings, must be taken in public. For ports within the region and, having in- example, appointments to an AP must cluded in the notification the time and

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be made in the public part of the meet- and documents created or received by ing; however, a decision to take dis- Council employees while in active duty ciplinary action against a Council em- status belong to the Federal Govern- ployee need not be announced to the ment. When employees leave the Coun- public. cil, they may not take the original or (g) A majority of the voting members file copies of records with them. of any Council constitute a quorum for (b) Each Council is required to main- Council meetings, but one or more such tain documents generally available to members designated by the Council the public on its Internet site. Docu- may hold hearings. ments for posting must include: fishery (h) Decisions of any Council are by management plans and their amend- majority vote of the voting members ments for the fisheries for which the present and voting (except for a vote to Council is responsible, drafts of fishery propose removal of a Council member, management plans and plan amend- see 50 CFR 600.230). Voting by proxy is ments under consideration, analysis of permitted only pursuant to 50 CFR actions the Council has under review, 600.205 (b). An abstention does not af- minutes or official reports of past fect the unanimity of a vote. meetings of the Council and its com- (i) Voting members of the Council mittees, materials provided by the who disagree with the majority on any Council staff to Council members in issue to be submitted to the Secretary, preparation for meetings, and other including principal state officials rais- Council documents of interest to the ing federalism issues, may submit a public. For documents too large to written statement of their reasons for maintain on the Web site, not available dissent. If any Council member elects electronically, or seldom requested, to file such a statement, it should be the Council must provide copies of the submitted to the Secretary at the same documents for viewing at the Council time the majority report is submitted. office during regular business hours or may provide the documents through [66 FR 57887, Nov. 19, 2001, as amended at 75 the mail. FR 59150, Sept. 27, 2010] [66 FR 57887, Nov. 19, 2001, as amended at 75 § 600.140 Procedure for proposed regu- FR 59151, Sept. 27, 2010] lations. § 600.155 Freedom of Information Act (a) Each Council must establish a (FOIA) requests. written procedure for proposed regulations consistent with section 303(c) of (a) FOIA requests received by a Coun- the Magnuson-Stevens Act. The proce- cil should be coordinated promptly dure must describe how the Council with the appropriate NMFS Regional deems proposed regulations necessary Office. The Region will forward the re- or appropriate for the purposes of im- quest to the NMFS FOIA Official to se- plementing a fishery management plan cure a FOIA number and log into the or a plan amendment, or making modi- FOIA system. The Region will also ob- fications to regulations implementing tain clearance from the NOAA General a fishery management plan or plan Counsel’s Office concerning initial de- amendment. In addition, the procedure termination for denial of requested in- must describe how the Council submits formation. proposed regulations to the Secretary. (b) FOIA requests will be controlled (b) The Councils must include the and documented in the Region. The re- procedure for proposed regulations in quests should be forwarded to the its SOPP, see § 600.115, or other written NMFS FOIA Officer who will prepare documentation that is available to the the Form CD–244, ‘‘FOIA Request and public. Action Record’’, with the official FOIA number and due date. In the event the [75 FR 59150, Sept. 27, 2010] Region determines that the requested information is exempt from disclosure, § 600.150 Disposition of records. in full or in part, under the FOIA, the (a) Council records must be handled denial letter prepared for the Assistant in accordance with NOAA records man- Administrator’s signature, along with agement office procedures. All records the ‘‘Foreseeable Harm’’ Memo and list

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of documents to be withheld, must be er the designee’s salary is paid by the cleared through the NMFS FOIA Offi- state. cer. Upon completion, a copy of the [66 FR 57888, Nov. 19, 2001] signed CD–244 and cover letter transmitting the information should be pro- § 600.207 Pacific Fishery Management vided to the NMFS FOIA Officer and Council Tribal Indian representa- the NOAA FOIA Officer. tive and alternate. [66 FR 57887, Nov. 19, 2001] (a) The tribal Indian representative to the Pacific Fishery Management Council may designate an alternate Subpart C—Council Membership during the period of the representa- § 600.205 Principal state officials and tive’s term. The designee must be their designees. knowledgeable concerning tribal rights, tribal law, and the fishery re- (a) Only a full-time state employee of sources of the geographical area con- the state agency responsible for marine cerned. and/or anadromous fisheries shall be (b) New or revised designations of an appointed by a constituent state Gov- alternate by the tribal Indian rep- ernor as the principal state official for resentative must be delivered in writ- purposes of section 302(b) of the Magnu- ing to the appropriate NMFS Regional son-Stevens Act. Administrator and the Council chair at (b) A principal state official may least 48 hours before the designee may name his/her designee(s) to act on his/ vote on any issue before the Council. In her behalf at Council meetings. Indi- that written document, the tribal In- viduals designated to serve as des- dian representative must indicate how ignees of a principal state official on a the designee meets the knowledge re- Council, pursuant to section quirements under paragraph (a) of this 302(b)(1)(A) of the Magnuson-Stevens section. Act, must be a resident of the state and [75 FR 59151, Sept. 27, 2010] be knowledgeable and experienced, by reason of his or her occupational or § 600.210 Terms of Council members. other experience, scientific expertise, (a) Voting members (other than prin- or training, in the fishery resources of cipal state officials, the Regional Ad- the geographic area of concern to the ministrators, or their designees) are Council. appointed for a term of 3 years and, ex- (c) New or revised appointments by cept as discussed in paragraphs (b) and state Governors of principal state offi- (c) of this section, may be reappointed. cials and new or revised designations A voting member’s Council service of by principal state officials of their des- 18 months or more during a term of of- ignees(s) must be delivered in writing fice will be counted as service for the to the appropriate NMFS Regional Ad- entire 3-year term. ministrator and the Council chair at (b) The anniversary date for meas- least 48 hours before the individual uring terms of membership is August may vote on any issue before the Coun- 11. The Secretary may designate a cil. A designee may not name another term of appointment shorter than 3 designee. Written appointment of the years, if necessary, to provide for bal- principal state official must indicate anced expiration of terms of office. his or her employment status, how the Members may not serve more than official is employed by the state fish- three consecutive terms. eries agency, and whether the official’s (c) A member who has completed full salary is paid by the state. Written three consecutive terms will be eligible designation(s) by the principal state of- for appointment to another term one ficial must indicate how the designee is full year after completion of the third knowledgeable and experienced in fish- consecutive term. ery resources of the geographic area of [61 FR 32540, June 24, 1996, as amended at 63 concern to the Council, the County in FR 7073, Feb. 12, 1998; 75 FR 59151, Sept. 27, which the designee resides, and wheth- 2010]

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§ 600.215 Council nomination and ap- stituent states, pursuant to section pointment procedures. 302(b)(2)(C) of the Magnuson-Stevens (a) General. (1) Each year, the 3-year Act. For each applicable vacancy, a terms for approximately one-third of Governor must submit the names of at the appointed members of the Councils least three nominees who meet the expire. The Secretary of Commerce qualification requirements of the Mag- (Secretary) will appoint or new mem- nuson-Stevens Act. A Governor must bers or will reappoint seated members provide a statement explaining how to another term to fill the seats being each of his/her nominees meet the qual- vacated. ification requirements, and must also (2) There are two categories of seats provide appropriate documentation to to which voting members are ap- the Secretary that each nomination pointed: ‘‘Obligatory’’ and ‘‘At-large.’’ was made in consultation with com- (i) Obligatory seats are state specific. mercial and recreational fishing inter- Each constituent state is entitled to ests of that state and that each nomi- one seat on the Council on which it is nee is knowledgeable and experienced a member, except that the State of by reason of his or her occupational or Alaska is entitled to five seats and the other experience, scientific expertise, State of Washington is entitled to two or training in one or more of the fol- seats on the North Pacific Fishery Management Council. When the term lowing ways related to the fishery re- of a state’s obligatory member is expir- sources of the geographical area of con- ing or when that seat becomes vacant cern to the Council: before the expiration of its term, the (i) Commercial fishing or the proc- governor of that state must submit the essing or marketing of fish, fish prod- names of at least three qualified indi- ucts, or fishing equipment; viduals to fill that Council seat. (ii) Fishing for pleasure, relaxation, (ii) The Magnuson-Stevens Act also or consumption, or experience in any provides for appointment, by the Sec- business supporting fishing; retary, of one treaty Indian tribal rep- (iii) Leadership in a state, regional, resentative to the Pacific Fishery Man- or national organization whose mem- agement Council (Pacific Council). To bers participate in a fishery in the fill that seat, the Secretary solicits Council’s area of authority; written nominations from the heads of (iv) The management and conserva- governments of those Indian Tribes tion of natural resources, including re- with federally recognized fishing rights lated interactions with industry, gov- from the States of California, Oregon, ernment bodies, academic institutions, Washington, or Idaho. The list of nomi- and public agencies. This includes ex- nees must contain a total of at least perience serving as a member of a three individuals who are knowledge- Council, Advisory Panel, Scientific and able and experienced regarding the Statistical Committee, or Fishing In- fishery resources under the authority dustry Advisory Committee; of the Pacific Council. The Secretary (v) Representing consumers of fish or will appoint one tribal Indian rep- fish products through participation in resentative from this list to the Pacific local, state, or national organizations, Council for a term of 3 years and rotate the appointment among the tribes. or performing other activities specifi- (iii) At-large seats are regional. cally related to the education or pro- When the term of an at-large member tection of consumers of marine re- is expiring or when that seat becomes sources; or vacant before the expiration of a term, (vi) Teaching, journalism, writing, the governors of all constituent states consulting, practicing law, or research- of that Council must each submit the ing matters related to fisheries, fishery names of at least three qualified indi- management, and marine resource con- viduals to fill the seat. servation. (b) Responsibilities of State Governors. (2) To assist in identifying qualifica- (1) Council members are selected by tions, each nominee must furnish to the Secretary from lists of nominees the appropriate governor’s office a cur- submitted by Governors of the con- rent resume, or equivalent, describing

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career history—with particular atten- servation and management of fisheries tion to experience related to the cri- resources in the jurisdiction of the teria in paragraph (b)(1) of this section. Council. Nominees may provide such informa- (2) Notwithstanding the requirements tion in any format they wish. of paragraphs (a) and (b) of this sec- (3) A constituent State Governor tion, if the Secretary determines that must determine the state of residency the list of names submitted by the of each of his/her nominees. A Gov- Governor does not meet the require- ernor may not nominate a non-resident ments of paragraph (c)(1) of this sec- of that state for appointment to a tion, the Secretary shall: Council seat obligated to that state. A (i) Publish a notice in the FEDERAL Governor may nominate residents of REGISTER asking the residents of that another constituent state of a Council State to submit the names and perti- for appointment to an at large seat on nent biographical data of individuals that Council. (4) If, at any time during a term, a who would meet the requirements of member changes residency to another this section that were not met for ap- state that is not a constituent state of pointment to the Council; and that Council, or a member appointed to (ii) Add the name of any qualified in- an obligatory seat changes residency to dividual submitted by the public who any other state, the member may no meets the requirements of this section longer vote and must resign from the that were not met to the list of names Council. For purposes of this para- submitted by the Governor. graph, a state resident is an individual (3) The requirements of this para- who maintains his/her principal resi- graph (c) shall expire at the end of fis- dence within that constituent state cal year 2012, meaning through Sep- and who, if applicable, pays income tember 30, 2012. taxes to that state and/or to another (d) Responsibilities of eligible tribal In- appropriate jurisdiction within that dian governments. The tribal Indian rep- state. resentative on the Pacific Council will (5) When the terms of both an obliga- be selected by the Secretary from a list tory member and an at-large member of no fewer than three individuals sub- expire concurrently, the Governor of mitted by the tribal Indian govern- the state holding the expiring obliga- ments with federally recognized fishing tory seat may indicate that the nomi- rights from California, Oregon, Wash- nees who were not selected for appoint- ington, and Idaho, pursuant to section ment to the obligatory seat may be 302(b)(5) of the Magnuson-Stevens Act. considered for appointment to an at- To assist in assessing the qualifica- large seat, provided that the resulting tions of each nominee, each head of an total number of nominees submitted by appropriate tribal Indian government that governor for the expiring at-large seat is no fewer than three different must furnish to the Assistant Adminis- nominees. trator a current resume, or equivalent, (c) Nominees to the Gulf of Mexico describing the nominee’s qualifica- Fishery Management Council. (1) The tions, with emphasis on knowledge and Governors of States submitting nomi- experience related to the fishery re- nees to the Secretary for appointment sources affected by recommendations to the Gulf of Mexico Fishery Manage- of the Pacific Council. Prior service on ment Council shall include: the Pacific Council in a different ca- (i) At least one nominee each from pacity will not disqualify nominees the commercial, recreational, and proposed by tribal Indian governments. charter fishing sectors, except that an (e) Nomination deadlines. Nomination individual who owns or operates a fish packages (governors’ letters and com- farm outside the United States shall pleted nomination kits) must be for- not be considered to be a representa- warded by express mail under a single tive of the commercial or recreational mailing to arrive at the address speci- sector; and fied by the Assistant Administrator by (ii) At least one other individual who March 15. For appointments outside is knowledgeable regarding the con- the normal cycle, the Secretary will

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provide a deadline for receipt of nomi- whether the individuals on the list are nations to the affected Council and qualified for the vacancy. If the Sec- state governors. retary determines that a nominee is (1) Obligatory seats. (i) The Governor not qualified, the Secretary will notify of the state for which the term of an the appropriate Governor or tribal In- obligatory seat is expiring should sub- dian government of that determina- mit the names of at least three quali- tion. The Governor or tribal Indian fied individuals to fill that seat by the government shall then submit a revised March 15 deadline. The Secretary will list of nominees or resubmit the origi- appoint to the Pacific Fishery Manage- nal list with an additional explanation ment Council a representative of an In- of the qualifications of the nominee in dian tribe from a list of no fewer than question. The Secretary reserves the three individuals submitted by the right to determine whether nominees tribal Indian governments. are qualified. (ii) If the Governor or tribal Indian (3) The Secretary will select the ap- governments fail to provide a nomina- pointees from lists of qualified nomi- tion letter and at least three complete nees provided by the Governors of the nomination kits by March 15, the oblig- constituent Council states or of the atory seat will remain vacant until all tribal Indian governments that are eli- required information has been received gible to nominate candidates for that and processed and the Secretary has vacancy. made the appointment. (i) For Governor-nominated seats, (2) At-large seats. (i) If a Governor the Secretary will select an appointee chooses to submit nominations for an for an obligatory seat from the list of at-large seat, he/she must submit lists that contain at least three qualified qualified nominees submitted by the nominees for each vacant seat. A nomi- governor of the state. In filling expir- nation letter and a nomination kit for ing at-large seats, the Secretary will each qualified nominee must be for- select an appointee(s) for an at-large warded by express mail under a single seat(s) from the list of all qualified mailing to arrive at the address speci- candidates submitted. The Secretary fied by the Assistant Administrator by will consider only complete slates of March 15. nominees submitted by the governors (ii) Nomination packages that are of the Council’s constituent states. not substantially complete by March 15 When an appointed member vacates may be returned to the nominating his/her seat prior to the expiration of Governor. At-large members will be ap- his/her term, the Secretary will fill the pointed from among the nominations vacancy for the remainder of the term submitted by the governors who com- by selecting from complete nomination plied with the nomination require- letters and kits that are timely and ments. contain the required number of can- (f) Responsibilities of the Secretary. (1) didates. The Secretary must, to the extent (ii) For the tribal Indian seat, the practicable, ensure a fair and balanced Secretary will solicit nominations of apportionment, on a rotating or other individuals for the list referred to in basis, of the active participants (or paragraph (c) of this section only from their representatives) in the commer- those Indian tribes with federally rec- cial and recreational fisheries in the ognized fishing rights from California, Council’s area of authority. Further, Oregon, Washington, or Idaho. The Sec- the Secretary must take action to en- retary will consult with the Bureau of sure, to the extent practicable, that Indian Affairs, Department of the Inte- those persons dependent for their live- rior, to determine which Indian tribes lihood upon the fisheries in the Coun- may submit nominations. Any vacancy cil’s area of authority are fairly rep- occurring prior to the expiration of any resented as voting members on the term shall be filled in the same manner Councils. as described in paragraphs (d)(1) and (2) (2) The Secretary will review each of this section, except that the Sec- list submitted by a governor or the retary may use the list referred to in tribal Indian governments to ascertain paragraph (b)(1) of this section from

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which the vacating member was cho- est, disclosure of confidential informa- sen. The Secretary shall rotate the ap- tion, and lobbying with appropriated pointment among the tribes, taking funds. into consideration: (b) The Councils are responsible for (A) The qualifications of the individ- maintaining high standards of ethical uals on the list referred to in para- conduct among themselves, their graph (c) of this section. staffs, and their advisory groups. In ad- (B) The various rights of the Indian dition to abiding by the applicable Fed- tribes involved, and judicial cases that eral conflict of interest statutes, both set out the manner in which these members and employees of the Coun- rights are to be exercised. cils must comply with the following (C) The geographic area in which the standards of conduct: tribe of the representative is located. (1) No employee of a Council may use (D) The limitation that no tribal In- his or her official authority or influ- dian representative shall serve more ence derived from his or her position than three consecutive terms in the In- with the Council for the purpose of dian tribal seat. interfering with or affecting the result [64 FR 4600, Jan. 29, 1999, as amended at 75 of an election to or a nomination for FR 59151, Sept. 27, 2010] any national, state, county, or munic- ipal elective office. § 600.220 Oath of office. (2) Council members, employees, and As trustees of the nation’s fishery re- contractors must comply with the Fed- sources, all voting members must take eral Cost Principles Applicable to Re- an oath specified by the Secretary as gional Fishery Management Council follows: ‘‘I, [name of the person taking Grants and Cooperative Agreements, oath], as a duly appointed member of a especially with regard to lobbying, and Regional Fishery Management Council other restrictions with regard to lob- established under the Magnuson-Ste- bying as specified in § 600.227 of this vens Fishery Conservation and Man- part. agement Act, hereby promise to con- (3) No employee of a Council may be serve and manage the living marine re- deprived of employment, position, sources of the United States of Amer- work, compensation, or benefit pro- ica by carrying out the business of the vided for or made possible by the Mag- Council for the greatest overall benefit nuson-Stevens Act on account of any of the Nation. I recognize my responsi- political activity or lack of such activ- bility to serve as a knowledgeable and ity in support of or in opposition to experienced trustee of the Nation’s ma- any candidate or any political party in rine fisheries resources, being careful any national, state, county, or munic- to balance competing private or re- ipal election, or on account of his or gional interests, and always aware and her political affiliation. protective of the public interest in (4) No Council member or employee those resources. I commit myself to up- may pay, offer, promise, solicit, or re- hold the provisions, standards, and receive from any person, firm, or cor- quirements of the Magnuson-Stevens poration a contribution of money or Fishery Conservation and Management anything of value in consideration of Act and other applicable law, and shall either support or the use of influence conduct myself at all times according or the promise of support or influence to the rules of conduct prescribed by in obtaining for any person any ap- the Secretary of Commerce. This oath pointive office, place, or employment is given freely and without mental res- under the Council. ervation or purpose of evasion.’’ (5) No employee of a Council may [75 FR 59152, Sept. 27, 2010] have a direct or indirect financial interest that conflicts with the fair and § 600.225 Rules of conduct. impartial conduct of his or her Council (a) Council members, as Federal of- duties. fice holders, and Council employees are (6) No Council member, employee of a subject to most Federal criminal stat- Council, or member of a Council advi- utes covering bribery, conflict-of-inter- sory group may use or allow the use,

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for other than official purposes, of in- the Federal Government in connection formation obtained through or in con- with the award. Because the Councils nection with his or her Council em- receive in excess of $100,000 in Federal ployment that has not been made funding, the regulations mandate that available to the general public. the Councils must complete Form SF- (7) No Council member or employee LLL, ‘‘Disclosure of Lobbying Activi- of the Council may engage in criminal, ties,’’ regarding the use of non Federal infamous, dishonest, notoriously im- funds for lobbying. The Form SF-LLL moral, or disgraceful conduct. shall be submitted within 30 days fol- (8) No Council member or employee lowing the end of the calendar quarter of the Council may use Council prop- in which there occurs any event that erty on other than official business. requires disclosure or that materially Such property must be protected and preserved from improper or deleterious affects the accuracy of the information operation or use. contained in any disclosure form pre- (9)(i) Except as provided in § 600.235(h) viously filed. The recipient must sub- or in 18 U.S.C. 208, no Council member mit the Forms SF-LLL, including may participate personally and sub- those received from subrecipients, con- stantially as a member through deci- tractors, and subcontractors, to the sion, approval, disapproval, rec- Grants Officer. ommendation, the rendering of advice, (b) Council members, employees, and investigation, or otherwise, in a par- contractors must comply with the Fed- ticular matter in which the member, eral Cost Principles Applicable to Re- the member’s spouse, minor child, gen- gional Fishery Management Council eral partner, organization in which the Grants and Cooperative Agreements member is serving as officer, director, summarized as follows: trustee, general partner, or employee, (1) Title 2 CFR part 230 - Cost Prin- or any person or organization with ciples for Nonprofit Organizations whom the member is negotiating or (OMB CircularA–122) is applicable to has any arrangement concerning pro- the Federal assistance awards issued to spective employment, has a financial the Councils. interest. (Note that this financial in- (2) The purpose of the cost principles terest is broader than the one defined at 2 CFR part 230 is to define what in § 600.235(a).) costs can be paid on Federal awards (ii) No Council member may partici- issued to non-profit organizations. The pate personally and substantially as a regulation establishes both general member through decision, approval, principles and detailed items of costs. disapproval, recommendation, the rendering of advice, investigation, or oth- (3) Under 2 CFR part 230, costs for erwise, in a particular matter pri- certain lobbying activities are unal- marily of individual concern, such as a lowable as charges to Federal awards. contract, in which he or she has a fi- These activities would include any at- nancial interest, even if the interest tempts to influence: has been disclosed in accordance with (i) The introduction of Federal or § 600.235. state legislation; (ii) The enactment or modification of [61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 63 FR 64185, Nov. 19, any pending legislation by preparing, 1998; 75 FR 59152, Sept. 27, 2010] distributing, or using publicity or prop- aganda, or by urging members of the § 600.227 Lobbying. general public to contribute to or to (a) Council members, employees and participate in any demonstration, contractors must comply with the re- march, rally, fundraising drive, lob- quirements of 31 U.S.C. 1352 and De- bying campaign, or letter writing or partment of Commerce implementing telephone campaign. regulations published at 15 CFR part (4) Generally, costs associated with 28, ‘‘New Restrictions on Lobbying.’’ providing a technical and factual pres- These provisions generally prohibit the entation directly related to the per- use of Federal funds for lobbying the formance of a grant, through hearing Executive or Legislative Branches of testimony, statements, or letters to

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Congress or a state legislature are al- ommendations for responding to the lowable if made in response to a docu- emergency); and comments to the Sec- mented request. retary on FMPs or amendments devel- (5) Costs associated with lobbying to oped by the Secretary. It does not in- influence state legislation in order to clude a vote by a committee of a Coun- reduce the cost or to avoid material cil. impairment of the organization’s au- Designated official means an attorney thority to perform the grant are also designated by the NOAA General Coun- allowable. sel. Financial Interest Form means NOAA [75 FR 59152, Sept. 27, 2010] Form 88–195, ‘‘STATEMENT OF FI- § 600.230 Removal. NANCIAL INTERESTS For Use By Voting Members of, and Nominees to, The Secretary may remove for cause the Regional Fishery Management any Secretarially appointed member of Councils, and Members of the Sci- a Council in accordance with section entific and Statistical Committee 302(b)(6) of the Magnuson-Stevens Act, (SSC)’’ or such other form as the Sec- wherein the Council concerned first retary may prescribe. recommends removal of that member Financial interest in harvesting, proc- by not less than two-thirds of the vot- essing, lobbying, advocacy, or marketing ing members. A recommendation of a (1) includes: Council to remove a member must be (i) Stock, equity, or other ownership made in writing to the Secretary and interests in, or employment with, any accompanied by a statement of the rea- company, business, fishing vessel, or sons upon which the recommendation other entity or employment with any is based. entity that has any percentage owner- [61 FR 32540, June 24, 1996, as amended at 63 ship in or by another entity engaging FR 7073, Feb. 12, 1998] in any harvesting, processing, lobbying, advocacy, or marketing activity § 600.235 Financial disclosure. in any fishery under the jurisdiction of (a) Definitions. For purposes of the Council concerned; § 600.235: (ii) Stock, equity, or other ownership Affected individual means an indi- interests in, or employment with, any vidual who is— company or other entity or employ- (1) Nominated by the Governor of a ment with any entity that has any per- state or appointed by the Secretary of centage ownership in or by another en- Commerce to serve as a voting member tity that provides equipment or other of a Council in accordance with section services essential to harvesting, proc- 302(b)(2) of the Magnuson-Stevens Act; essing, lobbying, advocacy, or mar- or keting activities in any fishery under (2) A representative of an Indian the jurisdiction of the Council con- tribe appointed to the Pacific Council cerned, such as a chandler or a dock by the Secretary of Commerce under operation; section 302(b)(5) of the Magnuson-Ste- (iii) Employment with, or service as vens Act who is not subject to disclo- an officer, director, or trustee of, an assure and recusal requirements under sociation whose members include com- the laws of an Indian tribal govern- panies, vessels, or other entities en- ment. gaged in any harvesting, processing, (3) A member of an SSC shall be lobbying, advocacy, or marketing ac- treated as an affected individual for tivities, or companies or other entities the purposes of paragraphs (b)(1), (b)(5) providing services essential to har- through (b)(7), and (i) of this section. vesting, processing, lobbying, advo- Council decision means approval of a cacy, or marketing activities in any fishery management plan (FMP) or fishery under the jurisdiction of the FMP amendment (including any pro- Council concerned; and posed regulations); request for amend- (iv) Employment with an entity that ment to regulations implementing an has any percentage ownership in or by FMP; finding that an emergency exists another entity providing consulting, involving any fishery (including rec- legal, or representational services to

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any entity engaging in, or providing Council) in which that individual is equipment or services essential to har- serving as an officer, director, trustee, vesting, processing, lobbying, advo- partner, or employee; and must update cacy, or marketing activities in any his or her form annually and file that fishery under the jurisdiction of the update with the Executive Director of Council concerned, or to any associa- the appropriate Council by February 1 tion whose members include entities of each year, regardless of whether any engaged in the activities described in information has changed on that form. paragraphs (1)(i) and (ii) of this defini- (3) The Executive Director must, in a tion; timely manner, provide copies of and (2) Does not include stock, equity, or updates to the Financial Interest other ownership interests in, or em- Forms of appointed Council members ployment with, an entity engaging in to the NMFS Regional Administrator, scientific fisheries research in any fish- the Regional Attorney who advises the ery under the jurisdiction of the Coun- Council, the Department of Commerce cil concerned, unless it is covered Assistant General Counsel for Adminis- under paragraph (1) of this definition. tration, and the NMFS Office of Sus- A financial interest in such entities is tainable Fisheries. These completed Fi- covered by 18 U.S.C. 208, the Federal nancial Interest Forms shall be kept on conflict-of-interest statute. file in the office of the NMFS Regional (b) Reporting. (1) The Magnuson-Ste- Administrator and at the Council of- vens Act requires the disclosure of any fices, and shall be made available for financial interest in harvesting, proc- public inspection at such offices during essing, lobbying, advocacy, or mar- normal office hours. In addition, the keting activity that is being, or will forms shall be made available at each be, undertaken within any fishery over Council meeting or hearing and shall which the Council concerned has juris- be posted for download from the Inter- diction. An affected individual must net on the Council’s website. disclose such financial interest held by (4) Councils must retain the Finan- that individual; the affected individ- cial Interest Form for a Council mem- ual’s spouse, minor child, partner; or ber for at least 5 years after the expira- any organization (other than the Coun- cil) in which that individual is serving tion of that individual’s last term. as an officer, director, trustee, partner, (5) An individual being considered for or employee. The information required appointment to an SSC must file the to be reported must be disclosed on the Financial Interest Form with the Re- Financial Interest Form (as defined in gional Administrator for the geo- paragraph (a) of this section), or such graphic area concerned within 45 days other form as the Secretary may pre- prior to appointment. A member of the scribe. SSC must file an update of his or her (2) The Financial Interest Form must statement with the Regional Adminis- be filed by each nominee for Secre- trator for the geographic area con- tarial appointment to the Council with cerned within 30 days of the time any the Assistant Administrator by April such financial interest is acquired or 15 or, if nominated after March 15, one substantially changed by the SSC month after nomination by the Gov- member or the SSC member’s spouse, ernor. A seated voting member ap- minor child, partner, or any organiza- pointed by the Secretary must file a tion (other than the Council) in which Financial Interest Form with the Exec- that individual is serving as an officer, utive Director of the appropriate Coun- director, trustee, partner, or employee; cil within 45 days of taking office; must and must update his or her form annu- file an update of his or her statement ally and file that update with the Re- with the Executive Director of the ap- gional Administrator by February 1 of propriate Council within 30 days of the each year. time any such financial interest is ac- (6) An individual who serves as an quired or substantially changed by the SSC member to more than one Council affected individual or the affected indi- shall file Financial Interest Forms vidual’s spouse, minor child, partner, with each Regional Administrator for or any organization (other than the the geographic areas concerned.

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(7) The Regional Administrator shall fishery or sector of the fishery in ques- maintain on file the Financial Interest tion. Forms of all SSC members for at least (4) A member of an SSC is not subject five years after the expiration of that to the restrictions on voting under this individual’s term on the SSC. Such section. Forms are not subject to sections (d) Voluntary recusal. An affected in- 302(j)(5)(B) and (C) of the Magnuson- dividual who believes that a Council Stevens Act. decision would have a significant and (c) Restrictions on voting. (1) No af- predictable effect on that individual’s fected individual may vote on any financial interest disclosed under para- Council decision that would have a sig- graph (b) of this section may, at any nificant and predictable effect on a fi- time before a vote is taken, announce nancial interest disclosed in his/her re- to the Council an intent not to vote on port filed under paragraph (b) of this the decision and identify the financial section. interest that would be affected. (2) As used in this section, a Council (e) Participation in deliberations. Not- decision will be considered to have a withstanding paragraph (c) of this sec- ‘‘significant and predictable effect on a tion, an affected individual who is financial interest’’ if there is a close recused from voting under this section causal link between the decision and may participate in Council and com- an expected and substantially dis- mittee deliberations relating to the de- proportionate benefit to the financial cision, after notifying the Council of interest in harvesting, processing, lob- the voting recusal and identifying the bying, advocacy, or marketing of any financial interest that would be af- affected individual or the affected indi- fected. vidual’s spouse, minor child, partner, (f) Requests for determination. (1) At or any organization (other than the the request of an affected individual, the designated official shall determine Council) in which that individual is for the record whether a Council deci- serving as an officer, director, trustee, sion would have a significant and pre- partner, or employee, relative to the fi- dictable effect on that individual’s financial interests of other participants nancial interest. The determination in the same gear type or sector of the will be based upon a review of the in- fishery. The relative financial interests formation contained in the individual’s of the affected individual and other financial disclosure form and any other participants will be determined with reliable and probative information pro- reference to the most recent fishing vided in writing. All information con- year for which information is avail- sidered will be made part of the public able. However, for fisheries in which record for the decision. The affected in- IFQs are assigned, the percentage of dividual may request a determination IFQs assigned to the affected indi- by notifying the designated official— vidual will be the determining factor. (i) Within a reasonable time before (3) ‘‘Expected and substantially dis- the Council meeting at which the proportionate benefit’’ means a quan- Council decision will be made; or tifiable positive or negative impact (ii) During a Council meeting before with regard to a matter likely to affect a Council vote on the decision. a fishery or sector of the fishery in (2) The designated official may ini- which the affected individual has a sig- tiate a determination on the basis of— nificant interest, as indicated by: (i) His or her knowledge of the fish- (i) A greater than 10-percent interest ery and the financial interests dis- in the total harvest of the fishery or closed by an affected individual; or sector of the fishery in question; (ii) Written and signed information (ii) A greater than 10-percent interest received within a reasonable time be- in the marketing or processing of the fore a Council meeting or, if the issue total harvest of the fishery or sector of could not have been anticipated before the fishery in question; or the meeting, during a Council meeting (iii) Full or partial ownership of before a Council vote on the decision. more than 10 percent of the vessels (3) At the beginning of each Council using the same gear type within the meeting, or during a Council meeting

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at any time reliable and probative in- apply to an affected individual who is a formation is received, the designated voting member of a Council appointed official shall announce the receipt of by the Secretary, as described under information relevant to a determina- section 302(j)(1)(A)(ii) of the Magnuson- tion concerning recusal, the nature of Stevens Act, and who is in compliance that information, and the identity of with the requirements of this section the submitter of such information. for filing a financial disclosure report. (4) If the designated official deter- The provisions of 18 U.S.C. 208 do not mines that the affected individual may apply to a member of an SSC, unless not vote, the individual may state for that individual is an officer or em- the record how he or she would have ployee of the United States or is other- voted. A Council Chair may not allow wise covered by the requirements of 18 such an individual to cast a vote. U.S.C. 208. (5) A reversal of a determination (i) It is unlawful for an affected indi- under paragraph (g) of this section may vidual to knowingly and willfully fail not be treated as cause for invalidation to disclose, or to falsely disclose, any or reconsideration by the Secretary of financial interest as required by this a Council’s decision. section, or to knowingly vote on a (g) Review of determinations. (1) Any Council decision in violation of this Council member may file a written re- section. In addition to the penalties ap- quest to the NOAA General Counsel for plicable under § 600.735, a violation of review of the designated official’s de- this provision may result in removal of termination. A request for review must the affected individual from Council or be received within 10 days of the deter- SSC membership. mination. [63 FR 64185, Nov. 19, 1998, as amended at 75 (2) A request must include a full FR 59152, Sept. 27, 2010] statement in support of the review, including a concise statement as to why § 600.240 Security assurances. the Council’s decision did or did not (a) DOC Office of Security will issue have a significantly disproportionate security assurances to Council mem- benefit to the financial interest of the bers following completion of favorable affected individual relative to the fi- background investigations. A Council nancial interests of other participants member’s appointment is conditional in the same gear type or sector of the until such time as the background in- fishery, and why the designated offi- vestigation has been favorably adju- cial’s determination should be re- dicated. The Secretary will revoke the versed. member’s appointment if that member (3) If the request for review is from a receives an unfavorable background in- Council member other than the af- vestigation. In instances in which fected individual whose vote is at issue, Council members may need to discuss, the requester must provide a copy of at closed meetings, materials classified the request to the affected individual for national security purposes, the at the same time it is submitted to the agency or individual (e.g., Department NOAA General Counsel. The affected of State, U.S. Coast Guard) providing individual may submit a response to such classified information will be re- the NOAA General Counsel within 10 sponsible for ensuring that Council days from the date of his/her receipt of members and other attendees have the the request for review. appropriate security clearances. (4) The NOAA General Counsel must (b) Each nominee to a Council is re- complete the review and issue a deci- quired to complete a Certification of sion within 30 days from the date of re- Status form (‘‘form’’). All nominees ceipt of the request for review. The must certify, pursuant to the Foreign NOAA General Counsel will limit the Agents Registration Act of 1938, wheth- review to the record before the des- er they serve as an agent of a foreign ignated official at the time of the de- principal. Each nominee must certify, termination, the request, and any re- date, sign, and return the form with his sponse. or her completed nomination kit. (h) The provisions of 18 U.S.C. 208 re- Nominees will not be considered for ap- garding conflicts of interest do not pointment to a Council if they have

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not filed this form. Any nominee who (c) The Executive Director of each currently is an agent of a foreign prin- Council must submit to the appro- cipal will not be eligible for appoint- priate Regional Office annually a re- ment to a Council, and therefore port, approved by the Council Chair, of should not be nominated by a Governor Council member compensation author- for appointment. ized. This report shall identify, for [61 FR 32540, June 24, 1996, as amended 75 FR each member, amount paid, dates, and 59153, Sept. 27, 2010] location and purpose of meetings attended. § 600.245 Council member compensa- [61 FR 32540, June 24, 1996, as amended at 63 tion. FR 7075, Feb. 12, 1998; 66 FR 57888, Nov. 19, (a) All voting Council members 2001] whose eligibility for compensation has been established in accordance with § 600.250 Council member training. NOAA guidelines will be paid through (a) The Secretary shall provide a the cooperative agreement as a direct training course covering a variety of line item on a contractual basis with- topics relevant to matters before the out deductions being made for Social Councils and shall make the training Security or Federal and state income course available to all Council mem- taxes. A report of compensation will be bers and staff and staff from NMFS re- furnished each year by the member’s gional offices and science centers. To Council to the proper Regional Pro- the extent resources allow, the Sec- gram Officer, as required by the Inter- retary will make the training available nal Revenue Service. Such compensa- to Council committee and advisory tion may be paid on a full day’s basis, panel members. whether in excess of 8 hours a day or (b) Council members appointed after less than 8 hours a day. The time is January 12, 2007, shall, within one year compensable where the individual of appointment, complete the training member is required to expend a signifi- course developed by the Secretary. Any cant private effort that substantially Council member who completed such a disrupts the daily routine to the extent training course within 24 months of that a work day is lost to the member. January 12, 2007, is considered to have ‘‘Homework’’ time in preparation for met the training requirement of this formal Council meetings is not com- section. pensable. (b) Non-government Council mem- [75 FR 59154, Sept. 27, 2010] bers receive compensation for: (1) Days spent in actual attendance Subpart D—National Standards at a meeting of the Council or jointly with another Council. § 600.305 General. (2) Travel on the day preceding or fol- (a) Purpose. (1) This subpart estab- lowing a scheduled meeting that pre- lishes guidelines, based on the national cluded the member from conducting standards, to assist in the development his normal business on the day in ques- and review of FMPs, amendments, and tion. regulations prepared by the Councils (3) Meetings of standing committees and the Secretary. of the Council if approved in advance (2) In developing FMPs, the Councils by the Chair. have the initial authority to ascertain (4) Individual member meeting with factual circumstances, to establish scientific and technical advisors, when management objectives, and to propose approved in advance by the Chair and a management measures that will substantial portion of any day is spent achieve the objectives. The Secretary at the meeting. will determine whether the proposed (5) Conducting or attending hearings, management objectives and measures when authorized in advance by the are consistent with the national stand- Chair. ards, other provisions of the Magnuson- (6) Other meetings involving Council Stevens Act, and other applicable law. business when approved in advance by The Secretary has an obligation under the Chair. section 301(b) of the Magnuson-Stevens

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Act to inform the Councils of the Sec- the logical extension thereof, or of retary’s interpretation of the national other applicable law. standards so that they will have an un- (2) Shall is used only when quoting derstanding of the basis on which statutory language directly, to avoid FMPs will be reviewed. confusion with the future tense. (3) The national standards are statu- (3) Should is used to indicate that an tory principles that must be followed action or consideration is strongly rec- in any FMP. The guidelines summarize ommended to fulfill the Secretary’s in- Secretarial interpretations that have terpretation of the Magnuson-Stevens been, and will be, applied under these Act, and is a factor reviewers will look principles. The guidelines are intended for in evaluating a SOPP or FMP. as aids to decisionmaking; FMPs for- (4) May is used in a permissive sense. mulated according to the guidelines (5) May not is proscriptive; it has the will have a better chance for expedi- same force as ‘‘must not.’’ tious Secretarial review, approval, and (6) Will is used descriptively, as dis- implementation. FMPs that are in sub- tinguished from denoting an obligation stantial compliance with the guide- to act or the future tense. lines, the Magnuson-Stevens Act, and (7) Could is used when giving exam- other applicable law must be approved. ples, in a hypothetical, permissive sense. (b) Fishery management objectives. (1) (8) Can is used to mean ‘‘is able to,’’ Each FMP, whether prepared by a as distinguished from ‘‘may.’’ Council or by the Secretary, should (9) Examples are given by way of illus- identify what the FMP is designed to tration and further explanation. They accomplish (i.e., the management ob- are not inclusive lists; they do not jectives to be attained in regulating limit options. the fishery under consideration). In es- (10) Analysis, as a paragraph heading, tablishing objectives, Councils balance signals more detailed guidance as to biological constraints with human the type of discussion and examination needs, reconcile present and future an FMP should contain to demonstrate costs and benefits, and integrate the compliance with the standard in ques- diversity of public and private inter- tion. ests. If objectives are in conflict, prior- (11) Council includes the Secretary, as ities should be established among applicable, when preparing FMPs or them. amendments under section 304(c) and (2) How objectives are defined is im- (g) of the Magnuson-Stevens Act. portant to the management process. (12) Stock or stock complex is used as a Objectives should address the problems synonym for ‘‘fishery’’ in the sense of of a particular fishery. The objectives the Magnuson-Stevens Act’s first defi- should be clearly stated, practicably nition of the term; that is, as ‘‘one or attainable, framed in terms of defin- more stocks of fish that can be treated able events and measurable benefits, as a unit for purposes of conservation and based upon a comprehensive rather and management and that are identi- than a fragmentary approach to the fied on the basis of geographic, sci- problems addressed. An FMP should entific, technical, recreational, or eco- make a clear distinction between ob- nomic characteristics,’’ as distin- jectives and the management measures guished from the Magnuson-Stevens chosen to achieve them. The objectives Act’s second definition of fishery as of each FMP provide the context with- ‘‘any fishing for such stocks.’’ in which the Secretary will judge the [61 FR 32540, June 24, 1996, as amended at 63 consistency of an FMP’s conservation FR 7075, Feb. 12, 1998; 63 FR 24229, May 1, and management measures with the 1998] national standards. (c) Word usage. The word usage refers § 600.310 National Standard 1—Opti- to all regulations in this subpart. mum Yield. (1) Must is used, instead of ‘‘shall’’, to (a) Standard 1. Conservation and denote an obligation to act; it is used management measures shall prevent primarily when referring to require- overfishing while achieving, on a con- ments of the Magnuson-Stevens Act, tinuing basis, the optimum yield (OY)

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from each fishery for the U.S. fishing section 303(a)(15)). Subject to certain industry. exceptions and circumstances de- (b) General. (1) The guidelines set scribed in paragraph (h) of this section, forth in this section describe fishery this requirement takes effect in fishing management approaches to meet the year 2010, for fisheries determined sub- objectives of National Standard 1 ject to overfishing, and in fishing year (NS1), and include guidance on: 2011, for all other fisheries (Magnuson- (i) Specifying maximum sustainable Stevens Act section 303 note). ‘‘Coun- yield (MSY) and OY; cil’’ includes the Regional Fishery (ii) Specifying status determination Management Councils and the Sec- criteria (SDC) so that overfishing and retary of Commerce, as appropriate (see overfished determinations can be made § 600.305(c)(11)). for stocks and stock complexes that (iv) Reference points. SDC, MSY, ac- are part of a fishery; ceptable biological catch (ABC), and (iii) Preventing overfishing and ACL, which are described further in achieving OY, incorporation of scientific and management uncertainty in paragraphs (e) and (f) of this section, control rules, and adaptive manage- are collectively referred to as ‘‘ref- ment using annual catch limits (ACL) erence points.’’ and measures to ensure accountability (v) Scientific advice. The Magnuson- (AM); and Stevens Act has requirements regard- (iv) Rebuilding stocks and stock ing scientific and statistical commit- complexes. tees (SSC) of the Regional Fishery (2) Overview of Magnuson-Stevens Act Management Councils, including but concepts and provisions related to NS1— not limited to, the following provi- (i) MSY. The Magnuson-Stevens Act es- sions: tablishes MSY as the basis for fishery (A) Each Regional Fishery Manage- management and requires that: The ment Council shall establish an SSC as fishing mortality rate does not jeop- described in section 302(g)(1)(A) of the ardize the capacity of a stock or stock Magnuson-Stevens Act. complex to produce MSY; the abun- (B) Each SSC shall provide its Re- dance of an overfished stock or stock gional Fishery Management Council complex be rebuilt to a level that is ca- recommendations for ABC as well as pable of producing MSY; and OY not other scientific advice, as described in exceed MSY. Magnuson-Stevens Act section (ii) OY. The determination of OY is a 302(g)(1)(B). decisional mechanism for resolving the (C) The Secretary and each Regional Magnuson-Stevens Act’s conservation Fishery Management Council may es- and management objectives, achieving tablish a peer review process for that a fishery management plan’s (FMP) ob- Council for scientific information used jectives, and balancing the various interests that comprise the greatest to advise the Council about the con- overall benefits to the Nation. OY is servation and management of a fishery based on MSY as reduced under para- (see Magnuson-Stevens Act section graphs (e)(3)(iii) and (iv) of this sec- 302(g)(1)(E)). If a peer review process is tion. The most important limitation on established, it should investigate the the specification of OY is that the technical merits of stock assessments choice of OY and the conservation and and other scientific information used management measures proposed to by the SSC or agency or international achieve it must prevent overfishing. scientists, as appropriate. For Regional (iii) ACLs and AMs. Any FMP which Fishery Management Councils, the is prepared by any Council shall estab- peer review process is not a substitute lish a mechanism for specifying ACLs for the SSC and should work in con- in the FMP (including a multiyear junction with the SSC. For the Sec- plan), implementing regulations, or an- retary, which does not have an SSC, nual specifications, at a level such that the peer review process should provide overfishing does not occur in the fish- the scientific information necessary. ery, including measures to ensure ac- (D) Each Council shall develop ACLs countability (Magnuson-Stevens Act for each of its managed fisheries that

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may not exceed the ‘‘fishing level rec- lationship to the ABC (see paragraphs ommendations’’ of its SSC or peer re- (f)(5) and (h) of this section). view process (Magnuson-Stevens Act (5) AMs (see paragraphs (g) and (h)(1) section 302(h)(6)). The SSC rec- of this section). ommendation that is the most relevant (6) Stocks and stock complexes that to ACLs is ABC, as both ACL and ABC have statutory exceptions from ACLs are levels of annual catch. (see paragraph (h)(2) of this section) or (3) Approach for setting limits and ac- which fall under limited circumstances countability measures, including targets, which require different approaches to for consistency with NS1. In general, meet the ACL requirements (see para- when specifying limits and account- graph (h)(3) of this section). ability measures intended to avoid (d) Classifying stocks in an FMP—(1) overfishing and achieve sustainable Introduction. Magnuson-Stevens Act fisheries, Councils must take an ap- section 303(a)(2) requires that an FMP proach that considers uncertainty in contain, among other things, a descrip- scientific information and manage- tion of the species of fish involved in ment control of the fishery. These the fishery. The relevant Council deter- guidelines describe how to address un- mines which specific target stocks and/ certainty such that there is a low risk or non-target stocks to include in a that limits are exceeded as described in fishery. This section provides that a paragraphs (f)(4) and (f)(6) of this sec- Council may, but is not required to, tion. use an ‘‘ecosystem component (EC)’’ (c) Summary of items to include in species classification. As a default, all FMPs related to NS1. This section pro- stocks in an FMP are considered to be vides a summary of items that Coun- ‘‘in the fishery,’’ unless they are iden- cils must include in their FMPs and tified as EC species (see § 600.310(d)(5)) FMP amendments in order to address through an FMP amendment process. ACL, AM, and other aspects of the NS1 guidelines. As described in further de- (2) Stocks in a fishery. Stocks in a tail in paragraph (d) of this section, fishery may be grouped into stock com- Councils may review their FMPs to de- plexes, as appropriate. Requirements cide if all stocks are ‘‘in the fishery’’ or for reference points and management whether some fit the category of ‘‘eco- measures for these stocks are described system component species.’’ Councils throughout these guidelines. must also describe fisheries data for (3) ‘‘Target stocks’’ are stocks that the stocks, stock complexes, and eco- fishers seek to catch for sale or per- system component species in their sonal use, including ‘‘economic dis- FMPs, or associated public documents cards’’ as defined under Magnuson-Ste- such as Stock Assessment and Fishery vens Act section 3(9). Evaluation (SAFE) Reports. For all (4) ‘‘Non-target species’’ and ‘‘non- stocks and stock complexes that are target stocks’’ are fish caught inciden- ‘‘in the fishery’’ (see paragraph (d)(2) of tally during the pursuit of target this section), the Councils must evalu- stocks in a fishery, including ‘‘regu- ate and describe the following items in latory discards’’ as defined under Mag- their FMPs and amend the FMPs, if nuson-Stevens Act section 3(38). They necessary, to align their management may or may not be retained for sale or objectives to end or prevent over- personal use. Non-target species may fishing: be included in a fishery and, if so, they (1) MSY and SDC (see paragraphs should be identified at the stock level. (e)(1) and (2) of this section). Some non-target species may be identi- (2) OY at the stock, stock complex, fied in an FMP as ecosystem compo- or fishery level and provide the OY nent (EC) species or stocks. specification analysis (see paragraph (5) Ecosystem component (EC) species. (e)(3) of this section). (i) To be considered for possible classi- (3) ABC control rule (see paragraph fication as an EC species, the species (f)(4) of this section). should: (4) Mechanisms for specifying ACLs (A) Be a non-target species or non- and possible sector-specific ACLs in re- target stock;

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(B) Not be determined to be subject FMP amendment, which documents ra- to overfishing, approaching overfished, tionale for the decision. or overfished; (7) Stocks or species identified in more (C) Not be likely to become subject than one FMP. If a stock is identified in to overfishing or overfished, according more than one fishery, Councils should to the best available information, in choose which FMP will be the primary the absence of conservation and man- FMP in which management objectives, agement measures; and SDC, the stock’s overall ACL and other (D) Not generally be retained for sale reference points for the stock are es- or personal use. tablished. Conservation and manage- (ii) Occasional retention of the spe- ment measures in other FMPs in which cies would not, in and of itself, pre- the stock is identified as part of a fish- clude consideration of the species ery should be consistent with the pri- under the EC classification. In addition mary FMP’s management objectives to the general factors noted in para- for the stock. graphs (d)(5)(i)(A)–(D) of this section, it (8) Stock complex. ‘‘Stock complex’’ is important to consider whether use of means a group of stocks that are suffi- the EC species classification in a given ciently similar in geographic distribu- instance is consistent with MSA con- tion, life history, and vulnerabilities to servation and management require- the fishery such that the impact of ments. management actions on the stocks is (iii) EC species may be identified at similar. At the time a stock complex is the species or stock level, and may be established, the FMP should provide a grouped into complexes. EC species full and explicit description of the pro- may, but are not required to, be in- portional composition of each stock in cluded in an FMP or FMP amendment the stock complex, to the extent pos- for any of the following reasons: For sible. Stocks may be grouped into com- data collection purposes; for ecosystem plexes for various reasons, including considerations related to specification where stocks in a multispecies fishery of OY for the associated fishery; as cannot be targeted independent of one considerations in the development of another and MSY can not be defined on conservation and management meas- a stock-by-stock basis (see paragraph ures for the associated fishery; and/or (e)(1)(iii) of this section); where there to address other ecosystem issues. is insufficient data to measure their While EC species are not considered to status relative to SDC; or when it is be ‘‘in the fishery,’’ a Council should not feasible for fishermen to distin- consider measures for the fishery to guish individual stocks among their minimize bycatch and bycatch mor- catch. The vulnerability of stocks to tality of EC species consistent with Na- the fishery should be evaluated when tional Standard 9, and to protect their determining if a particular stock com- associated role in the ecosystem. EC plex should be established or reorga- species do not require specification of nized, or if a particular stock should be reference points but should be mon- included in a complex. Stock com- itored to the extent that any new per- plexes may be comprised of: one or tinent scientific information becomes more indicator stocks, each of which available (e.g., catch trends, vulner- has SDC and ACLs, and several other ability, etc.) to determine changes in stocks; several stocks without an indi- their status or their vulnerability to cator stock, with SDC and an ACL for the fishery. If necessary, they should the complex as a whole; or one of more be reclassified as ‘‘in the fishery.’’ indicator stocks, each of which has (6) Reclassification. A Council should SDC and management objectives, with monitor the catch resulting from a an ACL for the complex as a whole fishery on a regular basis to determine (this situation might be applicable to if the stocks and species are appro- some salmon species). priately classified in the FMP. If the (9) Indicator stocks. An indicator criteria previously used to classify a stock is a stock with measurable SDC stock or species is no longer valid, the that can be used to help manage and Council should reclassify it through an evaluate more poorly known stocks

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that are in a stock complex. If an indi- selectivity), and the distribution of cator stock is used to evaluate the sta- catch among fleets. tus of a complex, it should be rep- (B) MSY fishing mortality rate (Fmsy) is resentative of the typical status of the fishing mortality rate that, if ap- each stock within the complex, due to plied over the long term, would result similarity in vulnerability. If the in MSY. stocks within a stock complex have a (C) MSY stock size (Bmsy) means the wide range of vulnerability, they long-term average size of the stock or should be reorganized into different stock complex, measured in terms of stock complexes that have similar spawning biomass or other appropriate vulnerabilities; otherwise the indicator measure of the stock’s reproductive po- stock should be chosen to represent the tential that would be achieved by fish- more vulnerable stocks within the ing at Fmsy. complex. In instances where an indi- (ii) MSY for stocks. MSY should be es- cator stock is less vulnerable than timated for each stock based on the other members of the complex, man- best scientific information available agement measures need to be more (see § 600.315). conservative so that the more vulner- (iii) MSY for stock complexes. MSY able members of the complex are not at should be estimated on a stock-by- risk from the fishery. More than one stock basis whenever possible. How- indicator stock can be selected to pro- ever, where MSY cannot be estimated vide more information about the status for each stock in a stock complex, then of the complex. When indicator MSY may be estimated for one or more stock(s) are used, periodic re-evalua- indicator stocks for the complex or for tion of available quantitative or quali- the complex as a whole. When indicator tative information (e.g., catch trends, stocks are used, the stock complex’s changes in vulnerability, fish health MSY could be listed as ‘‘unknown,’’ indices, etc.) is needed to determine while noting that the complex is managed on the basis of one or more indi- whether a stock is subject to over- cator stocks that do have known stock- fishing, or is approaching (or in) an specific MSYs, or suitable proxies, as overfished condition. described in paragraph (e)(1)(iv) of this (10) Vulnerability. A stock’s vulner- section. When indicator stocks are not ability is a combination of its produc- used, MSY, or a suitable proxy, should tivity, which depends upon its life his- be calculated for the stock complex as tory characteristics, and its suscepti- a whole. bility to the fishery. Productivity re- (iv) Specifying MSY. Because MSY is a fers to the capacity of the stock to long-term average, it need not be esti- produce MSY and to recover if the pop- mated annually, but it must be based ulation is depleted, and susceptibility on the best scientific information is the potential for the stock to be im- available (see § 600.315), and should be pacted by the fishery, which includes re-estimated as required by changes in direct captures, as well as indirect im- long-term environmental or ecological pacts to the fishery (e.g., loss of habi- conditions, fishery technological char- tat quality). Councils in consultation acteristics, or new scientific informa- with their SSC, should analyze the vul- tion. When data are insufficient to esti- nerability of stocks in stock complexes mate MSY directly, Councils should where possible. adopt other measures of reproductive (e) Features of MSY, SDC, and OY—(1) potential, based on the best scientific MSY. Each FMP must include an esti- information available, that can serve mate of MSY for the stocks and stock as reasonable proxies for MSY, Fmsy, complexes in the fishery, as described and Bmsy, to the extent possible. The in paragraph (d)(2) of this section). MSY for a stock is influenced by its (i) Definitions. (A) MSY is the largest interactions with other stocks in its long-term average catch or yield that ecosystem and these interactions may can be taken from a stock or stock shift as multiple stocks in an eco- complex under prevailing ecological, system are fished. These ecological environmental conditions and fishery conditions should be taken into ac- technological characteristics (e.g., gear count, to the extent possible, when

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specifying MSY. Ecological conditions abundance and is expressed in terms of not directly accounted for in the speci- numbers or weight of fish. The OFL is fication of MSY can be among the eco- an estimate of the catch level above logical factors considered when setting which overfishing is occurring. OY below MSY. As MSY values are es- (E) Overfished. A stock or stock com- timates or are based on proxies, they plex is considered ‘‘overfished’’ when will have some level of uncertainty as- its biomass has declined below a level sociated with them. The degree of un- that jeopardizes the capacity of the certainty in the estimates should be stock or stock complex to produce identified, when possible, through the MSY on a continuing basis. stock assessment process and peer re- (F) Minimum stock size threshold view (see § 600.335), and should be taken (MSST) means the level of biomass into account when specifying the ABC below which the stock or stock com- Control rule. Where this uncertainty plex is considered to be overfished. cannot be directly calculated, such as (G) Approaching an overfished condi- when proxies are used, then a proxy for tion. A stock or stock complex is ap- the uncertainty itself should be estab- proaching an overfished condition lished based on the best scientific in- when it is projected that there is more formation, including comparison to than a 50 percent chance that the bio- other stocks. mass of the stock or stock complex will (2) Status determination criteria—(i) decline below the MSST within two Definitions. (A) Status determination cri- years. teria (SDC) mean the quantifiable fac- (ii) Specification of SDC and over- tors, MFMT, OFL, and MSST, or their fishing and overfished determinations. proxies, that are used to determine if SDC must be expressed in a way that overfishing has occurred, or if the enables the Council to monitor each stock or stock complex is overfished. stock or stock complex in the FMP, Magnuson-Stevens Act (section 3(34)) and determine annually, if possible, defines both ‘‘overfishing’’ and ‘‘over- whether overfishing is occurring and fished’’ to mean a rate or level of fish- whether the stock or stock complex is ing mortality that jeopardizes the ca- overfished. In specifying SDC, a Coun- pacity of a fishery to produce the MSY cil must provide an analysis of how the on a continuing basis. To avoid confu- SDC were chosen and how they relate sion, this section clarifies that ‘‘over- to reproductive potential. Each FMP fished’’ relates to biomass of a stock or must specify, to the extent possible, stock complex, and ‘‘overfishing’’ per- objective and measurable SDC as fol- tains to a rate or level of removal of lows (see paragraphs (e)(2)(ii)(A) and fish from a stock or stock complex. (B) of this section): (B) Overfishing (to overfish) occurs (A) SDC to determine overfishing status. whenever a stock or stock complex is Each FMP must describe which of the subjected to a level of fishing mor- following two methods will be used for tality or annual total catch that jeop- each stock or stock complex to deter- ardizes the capacity of a stock or stock mine an overfishing status. complex to produce MSY on a con- (1) Fishing mortality rate exceeds tinuing basis. MFMT. Exceeding the MFMT for a pe- (C) Maximum fishing mortality thresh- riod of 1 year or more constitutes over- old (MFMT) means the level of fishing fishing. The MFMT or reasonable proxy mortality (F), on an annual basis, may be expressed either as a single above which overfishing is occurring. number (a fishing mortality rate or F The MFMT or reasonable proxy may be value), or as a function of spawning expressed either as a single number (a biomass or other measure of reproduc- fishing mortality rate or F value), or tive potential. as a function of spawning biomass or (2) Catch exceeds the OFL. Should the other measure of reproductive poten- annual catch exceed the annual OFL tial. for 1 year or more, the stock or stock (D) Overfishing limit (OFL) means the complex is considered subject to over- annual amount of catch that cor- fishing. responds to the estimate of MFMT ap- (B) SDC to determine overfished status. plied to a stock or stock complex’s The MSST or reasonable proxy must be

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expressed in terms of spawning biomass posed SDC will be based on consider- or other measure of reproductive po- ation of whether the proposal: tential. To the extent possible, the (A) Has sufficient scientific merit; MSST should equal whichever of the (B) Contains the elements described following is greater: One-half the MSY in paragraph (e)(2)(ii) of this section; stock size, or the minimum stock size (C) Provides a basis for objective at which rebuilding to the MSY level measurement of the status of the stock would be expected to occur within 10 or stock complex against the criteria; years, if the stock or stock complex and were exploited at the MFMT specified (D) Is operationally feasible. under paragraph (e)(2)(ii)(A)(1) of this (3) Optimum yield—(i) Definitions—(A) section. Should the estimated size of Optimum yield (OY). Magnuson-Stevens the stock or stock complex in a given Act section (3)(33) defines ‘‘optimum,’’ year fall below this threshold, the with respect to the yield from a fish- stock or stock complex is considered ery, as the amount of fish that will overfished. provide the greatest overall benefit to (iii) Relationship of SDC to environ- the Nation, particularly with respect mental change. Some short-term envi- to food production and recreational op- ronmental changes can alter the size of portunities and taking into account a stock or stock complex without af- the protection of marine ecosystems; fecting its long-term reproductive po- that is prescribed on the basis of the tential. Long-term environmental MSY from the fishery, as reduced by changes affect both the short-term size any relevant economic, social, or eco- of the stock or stock complex and the logical factor; and, in the case of an long-term reproductive potential of the overfished fishery, that provides for re- stock or stock complex. building to a level consistent with pro- (A) If environmental changes cause a ducing the MSY in such fishery. OY stock or stock complex to fall below its may be established at the stock or MSST without affecting its long-term stock complex level, or at the fishery reproductive potential, fishing mor- level. tality must be constrained sufficiently (B) In NS1, use of the phrase to allow rebuilding within an accept- ‘‘achieving, on a continuing basis, the able time frame (also see paragraph optimum yield from each fishery’’ (j)(3)(ii) of this section). SDC should means producing, from each stock, not be respecified. stock complex, or fishery: a long-term (B) If environmental changes affect series of catches such that the average the long-term reproductive potential of catch is equal to the OY, overfishing is the stock or stock complex, one or prevented, the long term average bio- more components of the SDC must be mass is near or above Bmsy, and over- respecified. Once SDC have been re- fished stocks and stock complexes are specified, fishing mortality may or rebuilt consistent with timing and may not have to be reduced, depending other requirements of section 304(e)(4) on the status of the stock or stock of the Magnuson-Stevens Act and para- complex with respect to the new cri- graph (j) of this section. teria. (ii) General. OY is a long-term aver- (C) If manmade environmental age amount of desired yield from a changes are partially responsible for a stock, stock complex, or fishery. An stock or stock complex being in an FMP must contain conservation and overfished condition, in addition to management measures, including ACLs controlling fishing mortality, Councils and AMs, to achieve OY on a con- should recommend restoration of habi- tinuing basis, and provisions for infor- tat and other ameliorative programs, mation collection that are designed to to the extent possible (see also the determine the degree to which OY is guidelines issued pursuant to section achieved. These measures should allow 305(b) of the Magnuson-Stevens Act for for practical and effective implementa- Council actions concerning essential tion and enforcement of the manage- fish habitat). ment regime. The Secretary has an ob- (iv) Secretarial approval of SDC. Secre- ligation to implement and enforce the tarial approval or disapproval of pro- FMP. If management measures prove

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unenforceable—or too restrictive, or ecosystem, maintaining evolutionary not rigorous enough to prevent over- and ecological processes (e.g., disturb- fishing while achieving OY—they ance regimes, hydrological processes, should be modified; an alternative is to nutrient cycles), maintaining the evo- reexamine the adequacy of the OY lutionary potential of species and eco- specification. Exceeding OY does not systems, and accommodating human necessarily constitute overfishing. use. However, even if no overfishing re- (iv) Factors to consider in OY specifica- sulted from exceeding OY, continual tion. Because fisheries have limited ca- harvest at a level above OY would vio- pacities, any attempt to maximize the late NS1, because OY was not achieved measures of benefits described in para- on a continuing basis. An FMP must graph (e)(3)(iii) of this section will in- contain an assessment and specifica- evitably encounter practical con- tion of OY, including a summary of in- straints. OY cannot exceed MSY in any formation utilized in making such circumstance, and must take into ac- specification, consistent with require- count the need to prevent overfishing ments of section 303(a)(3) of the Magnu- and rebuild overfished stocks and stock son-Stevens Act. A Council must iden- complexes. OY is prescribed on the tify those economic, social, and eco- basis of MSY as reduced by social, ecological factors relevant to management nomic, and ecological factors. To the of a particular stock, stock complex, or extent possible, the relevant social, fishery, and then evaluate them to de- economic, and ecological factors used termine the OY. The choice of a par- to establish OY for a stock, stock com- ticular OY must be carefully docu- plex, or fishery should be quantified mented to show that the OY selected and reviewed in historical, short-term, will produce the greatest benefit to the and long-term contexts. Even where Nation and prevent overfishing. quantification of social, economic, and (iii) Determining the greatest benefit to ecological factors is not possible, the the Nation. In determining the greatest FMP still must address them in its OY benefit to the Nation, the values that specification. The following is a non- should be weighed and receive serious exhaustive list of potential consider- attention when considering the eco- ations for each factor. An FMP must nomic, social, or ecological factors address each factor but not necessarily used in reducing MSY to obtain OY each example. are: (A) Social factors. Examples are en- (A) The benefits of food production joyment gained from recreational fish- are derived from providing seafood to ing, avoidance of gear conflicts and re- consumers; maintaining an economi- sulting disputes, preservation of a way cally viable fishery together with its of life for fishermen and their families, attendant contributions to the na- and dependence of local communities tional, regional, and local economies; on a fishery (e.g., involvement in fish- and utilizing the capacity of the Na- eries and ability to adapt to change). tion’s fishery resources to meet nutri- Consideration may be given to fishery- tional needs. related indicators (e.g., number of fish- (B) The benefits of recreational op- ery permits, number of commercial portunities reflect the quality of both fishing vessels, number of party and the recreational fishing experience and charter trips, landings, ex-vessel reve- non-consumptive fishery uses such as nues etc.) and non-fishery related indi- ecotourism, fish watching, and rec- cators (e.g., unemployment rates, per- reational diving. Benefits also include cent of population below the poverty the contribution of recreational fishing level, population density, etc.). Other to the national, regional, and local factors that may be considered include economies and food supplies. the effects that past harvest levels (C) The benefits of protection af- have had on fishing communities, the forded to marine ecosystems are those cultural place of subsistence fishing, resulting from maintaining viable pop- obligations under Indian treaties, pro- ulations (including those of portions of affected minority and low- unexploited species), maintaining ade- income groups, and worldwide nutri- quate forage for all components of the tional needs.

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(B) Economic factors. Examples are while achieving, on a continuing basis, prudent consideration of the risk of OY) are met. overharvesting when a stock’s size or (A) The amount of fish that con- reproductive potential is uncertain (see stitutes the OY should be expressed in § 600.335(c)(2)(i)), satisfaction of con- terms of numbers or weight of fish. sumer and recreational needs, and en- (B) Either a range or a single value couragement of domestic and export may be specified for OY. markets for U.S. harvested fish. Other (C) All catch must be counted against factors that may be considered include: OY, including that resulting from by- The value of fisheries, the level of cap- catch, scientific research, and all fish- italization, the decrease in cost per ing activities. unit of catch afforded by an increase in (D) The OY specification should be stock size, the attendant increase in translatable into an annual numerical catch per unit of effort, alternate em- estimate for the purposes of estab- ployment opportunities, and economic lishing any total allowable level of for- contribution to fishing communities, eign fishing (TALFF) and analyzing coastal areas, affected states, and the impacts of the management regime. nation. (C) Ecological factors. Examples in- (E) The determination of OY is based clude impacts on ecosystem component on MSY, directly or through proxy. species, forage fish stocks, other fish- However, even where sufficient sci- eries, predator-prey or competitive entific data as to the biological charac- interactions, marine mammals, threat- teristics of the stock do not exist, or ened or endangered species, and birds. where the period of exploitation or in- Species interactions that have not been vestigation has not been long enough explicitly taken into account when cal- for adequate understanding of stock culating MSY should be considered as dynamics, or where frequent large- relevant factors for setting OY below scale fluctuations in stock size dimin- MSY. In addition, consideration should ish the meaningfulness of the MSY be given to managing forage stocks for concept, OY must still be established based on the best scientific informa- higher biomass than Bmsy to enhance and protect the marine ecosystem. tion available. Also important are ecological or envi- (F) An OY established at a fishery ronmental conditions that stress ma- level may not exceed the sum of the rine organisms, such as natural and MSY values for each of the stocks or manmade changes in wetlands or nurs- stock complexes within the fishery. ery grounds, and effects of pollutants (G) There should be a mechanism in on habitat and stocks. the FMP for periodic reassessment of (v) Specification of OY. The specifica- the OY specification, so that it is re- tion of OY must be consistent with sponsive to changing circumstances in paragraphs (e)(3)(i)–(iv) of this section. the fishery. If the estimates of MFMT and current (H) Part of the OY may be held as a biomass are known with a high level of reserve to allow for factors such as uncertainty and management controls certainties in estimates of stock size can accurately limit catch then OY and domestic annual harvest (DAH). If could be set very close to MSY, assum- an OY reserve is established, an ade- ing no other reductions are necessary quate mechanism should be included in for social, economic, or ecological fac- the FMP to permit timely release of tors. To the degree that such MSY esti- the reserve to domestic or foreign fish- mates and management controls are ermen, if necessary. lacking or unavailable, OY should be (vi) OY and foreign fishing. Section set farther from MSY. If management 201(d) of the Magnuson-Stevens Act measures cannot adequately control provides that fishing by foreign nations fishing mortality so that the specified is limited to that portion of the OY OY can be achieved without over- that will not be harvested by vessels of fishing, the Council should reevaluate the United States. The FMP must in- the management measures and speci- clude an assessment to address the fol- fication of OY so that the dual require- lowing, as required by section 303(a)(4) ments of NS1 (preventing overfishing of the Magnuson-Stevens Act:

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(A) DAH. Councils and/or the Sec- (2) Definitions. (i) Catch is the total retary must consider the capacity of, quantity of fish, measured in weight or and the extent to which, U.S. vessels numbers of fish, taken in commercial, will harvest the OY on an annual basis. recreational, subsistence, tribal, and Estimating the amount that U.S. fish- other fisheries. Catch includes fish that ing vessels will actually harvest is re- are retained for any purpose, as well as quired to determine the surplus. mortality of fish that are discarded. (B) Domestic annual processing (DAP). (ii) Acceptable biological catch (ABC) is Each FMP must assess the capacity of a level of a stock or stock complex’s U.S. processors. It must also assess the annual catch that accounts for the sci- amount of DAP, which is the sum of entific uncertainty in the estimate of two estimates: The estimated amount OFL and any other scientific uncer- of U.S. harvest that domestic proc- tainty (see paragraph (f)(3) of this sec- essors will process, which may be based tion), and should be specified based on on historical performance or on sur- the ABC control rule. veys of the expressed intention of man- ufacturers to process, supported by evi- (iii) ABC control rule means a speci- dence of contracts, plant expansion, or fied approach to setting the ABC for a other relevant information; and the es- stock or stock complex as a function of timated amount of fish that will be the scientific uncertainty in the esti- harvested by domestic vessels, but not mate of OFL and any other scientific processed (e.g., marketed as fresh uncertainty (see paragraph (f)(4) of this whole fish, used for private consump- section). tion, or used for bait). (iv) Annual catch limit (ACL) is the (C) Joint venture processing (JVP). level of annual catch of a stock or When DAH exceeds DAP, the surplus is stock complex that serves as the basis available for JVP. for invoking AMs. ACL cannot exceed (f) Acceptable biological catch, annual the ABC, but may be divided into sec- catch limits, and annual catch targets. tor-ACLs (see paragraph (f)(5) of this The following features (see paragraphs section). (f)(1) through (f)(5) of this section) of (v) Annual catch target (ACT) is an acceptable biological catch and annual amount of annual catch of a stock or catch limits apply to stocks and stock stock complex that is the management complexes in the fishery (see paragraph target of the fishery, and accounts for (d)(2) of this section). management uncertainty in control- (1) Introduction. A control rule is a ling the actual catch at or below the policy for establishing a limit or target ACL. ACTs are recommended in the fishing level that is based on the best system of accountability measures so available scientific information and is that ACL is not exceeded. established by fishery managers in con- (vi) ACT control rule means a speci- sultation with fisheries scientists. Con- trol rules should be designed so that fied approach to setting the ACT for a management actions become more con- stock or stock complex such that the servative as biomass estimates, or risk of exceeding the ACL due to man- other proxies, for a stock or stock com- agement uncertainty is at an accept- plex decline and as science and man- ably low level. agement uncertainty increases. Exam- (3) Specification of ABC. ABC may not ples of scientific uncertainty include exceed OFL (see paragraph (e)(2)(i)(D) uncertainty in the estimates of MFMT of this section). Councils should de- and biomass. Management uncertainty velop a process for receiving scientific may include late catch reporting, information and advice used to estab- misreporting, and underreporting of lish ABC. This process should: Identify catches and is affected by a fishery’s the body that will apply the ABC con- ability to control actual catch. For ex- trol rule (i.e. , calculates the ABC), and ample, a fishery that has inseason identify the review process that will catch data available and inseason clo- evaluate the resulting ABC. The SSC sure authority has better management must recommend the ABC to the Coun- control and precision than a fishery cil. An SSC may recommend an ABC that does not have these features. that differs from the result of the ABC

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control rule calculation, based on fac- tainty in the estimate of OFL and any tors such as data uncertainty, recruit- other scientific uncertainty. The ABC ment variability, declining trends in control rule should consider uncer- population variables, and other factors, tainty in factors such as stock assess- but must explain why. For Secretarial ment results, time lags in updating as- FMPs or FMP amendments, agency sci- sessments, the degree of retrospective entists or a peer review process would revision of assessment results, and pro- provide the scientific advice to estab- jections. The control rule may be used lish ABC. For internationally-assessed in a tiered approach to address dif- stocks, an ABC as defined in these ferent levels of scientific uncertainty. guidelines is not required if they meet (5) Setting the annual catch limit—(i) the international exception (see para- General. ACL cannot exceed the ABC graph (h)(2)(ii)). While the ABC is al- and may be set annually or on a lowed to equal OFL, NMFS expects multiyear plan basis. ACLs in coordi- that in most cases ABC will be reduced nation with AMs must prevent over- from OFL to reduce the probability fishing (see MSA section 303(a)(15)). If a that overfishing might occur in a year. Council recommends an ACL which Also, see paragraph (f)(5) of this section equals ABC, and the ABC is equal to for cases where a Council recommends OFL, the Secretary may presume that that ACL is equal to ABC, and ABC is the proposal would not prevent over- equal to OFL. fishing, in the absence of sufficient (i) Expression of ABC. ABC should be analysis and justification for the ap- expressed in terms of catch, but may be proach. A ‘‘multiyear plan’’ as ref- expressed in terms of landings as long erenced in section 303(a)(15) of the Mag- as estimates of bycatch and any other nuson-Stevens Act is a plan that estab- fishing mortality not accounted for in lishes harvest specifications or harvest the landings are incorporated into the guidelines for each year of a time pe- determination of ABC. riod greater than 1 year. A multiyear (ii) ABC for overfished stocks. For plan must include a mechanism for overfished stocks and stock complexes, specifying ACLs for each year with ap- a rebuilding ABC must be set to reflect propriate AMs to prevent overfishing the annual catch that is consistent and maintain an appropriate rate of re- with the schedule of fishing mortality building if the stock or stock complex rates in the rebuilding plan. is in a rebuilding plan. A multiyear (4) ABC control rule. For stocks and plan must provide that, if an ACL is stock complexes required to have an exceeded for a year, then AMs are trig- ABC, each Council must establish an gered for the next year consistent with ABC control rule based on scientific paragraph (g)(3) of this section. advice from its SSC. The determina- (ii) Sector-ACLs. A Council may, but tion of ABC should be based, when pos- is not required to, divide an ACL into sible, on the probability that an actual sector-ACLs. ‘‘Sector,’’ for purposes of catch equal to the stock’s ABC would this section, means a distinct user result in overfishing. This probability group to which separate management that overfishing will occur cannot ex- strategies and separate catch quotas ceed 50 percent and should be a lower apply. Examples of sectors include the value. The ABC control rule should commercial sector, recreational sector, consider reducing fishing mortality as or various gear groups within a fishery. stock size declines and may establish a If the management measures for dif- stock abundance level below which ferent sectors differ in the degree of fishing would not be allowed. The proc- management uncertainty, then sector ess of establishing an ABC control rule ACLs may be necessary so that appro- could also involve science advisors or priate AMs can be developed for each the peer review process established sector. If a Council chooses to use sec- under Magnuson-Stevens Act section tor ACLs, the sum of sector ACLs must 302(g)(1)(E). The ABC control rule must not exceed the stock or stock complex articulate how ABC will be set com- level ACL. The system of ACLs and pared to the OFL based on the sci- AMs designed must be effective in pro- entific knowledge about the stock or tecting the stock or stock complex as a stock complex and the scientific uncer- whole. Even if sector-ACLs and AMs

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are established, additional AMs at the monitoring data available, and risks of stock or stock complex level may be exceeding the limit. An ACT control necessary. rule could be established for each tier (iii) ACLs for State-Federal Fisheries. and have, as appropriate, different for- For stocks or stock complexes that mulas and standards used to establish have harvest in state or territorial wa- the ACT. ters, FMPs and FMP amendments (7) A Council may choose to use a should include an ACL for the overall single control rule that combines both stock that may be further divided. For scientific and management uncertainty example, the overall ACL could be di- and supports the ABC recommendation vided into a Federal-ACL and state- and establishment of ACL and if used ACL. However, NMFS recognizes that ACT. Federal management is limited to the (g) Accountability measures. The fol- portion of the fishery under Federal lowing features (see paragraphs (g)(1) authority (see paragraph (g)(5) of this through (5) of this section) of account- section). When stocks are co-managed ability measures apply to those stocks by Federal, state, tribal, and/or terri- and stock complexes in the fishery. torial fishery managers, the goal (1) Introduction. AMs are manage- should be to develop collaborative con- ment controls to prevent ACLs, includ- servation and management strategies, ing sector-ACLs, from being exceeded, and scientific capacity to support such and to correct or mitigate overages of strategies (including AMs for state or the ACL if they occur. AMs should ad- territorial and Federal waters), to pre- dress and minimize both the frequency vent overfishing of shared stocks and and magnitude of overages and correct ensure their sustainability. the problems that caused the overage (6) ACT control rule. If ACT is speci- in as short a time as possible. NMFS fied as part of the AMs for a fishery, an identifies two categories of AMs, ACT control rule is utilized for setting inseason AMs and AMs for when the the ACT. The ACT control rule should ACL is exceeded. clearly articulate how management (2) Inseason AMs. Whenever possible, uncertainty in the amount of catch in FMPs should include inseason moni- the fishery is accounted for in setting toring and management measures to ACT. The objective for establishing the prevent catch from exceeding ACLs. ACT and related AMs is that the ACL Inseason AMs could include, but are not be exceeded. not limited to: ACT; closure of a fish- (i) Determining management uncer- ery; closure of specific areas; changes tainty. Two sources of management un- in gear; changes in trip size or bag lim- certainty should be accounted for in es- its; reductions in effort; or other appro- tablishing the AMs for a fishery, in- priate management controls for the cluding the ACT control rule if uti- fishery. If final data or data compo- lized: Uncertainty in the ability of nents of catch are delayed, Councils managers to constrain catch so the should make appropriate use of pre- ACL is not exceeded, and uncertainty liminary data, such as landed catch, in in quantifying the true catch amounts implementing inseason AMs. FMPs (i.e., estimation errors). To determine should contain inseason closure au- the level of management uncertainty thority giving NMFS the ability to in controlling catch, analyses need to close fisheries if it determines, based consider past management perform- on data that it deems sufficiently reliance in the fishery and factors such as able, that an ACL has been exceeded or time lags in reported catch. Such anal- is projected to be reached, and that clo- yses must be based on the best avail- sure of the fishery is necessary to pre- able scientific information from an vent overfishing. For fisheries without SSC, agency scientists, or peer review inseason management control to pre- process as appropriate. vent the ACL from being exceeded, (ii) Establishing tiers and corresponding AMs should utilize ACTs that are set ACT control rules. Tiers can be estab- below ACLs so that catches do not ex- lished based on levels of management ceed the ACL. uncertainty associated with the fish- (3) AMs for when the ACL is exceeded. ery, frequency and accuracy of catch On an annual basis, the Council must

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determine as soon as possible after the and AMs should be re-evaluated and fishing year if an ACL was exceeded. If modified if necessary to improve its an ACL was exceeded, AMs must be performance and effectiveness. The ini- triggered and implemented as soon as tial ACL and management measures possible to correct the operational may incorporate information from pre- issue that caused the ACL overage, as vious years so that AMs based on aver- well as any biological consequences to age ACLs can be applied from the first the stock or stock complex resulting year. Alternatively, a Council could from the overage when it is known. use a stepped approach where in year- These AMs could include, among other 1, catch is compared to the ACL for things, modifications of inseason AMs year-1; in year-2 the average catch for or overage adjustments. For stocks and the past 2 years is compared to the av- stock complexes in rebuilding plans, erage ACL; then in year 3 and beyond, the AMs should include overage adjust- the most recent 3 years of catch are ments that reduce the ACLs in the compared to the corresponding ACLs next fishing year by the full amount of for those years. the overages, unless the best scientific (5) AMs for State-Federal Fisheries. For information available shows that a re- stocks or stock complexes that have duced overage adjustment, or no ad- harvest in state or territorial waters, justment, is needed to mitigate the ef- FMPs and FMP amendments must, at a fects of the overages. If catch exceeds minimum, have AMs for the portion of the ACL for a given stock or stock the fishery under Federal authority. complex more than once in the last Such AMs could include closing the four years, the system of ACLs and EEZ when the Federal portion of the AMs should be re-evaluated, and modi- ACL is reached, or the overall stock’s fied if necessary, to improve its per- ACL is reached, or other measures. formance and effectiveness. A Council (h) Establishing ACL mechanisms and could choose a higher performance AMs in FMPs. FMPs or FMP amend- standard (e.g., a stock’s catch should ments must establish ACL mechanisms not exceed its ACL more often than and AMs for all stocks and stock com- once every five or six years) for a stock plexes in the fishery, unless paragraph that is particularly vulnerable to the (h)(2) of this section is applicable. effects of overfishing, if the vulner- These mechanisms should describe the ability of the stock has not already annual or multiyear process by which been accounted for in the ABC control specific ACLs, AMs, and other ref- rule. erence points such as OFL, and ABC (4) AMs based on multi-year average will be established. If a complex has data. Some fisheries have highly vari- multiple indicator stocks, each indi- able annual catches and lack reliable cator stock must have its own ACL; an inseason or annual data on which to additional ACL for the stock complex base AMs. If there are insufficient data as a whole is optional. In cases where upon which to compare catch to ACL, fisheries (e.g., Pacific salmon) harvest either inseason or on an annual basis, multiple indicator stocks of a single AMs could be based on comparisons of species that cannot be distinguished at average catch to average ACL over a the time of capture, separate ACLs for three-year moving average period or, if the indicator stocks are not required supported by analysis, some other ap- and the ACL can be established for the propriate multi-year period. Councils complex as a whole. should explain why basing AMs on a (1) In establishing ACL mechanisms multi-year period is appropriate. Eval- and AMs, FMPs should describe: uation of the moving average catch to (i) Timeframes for setting ACLs (e.g., the average ACL must be conducted annually or multi-year periods); annually and AMs should be imple- (ii) Sector-ACLs, if any (including mented if the average catch exceeds set-asides for research or bycatch); the average ACL. As a performance (iii) AMs and how AMs are triggered standard, if the average catch exceeds and what sources of data will be used the average ACL for a stock or stock (e.g., inseason data, annual catch com- complex more than once in the last pared to the ACL, or multi-year aver- four years, then the system of ACLs aging approach); and

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(iv) Sector-AMs, if there are sector- ited circumstances in an FMP or FMP ACLs. amendment, which will be reviewed for (2) Exceptions from ACL and AM re- consistency with the Magnuson-Ste- quirements—(i) Life cycle. Section vens Act. 303(a)(15) of the Magnuson-Stevens Act (i) Fisheries data. In their FMPs, or ‘‘shall not apply to a fishery for species associated public documents such as that has a life cycle of approximately 1 SAFE reports as appropriate, Councils year unless the Secretary has deter- must describe general data collection mined the fishery is subject to over- methods, as well as any specific data fishing of that species’’ (as described in collection methods used for all stocks Magnuson-Stevens Act section 303 in the fishery, and EC species, includ- note). This exception applies to a stock ing: for which the average length of time it (1) Sources of fishing mortality (both takes for an individual to produce a re- landed and discarded), including com- productively active offspring is ap- mercial and recreational catch and by- proximately 1 year and that the indi- catch in other fisheries; vidual has only one breeding season in (2) Description of the data collection its lifetime. While exempt from the and estimation methods used to quan- ACL and AM requirements, FMPs or tify total catch mortality in each fish- FMP amendments for these stocks ery, including information on the man- must have SDC, MSY, OY, ABC, and an agement tools used (i.e., logbooks, ves- ABC control rule. sel monitoring systems, observer pro- (ii) International fishery agreements. grams, landings reports, fish tickets, Section 303(a)(15) of the Magnuson-Ste- processor reports, dealer reports, rec- vens Act applies ‘‘unless otherwise pro- reational angler surveys, or other vided for under an international agree- methods); the frequency with which ment in which the United States par- data are collected and updated; and the ticipates’’ (Magnuson-Stevens Act sec- scope of sampling coverage for each tion 303 note). This exception applies to fishery; and stocks or stock complexes subject to (3) Description of the methods used management under an international to compile catch data from various agreement, which is defined as ‘‘any bi- catch data collection methods and how lateral or multilateral treaty, conven- those data are used to determine the tion, or agreement which relates to relationship between total catch at a fishing and to which the United States given point in time and the ACL for is a party’’ (see Magnuson-Stevens Act stocks and stock complexes that are section 3(24)). These stocks would still part of a fishery. need to have SDC and MSY. (j) Council actions to address over- (3) Flexibility in application of NS1 fishing and rebuilding for stocks and guidelines. There are limited cir- stock complexes in the fishery—(1) Notifi- cumstances that may not fit the stand- cation. The Secretary will immediately ard approaches to specification of ref- notify in writing a Regional Fishery erence points and management meas- Management Council whenever it is de- ures set forth in these guidelines. termined that: These include, among other things, (i) Overfishing is occurring; conservation and management of En- (ii) A stock or stock complex is over- dangered Species Act listed species, fished; harvests from aquaculture operations, (iii) A stock or stock complex is ap- and stocks with unusual life history proaching an overfished condition; or characteristics (e.g., Pacific salmon, (iv) Existing remedial action taken where the spawning potential for a for the purpose of ending previously stock is spread over a multi-year pe- identified overfishing or rebuilding a riod). In these circumstances, Councils previously identified overfished stock may propose alternative approaches for or stock complex has not resulted in satisfying the NS1 requirements of the adequate progress. Magnuson-Stevens Act than those set (2) Timing of actions—(i) If a stock or forth in these guidelines. Councils stock complex is undergoing overfishing. must document their rationale for any FMPs or FMP amendments must estab- alternative approaches for these lim- lish ACL and AM mechanisms in 2010,

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for stocks and stock complexes deter- vens Act. Council actions should be mined to be subject to overfishing, and submitted to NMFS within 15 months in 2011, for all other stocks and stock of notification to ensure sufficient complexes (see paragraph (b)(2)(iii) of time for the Secretary to implement this section). To address practical im- the measures, if approved. If the stock plementation aspects of the FMP and or stock complex is overfished and FMP amendment process, paragraphs overfishing is occurring, the rebuilding (j)(2)(i)(A) through (C) of this section plan must end overfishing immediately clarifies the expected timing of ac- and be consistent with ACL and AM re- tions. quirements of the Magnuson-Stevens (A) In addition to establishing ACL Act. and AM mechanisms, the ACLs and (3) Overfished fishery. (i) Where a AMs themselves must be specified in stock or stock complex is overfished, a FMPs, FMP amendments, imple- Council must specify a time period for menting regulations, or annual speci- rebuilding the stock or stock complex fications beginning in 2010 or 2011, as based on factors specified in Magnuson- appropriate. Stevens Act section 304(e)(4). This tar- (B) For stocks and stock complexes get time for rebuilding (Ttarget) shall be still determined to be subject to over- as short as possible, taking into ac- fishing at the end of 2008, ACL and AM count: The status and biology of any mechanisms and the ACLs and AMs overfished stock, the needs of fishing themselves must be effective in fishing communities, recommendations by year 2010. international organizations in which (C) For stocks and stock complexes the U.S. participates, and interaction determined to be subject to overfishing of the stock within the marine eco- during 2009, ACL and AM mechanisms system. In addition, the time period and ACLs and AMs themselves should shall not exceed 10 years, except where be effective in fishing year 2010, if pos- biology of the stock, other environ- sible, or in fishing year 2011, at the lat- mental conditions, or management est. measures under an international agree- (ii) If a stock or stock complex is over- ment to which the U.S. participates, fished or approaching an overfished con- dictate otherwise. SSCs (or agency sci- dition. (A) For notifications that a entists or peer review processes in the stock or stock complex is overfished or case of Secretarial actions) shall pro- approaching an overfished condition vide recommendations for achieving re- made before July 12, 2009, a Council building targets (see Magnuson-Stevens must prepare an FMP, FMP amend- Act section 302(g)(1)(B)). The above fac- ment, or proposed regulations within tors enter into the specification of one year of notification. If the stock or Ttarget as follows: stock complex is overfished, the pur- (A) The ‘‘minimum time for rebuild- pose of the action is to specify a time ing a stock’’ (Tmin) means the amount period for ending overfishing and re- of time the stock or stock complex is building the stock or stock complex expected to take to rebuild to its MSY that will be as short as possible as de- biomass level in the absence of any scribed under section 304(e)(4) of the fishing mortality. In this context, the Magnuson-Stevens Act. If the stock or term ‘‘expected’’ means to have at stock complex is approaching an over- least a 50 percent probability of attain- fished condition, the purpose of the ac- ing the Bmsy. tion is to prevent the biomass from de- (B) For scenarios under paragraph clining below the MSST. (j)(2)(ii)(A) of this section, the starting (B) For notifications that a stock or year for the Tmin calculation is the first stock complex is overfished or ap- year that a rebuilding plan is imple- proaching an overfished condition mented. For scenarios under paragraph made after July 12, 2009, a Council (j)(2)(ii)(B) of this section, the starting must prepare and implement an FMP, year for the Tmin calculation is 2 years FMP amendment, or proposed regula- after notification that a stock or stock tions within two years of notification, complex is overfished or the first year consistent with the requirements of that a rebuilding plan is implemented, section 304(e)(3) of the Magnuson-Ste- whichever is sooner.

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(C) If Tmin for the stock or stock com- ations, such as benefits to the stock or plex is 10 years or less, then the max- stock complex and impacts on partici- imum time allowable for rebuilding pants in the fishery. (Tmax) that stock to its Bmsy is 10 years. (i) These measures may remain in ef- (D) If Tmin for the stock or stock com- fect for not more than 180 days, but plex exceeds 10 years, then the max- may be extended for an additional 186 imum time allowable for rebuilding a days if the public has had an oppor- stock or stock complex to its Bmsy is tunity to comment on the measures Tmin plus the length of time associated and, in the case of Council-rec- with one generation time for that ommended measures, the Council is ac- stock or stock complex. ‘‘Generation tively preparing an FMP, FMP amend- time’’ is the average length of time be- ment, or proposed regulations to ad- tween when an individual is born and dress the emergency or overfishing on the birth of its offspring. a permanent basis. (E) Ttarget shall not exceed Tmax, and (ii) Often, these measures need to be should be calculated based on the fac- implemented without prior notice and tors described in this paragraph (j)(3). an opportunity for public comment, as (ii) If a stock or stock complex it would be impracticable to provide reached the end of its rebuilding plan for such processes given the need to act period and has not yet been determined quickly and also contrary to the public to be rebuilt, then the rebuilding F interest to delay action. However, should not be increased until the stock emergency regulations and interim or stock complex has been dem- measures that do not qualify for waiv- onstrated to be rebuilt. If the rebuild- ers or exceptions under the Adminis- ing plan was based on a Ttarget that was trative Procedure Act would need to less than Tmax, and the stock or stock follow proposed notice and comment complex is not rebuilt by Ttarget, rebuild- rulemaking procedures. ing measures should be revised, if nec- (k) International overfishing. If the essary, such that the stock or stock Secretary determines that a fishery is complex will be rebuilt by Tmax. If the overfished or approaching a condition stock or stock complex has not rebuilt of being overfished due to excessive by Tmax, then the fishing mortality rate international fishing pressure, and for should be maintained at Frebuild or 75 which there are no management meas- percent of the MFMT, whichever is ures (or no effective measures) to end less. overfishing under an international (iii) Council action addressing an agreement to which the United States overfished fishery must allocate both is a party, then the Secretary and/or overfishing restrictions and recovery the appropriate Council shall take cer- benefits fairly and equitably among tain actions as provided under Magnu- sectors of the fishery. son-Stevens Act section 304(i). The Sec- (iv) For fisheries managed under an retary, in cooperation with the Sec- international agreement, Council ac- retary of State, must immediately tion addressing an overfished fishery take appropriate action at the inter- must reflect traditional participation national level to end the overfishing. in the fishery, relative to other na- In addition, within one year after the tions, by fishermen of the United determination, the Secretary and/or States. appropriate Council shall: (4) Emergency actions and interim (1) Develop recommendations for do- measures. The Secretary, on his/her own mestic regulations to address the rel- initiative or in response to a Council ative impact of the U.S. fishing vessels request, may implement interim meas- on the stock. Council recommendations ures to reduce overfishing or promul- should be submitted to the Secretary. gate regulations to address an emer- (2) Develop and submit recommenda- gency (Magnuson-Stevens Act section tions to the Secretary of State, and to 304(e)(6) or 305(c)). In considering a the Congress, for international actions Council request for action, the Sec- that will end overfishing in the fishery retary would consider, among other and rebuild the affected stocks, taking things, the need for and urgency of the into account the relative impact of action and public interest consider- vessels of other nations and vessels of

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the United States on the relevant entific information is available (also stock. Councils should, in consultation see paragraph (e)(1)(iii) of this section). with the Secretary, develop rec- Also, scientific assessments must be ommendations that take into consider- based on the best information about ation relevant provisions of the Magnu- the total range of the stock and poten- son-Stevens Act and NS1 guidelines, in- tial biological structuring of the stock cluding section 304(e) of the Magnuson- into biological sub-units, which may Stevens Act and paragraph (j)(3)(iv) of differ from the geographic units on this section, and other applicable laws. which management is feasible. For highly migratory species in the Pa- (3) National Standard 6 (see § 600.335). cific, recommendations from the West- Councils must build into the reference ern Pacific, North Pacific, or Pacific points and control rules appropriate Councils must be developed and sub- consideration of risk, taking into ac- mitted consistent with Magnuson-Ste- count uncertainties in estimating har- vens Reauthorization Act section vest, stock conditions, life history pa- 503(f), as appropriate. rameters, or the effects of environ- (3) Considerations for assessing ‘‘rel- mental factors. ative impact.’’ ‘‘Relative impact’’ under (4) National Standard 8 (see § 600.345). paragraphs (k)(1) and (2) of this section National Standard 8 directs the Coun- may include consideration of factors cils to apply economic and social fac- that include, but are not limited to: tors towards sustained participation of Domestic and international manage- fishing communities and to the extent ment measures already in place, man- practicable, minimize adverse eco- agement history of a given nation, esti- nomic impacts on such communities mates of a nation’s landings or catch within the context of preventing over- (including bycatch) in a given fishery, fishing and rebuilding overfished and estimates of a nation’s mortality stocks as required under National contributions in a given fishery. Infor- Standard 1. Therefore, calculation of mation used to determine relative im- OY as reduced from MSY should in- pact must be based upon the best avail- clude economic and social factors, but able scientific information. the combination of management meas- (l) Relationship of National Standard 1 ures chosen to achieve the OY must to other national standards—General. Na- tional Standards 2 through 10 provide principally be designed to prevent further requirements for conservation overfishing and rebuild overfished and management measures in FMPs, stocks. but do not alter the requirement of (5) National Standard 9 (see § 600.350). NS1 to prevent overfishing and rebuild Evaluation of stock status with respect overfished stocks. to reference points must take into ac- (1) National Standard 2 (see § 600.315). count mortality caused by bycatch. In Management measures and reference addition, the estimation of catch points to implement NS1 must be based should include the mortality of fish on the best scientific information that are discarded. available. When data are insufficient to (m) Exceptions to requirements to pre- estimate reference points directly, vent overfishing. Exceptions to the re- Councils should develop reasonable quirement to prevent overfishing could proxies to the extent possible (also see apply under certain limited cir- paragraph (e)(1)(iv) of this section). In cumstances. Harvesting one stock at cases where scientific data are severely its optimum level may result in over- limited, effort should also be directed fishing of another stock when the two to identifying and gathering the needed stocks tend to be caught together (This data. SSCs should advise their Councils can occur when the two stocks are part regarding the best scientific informa- of the same fishery or if one is bycatch tion available for fishery management in the other’s fishery). Before a Council decisions. may decide to allow this type of over- (2) National Standard 3 (see § 600.320). fishing, an analysis must be performed Reference points should generally be and the analysis must contain a jus- specified in terms of the level of stock tification in terms of overall benefits, aggregation for which the best sci- including a comparison of benefits

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under alternative management meas- mission for final review, new informa- ures, and an analysis of the risk of any tion often becomes available. This new stock or stock complex falling below information should be incorporated its MSST. The Council may decide to into the final FMP where practicable; allow this type of overfishing if the but it is unnecessary to start the FMP fishery is not overfished and the anal- process over again, unless the informa- ysis demonstrates that all of the fol- tion indicates that drastic changes lowing conditions are satisfied: have occurred in the fishery that might (1) Such action will result in long- require revision of the management ob- term net benefits to the Nation; jectives or measures. (2) Mitigating measures have been (c) FMP implementation. (1) An FMP considered and it has been dem- must specify whatever information onstrated that a similar level of long- fishermen and processors will be re- term net benefits cannot be achieved quired or requested to submit to the by modifying fleet behavior, gear selec- Secretary. Information about harvest tion/configuration, or other technical within state boundaries, as well as in characteristic in a manner such that the EEZ, may be collected if it is need- no overfishing would occur; and ed for proper implementation of the (3) The resulting rate of fishing mor- FMP and cannot be obtained otherwise. tality will not cause any stock or stock The FMP should explain the practical complex to fall below its MSST more than 50 percent of the time in the long utility of the information specified in term, although it is recognized that monitoring the fishery, in facilitating persistent overfishing is expected to inseason management decisions, and in cause the affected stock to fall below judging the performance of the management regime; it should also con- its Bmsy more than 50 percent of the time in the long term. sider the effort, cost, or social impact of obtaining it. [74 FR 3204, Jan. 16, 2009] (2) An FMP should identify scientific information needed from other sources § 600.315 National Standard 2—Sci- entific Information. to improve understanding and management of the resource, marine eco- (a) Standard 2. Conservation and system, and the fishery (including fish- management measures shall be based ing communities). upon the best scientific information (3) The information submitted by available. (b) FMP development. The fact that various data suppliers should be com- scientific information concerning a parable and compatible, to the max- fishery is incomplete does not prevent imum extent possible. the preparation and implementation of (d) FMP amendment. FMPs should be an FMP (see related §§ 600.320(d)(2) and amended on a timely basis, as new in- 600.340(b). formation indicates the necessity for (1) Scientific information includes, change in objectives or management but is not limited to, information of a measures. biological, ecological, economic, or so- (e) SAFE Report. (1) The SAFE report cial nature. Successful fishery manage- is a document or set of documents that ment depends, in part, on the timely provides Councils with a summary of availability, quality, and quantity of information concerning the most re- scientific information, as well as on cent biological condition of stocks and the thorough analysis of this informa- the marine ecosystems in the FMU and tion, and the extent to which the infor- the social and economic condition of mation is applied. If there are con- the recreational and commercial fish- flicting facts or opinions relevant to a ing interests, fishing communities, and particular point, a Council may choose the fish processing industries. It sum- among them, but should justify the marizes, on a periodic basis, the best choice. available scientific information con- (2) FMPs must take into account the cerning the past, present, and possible best scientific information available at future condition of the stocks, marine the time of preparation. Between the ecosystems, and fisheries being man- initial drafting of an FMP and its sub- aged under Federal regulation.

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(i) The Secretary has the responsi- (5) Each SAFE report may contain bility to assure that a SAFE report or additional economic, social, and eco- similar document is prepared, reviewed logical information pertinent to the annually, and changed as necessary for success of management or the achieve- each FMP. The Secretary or Councils ment of objectives of each FMP. may utilize any combination of talent [61 FR 32540, June 24, 1996, as amended at 63 from Council, state, Federal, univer- FR 24233, May 1, 1998] sity, or other sources to acquire and analyze data and produce the SAFE re- § 600.320 National Standard 3—Man- port. agement Units. (ii) The SAFE report provides infor- (a) Standard 3. To the extent prac- mation to the Councils for determining ticable, an individual stock of fish annual harvest levels from each stock, shall be managed as a unit throughout documenting significant trends or its range, and interrelated stocks of changes in the resource, marine eco- fish shall be managed as a unit or in systems, and fishery over time, and as- close coordination. sessing the relative success of existing (b) General. The purpose of this state and Federal fishery management standard is to induce a comprehensive programs. Information on bycatch and approach to fishery management. The safety for each fishery should also be geographic scope of the fishery, for summarized. In addition, the SAFE re- planning purposes, should cover the en- port may be used to update or expand tire range of the stocks(s) of fish, and previous environmental and regulatory not be overly constrained by political impact documents, and ecosystem and boundaries. Wherever practicable, an habitat descriptions. FMP should seek to manage inter- (iii) Each SAFE report must be sci- related stocks of fish. entifically based, and cite data sources (c) Unity of management. Cooperation and interpretations. and understanding among entities con- (2) Each SAFE report should contain cerned with the fishery (e.g., Councils, information on which to base harvest states, Federal Government, inter- specifications. national commissions, foreign nations) (3) Each SAFE report should contain are vital to effective management. a description of the maximum fishing Where management of a fishery in- mortality threshold and the minimum volves multiple jurisdictions, coordina- stock size threshold for each stock or tion among the several entities should stock complex, along with information be sought in the development of an by which the Council may determine: FMP. Where a range overlaps Council (i) Whether overfishing is occurring areas, one FMP to cover the entire with respect to any stock or stock range is preferred. The Secretary des- complex, whether any stock or stock ignates which Council(s) will prepare complex is overfished, whether the rate the FMP, under section 304(f) of the or level of fishing mortality applied to Magnuson-Stevens Act. any stock or stock complex is ap- (d) Management unit. The term proaching the maximum fishing mor- ‘‘management unit’’ means a fishery or tality threshold, and whether the size that portion of a fishery identified in of any stock or stock complex is ap- an FMP as relevant to the FMP’s man- proaching the minimum stock size agement objectives. threshold. (1) Basis. The choice of a manage- (ii) Any management measures nec- ment unit depends on the focus of the essary to provide for rebuilding an FMP’s objectives, and may be orga- overfished stock or stock complex (if nized around biological, geographic, any) to a level consistent with pro- economic, technical, social, or ecologi- ducing the MSY in such fishery. cal perspectives. For example: (4) Each SAFE report may contain (i) Biological—could be based on a additional economic, social, commu- stock(s) throughout its range. nity, essential fish habitat, and eco- (ii) Geographic—could be an area. logical information pertinent to the (iii) Economic—could be based on a success of management or the achieve- fishery supplying specific product ment of objectives of each FMP. forms.

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(iv) Technical—could be based on a pact that Federal regulations will have fishery utilizing a specific gear type or on state management activities. similar fishing practices. (4) Management activities of other (v) Social—could be based on fisher- countries having an impact on the fish- men as the unifying element, such as ery, and how the FMP’s management when the fishermen pursue different measures are designed to take into ac- species in a regular pattern throughout count these impacts. International the year. boundaries may be dealt with in sev- (vi) Ecological—could be based on spe- eral ways. For example: cies that are associated in the eco- (i) By limiting the management system or are dependent on a par- unit’s scope to that portion of the ticular habitat. stock found in U.S. waters; (2) Conservation and management meas- (ii) By estimating MSY for the entire ures. FMPs should include conservation stock and then basing the determina- and management measures for that tion of OY for the U.S. fishery on the part of the management unit within portion of the stock within U.S. wa- U.S. waters, although the Secretary ters; or can ordinarily implement them only (iii) By referring to treaties or coop- within the EEZ. The measures need not erative agreements. be identical for each geographic area [61 FR 32540, June 24, 1996, as amended at 63 within the management unit, if the FR 24234, May 1, 1998] FMP justifies the differences. A management unit may contain, in addition § 600.325 National Standard 4—Alloca- to regulated species, stocks of fish for tions. which there is not enough information (a) Standard 4. Conservation and available to specify MSY and OY or to management measures shall not dis- establish management measures, so criminate between residents of dif- that data on these species may be col- ferent states. If it becomes necessary lected under the FMP. to allocate or assign fishing privileges (e) Analysis. To document that an among various U.S. fishermen, such al- FMP is as comprehensive as prac- location shall be: ticable, it should include discussions of (1) Fair and equitable to all such fish- the following: ermen. (1) The range and distribution of the (2) Reasonably calculated to promote stocks, as well as the patterns of fish- conservation. ing effort and harvest. (3) Carried out in such manner that (2) Alternative management units no particular individual, corporation, and reasons for selecting a particular or other entity acquires an excessive one. A less-than-comprehensive man- share of such privileges. agement unit may be justified if, for (b) Discrimination among residents of example, complementary management different states. An FMP may not dif- exits or is planned for a separate geo- ferentiate among U.S. citizens, nation- graphic area or for a distinct use of the als, resident aliens, or corporations on stocks, or if the unmanaged portion of the basis of their state of residence. An the resource is immaterial to proper FMP may not incorporate or rely on a management. state statute or regulation that dis- (3) Management activities and habi- criminates against residents of another tat programs of adjacent states and state. Conservation and management their effects on the FMP’s objectives measures that have different effects on and management measures. Where persons in various geographic locations state action is necessary to implement are permissible if they satisfy the measures within state waters to other guidelines under Standard 4. Ex- achieve FMP objectives, the FMP amples of these precepts are: should identify what state action is (1) An FMP that restricted fishing in necessary, discuss the consequences of the EEZ to those holding a permit from state inaction or contrary action, and state X would violate Standard 4 if make appropriate recommendations. state X issued permits only to its own The FMP should also discuss the im- citizens.

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(2) An FMP that closed a spawning calculated to promote conservation, ground might disadvantage fishermen and must avoid excessive shares. These living in the state closest to it, because tests are explained in paragraphs they would have to travel farther to an (c)(3)(i) through (c)(3)(iii) of this sec- open area, but the closure could be jus- tion: tified under Standard 4 as a conserva- (i) Fairness and equity. (A) An allocation measure with no discriminatory tion of fishing privileges should be ra- intent. tionally connected to the achievement (c) Allocation of fishing privileges. An of OY or with the furtherance of a le- FMP may contain management meas- gitimate FMP objective. Inherent in an ures that allocate fishing privileges if allocation is the advantaging of one such measures are necessary or helpful group to the detriment of another. The in furthering legitimate objectives or in achieving the OY, and if the meas- motive for making a particular alloca- ures conform with paragraphs (c)(3)(i) tion should be justified in terms of the through (c)(3)(iii) of this section. objectives of the FMP; otherwise, the (1) Definition. An ‘‘allocation’’ or disadvantaged user groups or individ- ‘‘assignment’’ of fishing privileges is a uals would suffer without cause. For direct and deliberate distribution of instance, an FMP objective to preserve the opportunity to participate in a the economic status quo cannot be fishery among identifiable, discrete achieved by excluding a group of long- user groups or individuals. Any man- time participants in the fishery. On the agement measure (or lack of manage- other hand, there is a rational connec- ment) has incidental allocative effects, tion between an objective of harvesting but only those measures that result in shrimp at their maximum size and direct distributions of fishing privi- closing a nursery area to trawling. leges will be judged against the alloca- (B) An allocation of fishing privileges tion requirements of Standard 4. Adop- may impose a hardship on one group if tion of an FMP that merely perpet- it is outweighed by the total benefits uates existing fishing practices may re- received by another group or groups. sult in an allocation, if those practices An allocation need not preserve the directly distribute the opportunity to status quo in the fishery to qualify as participate in the fishery. Allocations ‘‘fair and equitable,’’ if a restructuring of fishing privileges include, for exam- of fishing privileges would maximize ple, per-vessel catch limits, quotas by overall benefits. The Council should vessel class and gear type, different quotas or fishing seasons for rec- make an initial estimate of the rel- reational and commercial fishermen, ative benefits and hardships imposed assignment of ocean areas to different by the allocation, and compare its con- gear users, and limitation of permits to sequences with those of alternative al- a certain number of vessels or fisher- location schemes, including the status men. quo. Where relevant, judicial guidance (2) Analysis of allocations. Each FMP and government policy concerning the should contain a description and anal- rights of treaty Indians and aboriginal ysis of the allocations existing in the Americans must be considered in deter- fishery and of those made in the FMP. mining whether an allocation is fair The effects of eliminating an existing and equitable. allocation system should be examined. (ii) Promotion of conservation. Numer- Allocation schemes considered, but re- ous methods of allocating fishing privi- jected by the Council, should be in- leges are considered ‘‘conservation and cluded in the discussion. The analysis management’’ measures under section should relate the recommended alloca- 303 of the Magnuson-Stevens Act. An tions to the FMP’s objectives and OY allocation scheme may promote con- specification, and discuss the factors servation by encouraging a rational, listed in paragraph (c)(3) of this sec- more easily managed use of the re- tion. source. Or, it may promote conserva- (3) Factors in making allocations. An tion (in the sense of wise use) by opti- allocation of fishing privileges must be fair and equitable, must be reasonably mizing the yield in terms of size, value,

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market mix, price, or economic or so- (2) Efficiency. In theory, an efficient cial benefit of the product. To the ex- fishery would harvest the OY with the tent that rebuilding plans or other con- minimum use of economic inputs such servation and management measures as labor, capital, interest, and fuel. Ef- that reduce the overall harvest in a ficiency in terms of aggregate costs fishery are necessary, any harvest re- then becomes a conservation objective, strictions or recovery benefits must be where ‘‘conservation’’ constitutes wise allocated fairly and equitably among use of all resources involved in the the commercial, recreational, and fishery, not just fish stocks. charter fishing sectors of the fishery. (i) In an FMP, management measures (iii) Avoidance of excessive shares. An may be proposed that allocate fish allocation scheme must be designed to among different groups of individuals deter any person or other entity from or establish a system of property acquiring an excessive share of fishing rights. Alternative measures examined privileges, and to avoid creating condi- in searching for an efficient outcome tions fostering inordinate control, by will result in different distributions of buyers or sellers, that would not other- gains and burdens among identifiable wise exist. user groups. An FMP should dem- (iv) Other factors. In designing an al- onstrate that management measures location scheme, a Council should con- aimed at efficiency do not simply re- sider other factors relevant to the distribute gains and burdens without FMP’s objectives. Examples are eco- an increase in efficiency. nomic and social consequences of the (ii) Management regimes that allow a scheme, food production, consumer in- fishery to operate at the lowest pos- terest, dependence on the fishery by sible cost (e.g., fishing effort, adminis- present participants and coastal com- tration, and enforcement) for a par- munities, efficiency of various types of ticular level of catch and initial stock gear used in the fishery, transferability size are considered efficient. Restric- of effort to and impact on other fish- tive measures that unnecessarily raise eries, opportunity for new participants any of those costs move the regime to- to enter the fishery, and enhancement ward inefficiency. Unless the use of in- of opportunities for recreational fish- efficient techniques or the creation of ing. redundant fishing capacity contributes [61 FR 32540, June 24, 1996, as amended at 63 to the attainment of other social or bi- FR 24234, May 1, 1998] ological objectives, an FMP may not contain management measures that § 600.330 National Standard 5—Effi- impede the use of cost-effective tech- ciency. niques of harvesting, processing, or (a) Standard 5. Conservation and marketing, and should avoid creating management measures shall, where strong incentives for excessive invest- practicable, consider efficiency in the ment in private sector fishing capital utilization of fishery resources; except and labor. that no such measure shall have eco- (c) Limited access. A ‘‘system for lim- nomic allocation as its sole purpose. iting access,’’ which is an optional (b) Efficiency in the utilization of re- measure under section 303(b) of the sources—(1) General. The term ‘‘utiliza- Magnuson-Stevens Act, is a type of al- tion’’ encompasses harvesting, proc- location of fishing privileges that may essing, marketing, and non-consump- be considered to contribute to eco- tive uses of the resource, since manage- nomic efficiency or conservation. For ment decisions affect all sectors of the example, limited access may be used to industry. In considering efficient utili- combat overfishing, overcrowding, or zation of fishery resources, this stand- overcapitalization in a fishery to ard highlights one way that a fishery achieve OY. In an unutilized or under- can contribute to the Nation’s benefit utilized fishery, it may be used to re- with the least cost to society: Given a duce the chance that these conditions set of objectives for the fishery, an will adversely affect the fishery in the FMP should contain management future, or to provide adequate eco- measures that result in as efficient a nomic return to pioneers in a new fish- fishery as is practicable or desirable. ery. In some cases, limited entry is a

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useful ingredient of a conservation (e) Economic allocation. This standard scheme, because it facilitates applica- prohibits only those measures that dis- tion and enforcement of other manage- tribute fishery resources among fisher- ment measures. men on the basis of economic factors (1) Definition. Limited access (or lim- alone, and that have economic alloca- ited entry) is a management technique tion as their only purpose. Where con- that attempts to limit units of effort in servation and management measures a fishery, usually for the purpose of re- are recommended that would change ducing economic waste, improving net the economic structure of the industry economic return to the fishermen, or or the economic conditions under capturing economic rent for the benefit which the industry operates, the need of the taxpayer or the consumer. Com- for such measures must be justified in mon forms of limited access are licens- light of the biological, ecological, and ing of vessels, gear, or fishermen to re- social objectives of the FMP, as well as duce the number of units of effort, and the economic objectives. dividing the total allowable catch into [61 FR 32540, June 24, 1996, as amended at 63 fishermen’s quotas (a stock-certificate FR 7075, Feb. 12, 1998; 63 FR 24234, May 1, system). Two forms (i.e., Federal fees 1998] for licenses or permits in excess of administrative costs, and taxation) are § 600.335 National Standard 6—Vari- not permitted under the Magnuson- ations and Contingencies. Stevens Act, except for fees allowed (a) Standard 6. Conservation and under section 304(d)(2). management measures shall take into (2) Factors to consider. The Magnuson- account and allow for variations Stevens Act ties the use of limited ac- among, and contingencies in, fisheries, cess to the achievement of OY. An fishery resources, and catches. FMP that proposes a limited access (b) Conservation and management. system must consider the factors listed Each fishery exhibits unique uncertain- in section 303(b)(6) of the Magnuson- ties. The phrase ‘‘conservation and Stevens Act and in § 600.325(c)(3). In ad- management’’ implies the wise use of dition, it should consider the criteria fishery resources through a manage- for qualifying for a permit, the nature ment regime that includes some proof the interest created, whether to tection against these uncertainties. make the permit transferable, and the The particular regime chosen must be Magnuson-Stevens Act’s limitations on flexible enough to allow timely re- returning economic rent to the public sponse to resource, industry, and other under section 304(d). The FMP should national and regional needs. Continual also discuss the costs of achieving an data acquisition and analysis will help appropriate distribution of fishing the development of management meas- privileges. ures to compensate for variations and (d) Analysis. An FMP should discuss to reduce the need for substantial buff- the extent to which overcapitalization, ers. Flexibility in the management re- congestion, economic waste, and ineffi- gime and the regulatory process will cient techniques in the fishery reduce aid in responding to contingencies. the net benefits derived from the man- (c) Variations. (1) In fishery manage- agement unit and prevent the attainment terms, variations arise from bio- ment and appropriate allocation of OY. logical, social, and economic occur- It should also explain, in terms of the rences, as well as from fishing prac- FMP’s objectives, any restriction tices. Biological uncertainties and lack placed on the use of efficient tech- of knowledge can hamper attempts to niques of harvesting, processing, or estimate stock size and strength, stock marketing. If, during FMP develop- location in time and space, environment, the Council considered imposing mental/habitat changes, and ecological a limited-entry system, the FMP interactions. Economic uncertainty should analyze the Council’s decision may involve changes in foreign or do- to recommend or reject limited access mestic market conditions, changes in as a technique to achieve efficient uti- operating costs, drifts toward overcapi- lization of the resources of the fishing talization, and economic perturbations industry. caused by changed fishing patterns.

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Changes in fishing practices, such as (1) The FMP should describe the the introduction of new gear, rapid in- management options and their con- creases or decreases in harvest effort, sequences in the necessary detail to new fishing strategies, and the effects guide the Secretary in responding to of new management techniques, may changed circumstances, so that the also create uncertainties. Social Council preserves its role as policy-set- changes could involve increases or deter for the fishery. The description creases in recreational fishing, or the should enable the public to understand movement of people into or out of fish- what may happen under the flexible re- ing activities due to such factors as age gime, and to comment on the options. or educational opportunities. (2) FMPs should include criteria for (2) Every effort should be made to de- the selection of management measures, velop FMPs that discuss and take into directions for their application, and account these vicissitudes. To the ex- mechanisms for timely adjustment of tent practicable, FMPs should provide management measures comprising the a suitable buffer in favor of conserva- regime. For example, an FMP could in- tion. Allowances for uncertainties clude criteria that allow the Secretary should be factored into the various ele- to open and close seasons, close fishing ments of an FMP. Examples are: grounds, or make other adjustments in (i) Reduce OY. Lack of scientific management measures. knowledge about the condition of a (3) Amendment of a flexible FMP stock(s) could be reason to reduce OY. would be necessary when circumstances in the fishery change sub- (ii) Establish a reserve. Creation of a stantially, or when a Council adopts a reserve may compensate for uncertain- different management philosophy and ties in estimating domestic harvest, objectives. stock conditions, or environmental factors. § 600.340 National Standard 7—Costs (iii) Adjust management techniques. In and Benefits. the absence of adequate data to predict (a) Standard 7. Conservation and the effect of a new regime, and to avoid management measures shall, where creating unwanted variations, a Coun- practicable, minimize costs and avoid cil could guard against producing dras- unnecessary duplication. tic changes in fishing patterns, alloca- (b) Necessity of Federal management— tions, or practices. (1) General. The principle that not (iv) Highlight habitat conditions. FMPs every fishery needs regulation is im- may address the impact of pollution plicit in this standard. The Magnuson- and the effects of wetland and estua- Stevens Act requires Councils to pre- rine degradation on the stocks of fish; pare FMPs only for overfished fisheries identify causes of pollution and habitat and for other fisheries where regula- degradation and the authorities having tion would serve some useful purpose jurisdiction to regulate or influence and where the present or future bene- such activities; propose recommenda- fits of regulation would justify the tions that the Secretary will convey to costs. For example, the need to collect those authorities to alleviate such data about a fishery is not, by itself, problems; and state the views of the adequate justification for preparation Council on unresolved or anticipated of an FMP, since there are less costly issues. ways to gather the data (see (d) Contingencies. Unpredictable § 600.320(d)(2). In some cases, the FMP events—such as unexpected resource preparation process itself, even if it surges or failures, fishing effort greater does not culminate in a document ap- than anticipated, disruptive gear con- proved by the Secretary, can be useful flicts, climatic conditions, or environ- in supplying a basis for management mental catastrophes—are best handled by one or more coastal states. by establishing a flexible management (2) Criteria. In deciding whether a regime that contains a range of man- fishery needs management through agement options through which it is regulations implementing an FMP, the possible to act quickly without amend- following general factors should be ing the FMP or even its regulations. considered, among others:

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(i) The importance of the fishery to in conducting business and pursuing the Nation and to the regional econ- recreational opportunities that are omy. consistent with ensuring wise use of (ii) The condition of the stock or the resources and reducing conflict in stocks of fish and whether an FMP can the fishery. The type and level of bur- improve or maintain that condition. den placed on user groups by the regu- (iii) The extent to which the fishery lations need to be identified. Such an could be or is already adequately man- examination should include, for exam- aged by states, by state/Federal pro- ple: Capital outlays; operating and grams, by Federal regulations pursuant maintenance costs; reporting costs; ad- to FMPs or international commissions, ministrative, enforcement, and infor- or by industry self-regulation, con- mation costs; and prices to consumers. sistent with the policies and standards Management measures may shift costs of the Magnuson-Stevens Act. from one level of government to an- (iv) The need to resolve competing other, from one part of the private sec- interests and conflicts among user tor to another, or from the government groups and whether an FMP can fur- to the private sector. Redistribution of ther that resolution. costs through regulations is likely to (v) The economic condition of a fish- generate controversy. A discussion of ery and whether an FMP can produce these and any other burdens placed on more efficient utilization. the public through FMP regulations (vi) The needs of a developing fish- should be a part of the FMP’s sup- ery, and whether an FMP can foster or- porting analyses. derly growth. (2) Gains. The relative distribution of (vii) The costs associated with an gains may change as a result of insti- FMP, balanced against the benefits tuting different sets of alternatives, as (see paragraph (d) of this section as a may the specific type of gain. The anal- guide). ysis of benefits should focus on the spe- (c) Alternative management measures. cific gains produced by each alter- Management measures should not im- native set of management measures, pose unnecessary burdens on the econ- including the status quo. The benefits omy, on individuals, on private or pub- to society that result from the alter- lic organizations, or on Federal, state, native management measures should or local governments. Factors such as be identified, and the level of gain as- fuel costs, enforcement costs, or the sessed. burdens of collecting data may well suggest a preferred alternative. [61 FR 32540, June 24, 1996, as amended at 63 (d) Analysis. The supporting analyses FR 7075, Feb. 12, 1998; 63 FR 24234, May 1, for FMPs should demonstrate that the 1998] benefits of fishery regulation are real and substantial relative to the added § 600.345 National Standard 8—Com- munities. research, administrative, and enforcement costs, as well as costs to the in- (a) Standard 8. Conservation and dustry of compliance. In determining management measures shall, con- the benefits and costs of management sistent with the conservation require- measures, each management strategy ments of the Magnuson-Stevens Act considered and its impacts on different (including the prevention of over- user groups in the fishery should be fishing and rebuilding of overfished evaluated. This requirement need not stocks), take into account the impor- produce an elaborate, formalistic cost/ tance of fishery resources to fishing benefit analysis. Rather, an evaluation communities by utilizing economic and of effects and costs, especially of dif- social data that are based upon the ferences among workable alternatives, best scientific information available in including the status quo, is adequate. order to: If quantitative estimates are not pos- (1) Provide for the sustained partici- sible, qualitative estimates will suffice. pation of such communities; and (1) Burdens. Management measures (2) To the extent practicable, mini- should be designed to give fishermen mize adverse economic impacts on such the greatest possible freedom of action communities.

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(b) General. (1) This standard requires men and processing plant workers, that an FMP take into account the im- thereby adversely affecting their fami- portance of fishery resources to fishing lies and communities. Similarly, a communities. This consideration, how- management measure that results in ever, is within the context of the con- the allocation of fishery resources servation requirements of the Magnu- among competing sectors of a fishery son-Stevens Act. Deliberations regard- may benefit some communities at the ing the importance of fishery resources expense of others. to affected fishing communities, there- (2) An appropriate vehicle for the fore, must not compromise the achieve- analyses under this standard is the ment of conservation requirements and fishery impact statement required by goals of the FMP. Where the preferred section 303(a)(9) of the Magnuson-Ste- alternative negatively affects the sus- vens Act. Qualitative and quantitative tained participation of fishing commu- data may be used, including informa- nities, the FMP should discuss the ration provided by fishermen, dealers, tionale for selecting this alternative processors, and fisheries organizations over another with a lesser impact on and associations. In cases where data fishing communities. All other things are severely limited, effort should be being equal, where two alternatives directed to identifying and gathering achieve similar conservation goals, the needed data. alternative that provides the greater (3) To address the sustained partici- potential for sustained participation of pation of fishing communities that will such communities and minimizes the be affected by management measures, adverse economic impacts on such the analysis should first identify af- communities would be the preferred alternative. fected fishing communities and then (2) This standard does not constitute assess their differing levels of depend- a basis for allocating resources to a ence on and engagement in the fishery specific fishing community nor for pro- being regulated. The analysis should viding preferential treatment based on also specify how that assessment was residence in a fishing community. made. The best available data on the (3) The term ‘‘fishing community’’ history, extent, and type of participa- means a community that is substan- tion of these fishing communities in tially dependent on or substantially the fishery should be incorporated into engaged in the harvest or processing of the social and economic information fishery resources to meet social and presented in the FMP. The analysis economic needs, and includes fishing does not have to contain an exhaustive vessel owners, operators, and crew, and listing of all communities that might fish processors that are based in such fit the definition; a judgment can be communities. A fishing community is a made as to which are primarily af- social or economic group whose mem- fected. The analysis should discuss bers reside in a specific location and each alternative’s likely effect on the share a common dependency on com- sustained participation of these fishing mercial, recreational, or subsistence communities in the fishery. fishing or on directly related fisheries- (4) The analysis should assess the dependent services and industries (for likely positive and negative social and example, boatyards, ice suppliers, economic impacts of the alternative tackle shops). management measures, over both the (4) The term ‘‘sustained participa- short and the long term, on fishing tion’’ means continued access to the communities. Any particular manage- fishery within the constraints of the ment measure may economically ben- condition of the resource. efit some communities while adversely (c) Analysis. (1) FMPs must examine affecting others. Economic impacts the social and economic importance of should be considered both for indi- fisheries to communities potentially vidual communities and for the group affected by management measures. For of all affected communities identified example, severe reductions of harvests in the FMP. Impacts of both consump- for conservation purposes may decrease tive and non-consumptive uses of fish- employment opportunities for fisher- ery resources should be considered.

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(5) A discussion of social and eco- management program. A catch-and-re- nomic impacts should identify those lease fishery management program is alternatives that would minimize ad- one in which the retention of a par- verse impacts on these fishing commu- ticular species is prohibited. In such a nities within the constraints of con- program, those fish released alive servation and management goals of the would not be considered bycatch. FMP, other national standards, and (iii) Fish harvested in a commercial other applicable law. fishery managed by the Secretary [63 FR 24234, May 1, 1998, as amended at 73 under Magnuson-Stevens Act sec. 304(g) FR 67810, Nov. 17, 2008] or the Atlantic Tunas Convention Act of 1975 (16 U.S.C. 971d) or highly migra- § 600.350 National Standard 9—By- tory species harvested in a commercial catch. fishery managed by a Council under (a) Standard 9. Conservation and the Magnuson-Stevens Act or the West- management measures shall, to the ex- ern and Central Pacific Fisheries Con- tent practicable: vention Implementation Act, that are (1) Minimize bycatch; and not regulatory discards and that are (2) To the extent bycatch cannot be tagged and released alive under a sci- avoided, minimize the mortality of entific tagging and release program es- such bycatch. tablished by the Secretary. (b) General. This national standard (d) Minimizing bycatch and bycatch requires Councils to consider the by- mortality. The priority under this catch effects of existing and planned standard is first to avoid catching by- conservation and management meas- catch species where practicable. Fish ures. Bycatch can, in two ways, impede that are bycatch and cannot be avoided efforts to protect marine ecosystems must, to the extent practicable, be re- and achieve sustainable fisheries and turned to the sea alive. Any proposed the full benefits they can provide to conservation and management measure the Nation. First, bycatch can increase that does not give priority to avoiding substantially the uncertainty con- the capture of bycatch species must be cerning total fishing-related mortality, supported by appropriate analyses. In which makes it more difficult to assess their evaluation, the Councils must the status of stocks, to set the appro- consider the net benefits to the Nation, priate OY and define overfishing levels, which include, but are not limited to: and to ensure that OYs are attained Negative impacts on affected stocks; and overfishing levels are not exceeded. incomes accruing to participants in di- Second, bycatch may also preclude rected fisheries in both the short and other more productive uses of fishery long term; incomes accruing to partici- resources. pants in fisheries that target the by- (c) Definition—Bycatch. The term catch species; environmental con- ‘‘bycatch’’ means fish that are har- sequences; non-market values of by- vested in a fishery, but that are not catch species, which include non-con- sold or kept for personal use. sumptive uses of bycatch species and (1) Inclusions. Bycatch includes the existence values, as well as rec- discard of whole fish at sea or else- reational values; and impacts on other where, including economic discards and marine organisms. To evaluate con- regulatory discards, and fishing mor- servation and management measures tality due to an encounter with fishing relative to this and other national gear that does not result in capture of standards, as well as to evaluate total fish (i.e., unobserved fishing mor- fishing mortality, Councils must— tality). (1) Promote development of a database (2) Exclusions. Bycatch excludes the on bycatch and bycatch mortality in the following: fishery to the extent practicable. A review (i) Fish that legally are retained in a and, where necessary, improvement of fishery and kept for personal, tribal, or data collection methods, data sources, cultural use, or that enter commerce and applications of data must be initi- through sale, barter, or trade. ated for each fishery to determine the (ii) Fish released alive under a rec- amount, type, disposition, and other reational catch-and-release fishery characteristics of bycatch and bycatch

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mortality in each fishery for purposes (D) Effects on marine mammals and of this standard and of section birds. 303(a)(11) and (12) of the Magnuson-Ste- (E) Changes in fishing, processing, vens Act. Bycatch should be cat- disposal, and marketing costs. egorized to focus on management re- (F) Changes in fishing practices and sponses necessary to minimize bycatch behavior of fishermen. and bycatch mortality to the extent (G) Changes in research, administra- practicable. When appropriate, man- tion, and enforcement costs and management measures, such as at-sea mon- agement effectiveness. itoring programs, should be developed (H) Changes in the economic, social, to meet these information needs. or cultural value of fishing activities (2) For each management measure, as- and nonconsumptive uses of fishery re- sess the effects on the amount and type of sources. bycatch and bycatch mortality in the fish- (I) Changes in the distribution of ben- ery. Most conservation and manage- efits and costs. ment measures can affect the amounts (J) Social effects. of bycatch or bycatch mortality in a (ii) The Councils should adhere to the fishery, as well as the extent to which precautionary approach found in the further reductions in bycatch are prac- Food and Agriculture Organization of ticable. In analyzing measures, includ- the United Nations (FAO) Code of Con- ing the status quo, Councils should as- duct for Responsible Fisheries (Article sess the impacts of minimizing bycatch 6.5), which is available from the Direc- and bycatch mortality, as well as con- tor, Publications Division, FAO, Viale sistency of the selected measure with delle Terme di Caracalla, 00100 Rome, other national standards and applica- Italy, when faced with uncertainty ble laws. The benefits of minimizing concerning any of the factors listed in bycatch to the extent practicable this paragraph (d)(3). should be identified and an assessment (4) Monitor selected management meas- of the impact of the selected measure ures. Effects of implemented measures on bycatch and bycatch mortality pro- should be evaluated routinely. Moni- vided. Due to limitations on the infor- toring systems should be established mation available, fishery managers prior to fishing under the selected may not be able to generate precise es- management measures. Where applica- timates of bycatch and bycatch mor- ble, plans should be developed and co- tality or other effects for each alter- ordinated with industry and other con- native. In the absence of quantitative cerned organizations to identify oppor- estimates of the impacts of each alter- tunities for cooperative data collec- native, Councils may use qualitative tion, coordination of data management measures. Information on the amount for cost efficiency, and avoidance of and type of bycatch should be summa- duplicative effort. rized in the SAFE reports. (e) Other considerations. Other appli- (3) Select measures that, to the extent cable laws, such as the MMPA, the practicable, will minimize bycatch and by- ESA, and the Migratory Bird Treaty catch mortality. (i) A determination of Act, require that Councils consider the whether a conservation and manage- impact of conservation and management measure minimizes bycatch or ment measures on living marine re- bycatch mortality to the extent prac- sources other than fish; i.e., marine ticable, consistent with other national mammals and birds. standards and maximization of net ben- [63 FR 24235, May 1, 1998, as amended at 73 efits to the Nation, should consider the FR 67811, Nov. 17, 2008] following factors: (A) Population effects for the by- § 600.355 National Standard 10—Safety catch species. of Life at Sea. (B) Ecological effects due to changes (a) Standard 10. Conservation and in the bycatch of that species (effects management measures shall, to the ex- on other species in the ecosystem). tent practicable, promote the safety of (C) Changes in the bycatch of- other human life at sea. species of fish and the resulting popu- (b) General. (1) Fishing is an inher- lation and ecosystem effects. ently dangerous occupation where not

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all hazardous situations can be fore- tions than smaller vessels. An FMP seen or avoided. The standard directs should try to avoid creating situations Councils to reduce that risk in crafting that result in vessels going out farther, their management measures, so long as fishing longer, or fishing in weather they can meet the other national worse than they generally would have standards and the legal and practical in the absence of management meas- requirements of conservation and man- ures. Where these conditions are un- agement. This standard is not meant to avoidable, management measures give preference to one method of man- should mitigate these effects, con- aging a fishery over another. sistent with the overall management (2) The qualifying phrase ‘‘to the ex- goals of the fishery. tent practicable’’ recognizes that regu- (2) Gear and vessel loading require- lation necessarily puts constraints on ments. A fishing vessel operates in a fishing that would not otherwise exist. very dynamic environment that can be These constraints may create pressures an extremely dangerous place to work. on fishermen to fish under conditions Moving heavy gear in a seaway creates that they would otherwise avoid. This a dangerous situation on a vessel. Car- standard instructs the Councils to rying extra gear can also significantly identify and avoid those situations, if reduce the stability of a fishing vessel, they can do so consistent with the making it prone to capsizing. An FMP legal and practical requirements of should consider the safety and stability conservation and management of the of fishing vessels when requiring spe- resource. cific gear or requiring the removal of (3) For the purposes of this national gear from the water. Management standard, the safety of the fishing ves- measures should reflect a sensitivity to sel and the protection from injury of these issues and provide methods of persons aboard the vessel are consid- mitigation of these situations wherever ered the same as ‘‘safety of human life possible. at sea. The safety of a vessel and the (3) Limited season and area fisheries. people aboard is ultimately the respon- Fisheries where time constraints for sibility of the master of that vessel. harvesting are a significant factor and Each master makes many decisions with no flexibility for weather, often about vessel maintenance and loading called ‘‘derby’’ fisheries, can create se- and about the capabilities of the vessel rious safety problems. To participate and crew to operate safely in a variety fully in such a fishery, fishermen may of weather and sea conditions. This na- fish in bad weather and overload their tional standard does not replace the vessel with catch and/or gear. Where judgment or relieve the responsibility these conditions exist, FMPs should at- of the vessel master related to vessel tempt to mitigate these effects and safety. The Councils, the USCG, and avoid them in new management re- NMFS, through the consultation proc- gimes, as discussed in paragraph (e) of ess of paragraph (d) of this section, will this section. review all FMPs, amendments, and reg- (d) Consultation. During preparation ulations during their development to of any FMP, FMP amendment, or regu- ensure they recognize any impact on lation that might affect safety of the safety of human life at sea and human life at sea, the Council should minimize or mitigate that impact consult with the USCG and the fishing where practicable. industry as to the nature and extent of (c) Safety considerations. The fol- any adverse impacts. This consultation lowing is a non-inclusive list of safety may be done through a Council advi- considerations that should be consid- sory panel, committee, or other review ered in evaluating management meas- of the FMP, FMP amendment, or regu- ures under national standard 10. lations. Mitigation, to the extent prac- (1) Operating environment. Where and ticable, and other safety considerations when a fishing vessel operates is partly identified in paragraph (c) of this sec- a function of the general climate and tion should be included in the FMP. weather patterns of an area. Typically, (e) Mitigation measures. There are larger vessels can fish farther offshore many ways in which an FMP may and in more adverse weather condi- avoid or provide alternative measures

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to reduce potential impacts on safety § 600.410 Collection and maintenance of human life at sea. The following is a of statistics. list of some factors that could be con- (a) General. (1) All statistics required sidered when management measures to be submitted to the Secretary are are developed: provided to the Assistant Adminis- (1) Setting seasons to avoid haz- trator. ardous weather. (2) After receipt, the Assistant Ad- (2) Providing for seasonal or trip ministrator will remove all identifying flexibility to account for bad weather particulars from the statistics if doing (weather days). so is consistent with the needs of (3) Allowing for pre- and post-season NMFS and good scientific practice. ‘‘soak time’’ to deploy and pick up (3) Appropriate safeguards as speci- fixed gear, so as to avoid overloading fied by NOAA Directives, or other vessels with fixed gear. NOAA or NMFS internal procedures, (4) Tailoring gear requirements to apply to the collection and maintenance of all statistics, whether sepa- provide for smaller or lighter gear for rated from identifying particulars or smaller vessels. not, so as to ensure their confiden- (5) Avoiding management measures tiality. that require hazardous at-sea inspec- (b) Collection agreements with states. tions or enforcement if other com- (1) The Assistant Administrator may parable enforcement could be accom- enter into an agreement with a state plished as effectively. authorizing the state to collect statis- (6) Limiting the number of partici- tics on behalf of the Secretary. pants in the fishery. (2) NMFS will not enter into a coop- (7) Spreading effort over time and erative collection agreement with a area to avoid potential gear and/or ves- state unless the state has authority to sel conflicts. protect the statistics from disclosure (8) Implementing management meas- in a manner at least as protective as ures that reduce the race for fish and these regulations. the resulting incentives for fishermen to take additional risks with respect to § 600.415 Access to statistics. vessel safety. (a) General. In determining whether to grant a request for access to con- [63 FR 24236, May 1, 1998] fidential data, the following information will be taken into consideration Subpart E—Confidentiality of (also see § 600.130): Statistics (1) The specific types of data required. § 600.405 Types of statistics covered. (2) The relevance of the data to con- NOAA is authorized under the Mag- servation and management issues. nuson-Stevens Act and other statutes (3) The duration of time access will to collect proprietary or confidential be required: continuous, infrequent, or commercial or financial information. one-time. This part applies to all pertinent data (4) An explanation of why the avail- required to be submitted to the Sec- ability of aggregate or non-confidential retary with respect to any FMP includ- summaries of data from other sources ing, but not limited to, information re- would not satisfy the requested needs. garding the type and quantity of fish- (b) Federal employees. Statistics submitted as a requirement of an FMP and ing gear used, catch by species in num- that reveal the identity of the sub- bers of fish or weight thereof, areas in mitter will only be accessible to the which fishing occurred, time of fishing, following: number of hauls, and the estimated (1) Personnel within NMFS respon- processing capacity of, and the actual sible for the collection, processing, and processing capacity utilized by, U.S. storage of the statistics. fish processors. (2) Federal employees who are re- [61 FR 32540, June 24, 1996, as amended at 63 sponsible for FMP development, moni- FR 7075, Feb. 12, 1998] toring, and enforcement.

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(3) Personnel within NMFS per- scribed by NOAA Administrative Order forming research that requires con- (NAO) 216–100. fidential statistics. (e) Prohibitions. Persons having ac- (4) Other NOAA personnel on a de- cess to these data are prohibited from monstrable need-to-know basis. unauthorized use or disclosure and are (5) NOAA/NMFS contractors or subject to the provisions of 18 U.S.C. grantees who require access to con- 1905, 16 U.S.C. 1857, and NOAA/NMFS fidential statistics to perform func- internal procedures, including NAO tions authorized by a Federal contract 216–100. or grant. (c) State personnel. Upon written re- [61 FR 32540, June 24, 1996, as amended at 63 quest, confidential statistics will only FR 7075, Feb. 12, 1998] be accessible if: (1) State employees demonstrate a § 600.420 Control system. need for confidential statistics for use (a) The Assistant Administrator in fishery conservation and manage- maintains a control system to protect ment. the identity of submitters of statistics (2) The state has entered into a writ- required by an FMP. The control sys- ten agreement between the Assistant tem: Administrator and the head of the (1) Identifies those persons who have state’s agency that manages marine access to the statistics. and/or anadromous fisheries. The (2) Contains procedures to limit ac- agreement shall contain a finding by the Assistant Administrator that the cess to confidential data to authorized state has confidentiality protection au- users. thority comparable to the Magnuson- (3) Provides for safeguarding the Stevens Act and that the state will ex- data. ercise this authority to limit subse- (b) This system requires that all per- quent access and use of the data to sons who have authorized access to the fishery management and monitoring data be informed of the confidentiality purposes. of the data. These persons are required (d) Councils. Upon written request by to sign a statement that they: the Council Executive Director, access (1) Have been informed that the data to confidential data will be granted to: are confidential. (1) Council employees who are re- (2) Have reviewed and are familiar sponsible for FMP development and with the procedures to protect con- monitoring. fidential statistics. (2) A Council for use by the Council for conservation and management pur- § 600.425 Release of statistics. poses, with the approval of the Assist- ant Administrator. In addition to the (a) The Assistant Administrator will information described in paragraph (a) not release to the public any statistics of this section, the Assistant Adminis- required to be submitted under an FMP trator will consider the following in de- in a form that would identify the sub- ciding whether to grant access: mitter, except as required by law. (i) The possibility that Council mem- (b) All requests from the public for bers might gain personal or competi- statistics submitted in response to a tive advantage from access to the data. requirement of an FMP will be proc- (ii) The possibility that the suppliers essed consistent with the NOAA FOIA of the data would be placed at a com- regulations (15 CFR part 903), NAO 205– petitive disadvantage by public disclo- 14, Department of Commerce Adminis- sure of the data at Council meetings or trative Orders 205–12 and 205–14 and 15 hearings. CFR part 4. (3) A contractor of the Council for (c) NOAA does not release or allow use in such analysis or studies nec- access to confidential information in essary for conservation and manage- its possession to members of Council ment purposes, with approval of the advisory groups, except as provided by Assistant Administrator and execution law. of an agreement with NMFS as de-

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Subpart F—Foreign Fishing (2) Activity Code 2. Processing, scouting, transshipping, and supporting for- § 600.501 Vessel permits. eign vessels. Activity is limited to fish (a) General. (1) Each FFV fishing harvested or to be harvested by foreign under the Magnuson-Stevens Act must vessels in the EEZ. have on board a permit issued under (3) Activity Code 3. Transshipping, this section, unless it is engaged only scouting, and supporting foreign ves- in recreational fishing. sels. Activity is limited to fish har- (2) Permits issued under this section vested or to be harvested by foreign do not authorize FFV’s or persons to vessels in the EEZ. harass, capture, or kill marine mam- (4) Activity Code 4. Processing, scout- mals. No marine mammals may be ing, transshipping, and supporting U.S. taken in the course of fishing unless vessels delivering fish to foreign ves- that vessel has on board a currently sels. Activity is limited to the receipt valid Authorization Certificate under of unprocessed fish harvested or to be the MMPA. Regulations governing the harvested by U.S. vessels. taking of marine mammals incidental (5) Activity Code 5. Transshipping, to commercial fishing operations are scouting, and supporting foreign ves- contained in 50 CFR part 229 of this sels. Transshipment limited to fish re- title. ceived or to be received from foreign (b) Responsibility of owners and opera- vessels processing fish from U.S. har- tors. The owners and operators of each vesting vessels. FFV are jointly and severally respon- (6) Activity Code 6. Transshipping, sible for compliance with the Magnu- scouting, and supporting U.S. vessels. son-Stevens Act, the applicable GIFA, Transshipment limited to U.S.-har- this subpart, and any permit issued vested fish processed on board U.S. ves- under the Magnuson-Stevens Act and sels. this subpart. The owners and operators (7) Activity Code 7. Processing, trans- of each FFV bear civil responsibility shipping, and supporting foreign ves- for the acts of their employees and sels. Activity limited to fish harvested agents constituting violations, regard- or to be harvested by foreign vessels less of whether the specific acts were seaward of the EEZ. authorized or even forbidden by the (8) Activity Code 8. Transshipping and employer or principal, and regardless supporting foreign vessels. Activity is of knowledge concerning the occur- limited to fish harvested or to be har- rence. vested seaward of the EEZ by foreign (c) Activity codes. Permits to fish vessels or fish duly authorized for proc- under this subpart may be issued by essing in the internal waters of one of the Assistant Administrator for the ac- the states. tivities described in this paragraph, (9) Activity Code 9. Supporting U.S. but the permits may be modified by fishing vessels and U.S. fish processing regulations of this subpart and by the vessels and any foreign fishing vessels conditions and restrictions attached to authorized under any activity code the permit (see paragraphs (e)(1)(v) and under paragraph (c) of this subpart. (l) of this section). The Assistant Ad- (10) Activity Code 10. Transshipping at ministrator may issue a permit, as ap- sea for the purpose of transporting fish propriate, for one or more of the activ- or fish products from a point within ity codes listed. Only vessels of nations the EEZ or, with the concurrence of a having a GIFA with the United States state, within the boundaries of that may be issued permits for activity state, to a point outside the United codes 1 through 9. A GIFA is not re- States. quired for a vessel to be issued a permit (d) Application. (1) Applications for for activity code 10. The activity codes FFV permits authorizing activity are described as follows: codes 1 through 9 must be submitted by (1) Activity Code 1. Catching, scout- an official representative of a foreign ing, processing, transshipping, and sup- nation to the DOS. Applications for porting foreign vessels. Activity is lim- permits authorizing activity codes 1 ited to fish harvested or to be har- through 9 are available from, and vested by foreign vessels in the EEZ. should be submitted to, DOS, OES/

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OMC, Washington, DC 20520. Applica- of receiving permits, as required by tions for FFV permits authorizing ac- section 204(b)(7) of the Magnuson-Ste- tivity code 10 may be submitted by any vens Act, and any ‘‘additional restric- person to the Assistant Administrator. tions’’ attached to the permit for the Applications for permits authorizing conservation and management of fish- activity code 10 are available from ery resources or for the prevention of NMFS, Attn: Office of International significant impairment of the national Affairs, 1315 East West Highway, Silver defense or security interests. Spring, Maryland 20910. All applicants (2) The DOS will provide permits for should allow 90 days for review and activity codes 1 through 9 to the offi- comment by the public, involved gov- cial representative of the applicant for- ernmental agencies, and appropriate eign nation. The Assistant Adminis- Councils and for processing before the trator will provide permits for activity anticipated date to begin fishing. The code 10 directly to the applicant. permit application fee must be paid at (3) An approved permit will contain— the time of application according to (i) The name and IRCS of the FFV § 600.518. and its permit number. (2) Applicants must provide complete (ii) The permitted fisheries and/or ac- and accurate information requested on tivity codes. the permit application form. (iii) The date of issuance and expira- (3) Applicants for FFV’s that will tion date, if other than December 31. support U.S. vessels in joint ventures (iv) All conditions and restrictions, (Activity Code 4) must provide the ad- and any additional restrictions and ditional information specified by the technical modifications appended to permit application form. the permit. (4) Each applicant may request to (4) Permits are not issued for boats substitute one FFV for another of the that are launched from larger vessels. same flag by submitting a new applica- Any enforcement action that results tion form and a short explanation of from the activities of a launched boat the reason for the substitution to the will be taken against the permitted appropriate address listed at paragraph vessel. (d)(1) of this section. Each substitution (f) Duration. A permit is valid from is considered a new application, and a its date of issuance to its date of expi- new application fee must be paid. ration, unless it is revoked or sus- NMFS will promptly process an appli- pended or the nation issuing the FFV’s cation for a vessel replacing a per- documents does not accept amend- mitted FFV that is disabled or decom- ments to the permit made by the As- missioned, once the appropriate Coun- sistant Administrator in accordance cil(s) and governmental agencies have with the procedures of paragraph (l) of been notified of the substituted appli- this section. The permit will be valid cation. for no longer than the calendar year in (e) Issuance. (1) Permits may be which it was issued. issued to an FFV by the Assistant Ad- (g) Transfer. Permits are not transfer- ministrator after— able or assignable. A permit is valid (i) The Assistant Administrator de- only for the FFV to which it is issued. termines that the fishing described in (h) Display. Each FFV operator must the application will meet the require- have a properly completed permit form ments of the Magnuson-Stevens Act available on board the FFV when en- and approves the permit application. gaged in fishing activities and must (ii) The applicant has paid the fees produce it at the request of an author- and provided any assurances required ized officer or observer. by the Secretary in accordance with (i) Suspension and revocation. NMFS the provisions of § 600.518. may apply sanctions to an FFV’s per- (iii) The applicant has appointed an mit by revoking, suspending, or impos- agent. ing additional permit restrictions on (iv) The applicant has identified a the permit under 15 CFR part 904, if the designated representative. vessel is involved in the commission of (v) The applicant has accepted the any violation of the Magnuson-Stevens general ‘‘conditions and restrictions’’ Act, the GIFA, or this subpart; if an

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agent and a designated representative (4) The Nation whose vessels are in- are not maintained in the United volved, the owners of the affected ves- States; if a civil penalty or criminal sels, their representatives, the agencies fine imposed under the Magnuson-Ste- specified in paragraph (l)(3) of this sec- vens Act has become overdue; or as tion, and the public may submit writ- otherwise specified in the Magnuson- ten comments on the proposed addi- Stevens Act. tional restrictions within 30 days after (j) Fees. Permit application fees are publication in the FEDERAL REGISTER. described in § 600.518. (5) The Assistant Administrator will (k) Change in application information. make a final decision regarding the The applicant must report, in writing, proposed additional restrictions as any change in the information supplied soon as practicable after the end of the under paragraph (d) of this section to comment period. The Assistant Admin- the Assistant Administrator within 15 istrator will provide the final addi- calendar days after the date of the tional restrictions to the Nation whose change. Failure to report a change in vessels are affected (via the Secretary the ownership from that described in of State) according to the procedures of the current application within the paragraph (e) of this section. The As- specified time frame voids the permit, sistant Administrator will include with and all penalties involved will accrue the final additional restrictions to the to the previous owner. Nation, a response to comments sub- (l) Permit amendments. (1) The Assist- mitted. ant Administrator may amend a per- (6) Additional restrictions may be mit by adding ‘‘additional restrictions’’ modified by following the procedures of for the conservation and management paragraphs (l)(2) through (l)(5) of this of fishery resources covered by the per- section. mit, or for the national defense or security if the Assistant Administrator [61 FR 32540, June 24, 1996, as amended at 63 determines that such interests would FR 7075, Feb. 12, 1998; 64 FR 39019, July 21, be significantly impaired without such 1999; 76 FR 59305, Sept. 26, 2011] restrictions. Compliance with the § 600.502 Vessel reports. added additional restrictions is a condition of the permit. Violations of (a) The operator of each FFV must added additional restrictions will be report the FFV’s activities to the treated as violations of this subpart. USCG and NMFS as specified in this (2) The Assistant Administrator may section. make proposed additional restrictions (b) All reports required by this sec- effective immediately, if necessary, to tion must be in English and in the for- prevent substantial harm to a fishery mats specified in the permit additions resource of the United States, to allow and restrictions. Reports must be de- for the continuation of ongoing fishing livered via private or commercial com- operations, or to allow for fishing to munications facilities, facsimile, or begin at the normal time for opening of other electronic means acceptable to the fishery. NMFS and the USCG, directly to the (3) The Assistant Administrator will appropriate NMFS Region or Center send proposed additional restrictions and USCG commander. Weekly reports to each Nation whose vessels are af- must also be delivered directly to the fected (via the Secretary of State), to appropriate NMFS Region or Center the appropriate Councils, and to the (see tables 1 and 2 of this section). (The Commandant of the Coast Guard. required reports may be delivered to NMFS will, at the same time, publish a the closest USCG communication sta- document of any significant proposed tion as indicated in table 3 of this sec- additional restrictions in the FEDERAL tion or other USCG communication REGISTER. The document will include a station only if adequate private or summary of the reasons underlying the commercial communications facilities proposal, and the reasons that any pro- have not been successfully contacted.) posed additional restrictions are made Radio reports must be made via radio- effective immediately. telegraphy, Telex, or facsimile where

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available. For the purposes of this sec- the present fishing area and delivered tion, a message is considered ‘‘trans- within 24 hours of its transmittal. mitted’’ when its receipt is acknowl- (3) ‘‘RETURN’’. Each operator must edged by a communications facility specify the date, time, position, and and considered ‘‘delivered’’ upon its re- area the FFV will ‘‘RETURN’’ to the ceipt by the offices of the appropriate EEZ following a temporary departure, USCG commander, NMFS Regional Of- and the species (by species code), prod- fice, or NMFS Center identified in uct (by product code), and quantity of table 2 of this section. Reports required all fish and fish products (by product by this section may be submitted by weight to the nearest hundredth of a the vessel’s designated representative; metric ton) on board that were re- however, the operator of the FFV is received in a joint venture in internal sponsible for the correct and timely fil- waters (action code ‘‘RETURN’’). The ing of all required reports. message must be transmitted before re- (c) Activity reports. The operator of turning to the EEZ and delivered with- each FFV must report the FFV’s move- in 24 hours of its transmittal. ments and activities before or upon the (4) ‘‘SHIFT’’. Each operator must re- event, as specified in this paragraph port each SHIFT in fishing area (as de- (c). Appropriate forms, instructions, scribed for each fishery) by specifying codes, and examples are contained in the date, time, and position the FFV the conditions and restrictions of the will start fishing, and the new area (ac- FFV’s permit. Each FFV report must tion code ‘‘SHIFT’’). The message must contain the following information: The be transmitted before leaving the origi- message identifier ‘‘VESREP’’ to indi- nal area and delivered within 24 hours cate it is a vessel activity report, FFV of its transmittal. If a foreign vessel name, international radio call sign operates within 20 nautical miles (37.04 IRCS, date (month and day based on km) of a fishing area boundary, its op- GMT), time (hour and minute GMT), erator may submit in one message the position (latitude and longitude to the shift reports for all fishing area shifts nearest degree and minute) where re- occurring during 1 fishing day (0001– quired, area (by fishing area code) 2400 GMT). This message must be where required, the appropriate action transmitted prior to the last shift ex- code, confirmation codes where re- pected to be made in the day and deliv- quired, and the other information spec- ered within 24 hours of its transmittal. ified in paragraphs (c)(1) through (c)(11) (5) ‘‘JV OPS’’. Each operator must of this section. specify the date, time, position, and (1) ‘‘BEGIN’’. Each operator must area at which the FFV will ‘‘START’’ specify the date, time, position, and joint venture operations (action code area the FFV will actually ‘‘BEGIN’’ ‘‘START JV OPS’’) or ‘‘END’’ joint fishing in the EEZ and the species (by venture operations (action code ‘‘END species code), product (by product JV OPS’’). These reports must be made code), and quantity of all fish and fish in addition to other activity reports products (by product weight to the made under this section. Each message nearest hundredth of a metric ton) on must be transmitted before the event board when entering the EEZ (action and delivered within 24 hours of its code ‘‘BEGIN’’). The message must be transmittal. delivered at least 24 hours before the (6) ‘‘TRANSFER’’. The operator of vessel begins to fish. each FFV that anticipates a trans- (2) ‘‘DEPART’’. Each operator must shipping operation in which the FFV specify the date, time, position, and will receive fish or fisheries products area the FFV will ‘‘DEPART’’ the EEZ must specify the date, time, position to embark or debark an observer, to and area the FFV will conduct the visit a U.S. port, to conduct a joint ‘‘TRANSFER’’ and the name and IRCS venture in internal waters, or to other- of the other FFV or U.S. vessel in- wise temporarily leave an authorized volved (action code ‘‘TRANSFER’’). fishing area, but not depart the sea- The report must include the permit ac- ward limit of the EEZ (action code tivity code under which the transfer ‘‘DEPART’’). The message must be will be made. The message must be transmitted before the FFV departs transmitted prior to the transfer and

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delivered within 24 hours of its trans- ing the name, IRCS, date, and time of mittal. The movement of raw fish from the previous report, adding the word a permitted foreign catching vessel or, ‘‘TO’’ and the complete revised text of under an Activity Code 4, from a U.S. the new report (action code ‘‘CHANGE fishing vessel to the reporting proc- TO’’). Changes to reports specifying an essing vessel and the return of nets or early beginning of fishing by an FFV or codends is not considered a transfer. other changes to reports contained in (7) ‘‘OFFLOADED’’. Each operator paragraphs (c)(1) through (c)(9) of this must specify the date, time, position, section must be transmitted and deliv- and area the FFV ‘‘OFFLOADED’’ fish ered as if the ‘‘CHANGE’’ report were or fisheries products TO another FFV the original message. or a U.S. vessel in a transfer, the other (11) ‘‘CANCEL’’. Each operator want- FFV’s or U.S. vessel’s name, IRCS, ing to ‘‘CANCEL’’ a previous report Permit Activity Code under which the may do so by sending a revised mes- transfer was made, species (by species sage, and inserting the word ‘‘CAN- code) and quantity of fish and fisheries CEL’’ in front of the previous report’s products (by product code and by prod- vessel name, IRCS, date, time and ac- uct weight, to the nearest hundredth of tion code canceled (action code ‘‘CAN- a metric ton) offloaded (action code CEL’’). The message must be trans- ‘‘OFFLOADED TO’’). The message mitted and delivered prior to the date must be transmitted within 12 hours and time of the event in the original after the transfer is completed and de- message. livered within 24 hours of its trans- (d) The operator of an FFV will be in mittal and before the FFV ceases fish- violation of paragraphs (c)(1) through ing in the EEZ. (c)(9) of this section if the FFV does (8) ‘‘RECEIVED’’. Each operator must not pass within 5 nautical miles (9.26 specify the date, time, position and km) of the position given in the report area the vessel ‘‘RECEIVED’’ fish or within 4 hours of the time given in the fisheries products FROM another FFV report. in a transfer, the other FFV’s or U.S. vessel’s name, IRCS, Permit Activity (e) The notices required by this sec- Code under which the receipt was tion may be provided for individual or made, species (by species code) and groups of FFV’s (on a vessel-by-vessel quantity of fish and fisheries products basis) by authorized persons. An FFV (by product code and by product operator may retransmit reports on weight, to the nearest hundredth of a the behalf of another FFV, if author- metric ton) received (action code ‘‘RE- ized by that FFV’s operator. This does CEIVED FROM’’). The message must not relieve the individual vessel oper- be transmitted within 12 hours after ator of the responsibility of filing re- the transfer is completed and delivered quired reports. In these cases, the mes- within 24 hours of its transmittal and sage format should be modified so that before the vessel ceases fishing in the each line of text under ‘‘VESREP’’ is a EEZ. separate vessel report. (9) ‘‘CEASE’’. Each operator must (f) Weekly reports. (1) The operator of specify the date, time, position, and each FFV in the EEZ must submit ap- area the FFV will ‘‘CEASE’’ fishing in propriate weekly reports through the order to leave the EEZ (action code Nation’s designated representative. ‘‘CEASE’’). The message must be deliv- The report must arrive at the address ered at least 24 hours before the FFV’s and time specified in paragraph (g) of departure. this section. The reports may be sent (10) ‘‘CHANGE’’. Each operator must by facsimile or Telex, but a completed report any ‘‘CHANGE’’ TO the FFV’s copy of the report form must be mailed operations if the position or time of an or hand delivered to confirm the Telex. event specified in an activity report Appropriate forms, instructions, codes, will vary more than 5 nautical miles and examples are contained in the con- (9.26 km) or 4 hours from that pre- ditions and restrictions of the FFV’s viously reported, by sending a revised permit. Designated representatives message inserting the word ‘‘CHANGE’’ may include more than one vessel re- in front of the previous report, repeat- port in a facsimile or Telex message, if

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the information is submitted on a ves- a weekly report stating any incidental sel-by-vessel basis. Requests for correc- catch or receipt of marine mammals tions to previous reports must be sub- (Activity Codes 1 or 2 and/or 4), the mitted through the Nation’s designated geographical position caught, the con- representative and mailed or hand-de- dition of the animal, number caught (if livered, together with a written expla- more than one of the same species and nation of the reasons for the errors. condition), and nationality of the The appropriate Regional Adminis- catching vessel for the period Sunday trator or Science and Research Direc- through Saturday, GMT, as modified tor may accept or reject any correction by the fishery in which the vessel is en- and initiate any appropriate civil pen- gaged. Foreign catching vessels deliv- alty actions. ering unsorted, unprocessed fish to (2) Weekly catch report (CATREP). The processing vessel are not required to operator of each FFV must submit a submit MAMREP’s, provided that the weekly catch report stating any catch processing or factory vessel (Activity (Activity Code 1) in round weight of Code 2) submits consolidated each species or species group allocated MAMREP’s for all fish received during to that Nation by area and days fished each weekly period. FFV’s receiving in each area for the weekly period Sun- U.S.-harvested fish in a joint venture day through Saturday, GMT, as modi- (Activity Code 4) must submit consoli- fied by the fishery in which the FFV is dated reports for U.S. vessels operating engaged. Foreign vessels delivering in the joint venture. No report is re- unsorted, unprocessed fish to a proc- quired for FFV’s that do not catch or essing vessel are not required to sub- receive marine mammals during the re- mit CATREP’s, if that processing ves- porting period. sel (Activity Code 2) submits consoli- (g) Submission instructions for weekly dated CATREP’s for all fish received reports. The designated representative during each weekly period. No report is for each FFV must submit weekly re- required for FFV’s that do not catch or ports in the prescribed format to the receive foreign-caught fish during the appropriate Regional Administrator or reporting period. Science and Research Director of (3) Weekly receipts report (RECREP). NMFS by 1900 GMT on the Wednesday The operator of each FFV must submit following the end of the reporting pe- a weekly report stating any receipts of riod. However, by agreement with the U.S.-harvested fish in a joint venture appropriate Regional Administrator or (Activity Code 4) for the weekly period Science and Research Director, the des- Sunday through Saturday, GMT, as ignated representative may submit modified by the fishery in which the weekly reports to some other facility FFV is engaged, for each fishing area, of NMFS. by authorized or prohibited species or (h) Alternative reporting procedures. As species group; days fish received; round an alternative to the use of the specific weight retained or returned to the U.S. procedures provided, an applicant may fishing vessel; number of codends resubmit proposed reporting procedures ceived; and number of vessels transfer- for a general type of fishery operation ring codends. The report must also in- (i.e., transshipments under Activity clude the names of U.S. fishing vessels Code 10) to the appropriate Regional transferring codends during the week. Administrator and the USCG com- No report is required for FFV’s that do mander (see tables 1 and 2 to § 600.502 of not receive any U.S.-harvested fish this chapter). With the agreement of during the reporting period. the USCG commander, the Regional (4) Marine mammal report (MAMREP). Administrator may authorize the use The operator of each FFV must submit of alternative reporting procedures.

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TABLE 1 TO § 600.502—ADDRESSES

U.S. Coast Guard NMFS regional administrators NMFS science and research directors commanders

Administrator, Northeast Region, National Director, Northeast Fisheries Science Commander, Atlantic Area, U.S. Coast Marine Fisheries Service, NOAA, One Center, National Marine Fisheries Guard, 431 Crawford St., Portsmouth, Blackburn Drive, Gloucester, MA Service, NOAA, 166 Water St., Woods VA 23704. 01930–2298. Hole, MA 02543–1097. Administrator, Southeast Region, National Director, Southeast Fisheries Science Commander, Atlantic Area, U.S. Coast Marine Fisheries Service, 263 13th Ave. Center, National Marine Fisheries Guard, Governor’s Island, New York South, St. Petersburg, FL 33701. Service, NOAA, 75 Virginia Beach 10004. Drive, Miami, FL 33149. Administrator, Northwest Region, National Director, Northwest Fisheries Science Commander, Pacific Area, U.S. Coast Marine Fisheries Service, NOAA, 7600 Center, National Marine Fisheries Guard, Government Island, Alameda, Sand Point Way, NE, BIN C15700, Service, NOAA, 2725 Montlake Blvd. CA 94501. Bldg. 1, Seattle, WA 98115. East, Seattle, WA 98112–2097. Administrator, Alaska Region, National Director, Alaska Fisheries Science Cen- Commander, Seventeenth Coast Guard Marine Fisheries Service, NOAA, P.O. ter, National Marine Fisheries Service, District, P.O. Box 25517, Juneau, AK Box 21668, Juneau, AK 99802–1668. NOAA, 7600 Sand Point Way, NE, 99802. BIN C15700, Bldg. 4, Seattle, WA 98115–0070. Administrator, Southwest Region, National Director, Southwest Fisheries Science Commander, Fourteenth Coast Guard Marine Fisheries Service, NOAA, 501 Center, National Marine Fisheries District, 300 Ala Moana Blvd., Hono- West Ocean Blvd., Suite 4200, Long Service, NOAA, P.O. Box 271, La lulu, HI 96850. Beach, CA 90802–4213. Jolla, CA 92038–0271. Administrator, Pacific Islands Region, Na- Director, Pacific Islands Fisheries Commander, Fourteenth Coast Guard tional Marine Fisheries Service, NOAA, Science Center, National Marine Fish- District, 300 Ala Moana Blvd., Hono- 1601 Kapiolani Blvd., Suite 1110, Hono- eries Service, NOAA, 2570 Dole lulu, HI 96850. lulu, HI 96814. Street, Honolulu, HI 96822.

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

Area of responsibility/fishery National Marine Fisheries Service U.S. Coast Guard

Atlantic Ocean North of Cape Hatteras .... Director, Northeast Science Center, Attn: Commander, Atlantic Area. Observer Program. Atlantic Ocean South of Cape Hatteras .... Director, Northeast Science Center, Attn: Commander, Atlantic Area. Observer Program. Atlantic Tunas, Swordfish, Billfish and Director, Office of Sustainable Fisheries Commander, Atlantic Area. Sharks. Gulf of Mexico and Caribbean Sea ...... Administrator, Southeast Region ...... Commander, Atlantic Area. Pacific Ocean off the States of California, Administrator, Northwest Region ...... Commander, Pacific Area. Oregon, and Washington. North Pacific Ocean and Bering Sea off Administrator, Alaska Region ...... Commander, Seventeenth Coast Guard Alaska. District. Pacific Ocean off Hawaii, American Administrator, Pacific Islands Region ..... Commander, Fourteenth Coast Guard Samoa, Guam, Commonwealth of the District. Northern Mariana Islands, and U.S. In- sular Possessions in the Central and Western Pacific.

TABLE 3 TO § 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, CA) ...... NMC A-D All. E (On request). Honolulu ...... NMO A-D All. E (On request). Kodiak ...... NOJ A-D All.

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

Radiotelephone U.S. Coast Guard communications station IRCS Channel 1 GMT time

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

[61 FR 32540, June 24, 1996, as amended at 63 FR 7073, Feb. 12, 1998; 64 FR 39020, July 21, 1999; 69 FR 8341, Feb. 24, 2004; 76 FR 34902, June 15, 2011]

§ 600.503 Vessel and gear identifica- (c) Gear identification. (1) The oper- tion. ator of each FFV must ensure that all deployed fishing gear that is not phys- (a) Vessel identification. (1) The oper- ically and continuously attached to an ator of each FFV assigned an IRCS FFV: must display that call sign amidships (i) Is clearly marked at the surface on both the port and starboard sides of with a buoy displaying the vessel iden- the deckhouse or hull, so that it is visi- tification of the FFV (see paragraph (a) ble from an enforcement vessel, and on of this section) to which the gear be- an appropriate weather deck so it is longs. visible from the air. (ii) Has attached a light visible for 2 (2) The operator of each FFV not as- nautical miles (3.70 km) at night in signed an IRCS, such as a small trawler good visibility. associated with a mothership or one of (iii) Has a radio buoy. a pair of trawlers, must display the Trawl codends passed from one vessel IRCS of the associated vessel, followed to another are considered continuously by a numerical suffix. (For example, attached gear and are not required to JCZM–1, JCZM–2, etc., would be dis- be marked. played on small trawlers not assigned (2) The operator of each FFV must an IRCS operating with a mothership ensure that deployed longlines, strings whose IRCS is JCZM; JANP–1 would be of traps or pots, and gillnets are displayed by a pair trawler not as- marked at the surface at each terminal signed an IRCS operating with a trawl- end with: (see paragraphs (c)(1)(i) er whose IRCS is JANP.) through (c)(1)(iii) of this section). (3) The vessel identification must be (3) Additional requirements may be in a color in contrast to the back- specified for the fishery in which the ground and must be permanently af- vessel is engaged. fixed to the FFV in block Roman al- (4) Unmarked or incorrectly identi- phabet letters and Arabic numerals at fied fishing gear may be considered least 1 m in height for FFV’s over 20 m abandoned and may be disposed of in in length, and at least 0.5 m in height accordance with applicable Federal for all other FFV’s. regulations by any authorized officer. (b) Navigational lights and shapes. (d) Maintenance. The operator of each Each FFV must display the lights and FFV must— shapes prescribed by the International (1) Keep the vessel and gear identi- Regulations for Preventing Collisions fication clearly legible and in good re- at Sea, 1972 (TIAS 8587, and 1981 amend- pair. ment TIAS 10672), for the activity in (2) Ensure that nothing on the FFV which the FFV is engaged (as described obstructs the view of the markings at 33 CFR part 81). from an enforcement vessel or aircraft.

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(3) Ensure that the proper naviga- ments of this section to certain FFV’s tional lights and shapes are displayed or types of FFV’s operating in a fish- for the FFV’s activity and are properly ery, provided they are adequate for the functioning. communications needs of the fishery. (c) Communications procedures. (1) § 600.504 Facilitation of enforcement. Upon being approached by a USCG ves- (a) General. (1) The owner, operator, sel or aircraft, or other vessel or air- or any person aboard any FFV subject craft with an authorized officer aboard, to this subpart must immediately com- the operator of any FFV subject to this ply with instructions and signals subpart must be alert for communica- issued by an authorized officer to stop tions conveying enforcement instruc- the FFV; to move the FFV to a speci- tions. The enforcement unit may com- fied location; and to facilitate safe municate by channel 16 VHF-FM radio- boarding and inspection of the vessel, telephone, 2182 kHz (SSB) radio- its gear, equipment, records, and fish telephone, message block from an air- and fish products on board for purposes craft, flashing light or flag signals of enforcing the Magnuson-Stevens Act from the International Code of Signals, and this subpart. hand signal, placard, loudhailer, or (2) The operator of each FFV must other appropriate means. The following provide vessel position or other infor- signals, extracted from the Inter- mation when requested by an author- national Code of Signals, are among ized officer within the time specified in those that may be used. the request. (i) ‘‘AA, AA, AA, etc.’’, which is the (b) Communications equipment. (1) call for an unknown station. The sig- Each FFV must be equipped with a naled vessel should respond by identi- VHF-FM radiotelephone station lo- fying itself or by illuminating the ves- cated so that it may be operated from sel identification required by § 600.505. the wheelhouse. Each operator must (ii) ‘‘RY-CY’’, meaning ‘‘You should maintain a continuous listening watch proceed at slow speed, a boat is coming on channel 16 (156.8 mHz). to you’’. (2) Each FFV must be equipped with (iii) ‘‘SQ3’’, meaning ‘‘You should a radiotelephone station capable of stop or heave to; I am going to board communicating via 2182 kHz (SSB) you’’. radiotelephony and at least one set of (iv) ‘‘L’’, meaning ‘‘You should stop working frequencies identified in table your vessel instantly.’’ 3 to § 600.502 appropriate to the fishery in which the FFV is operating. Each (2) Failure of an FFV’s operator to operator must monitor and be ready to stop the vessel when directed to do so communicate via 2182 kHz (SSB) radio- by an authorized officer using VHF-FM telephone each day from 0800 GMT to radiotelephone (channel 16), 2182 kHz 0830 GMT and 2000 to 2030 GMT, and in (SSB) radiotelephone (where required), preparation for boarding. message block from an aircraft, flash- (3) FFV’s that are not equipped with ing light signal, flaghoist, or loudhailer processing facilities and that deliver constitutes a violation of this subpart. all catches to a foreign processing ves- (3) The operator of or any person sel are exempt from the requirements aboard an FFV who does not under- of paragraph (b)(2) of this section. stand a signal from an enforcement (4) FFV’s with no IRCS that do not unit and who is unable to obtain clari- catch fish and are used as auxiliary fication by radiotelephone or other vessels to handle codends, nets, equip- means must consider the signal to be a ment, or passengers for a processing command to stop the FFV instantly. vessel are exempt from the require- (d) Boarding. The operator of an FFV ments of paragraphs (b)(1) and (b)(2) of signaled for boarding must— this section. (1) Monitor 2182 kHz (SSB) radio- (5) The appropriate Regional Admin- telephone and channel 16 (156.8 mHz) istrator, with the agreement of the ap- VHF-FM radiotelephone. propriate USCG commander, may, (2) Stop immediately and lay to or upon request by a foreign nation, ac- maneuver in such a way as to maintain cept alternatives to the radio require- the safety of the FFV and facilitate

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boarding by the authorized officer and continuous, with no joints below the the boarding party or an observer. top step. (3) Provide the authorized officer, (v) Battens made of hardwood, or boarding party, or observer a safe pilot other material of equivalent prop- ladder. The operator must ensure the erties, in one piece and not less than pilot ladder is securely attached to the 1.80 m (5 ft 10 inches) long must be pro- FFV and meets the construction re- vided at such intervals as will prevent quirements of Regulation 17, Chapter V the pilot ladder from twisting. The of the International Convention for the lowest batten must be on the fifth step Safety of Life at Sea (SOLAS), 1974 from the bottom of the ladder and the (TIAS 9700 and 1978 Protocol, TIAS interval between any batten and the 10009), or a substantially equivalent na- next must not exceed nine steps. tional standard approved by letter (vi) Where passage onto or off the from the Assistant Administrator, with ship is by means of a bulwark ladder, agreement with the USCG. Safe pilot two handhold stanchions must be fitted ladder standards are summarized at the point of boarding or leaving the below: FFV not less than 0.70 m (2 ft 3 inches) (i) The ladder must be of a single nor more than 0.80 m (2 ft 7 inches) length of not more than 9 m (30 ft), ca- apart, not less than 40 mm (2.5 inches) pable of reaching the water from the in diameter, and must extend not less point of access to the FFV, accounting than 1.20 m (3 ft 11 inches) above the for all conditions of loading and trim of top of the bulwark. the FFV and for an adverse list of 15°. (4) When necessary to facilitate the Whenever the distance from sea level boarding or when requested by an au- to the point of access to the ship is thorized officer or observer, provide a more than 9 m (30 ft), access must be manrope, safety line, and illumination by means of an accommodation ladder for the ladder; and or other safe and convenient means. (5) Take such other actions as nec- (ii) The steps of the pilot ladder must essary to ensure the safety of the au- be— thorized officer and the boarding party (A) Of hardwood, or other material of and to facilitate the boarding and in- equivalent properties, made in one spection. piece free of knots, having an efficient (e) Access and records. (1) The owner non-slip surface; the four lowest steps and operator of each FFV must provide may be made of rubber of sufficient authorized officers access to all spaces strength and stiffness or of other suit- where work is conducted or business able material of equivalent character- papers and records are prepared or istics. stored, including but not limited to, (B) Not less than 480 mm (19 inches) personal quarters and areas within per- long, 115 mm (4.5 inches) wide, and 25 sonal quarters. mm (1 inch) in depth, excluding any (2) The owner and operator of each non-slip device. FFV must provide to authorized offi- (C) Equally spaced not less than 300 cers all records and documents per- millimeters (12 inches) nor more than taining to the fishing activities of the 380 mm (15 inches) apart and secured in vessel, including but not limited to, such a manner that they will remain production records, fishing logs, navi- horizontal. gation logs, transfer records, product (iii) No pilot ladder may have more receipts, cargo stowage plans or than two replacement steps that are records, draft or displacement calcula- secured in position by a method dif- tions, customs documents or records, ferent from that used in the original and an accurate hold plan reflecting construction of the ladder. the current structure of the vessel’s (iv) The side ropes of the ladder must storage and factory spaces. consist of two uncovered manila ropes (f) Product storage. The operator of not less than 60 mm (2.25 inches) in cir- each permitted FFV storing fish or fish cumference on each side (or synthetic products in a storage space must en- ropes of equivalent size and equivalent sure that all non-fish product items are or greater strength). Each rope must be neither stowed beneath nor covered by

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fish products, unless required to main- subpart, or any permit issued under tain the stability and safety of the ves- this subpart; sel. These items include, but are not (7) Engage in any fishing activity for limited to, portable conveyors, exhaust which the FFV does not have a permit fans, ladders, nets, fuel bladders, extra as required under § 600.501; bin boards, or other movable non-prod- (8) Engage in any fishing activity uct items. These items may be in the within the EEZ without a U.S. observer space when necessary for safety of the aboard the FFV, unless the require- vessel or crew or for storage of the ment has been waived by the Assistant product. Lumber, bin boards, or other Administrator or appropriate Regional dunnage may be used for shoring or Administrator; bracing of product to ensure safety of (9) Retain or attempt to retain, di- crew and to prevent shifting of cargo rectly or indirectly, any U.S. harvested within the space. fish, unless the FFV has a permit for Activity Codes 4, 6, or 10; [61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998] (10) Use any fishing vessel to engage in fishing after the revocation, or dur- § 600.505 Prohibitions. ing the period of suspension, of an applicable permit issued under this sub- (a) It is unlawful for any person to do part; any of the following: (11) Violate any provision of the ap- (1) Ship, transport, offer for sale, sell, plicable GIFA; purchase, import, export, or have cus- (12) Falsely or incorrectly complete tody, control, or possession of any fish (including by omission) a permit appli- taken or retained in violation of the cation or permit form as specified in Magnuson-Stevens Act, the applicable § 600.501 (d) and (k); GIFA, this subpart, or any permit (13) Fail to report to the Assistant issued under this subpart; Administrator within 15 days any (2) Refuse to allow an authorized offi- change in the information contained in cer to board an FFV for purposes of the permit application for a FFV, as conducting any search or inspection in specified in § 600.501(k); connection with the enforcement of the (14) Assault, resist, oppose, impede, Magnuson-Stevens Act, the applicable intimidate, or interfere with an ob- GIFA, this subpart, or any other per- server placed aboard an FFV under this mit issued under this subpart; subpart; (3) Assault, resist, oppose, impede, in- (15) Interfere with or bias the sam- timidate, or interfere with any author- pling procedure employed by an ob- ized officer in the conduct of any in- server, including sorting or discarding spection or search described in para- any catch prior to sampling, unless the graph (a)(2) of this section; observer has stated that sampling will (4) Resist a lawful arrest for any act not occur; or tamper with, destroy, or prohibited by the Magnuson-Stevens discard an observer’s collected sam- Act, the applicable GIFA, this subpart, ples, equipment, records, photographic or any permit issued under this sub- film, papers, or effects without the ex- part; press consent of the observer; (5) Interfere with, delay, or prevent (16) Prohibit or bar by command, im- by any means the apprehension or ar- pediment, threat, coercion, or refusal rest of another person with the knowl- of reasonable assistance, an observer edge that such other person has com- from collecting samples, conducting mitted any act prohibited by the Mag- product recovery rate determinations, nuson-Stevens Act, the applicable making observations, or otherwise per- GIFA, this subpart, or any permit forming the observer’s duties; issued under this subpart; (17) Harass or sexually harass an au- (6) Interfere with, obstruct, delay, op- thorized officer or observer; pose, impede, intimidate, or prevent by (18) Fail to provide the required as- any means any boarding, investigation sistance to an observer as described at or search, wherever conducted, in the § 600.506 (c) and (e); process of enforcing the Magnuson-Ste- (19) Fail to identify, falsely identify, vens Act, the applicable GIFA, this fail to properly maintain, or obscure

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the identification of the FFV or its (2) Within the EEZ, or for any anad- gear as required by this subpart; romous species or continental shelf (20) Falsify or fail to make, keep, fishery resources beyond the EEZ, un- maintain, or submit any record or re- less the fishing is authorized by, and port required by this subpart; conducted in accordance with, a valid (21) Fail to return to the sea or fail permit issued under § 600.501. to otherwise treat prohibited species as [61 FR 32540, June 24, 1996, as amended at 63 required by this subpart; FR 7075, Feb. 12, 1998; 64 FR 39020, July 21, (22) Fail to report or falsely report 1999] any gear conflict; (23) Fail to report or falsely report § 600.506 Observers. any loss, jettisoning, or abandonment (a) General. To carry out such sci- of fishing gear or other article into the entific, compliance monitoring, and EEZ that might interfere with fishing, other functions as may be necessary or obstruct fishing gear or vessels, or appropriate to carry out the purposes cause damage to any fishery resource of the Magnuson-Stevens Act, the ap- or marine mammals; propriate Regional Administrator or (24) Continue Activity Codes 1 Science and Research Director (see through 4 after those activity codes table 2 to § 600.502) may assign U.S. ob- have been canceled under § 600.511; servers to FFV’s. Except as provided (25) Fail to maintain health and safe- for in section 201(h)(2) of the Magnu- ty standards set forth in § 600.506(d); son-Stevens Act, no FFV may conduct (26) Violate any provisions of regula- fishing operations within the EEZ un- tions for specific fisheries of this sub- less a U.S. observer is aboard. part; (b) Effort plan. To ensure the avail- (27) On a scientific research vessel, ability of an observer as required by engage in fishing other than rec- this section, the owners and operators reational fishing authorized by applica- of FFV’s wanting to fish within the ble state, territorial, or Federal regula- EEZ will submit to the appropriate Re- tions; gional Administrator or Science and (28) Violate any provision of this sub- Research Director and also to the part, the Magnuson-Stevens Act, the Chief, Financial Services Division, applicable GIFA, any notice issued NMFS, 1315 East West Highway, Silver under this subpart or any permit issued Spring, MD 20910 a schedule of fishing under this subpart; or effort 30 days prior to the beginning of (29) Attempt to do any of the fore- each quarter. A quarter is a time pe- going. riod of 3 consecutive months beginning (b) It is unlawful for any FFV, and January 1, April 1, July 1, and October for the owner or operator of any FFV 1 of each year. The schedule will con- except an FFV engaged only in rec- tain the name and IRCS of each FFV reational fishing, to fish— intending to fish within the EEZ dur- (1) Within the boundaries of any ing the upcoming quarter, and each state, unless: FFV’s expected date of arrival and ex- (i) The fishing is authorized by the pected date of departure. Governor of that state as permitted by (1) The appropriate Regional Admin- section 306(c) of the Magnuson-Stevens istrator or Science and Research Direc- Act to engage in a joint venture for tor must be notified immediately of processing and support with U.S. fish- any substitution of vessels or any can- ing vessels in the internal waters of cellation of plans to fish in the EEZ for that state; or FFV’s listed in the effort plan required (ii) The fishing is authorized by, and by this section. conducted in accordance with, a valid (2) If an arrival date of an FFV will permit issued under § 600.501, and the vary more than 5 days from the date Governor of that state has indicated listed in the quarterly schedule, the ap- concurrence to allow fishing consisting propriate Regional Administrator or solely of transporting fish or fish prod- Science and Research Director must be ucts from a point within the bound- notified at least 10 days in advance of aries of that state to a point outside the rescheduled date of arrival. If the the United States; or notice required by this paragraph (b)(2)

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is not given, the FFV may not engage server is deployed must maintain, at in fishing until an observer is available all times that the vessel is in the EEZ, and has been placed aboard the vessel the following: or the requirement has been waived by (1) At least one working radar. the appropriate Regional Adminis- (2) Functioning navigation lights as trator or Science and Research Direc- required by international law. tor. (3) A watch on the bridge by appro- (c) Assistance to observers. To assist priately trained and experienced per- the observer in the accomplishment of sonnel while the vessel is underway. his or her assigned duties, the owner (4) Lifeboats and/or inflatable life and operator of an FFV to which an ob- rafts with a total carrying capacity server is assigned must— equal to or greater than the number of (1) Provide, at no cost to the observer people aboard the vessel. Lifeboats and or the United States, accommodations inflatable life rafts must be maintained for the observer aboard the FFV that in good working order and be readily are equivalent to those provided to the available. officers of that vessel. (5) Life jackets equal or greater in (2) Cause the FFV to proceed to such number to the total number of persons places and at such times as may be des- aboard the vessel. Life jackets must be ignated by the appropriate Regional stowed in readily accessible and plain- Administrator or Science and Research ly marked positions throughout the Director for the purpose of embarking vessel, and maintained in a state of and debarking the observer. good repair. (3) Allow the observer to use the (6) At least one ring life buoy for FFV’s communications equipment and each 25 ft (7.6 m) of vessel length, personnel upon demand for the trans- equipped with automatic water lights. mission and receipt of messages. Ring life buoys must have an outside (4) Allow the observer access to and diameter of not more than 32 inches use of the FFV’s navigation equipment (81.3 cm) nor less than 30 inches (76.2 and personnel upon demand to deter- cm), and must be maintained in a state mine the vessel’s position. of good repair. Ring life buoys must be (5) Allow the observer free and unob- readily available, but not positioned so structed access to the FFV’s bridge, they pose a threat of entanglement in trawl, or working decks, holding bins, work areas. They must be secured in processing areas, freezer spaces, weight such a way that they can be easily cast scales, cargo holds and any other space loose in the event of an emergency. that may be used to hold, process, (7) At least one VHF-FM radio with a weigh, or store fish or fish products at functioning channel 16 (156.8 mHz), any time. International Distress, Safety and Call- (6) Allow the observer to inspect and ing Frequency, and one functioning AM copy the FFV’s daily log, communica- radio (SSB-Single Side Band) capable tions log, transfer log, and any other of operating at 2182 kHz (SSB). Radios log, document, notice, or record re- will be maintained in a radio room, quired by these regulations. chartroom, or other suitable location. (7) Provide the observer copies of any (8) At least one Emergency Position records required by these regulations Indicating Radio Beacon (EPIRB), ap- upon demand. proved by the USCG for offshore com- (8) Notify the observer at least 15 mercial use, stowed in a location so as minutes before fish are brought on to make it readily available in the board or fish or fish products are trans- event of an emergency. ferred from the FFV to allow sampling (9) At least six hand-held, rocket-pro- the catch or observing the transfer, un- pelled, parachute, red-flare distress sig- less the observer specifically requests nals, and three orange-smoke distress not to be notified. signals stowed in the pilothouse or (9) Provide all other reasonable as- navigation bridge in portable water- sistance to enable the observer to carry tight containers. out his or her duties. (10) All lights, shapes, whistles, (d) Health and safety standards. All foghorns, fog bells and gongs required foreign fishing vessels to which an ob- by and maintained in accordance with

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the International Regulations for Pre- costs of supplementary observer cov- venting Collisions at Sea. erage. Payment must be made to the (11) Clean and sanitary conditions in contractor supplying supplementary all living spaces, food service and prep- observer coverage either by letter of aration areas and work spaces aboard credit or certified check drawn on a the vessel. federally chartered bank in U.S. dol- (e) Observer transfers. (1) The operator lars, or other financial institution ac- of the FFV must ensure that transfers ceptable to the contractor. The letter of observers at sea via small boat or of credit used to pay supplementary ob- raft are carried out during daylight server fees to contractors must be sep- hours as weather and sea conditions arate and distinct from the letter of allow, and with the agreement of the credit required by § 600.518(b)(2). Billing observer involved. The FFV operator schedules will be specified by the terms must provide the observer 3 hours ad- of the contract between NOAA and the vance notice of at-sea transfers, so that contractors. Billings for supplementary the observer may collect personal be- observer coverage will be approved by longings, equipment, and scientific the appropriate Regional Adminis- samples. trator or Science and Research Direc- (2) The FFV’s involved must provide tor and then transmitted to the owners a safe pilot ladder and conduct the and operators of foreign fishing vessels transfer according to the procedures of by the appropriate designated rep- § 600.504(d) to ensure the safety of the resentative. Each country will have during the transfer. only one designated representative to (3) An experienced crew member receive observer bills for all vessels of must assist the observer in the small that country, except as provided for by boat or raft in which the transfer is the Assistant Administrator. All bills made. must be paid within 10 working days of (f) Supplementary observers. In the the billing date. Failure to pay an ob- event funds are not available from Con- server bill will constitute grounds to gressional appropriations of fees col- revoke fishing permits. All fees collected to assign an observer to a for- lected under this section will be con- eign fishing vessel, the appropriate Re- sidered interim in nature and subject gional Administrator or Science and to reconciliation at the end of the fis- Research Director will assign a supple- cal year in accordance with paragraph mentary observer to that vessel. The (h)(4) of this section and § 600.518(d). costs of supplementary observers will (2) Contractor costs. The costs charged be paid for by the owners and operators for supplementary observer coverage to of foreign fishing vessels as provided the owners and operators of foreign for in paragraph (h) of this section. fishing vessels may not exceed the (g) Supplementary observer authority costs charged to NMFS for the same or and duties. (1) A supplementary ob- similar services, except that contrac- server aboard a foreign fishing vessel tors may charge to the owners and op- has the same authority and must be erators of foreign fishing vessels an ad- treated in all respects as an observer ditional fee to cover the administrative who is employed by NMFS, either di- costs of the program not ordinarily rectly or under contract. part of contract costs charged to (2) The duties of supplementary ob- NMFS. The costs charged foreign fish- servers and their deployment and work ermen for supplementary observers schedules will be specified by the ap- may include, but are not limited to the propriate Regional Administrator or following: Science and Research Director. (i) Salary and benefits, including (3) All data collected by supple- overtime, for supplementary observers. mentary observers will be under the ex- (ii) The costs of post-certification clusive control of the Assistant Admin- training required by paragraph (j)(2) of istrator. this section. (h) Supplementary observer payment— (iii) The costs of travel, transpor- (1) Method of payment. The owners and tation, and per diem associated with operators of foreign fishing vessels deploying supplementary observers to must pay directly to the contractor the foreign fishing vessels including the

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cost of travel, transportation, and per or kept on deposit to defray the costs diem from the supplementary observ- of future supplementary observer cover’s post of duty to the point of embar- erage. Refunds will be made within 60 kation to the foreign fishing vessel, days after final costs are determined and then from the point of disembarka- and approved by NMFS. tion to the post of duty from where the (i) Supplementary observer contrac- trip began. For the purposes of these tors—(1) Contractor eligibility. Supple- regulations, the appropriate Regional mentary observers will be obtained by Administrator or Science and Research NMFS from persons or firms having es- Director will designate posts of duty tablished contracts to provide NMFS for supplementary observers. with observers. In the event no such (iv) The costs of travel, transpor- contract is in place, NMFS will use es- tation, and per diem associated with tablished, competitive contracting pro- the debriefing following deployment of cedures to select persons or firms to a supplementary observer by NMFS of- provide supplementary observers. The ficials. services supplied by the supplementary (v) The administrative and overhead observer contractors will be as de- costs incurred by the contractor and, if scribed within the contract and as appropriate, a reasonable profit. specified below. (3) NMFS costs. The owners and opera- (2) Supplementary observer contractors of foreign fishing vessels must also tors must submit for the approval of pay to NMFS as part of the surcharge the Assistant Administrator the fol- required by section 201(i)(4) of the Mag- lowing: nuson-Stevens Act, the following costs: (i) A copy of any contract, including (i) The costs of certifying applicants all attachments, amendments, and en- for the position of supplementary ob- closures thereto, between the con- server. tractor and the owners and operators (ii) The costs of any equipment, in- of foreign fishing vessels for whom the cluding safety equipment, sampling contractor will provide supplementary equipment, operations manuals, or observer services. other texts necessary to perform the (ii) All application information for duties of a supplementary observer. persons whom the contractor desires to The equipment will be specified by the employ as certified supplementary ob- appropriate Regional Administrator or servers. Science and Research Director accord- (iii) Billing schedules and billings to ing to the requirements of the fishery the owners and operators of foreign to which the supplementary observer fishing vessels for further transmission will be deployed. to the designated representative of the (iii) The costs associated with com- appropriate foreign nation. munications with supplementary ob- (iv) All data on costs. servers for transmission of data and (j) Supplementary observers—certifi- routine messages. cation, training—(1) Certification. The (iv) For the purposes of monitoring appropriate Regional Administrator or the supplementary observer program, Science and Research Director will cer- the costs for the management and tify persons as qualified for the posi- analysis of data. tion of supplementary observer once (v) The costs for data editing and the following conditions are met: entry. (i) The candidate is a citizen or na- (vi) Any costs incurred by NMFS to tional of the United States. train, deploy or debrief a supple- (ii) The candidate has education or mentary observer. experience equivalent to the education (vii) The cost for U.S. Customs in- or experience required of persons used spection for supplementary observers as observers by NMFS as either Fed- disembarking after deployment. eral personnel or contract employees. (4) Reconciliation. Fees collected by The education and experience required the contractor in excess of the actual for certification may vary according to costs of supplementary observer cov- the requirements of managing the for- erage will be refunded to the owners eign fishery in which the supple- and operators of foreign fishing vessels, mentary observer is to be deployed.

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Documentation of U.S. citizenship or plementary observers; no intent to de- nationality, and education or experi- fraud need be demonstrated. ence will be provided from personal (3) The Assistant Administrator will qualification statements on file with notify the supplementary observer, in NMFS contractors who provide supple- writing, of the Assistant Administra- mentary observer services, and will not tor’s intent to suspend or revoke cer- require the submission of additional in- tification, and the reasons therefor, formation to NMFS. and provide the supplementary ob- (2) Training. Prior to deployment to server a reasonable opportunity to re- foreign fishing vessels, certified supple- spond. If the Assistant Administrator mentary observers must also meet the determines that there are disputed following conditions: questions of material fact, then the As- (i) Each certified supplementary ob- sistant Administrator may in this re- server must satisfactorily complete a spect appoint an examiner to make an course of training approved by the ap- informal fact-finding inquiry and pre- propriate Regional Administrator or pare a report and recommendations. Science and Research Director as [61 FR 32540, June 24, 1996, as amended at 63 equivalent to that received by persons FR 7074, 7075, Feb. 12, 1998; 64 FR 39020, July used as observers by NMFS as either 21, 1999] Federal personnel or contract employees. The course of training may vary § 600.507 Recordkeeping. according to the foreign fishery in (a) General. The owner and operator which the supplementary observer is to of each FFV must maintain timely and be deployed. accurate records required by this sec- (ii) Each certified supplementary ob- tion as modified by the regulations for server must agree in writing to abide the fishery in which the FFV is en- by standards of conduct as set forth in gaged. Department of Commerce Administra- (1) The owner and operator of each tive Order 202–735 (as provided by the FFV must maintain all required contractor). records in English, based on Greenwich (k) Supplementary observer certification mean time (GMT) unless otherwise suspension or revocation. (1) Certifi- specified in the regulation, and make cation of a supplementary observer them immediately available for inspec- may be suspended or revoked by the tion upon the request of an authorized Assistant Administrator under the fol- officer or observer. lowing conditions: (2) The owner and operator of each (i) A supplementary observer fails to FFV must retain all required records perform the duties specified in para- on board the FFV whenever it is in the graph (g)(2) of this section. EEZ, for 3 years after the end of the (ii) A supplementary observer fails to permit period. abide by the standards of conduct de- (3) The owner and operator of each scribed by Department of Commerce FFV must retain the required records Administrative Order 202–735. and make them available for inspec- (2) The suspension or revocation of tion upon the request of an authorized the certification of a supplementary officer at any time during the 3 years observer by the Assistant Adminis- after the end of the permit period, trator may be based on the following: whether or not such records are on (i) Boarding inspection reports by au- board the vessel. thorized officers of the USCG or NMFS, (4) The owner and operator of each or other credible information, that in- FFV must provide to the Assistant Ad- dicate a supplementary observer has ministrator, in the form and at the failed to abide by the established times prescribed, any other informa- standards of conduct; or tion requested that the Assistant Ad- (ii) An analysis by NMFS of the data ministrator determines is necessary to collected by a supplementary observer fulfill the fishery conservation, man- indicating improper or incorrect data agement and enforcement purposes of collection or recording. The failure to the Magnuson-Stevens Act. properly collect or record data is suffi- (b) Communications log. The owner cient to justify decertification of sup- and operator of each FFV must record

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in a separate communications log, at dated fishing log as described in para- the time of transmittal, the time and graphs (f) and (g) of this section. content of each notification made (e) Daily fishing log—contents. The under § 600.504. daily fishing log must contain the fol- (c) Transfer log. Except for the trans- lowing information, as modified by fer of unsorted, unprocessed fish via paragraph (d)(2) of this section and the codend from a catching vessel to a regulations for the fishery in which the processing vessel (Activity Code 2 or 4), FFV is engaged, and be completed ac- the owner and operator of each FFV cording to the format and instructions must record, in a separate transfer log, provided with the permit or other for- each transfer or receipt of any fish or mat authorized under paragraph (i) of fishery product, including quantities this section. transferred or offloaded outside the (1) ‘‘SECTION ONE-EFFORT’’ must EEZ. The operator must record in the contain on a daily basis— log within 12 hours of the completion (i) A consecutive page number, begin- of the transfer: ning with the first day the vessel start- (1) The time and date (GMT) and lo- ed fishing operations within the EEZ cation (in geographic coordinates) the and continuing throughout the log. transfer began and was completed. (ii) The date (based on GMT). (2) The product weight, by species (iii) The FFV’s name. and product (use species and product (iv) The FFV’s IRCS. codes), of all fish transferred, to the (v) The FFV’s U.S. permit number. nearest 0.01 mt. (vi) The FFV’s noon (1200 GMT) posi- (3) The name, IRCS, and permit num- tion in geographic coordinates. ber of both the FFV offloading the fish (vii) The master or operator’s signa- and the FFV receiving the fish. ture or title. (d) Daily fishing log. (1) The owner or (2) ‘‘SECTION ONE-EFFORT’’ must operator of each FFV authorized to contain, for each trawl or set, as appro- catch fish (Activity Code 1) must main- priate to the gear type employed— tain a daily fishing log of the effort, (i) The consecutive trawl or set num- catch and production of the FFV, as ber, beginning with the first set of the modified by paragraph (d)(2) of this calendar year. section and the regulations for the (ii) The fishing area in which the fishery in which the FFV is engaged. trawl or set was completed. The operator must maintain on a daily (iii) The gear type. and cumulative basis for the permit pe- (iv) The time the gear was set. riod a separate log for each fishery (see (v) The position of the set. table 2 to § 600.502) in which the FFV is (vi) The course of the set. engaged according to this section and (vii) The sea depth. in the format specified in the instruc- (viii) The depth of the set. tions provided with the permit or other (ix) The duration of the set. format authorized under paragraph (i) (x) The hauling time. of this section. Daily effort entries are (xi) The position of the haul. required for each day the vessel con- (xii) The number of pots or longline ducts fishing operations within the units (where applicable). EEZ. Daily entries are not required (xiii) The average number of hooks whenever the FFV is in port or engaged per longline unit (where applicable). in a joint venture in the internal wa- (xiv) The trawl speed (where applica- ters of a state. Each page of log may ble). contain entries pertaining to only one (xv) The mesh size of the trawl’s day’s fishing operations or one gear codend (where applicable). set, whichever is longer. (xvi) The estimated total weight of (2) The owner or operator of each the catch for the trawl of set, to at FFV authorized to catch fish (Activity least the nearest metric ton round Code 1) and that delivers all catches to weight. a processing vessel, must maintain (3) ‘‘SECTION TWO-CATCH’’ must only ‘‘SECTION ONE-EFFORT’’, of the contain, for each trawl or set— daily fishing log, provided the proc- (i) The consecutive set or trawl num- essing vessel maintains a daily consoli- ber from ‘‘SECTION ONE’’.

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(ii) The catch of each allocated spe- that receives unsorted, unprocessed cies or species group to at least the fish from foreign catching vessels (Ac- nearest 0.1 mt round weight. tivity Code 2) for processing or receives (iii) The prohibited species catch to U.S.-harvested fish from U.S. fishing at least the nearest 0.1 mt round vessels in a joint venture (Activity weight or by number, as required by Code 4) must maintain a daily joint the regulations for the fishery in which venture log of the effort, catch and pro- the FFV is engaged. duction of its associated U.S. or foreign (iv) The species code of each marine fishing vessels and the processing ves- mammal caught and its condition when sel as modified by the regulations for released. the fishery in which the FFV is en- (4) ‘‘SECTION TWO-CATCH’’ must gaged. This log is separate and in addi- contain, on a daily basis— tion to the log required by paragraph (i) The species codes for all allocated (d) of this section. The operator must or prohibited species or species groups maintain a separate log for each fish- caught. ery in which the FFV is engaged, on a (ii) For each allocated species—the daily and cumulative basis, according amount, to at least the nearest 0.1 mt, to this section and in the format speci- and the daily disposition, either proc- fied in the instructions provided with essed for human consumption, used for the permit or other format authorized fishmeal, or discarded; the daily catch under paragraph (i) of this section. Re- by fishing area; the daily catch for all ceipts of fish caught outside the EEZ fishing areas; and the cumulative total must be included. Each page of the log catch. may contain entries pertaining to only (iii) For the total catch of allocated one day’s fishing operations. species—the amount to at least the (g) Daily joint venture log—contents. nearest 0.1 mt and the daily disposi- Daily joint venture logs must contain tion, daily total catch by fishing area, the following information, as modified daily total catch for all fishing areas, by the fishery in which the vessel is en- and cumulative total catch. gaged, and be completed according to (iv) The catch by fishing area, daily the format and instructions provided total, and cumulative total of each pro- with the permit or other format au- hibited species. thorized under paragraph (i) of this sec- (5) ‘‘SECTION THREE—PRODUC- tion. TION’’ must contain, on a daily basis, (1) ‘‘SECTION ONE-EFFORT’’ must for each allocated species caught and contain, on a daily basis, that informa- product produced— tion required in paragraph (e)(1) of this (i) The product by species code and section. product type. (2) ‘‘SECTION ONE-EFFORT’’ must (ii) The daily product recovery rate contain for each receipt of a codend— of each species and product. (i) The consecutive codend number, (iii) The daily total product produced beginning with the first codend re- by species to at least the nearest 0.01 ceived for the calendar year. mt. (iv) The cumulative total of each (ii) The name of the U.S. fishing ves- product to at least the nearest 0.01 mt. sel or the name and IRCS of the foreign (v) The cumulative amount of prod- fishing vessel the codend was received uct transferred. from. (vi) The balance of product remain- (iii) The fishing area where the ing aboard the FFV. codend was received. (vii) The total daily amount, cumu- (iv) The time the codend was relative amount, transferred product and ceived. balance of frozen product aboard the (v) The position the codend was re- FFV to the nearest 0.01 mt. ceived. (viii) Transferred amount and bal- (vi) The estimated weight of the ance of fishmeal and fish oil aboard to codend to at least the nearest metric at least the nearest 0.01 mt. ton round weight. (f) Daily consolidated fishing or joint (3) ‘‘SECTION TWO-CATCH’’ must venture log. The operator of each FFV contain, for each codend received—

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(i) The consecutive codend number was taken. The date of catch is the day from ‘‘SECTION ONE’’. and time (GMT) the gear is hauled. (ii) The receipts of each authorized (2) Entries for total daily and cumu- species or species group and its disposi- lative catch or receipt weights (disposition, either processed for human con- tion ‘‘C’’ or ‘‘M’’) must be based on the sumption, used for fishmeal, discarded, most accurate method available to the or returned to the U.S. fishing vessel, vessel, either scale round weights or to at least the nearest 0.1 mt round factory weights converted to round weight. weights. Entries for daily and cumu- (iii) The estimated receipts of each lative weights of discarded or returned prohibited species or species group and fish (disposition ‘‘D’’ or ‘‘R’’) must be its disposition, either discarded or re- based on the most accurate method turned to the U.S. fishing vessel if au- available to the vessel, either actual thorized in the fishery in which the count, scale round weight, or estimated U.S. vessel is engaged, to at least the deck weights. Entries for product nearest 0.1 mt round weight. weights must be based on the number (iv) The species code of each marine of production units (pans, boxes, mammal received and its condition blocks, trays, cans, or bags) and the av- when released. erage weight of the production unit, (4) ‘‘SECTION TWO-CATCH’’ must with reasonable allowances for water contain on a daily basis— added. Allowances for water added can- (i) The species codes of all authorized not exceed 5 percent of the unit weight. or prohibited species or species groups Product weights cannot be based on received. the commercial or arbitrary wholesale (ii) The daily disposition, as de- weight of the product, but must be scribed in paragraph (g)(3)(ii) of this based on the total actual weight of the section, daily total, and cumulative product as determined by representa- total receipts of each authorized spe- tive samples. cies or species groups. (3) The owner or operator must make (iii) The daily disposition, daily total all entries in indelible ink, with correc- and cumulative total receipts of all au- tions to be accomplished by lining out thorized species or species groups. and rewriting, rather than erasure. (iv) The daily and cumulative total (i) Alternative log formats. As an al- receipts of prohibited species groups ternative to the use of the specific for- and their disposition as described in mats provided, a Nation may submit a paragraph (g)(3)(iii) of this section. proposed log format for FFV’s of that (5) ‘‘SECTION THREE—PRODUC- Nation for a general type of fishery op- TION’’ must contain, on a daily basis, eration in a fishery (i.e., joint venture for each authorized species or species operations) to the appropriate Regional group received and product produced, Administrator and the USCG com- that information required in paragraph mander (see tables 1 and 2 to § 600.502). (e)(5) of this section. With the agreement of the USCG com- (h) Daily log maintenance. The logs re- mander, the Regional Administrator quired by paragraphs (e) through (g) of may authorize the use of that log for- this section must be maintained sepa- mat for vessels of the requesting Na- rately for each fishery (see table 2 to tion. § 600.502). [61 FR 32540, June 24, 1996, as amended at 63 (1) The effort section (all of ‘‘SEC- FR 7075, Feb. 12, 1998] TION ONE’’) of the daily logs must be updated within 2 hours of the hauling § 600.508 Fishing operations. or receipt time. The catch or receipt by (a) Catching. Each FFV authorized trawl or set (‘‘SECTION TWO’’) must for activity code 1 may catch fish. An be entered within 12 hours of the haul- FFV may retain its catch of any spe- ing or receipt time. The daily and cu- cies or species group for which there is mulative total catch or receipts an unfilled national allocation. All fish (‘‘SECTION TWO’’) and the production caught will be counted against the na- portion (‘‘SECTION THREE’’) of the tional allocation, even if the fish are log must be updated within 12 hours of discarded, unless exempted by the reg- the end of the day on which the catch ulations of the fishery in which the

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FFV is engaged. Catching operations sels of the United States and the loca- may be conducted as specified by the tion(s) where such fish were harvested. regulations of the fishery in which the (i) Reports must include: FFV is engaged and as modified by the (A) Vessel identification information FFV’s permit. for the FFV. (b) Scouting. Each FFV authorized for (B) Date of each receipt of fish. Activity Codes 1 through 6 may scout (C) Amount of fish received, by spe- for fish. Scouting may be conducted cies. only in the fisheries area authorized by (D) Location(s) from which the fish the scouting vessel’s permit and under received were harvested and the name such other circumstances as may be and official number of the vessel of the designated in this subpart or the per- United States that harvested the fish. mit. (ii) Owners or operators of FFV’s processing fish in internal waters (c) Processing. Each FFV with Activ- under the provisions of this paragraph ity Code 1 or 2 may process fish. Proc- (f) must request, from the Regional Ad- essing may only be conducted when- ministrator, the requirements regard- ever and wherever catching operations ing timing and submission of the re- for FFV’s of that Nation are permitted, ports, at least 15 days prior to the first whenever and wherever joint venture receipt of fish from a vessel of the operations are authorized by an FFV’s United States. The Regional Adminis- permit under Activity Code 4, and trator shall stipulate the timing and under such other circumstances as may submission requirements in writing. be designated in this subpart or the (g) Transshipping. Each FFV with Ac- permit. tivity Code 1, 2, 3, 4, 5, 6, 7, 8, or 10 may (d) Support. Each FFV with Activity transship in accordance with this sub- Codes 1, 2, 3, 5, or 8 may support other part and the vessel’s permit. permitted FFV’s. Each FFV with Ac- tivity Codes 4 or 6 may support U.S. [61 FR 32540, June 24, 1996, as amended at 62 vessels. Support operations may be FR 27183, May 19, 1997; 62 FR 34397, June 26, 1997; 64 FR 39020, July 21, 1999] conducted only in the fisheries areas authorized by the supporting vessel’s § 600.509 Prohibited species. permit, and under such other cir- (a) The owner or operator of each cumstances as may be designated in FFV must minimize its catch or re- this subpart or the permit. ceipt of prohibited species. (e) Joint ventures. Each FFV with Ac- (b) After allowing for sampling by an tivity Code 4 in addition to Activity observer (if any), the owner or operator Codes 1 or 2 may also conduct oper- of each FFV must sort its catch of fish ations with U.S. fishing vessels. These received as soon as possible and return joint venture operations with U.S. fish- all prohibited species and species parts ing vessels may be conducted through- to the sea immediately with a min- out the EEZ, and under such other cir- imum of injury, regardless of condi- cumstances as may be designated in tion, unless a different procedure is these regulations or the permit. FFV’s specified by the regulations for the with activity code 4 may continue op- fishery in which the FFV is engaged. erations assisting U.S. fishing vessels, All prohibited species must be recorded despite closures under § 600.511(a). in the daily fishing log and other fish- (f) Internal waters. For FFV’s author- ing logs as specified by the regulations ized under section 306(c) of the Magnu- for the fishery in which the FFV is en- son-Stevens Act: gaged. (1) Each FFV may engage in fish (c) All species of fish that an FFV processing and support of U.S. fishing has not been specifically allocated or vessels within the internal waters of authorized under this subpart to re- that state in compliance with terms tain, including fish caught or received and conditions set by the authorizing in excess of any allocation or author- Governor. ization, are prohibited species. (2) The owner or operator of each (d) It is a rebuttable presumption FFV must submit weekly reports on that any prohibited species or species the amount of fish received from ves- part found on board an FFV was caught

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and retained in violation of this sec- (3) If these articles or substances are tion. encountered, or in the event of acci- dental or emergency placement into § 600.510 Gear avoidance and disposal. the EEZ, the vessel operator must im- (a) Vessel and gear avoidance. (1) mediately report the incident to the FFV’s arriving on fishing grounds appropriate USCG Commander indi- where fishing vessels are already fish- cated in tables 1 and 2 to § 600.502, and ing or have set their gear for that pur- give the information required in para- pose must ascertain the position and graph (b) of this section. extent of gear already placed in the sea and must not place themselves or their § 600.511 Fishery closure procedures. fishing gear so as to interfere with or (a) Activity Codes 1 and 2 for a fish- obstruct fishing operations already in ery are automatically canceled in the progress. Vessels using mobile gear following cases, unless otherwise speci- must avoid fixed fishing gear. fied by regulations specific to a fish- (2) The operator of each FFV must ery, when— maintain on its bridge a current plot of (1) The OY for any allocated species broadcast fixed-gear locations for the or species group has been reached in area in which it is fishing, as required that fishery; by the regulations for the fishery in (2) The TALFF or catch allowance which the FFV is engaged. for any allocated species or species (b) Gear conflicts. The operator of group has been reached in that fishery; each FFV that is involved in a conflict (3) The foreign nation’s allocation for or that retrieves the gear of another any allocated species or species group vessel must immediately notify the ap- has been reached; or propriate USCG commander identified in tables 1 and 2 to § 600.502 and request (4) The letter of credit required in disposal instructions. Each report must § 600.518(b)(2) is not established and include: maintained. (1) The name of the reporting vessel. (b) Activity Code 4 is automatically canceled when— (2) A description of the incident and articles retrieved, including the (1) The OY for a species with a JVP amount, type of gear, condition, and amount is reached; identification markings. (2) The JVP amount for a species or (3) The location of the incident. species group is reached; or (4) The date and time of the incident. (3) The letter of credit required in (c) Disposal of fishing gear and other § 600.518(b)(2) is not established and articles. (1) The operator of an FFV in maintained. the EEZ may not dump overboard, jet- (c) Notification. (1) The Regional Ad- tison or otherwise discard any article ministrator is authorized to close a or substance that may interfere with fishery on behalf of NMFS. The Re- other fishing vessels or gear, or that gional Administrator will notify each may catch fish or cause damage to any FFV’s designated representative of clo- marine resource, including marine sures. mammals and birds, except in cases of (2) If possible, notice will be given 48 emergency involving the safety of the hours before the closure. However, each ship or crew, or as specifically author- Nation and the owners and operators of ized by communication from the appro- all FFV’s of that Nation are respon- priate USCG commander or other au- sible for ending fishing operations thorized officer. These articles and sub- when an allocation is reached. stances include, but are not limited to, (d) Catch reconciliation. Vessel activ- fishing gear, net scraps, bale straps, ity reports, U.S. surveillance observa- plastic bags, oil drums, petroleum con- tions, observer reports, and foreign tainers, oil, toxic chemicals or any catch and effort reports will be used to manmade items retrieved in an FFV’s make the determination listed in para- gear. graphs (a) and (b) of this section. If (2) The operator of an FFV may not NMFS estimates of catch or other val- abandon fishing gear in the EEZ. ues made during the season differ from

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those reported by the foreign fleets, ef- Foreign vessels that qualify as sci- forts may be initiated by the des- entific research vessels and which are ignated representative of each Nation engaged in a scientific research activ- to resolve such differences with NMFS. ity may only engage in compensation If, however, differences still persist fishing during the scientific research after such efforts have been made, cruise and in accordance with the ap- NMFS estimates will be the basis for plicable scientific research plan. The decisions and will prevail. Regional Administrator or Director (e) Duration. Any closure under this may also make recommendations to re- section will remain in effect until an vise the research plan to ensure the ac- applicable new or increased allocation tivity will be considered to be a sci- or JVP becomes available or the letter entific research activity. The Regional of credit required by § 600.518(b)(2) is re- Administrator or Director may des- established. ignate a Science and Research Direc- tor, or the Assistant Regional Adminis- [61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998] trator for Sustainable Fisheries, to receive scientific research plans and § 600.512 Scientific research. issue Letters of Acknowledgment. In (a) Scientific research activity. Persons order to facilitate identification of the planning to conduct scientific research activity as scientific research, persons activities on board a scientific research conducting scientific research activi- vessel in the EEZ that may be confused ties are advised to carry a copy of the with fishing are encouraged to submit scientific research plan and the Letter to the appropriate Regional Adminis- of Acknowledgment on board the sci- trator or Director, 60 days or as soon as entific research vessel and to make it practicable prior to its start, a sci- available for inspection upon the re- entific research plan for each scientific quest of any authorized officer. It is activity. The Regional Administrator recommended that for any scientific or Director will acknowledge notifica- research activity, any fish, or parts tion of scientific research activity by thereof, retained pursuant to such ac- issuing to the operator or master of tivity be accompanied, during any ex- that vessel, or to the sponsoring insti- vessel activities, by a copy of the Let- tution, a Letter of Acknowledgment. ter of Acknowledgment. Activities con- This Letter of Acknowledgment is sep- ducted in accordance with a scientific arate and distinct from any permit or research plan acknowledged by such a consultation required under the Letter of Acknowledgment are pre- MMPA, the ESA, or any other applica- sumed to be scientific research activi- ble law. The Regional Administrator or ties. An authorized officer may over- Director will include text in the Letter come this presumption by showing that of Acknowledgment informing the ap- an activity does not fit the definition plicant that such permits may be re- of scientific research activity or is out- quired and should be obtained from the side the scope of the scientific research agency prior to embarking on the ac- plan. tivity. If the Regional Administrator (b) Reports. Persons conducting sci- or Director, after review of a research entific research are requested to sub- plan, determines that it does not con- mit a copy of any cruise report or stitute scientific research activity but other publication created as a result of rather fishing, the Regional Adminis- the cruise, including the amount, com- trator or Director will inform the ap- position, and disposition of their catch, plicant as soon as practicable and in to the appropriate Science and Re- writing. In making this determination, search Director. the Regional Administrator, Director, [61 FR 32540, June 24, 1996, as amended at 63 or designee shall consider: the merits FR 7075, Feb. 12, 1998; 74 FR 42793, Aug. 25, of the individual proposal and the in- 2009] stitution(s) involved; whether the proposed activity meets the definition of § 600.513 Recreational fishing. scientific research activity; and wheth- (a) Foreign vessels conducting rec- er the vessel meets all the require- reational fishing must comply only ments for a scientific research vessel. with this section, and §§ 600.10,

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600.504(a)(1), and 600.505 (as applicable). scouting or processing activities), it Such vessels may conduct recreational must have all of its fishing gear stowed fishing within the EEZ and within the at all times while it is in the EEZ. If boundaries of a state. Any fish caught such a vessel has a permit authoriza- may not be sold, bartered, or traded. tion to engage in catching, taking or (b) The owners or operator and any harvesting activities, but such author- other person aboard any foreign vessel ization is limited to a specific area conducting recreational fishing must within the EEZ, and/or to a specific pe- comply with any Federal laws or regu- riod of time, the vessel must have all of lations applicable to the domestic fish- its fishing gear stowed while it is in ery while in the EEZ, and any state the EEZ, except when it is in the spe- laws or regulations applicable while in cific area authorized, and/or during the state waters. specific period of time authorized. [61 FR 32540, June 24, 1996, as amended at 63 § 600.514 Relation to other laws. FR 7075, Feb. 12, 1998] (a) Persons affected by these regulations should be aware that other Fed- § 600.516 Total allowable level of for- eral and state statutes may apply to eign fishing (TALFF). their activities. (a) The TALFF, if any, with respect (b) Fishing vessel operators must ex- to any fishery subject to the exclusive ercise due care in the conduct of fish- fishery management authority of the ing activities near submarine cables. United States, is that portion of the Damage to submarine cables resulting OY of such fishery, which cannot or from intentional acts or from the fail- will not be harvested by vessels of the ure to exercise due care in the conduct United States. Allocations of TALFF of fishing operations subjects the fish- are discretionary, except that the total ing vessel operator to enforcement ac- allowable level shall be zero for fish- tion under the International Conven- eries determined by the Secretary to tion for the Protection of Submarine have adequate or excess domestic har- Cables, and to the criminal penalties vest capacity. prescribed by the Submarine Cable Act (b) Each specification of OY and each (47 U.S.C. 21) and other laws that im- assessment of the anticipated U.S. har- plement that Convention. Fishing ves- vest will be reviewed during each fish- sel operators also should be aware that ing season. Adjustments to TALFF’s the Submarine Cable Act prohibits will be made based on updated informa- fishing operations at a distance of less tion relating to status of stocks, esti- than 1 nautical mile (1.85 km) from a mated and actual performance of do- vessel engaged in laying or repairing a mestic and foreign fleets, and other rel- submarine cable; or at a distance of evant factors. less than 0.25 nautical mile (0.46 km) (c) Specifications of OY and the ini- from a buoy or buoys intended to mark tial estimates of U.S. harvests and the position of a cable when being laid, TALFF’s at the beginning of the rel- or when out of order, or broken. evant fishing year will be published in the FEDERAL REGISTER. Adjustments to § 600.515 Interpretation of 16 U.S.C. those numbers will be published in the 1857(4). FEDERAL REGISTER upon occasion or as Section 307(4) of the Magnuson-Ste- directed by regulations implementing vens Act prohibits any fishing vessel FMPs. For current apportionments, other than a vessel of the United contact the appropriate Regional Ad- States (foreign fishing vessel) from op- ministrator or the Director. erating in the EEZ if all of the fishing [61 FR 32540, June 24, 1996, as amended at 63 gear on board the vessel is not stowed FR 7075, Feb. 12, 1998; 73 FR 67811, Nov. 17, in compliance with that section ‘‘un- 2008] less such vessel is authorized to engage in fishing in the area in which the ves- § 600.517 Allocations. sel is operating.’’ If such a vessel has a The Secretary of State, in coopera- permit authorization that is limited to tion with the Secretary, determines fishing activities other than catching, the allocation among foreign nations of taking or harvesting (such as support, fish species and species groups. The

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Secretary of State officially notifies TABLE—SPECIES AND POUNDAGE FEES— each foreign nation of its allocation. Continued The burden of ascertaining and accu- [Dollars per metric ton] rately transmitting current allocations and status of harvest of an applicable Pound- Species age fees allocation to fishing vessels is upon the foreign nation and the owner or oper- 5. Other finfish ...... 45.48 ator of the FFV. 6. Squid, Illex ...... 97.56 7. Squid, Loligo ...... 321.68 § 600.518 Fee schedule for foreign fishing. (2) Method of payment of poundage fees (a) Permit application fees. Each vessel and observer fees. (i) If a Nation chooses permit application submitted under to accept an allocation, a revolving let- § 600.501 must be accompanied by a fee. ter of credit (L/C) must be established The amount of the fee will be deter- and maintained to cover the poundage mined in accordance with the proce- fees for at least 25 percent of the pre- dures for determining administrative vious year’s total allocation at the rate costs of each special product or service in paragraph (b)(1) of this section, or as contained in the NOAA Finance Hand- determined by the Assistant Adminis- book, which is available upon request trator, plus the observer fees required from the Office of International Affairs by paragraph (c) of this section. The L/ (see address at § 600.501(d)(1)). The fee is C must— specified with the application form. At (A) Be irrevocable. the time the application is submitted, (B) Be with a bank subscribing to ICC a check for the fees, drawn on a U.S. Pub. 290. bank, payable to the order of ‘‘Depart- (C) Designate ‘‘Department of Com- ment of Commerce, NOAA,’’ must be merce, NOAA’’ as beneficiary; sent to the Assistant Administrator. (D) Allow partial withdrawals. The permit fee payment must be ac- (E) Be confirmed by a U.S. bank. companied by a list of the vessels for (ii) The customer must pay all com- which the payment is made. In the case missions, transmission, and service of applications for permits authorizing charges. No fishing will be allowed activity code 10, the permit application until the L/C is established, and au- fee will be waived if the applicant pro- thorized written notice of its issuance vides satisfactory documentary proof is provided to the Assistant Adminis- to the Assistant Administrator that trator. the foreign nation under which the ves- (3) Assessment of poundage fees. sel is registered does not collect a fee Poundage fees will be assessed quar- from a vessel of the United States en- terly for the actual catch during Janu- gaged in similar activities in the wa- ary through March, April through ters of such foreign nation. The docu- June, July through September, and Oc- mentation presented (e.g., copy of for- tober through December. The appro- eign fishing regulations applicable to priate Regional Administrator will rec- vessels of the United States) must oncile catch figures with each country clearly exempt vessels of the United following the procedures of § 600.511(d). States from such a fee. When the catch figures are agreed (b) —(1) If a Na- Poundage fees Rates. upon, NOAA will present a bill for col- tion chooses to accept an allocation, lection as the documentary demand for poundage fees must be paid at the rate payment to the confirming bank. If, specified in the following table. after 45 days from the end of the quar- TABLE—SPECIES AND POUNDAGE FEES ter, catches have not been reconciled, [Dollars per metric ton] the estimate of the Regional Adminis- trator will stand and a bill will be Species Pound- issued for that amount. If necessary, age fees the catch figures may be refined by the Northwest Atlantic Ocean fisheries: Regional Administrator during the 1. Butterfish ...... 277.96 next 60 days, and any modifications 2. Herring, Atlantic ...... 25.75 3. Herring, River ...... 49.59 will be reflected in the next quarter’s 4. Mackerel, Atlantic ...... 64.76 bill.

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(c) Observer fees. The Assistant Ad- (b) Authorized fishery—(1) Allocations. ministrator will notify the owners or Foreign vessels may engage in fishing operators of FFV’s of the estimated an- only in accordance with applicable na- nual costs of placing observers aboard tional allocations. their vessels. The owners or operators (2) Time and area restrictions. (i) Fish- of any such vessel must provide for re- ing, including processing, scouting, and payment of those costs by including support of foreign or U.S. vessels, is one-fourth of the estimated annual ob- prohibited south of 35°00′ N. lat., and server fee as determined by the Assist- north and east of a line beginning at ant Administrator in a L/C as pre- the shore at 44°22′ N. lat., 67°52′ W. long. scribed in § 600.518(b)(2). During the fis- and intersecting the boundary of the cal year, payment will be withdrawn EEZ at 44°11′12″ N. lat., 67°16′46″ W. from the L/C as required to cover an- long. ticipated observer coverage for the up- (ii) The Regional Administrator will coming fishery. The Assistant Admin- consult with the Council prior to giv- istrator will reconcile any differences ing notice of any area or time restric- between the estimated cost and actual tion. NMFS will also consult with the costs of observer coverage within 90 USCG if the restriction is proposed to days after the end of the fiscal year. reduce gear conflicts. If NMFS deter- (d) Financial assurances. (1) A foreign mines after such consultation that the nation, or the owners and operators of restriction appears to be appropriate, certain vessels of that foreign nation, NMFS will publish the proposed re- may be required by the Assistant Ad- striction in the FEDERAL REGISTER, to- ministrator to provide financial assur- gether with a summary of the informa- ances. Such assurances may be re- tion on which the restriction is based. quired if— Following a 30-day comment period, (i) Civil and criminal penalties as- NMFS will publish a final action. sessed against fishing vessels of the Na- (iii) The Regional Administrator may tion have not effectively deterred vio- rescind any restriction if he/she deter- lations; mines that the basis for the restriction (ii) Vessels of that Nation have en- no longer exists. gaged in fishing in the EEZ without (iv) Any notice of restriction shall proper authorization to conduct such operate as a condition imposed on the activities; permit issued to the foreign vessels involved in the fishery. (iii) The Nation’s vessel owners have (3) The TALFFs for the fish- refused to answer administrative TALFF. eries of the Northwest Atlantic Ocean charges or summons to appear in court; are published in the FEDERAL REG- or ISTER. Current TALFFs are also avail- (iv) Enforcement of Magnuson-Ste- able from the Regional Administrator. vens Act civil or criminal judgments in (4) Species definitions. The category the courts of a foreign nation is unat- ‘‘other finfish’’ used in TALFFs and in tainable. allocations includes all species except: (2) The level of financial assurances (i) The other allocated species, name- will be guided by the level of penalties ly: Short-finned squid, long-finned assessed and costs to the U.S. Govern- squid, Atlantic herring, Atlantic mack- ment. erel, river herring (includes alewife, [61 FR 32540, June 24, 1996, as amended at 63 blueback herring, and hickory shad), FR 7075, Feb. 12, 1998; 64 FR 39020, July 21, and butterfish. 1999; 66 FR 28132, May 22, 2001; 76 FR 59305, (ii) The prohibited species, namely: Sept. 26, 2011] American plaice, American shad, At- lantic cod, Atlantic menhaden, Atlan- § 600.520 Northwest Atlantic Ocean tic redfish, Atlantic salmon, all mar- fishery. lin, all spearfish, sailfish, swordfish, (a) Purpose. Sections 600.520 and black sea bass, bluefish, croaker, had- 600.525 regulate all foreign fishing con- dock, ocean pout, pollock, red hake, ducted under a GIFA within the EEZ in scup, sea turtles, sharks (except the Atlantic Ocean north of 35°00′ N. dogfish), silver hake, spot, striped bass, lat. summer flounder, tilefish, yellowtail

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flounder, weakfish, white hake, win- one species does not result in the pre- dowpane flounder, winter flounder, mature closing of a Nation’s fishery for witch flounder, Continental Shelf fish- other allocated species. ery resources, and other invertebrates (ii) The fishery has not been closed (except nonallocated squids). for other reasons under § 600.511. (5) Closures. The taking of any species (6) Allocation utilization. Foreign fish- for which a Nation has an allocation is ing vessels may elect to retain or dis- permitted, provided that: card allocated species; however, the (i) The vessels of the foreign nation computation of allocation utilization have not caught the allocation of that and fee refunds will be based on the Nation for any species or species group (e.g., ‘‘other finfish’’). When vessels of total quantity of that species that was a foreign nation have caught an appli- caught. Prohibited species must always cable allocation of any species, all fur- be returned to the sea as required ther fishing other than scouting, proc- under § 600.509. essing, or support by vessels of that (c) Fishing areas. For the purposes of Nation must cease, even if other allo- the Northwest Atlantic Ocean fishery, cations have not been reached. There- fishing areas are that portion of the fore, it is essential that foreign nations EEZ shown inside the boundaries of the plan their fishing strategy to ensure ‘‘three digit statistical areas’’ de- that the reaching of an allocation for scribed in Figure 1 to this section.

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[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]

§ 600.525 Applicability of subpart F to this section and § 600.530 of this subpart Canadian Albacore Fishing Vessels F, and is exempt from any other re- off the West Coast. quirements of this subpart F. Regula- Fishing by vessels of Canada under tions governing fishing by U.S. vessels the 1981 Treaty Between the Govern- in waters under the fisheries jurisdic- ment of the United States of America tion of the Canada more than 12 nau- and the Government of Canada on Pa- tical miles from the baseline from cific Coast Albacore Tuna Vessels and which the territorial sea is measured Port Privileges is regulated only under

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are found at §§ 300.170–300.176 of chapter (d) Vessel identification. A Canadian II of this title. vessel fishing under the Treaty as amended in 2002 must clearly display [69 FR 31535, June 4, 2004] its Canadian vessel registration num- § 600.530 Pacific albacore fishery. ber followed by the letter C in the same height and size as the numerals, con- (a) Purpose and scope. This section sistent with Canadian vessel marking regulates fishing by Canadian vessels requirements. under the 1981 Treaty Between the (e) Hail-in reports. The operator of a Government of the United States of Canadian Vessel eligible to fish for al- America and the Government of Can- bacore in U.S. waters under the Treaty ada on Pacific Coast Albacore Tuna as amended in 2002 must file a hail-in Vessels and Port Privileges as amended report with the Reporting Office at in 2002. Notwithstanding any other pro- least 24 hours prior to beginning any vision of this subpart F, fishing vessels such fishing. of Canada may be authorized to fish in (f) Hail-out Reports. The operator of a waters under the fisheries jurisdiction Canadian vessel that has been fishing of the United States more than 12 nau- in U.S. waters under the Treaty as tical miles from the baseline from amended in 2002 must file a hail-out re- which the territorial sea is measured in port with the Reporting Office at least accordance with the Treaty and this 24 hours prior to exiting from U.S. wa- section, pursuant to Public Law 108–219 ters. (118 Stat. 616; 16 U.S.C. 1821 note). (g) Prohibitions. It is prohibited for (b) Definitions. In addition to the defi- the operator of a Canadian vessel to en- nitions in the Magnuson-Stevens Fish- gage in fishing in U.S. waters if the ery Conservation and Management Act vessel: and § 600.10, the terms used in this sub- (1) Is not on the vessel list in para- part have the following meanings: graph (c) of this section; Fishing under the Treaty as amended in (2) Has not filed a hail-in report to 2002 means to engage in fishing for al- advise of an intent to fish under the bacore tuna in waters under the fish- Treaty as amended in 2002 prior to en- eries jurisdiction of the United States gaging in such fishing; or seaward of 12 nautical miles from the (3) Is not clearly marked in accord- baseline from which the territorial sea ance with paragraph (d) of this section. is measured. Regional Administrator means the Re- [69 FR 31535, June 4, 2004] gional Administrator, Southwest Re- gion, NMFS, 501 W. Ocean Boulevard, Subpart G—Preemption of State Suite 4200, Long Beach, CA 90802–4213, Authority Under Section 306(b) or a designee. Reporting Office means the office des- § 600.605 General policy. ignated by the Regional Administrator It is the policy of the Secretary that to take hail-in and hail-out reports preemption proceedings will be con- from U.S. and Canadian vessel opera- ducted expeditiously. The administrators. tive law judge and counsel or other rep- Treaty means the 1981 Treaty Be- resentative for each party are encour- tween the Government of the United aged to make every effort at each stage States of America and the Government of the proceedings to avoid delay. of Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges as § 600.610 Factual findings for Federal amended in 2002. preemption. (c) Vessel list. A Canadian vessel is (a) The two factual findings for Fed- not eligible to fish for albacore in U.S. eral preemption of state management waters under the Treaty as amended in authority over a fishery are: 2002 unless the vessel is on the list pro- (1) The fishing in a fishery that is vided to NMFS by the Government of covered by an FMP implemented under Canada of vessels authorized by Canada the Magnuson-Stevens Act is engaged to fish under the Treaty as amended in in predominately within the EEZ and 2002. beyond such zone.

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(2) A state has taken any action, or (2) The notice of proposed preemption omitted to take any action, the results will also be published in the FEDERAL of which will substantially and ad- REGISTER. This notification may be versely affect the carrying out of such combined with any notice of proposed FMP. rulemaking published under paragraph (b) Whether fishing is engaged in (d)(1) of this section. ‘‘predominately’’ within or beyond the (b) Response. The state will have the EEZ will be determined after consider- opportunity to respond in writing to ation of relevant factors, including but the notice of proposed preemption. not limited to, the catch (based on (c) Amendment. The Administrator numbers, value, or weight of fish may, at any time prior to the Sec- caught, or other relevant factors) or retary’s decision, withdraw the notice fishing effort during the appropriate of proposed preemption. Upon motion period, and in light of historical pat- of either party before the record is terns of the distribution of catch or closed, the administrative law judge fishing effort for such stock or stocks may amend the notice of proposed pre- of fish. emption. (c) Whether relevant effects are sub- (d) Proposed regulations—(1) In gen- stantial will be determined after con- eral. If additional regulations are re- sideration of the magnitude of such acquired to govern fishing within the tual or potential effects. Relevant to boundaries of a state, the Adminis- this determination are various factors, trator may publish proposed regula- including but not limited to, the pro- tions in the FEDERAL REGISTER concur- portion of the fishery (stock or stocks rently with issuing the notification in- of fish and fishing for such stocks) that dicated in paragraph (a) of this section. is subject to the effects of a particular (2) Emergency actions. Nothing in this state’s action or omission, the charac- section will prevent the Secretary from teristics and status (including migra- taking emergency action under section tory patterns and biological condition) 305(c) of the Magnuson-Stevens Act. of the stock or stocks of fish in the [61 FR 32540, June 24, 1996, as amended at 63 fishery, and the similarity or dissimi- FR 7075, Feb. 12, 1998] larity between the goals, objectives, or policies of the state’s action or omis- § 600.620 Rules pertaining to the hear- sion and the management goals or ob- ing. jectives specified in the FMP for the (a) The civil procedure rules of the fishery or between the state and Fed- NOAA currently set forth in 15 CFR eral conservation and management part 904, subpart C (or as subsequently measures of the fishery. amended), apply to the proceeding [61 FR 32540, June 24, 1996, as amended at 63 after its commencement by service of FR 7075, Feb. 12, 1998] notice (pursuant to § 600.615) and prior to the Secretary’s decision (§ 600.625), § 600.615 Commencement of pro- except that the following sections will ceedings. not apply: (a) Notice of proposed preemption. (1) If (1) 15 CFR 904.201 (Definitions); a proceeding under this part is deemed (2) 15 CFR 904.206(a)(1) (Duties and necessary, the Administrator must powers of Judge); and issue a notice of proposed preemption (3) 15 CFR 904.272 (Administrative re- to the Attorney General of the State or view of decision). States concerned. The notice will con- (b) Additional duties and powers of tain: judge—(1) Time periods. The administra- (i) A recital of the legal authority tive law judge is authorized to modify and jurisdiction for instituting the pro- all time periods pertaining to the ceeding. course of the hearing (under §§ 600.615 (ii) A concise statement of the and 600.620) to expedite the pro- § 600.610 factual findings for Federal ceedings, upon application and appro- preemption upon which the notice is priate showing of need or emergency based. circumstances by a party. (iii) The time, place, and date of the (2) Intervention. Intervention by per- hearing. sons not parties is not allowed.

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§ 600.625 Secretary’s decision. have substantially and adversely affected the carrying out of the FMP; or (a) The Secretary will, on the basis of (ii) Any changed circumstances that the hearing, record the administrative affect the relationship of the state’s ac- law judge’s recommended decision: tion or omission to take action to the (1) Accept or reject any of the find- carrying out of the FMP (including any ings or conclusions of the administra- amendment to such plan); and tive law judge and decide whether the (iii) Any laws, regulations, or other factual findings exist for Federal pre- materials that the state believes sup- emption of a state’s authority within port the application. its boundaries (other than in its inter- (2) Any such application received by nal waters) with respect to the fishery the Secretary or notice issued to the in question; State will be published in the FEDERAL (2) Reserve decision on the merits or REGISTER. withdraw the notice of proposed pre- (b) Informal response. The Secretary emption; or has sole discretion to accept or reject (3) Remand the case to the adminis- the application or response. If the Sec- trative law judge for further pro- retary accepts the application or re- ceedings as may be appropriate, along jects any responses and finds that the with a statement of reasons for the re- reasons for regulation of the fishery mand. within the boundaries of the state no (b) Notification. (1) If the factual find- longer prevail, the Secretary will ings for Federal preemption are deter- promptly terminate such regulation mined to exist, the Secretary will no- and publish in the FEDERAL REGISTER tify in writing the Attorney General of any regulatory amendments necessary that state and the appropriate Coun- to accomplish that end. cil(s) of the preemption of that state’s (c) Hearing. The Secretary has sole authority. The Secretary will also di- discretion to direct the Administrator rect the Administrator to promulgate to schedule hearings for the receipt of appropriate regulations proposed under evidence by an administrative law § 600.615(d) and otherwise to begin regu- judge. Hearings before the administra- lating the fishery within the state’s tive law judge to receive such evidence boundaries (other than in its internal will be conducted in accordance with waters). § 600.620. Upon conclusion of such hear- (2) If the factual findings for Federal ings, the administrative law judge will preemption are determined not to certify the record and a recommended exist, the Secretary will notify, in decision to the Secretary. If the Sec- writing, the Attorney General of the retary, upon consideration of the state and the appropriate Council(s) of state’s application or any response to that determination. The Secretary will the notice published under also direct the Administrator to issue a § 600.630(a)(2), the hearing record, the notice withdrawing any regulations recommended decision, and any other proposed under § 600.615(d). relevant materials finds that the reasons for regulation of the fishery with- § 600.630 Application for reinstatement in the boundaries of the state no longer of state authority. prevail, the Secretary will promptly (a) Application or notice. (1) At any terminate such regulation and publish time after the promulgation of regula- in the FEDERAL REGISTER any regu- tions under § 600.625(b)(1) to regulate a latory amendments necessary to ac- fishery within a state’s boundaries, the complish that end. affected state may apply to the Sec- retary for reinstatement of state au- Subpart H—General Provisions for thority. The Secretary may also serve Domestic Fisheries upon such state a notice of intent to terminate such Federal regulation. A § 600.705 Relation to other laws. state’s application must include a clear (a) General. Persons affected by these and concise statement of: regulations should be aware that other (i) The action taken by the State to Federal and state statutes and regula- correct the action or omission found to tions may apply to their activities.

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Vessel operators may wish to refer to forth in the parts of this chapter gov- USCG regulations found in the Code of erning those fisheries. Federal Regulations title 33—Naviga- tion and Navigable Waters and 46— § 600.715 Recordkeeping and report- Shipping; 15 CFR part 904, subpart D— ing. Permit Sanctions and Denials; and Regulations pertaining to records title 43—Public Lands (in regard to ma- and reports required for certain fish- rine sanctuaries). eries are set forth in the parts of this (b) State responsibilities. Certain re- chapter governing those fisheries. sponsibilities relating to data collection and enforcement may be per- § 600.720 Vessel and gear identifica- formed by authorized state personnel tion. under a state/Federal agreement for Regulations pertaining to special data collection and a tripartite agree- vessel and gear markings required for ment among the state, the USCG, and certain fisheries are set forth in the the Secretary for enforcement. parts of this chapter governing those (c) Submarine cables. Fishing vessel fisheries. operators must exercise due care in the conduct of fishing activities near sub- § 600.725 General prohibitions. marine cables. Damage to the sub- It is unlawful for any person to do marine cables resulting from inten- any of the following: tional acts or from the failure to exer- (a) Possess, have custody or control cise due care in the conduct of fishing of, ship, transport, offer for sale, sell, operations subjects the fishing vessel purchase, land, import, or export, any operator to the criminal penalties pre- fish or parts thereof taken or retained scribed by the Submarine Cable Act (47 in violation of the Magnuson-Stevens U.S.C. 21) which implements the Inter- Act or any other statute administered national Convention for the Protection by NOAA and/or any regulation or per- of Submarine Cables. Fishing vessel op- mit issued under the Magnuson-Ste- erators also should be aware that the vens Act. Submarine Cable Act prohibits fishing (b) Transfer or attempt to transfer, operations at a distance of less than 1 directly or indirectly, any U.S.-har- nautical mile (1.85 km) from a vessel vested fish to any foreign fishing ves- engaged in laying or repairing a sub- sel, while such vessel is in the EEZ, un- marine cable; or at a distance of less less the foreign fishing vessel has been than 0.25 nautical mile (0.46 km) from a issued a permit under section 204 of the buoy or buoys intended to mark the po- Magnuson-Stevens Act, which author- sition of a cable when being laid or izes the receipt by such vessel of U.S.- when out of order or broken. harvested fish. (d) Marine mammals. Regulations gov- (c) Fail to comply immediately with erning exemption permits and the rec- enforcement and boarding procedures ordkeeping and reporting of the inci- specified in § 600.730. dental take of marine mammals are set (d) Refuse to allow an authorized offi- forth in part 229 of this title. cer to board a fishing vessel or to enter (e) Halibut fishing. Fishing for halibut areas of custody for purposes of con- is governed by regulations of the Inter- ducting any search, inspection, or sei- national Pacific Halibut Commission zure in connection with the enforce- set forth at part 300 of this title. ment of the Magnuson-Stevens Act or (f) Marine sanctuaries. All fishing ac- any other statute administered by tivity, regardless of species sought, is NOAA. prohibited under 15 CFR part 924 in the (e) Dispose of fish or parts thereof or U.S.S. Monitor Marine Sanctuary, other matter in any manner, after any which is located approximately 15 communication or signal from an au- miles southwest of Cape Hatteras off thorized officer, or after the approach the coast of North Carolina. by an authorized officer or an enforcement vessel or aircraft. § 600.710 Permits. (f) Assault, resist, oppose, impede, in- Regulations pertaining to permits re- timidate, threaten, or interfere with quired for certain fisheries are set any authorized officer in the conduct of

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any search, inspection, or seizure in decal or a valid certificate of compli- connection with enforcement of the ance or inspection pursuant to § 600.746. Magnuson-Stevens Act or any other (r) Fail to provide to an observer, a statute administered by NOAA. NMFS employee, or a designated ob- (g) Interfere with, delay, or prevent server provider information that has by any means, the apprehension of an- been requested pursuant to § 600.746, or other person, knowing that such person fail to allow an observer, a NMFS em- has committed any act prohibited by ployee, or a designated observer pro- the Magnuson-Stevens Act or any vider to inspect any item described at other statute administered by NOAA. § 600.746. (h) Resist a lawful arrest for any act (s) Fish without an observer when the prohibited under the Magnuson-Ste- vessel is required to carry an observer. vens Act or any other statute adminis- (t) Assault, oppose, impede, intimi- tered by NOAA. date, or interfere with a NMFS-ap- (i) Make any false statement, oral or proved observer. written, to an authorized officer con- (u)(1) Prohibit or bar by command, cerning the taking, catching, har- impediment, threat, coercion, inter- vesting, landing, purchase, sale, offer ference, or refusal of reasonable assist- of sale, possession, transport, import, ance, an observer from conducting his export, or transfer of any fish, or at- or her duties as an observer; or tempts to do any of the above. (2) Tamper with or destroy samples (j) Interfere with, obstruct, delay, or or equipment. prevent by any means an investigation, (v) The use of any gear or participa- search, seizure, or disposition of seized tion in a fishery not on the following property in connection with enforce- list of authorized fisheries and gear is ment of the Magnuson-Stevens Act or prohibited after December 1, 1999. A any other statute administered by fish, regardless whether targeted, may NOAA. be retained only if it is taken within a (k) Fish in violation of the terms or listed fishery, is taken with a gear au- conditions of any permit or authoriza- thorized for that fishery, and is taken tion issued under the Magnuson-Ste- in conformance with all other applica- vens Act or any other statute adminis- ble regulations. Listed gear can only be tered by NOAA. used in a manner that is consistent (l) Fail to report catches as required with existing laws and regulations. The while fishing pursuant to an exempted list of fisheries and authorized gear fishing permit. does not, in any way, alter or supersede (m) On a scientific research vessel, any definitions or regulations con- engage in fishing other than rec- tained elsewhere in this chapter. A per- reational fishing authorized by applica- son or vessel is prohibited from engag- ble state or Federal regulations. ing in fishing or employing fishing gear (n) Trade, barter, or sell; or attempt when such fishing gear is prohibited or to trade, barter, or sell fish possessed restricted by regulation under an FMP or retained while fishing pursuant to or other applicable law. However, after an authorization for an exempted edu- December 1, 1999, an individual fisher- cational activity. man may notify the appropriate Coun- (o) Harass or sexually harass an au- cil, or the Director, in the case of At- thorized officer or an observer. lantic highly migratory species, of the (p) Fail to show proof of passing the intent to use a gear or participate in a USCG Commercial Fishing Vessel Safe- fishery not already on the list. Ninety ty Examination or the alternate NMFS days after such notification, the indi- safety equipment examination, or fail vidual may use the gear or participate to maintain the vessel safety condi- in that fishery unless regulatory action tions necessary to pass the examina- is taken to prohibit the use of the gear tion, when required by NMFS pursuant or participate in the fishery (e.g., to § 600.746. through emergency or interim regula- (q) Fail to display a Commercial tions). The list of authorized fisheries Fishing Vessel Safety Examination and gear is as follows:

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Fishery Authorized gear types

I. New England Fishery Management Council (NEFMC)

1. Atlantic Sea Scallop Fishery (FMP): A. Dredge fishery ...... A. Dredge. B. Trawl fishery ...... B. Trawl. C. Hand harvest fishery ...... C. Hand harvest. D. Recreational fishery ...... D. Hand harvest. 2. Iceland Scallop Fishery (Non-FMP): A. Dredge fishery ...... A. Dredge. B. Trawl fishery ...... B. Trawl. 3. Atlantic Salmon Fishery (FMP) ...... No harvest or possession in the EEZ. 4. Striped Bass Fishery (Non-FMP) ...... No harvest or possession in the EEZ. 5. Northeast (NE) Multispecies Fishery (FMP): A. NE multispecies sink gillnet fishery ...... A. Gillnet. B. North Atlantic bottom trawl fishery ...... B. Trawl. C. Groundfish hook and line fishery ...... C. Longline, handline, rod and reel. D. Mixed species trap and pot fishery ...... D. Trap, pot. E. Dredge fishery ...... E. Dredge. F. Seine fishery ...... F. Seine. G. Recreational fishery ...... G. Rod and reel, handline, spear. 6. American Lobster Fishery (FMP): A. Lobster pot and trap fishery ...... A. Pot, trap. B. North Atlantic bottom trawl fishery ...... B. Trawl. C. Dredge fishery ...... C. Dredge. D. Hand harvest fishery ...... D. Hand harvest. E. Gillnet fishery ...... E. Gillnet. F. Recreational fishery ...... F. Pot, trap, hand harvest. 7. Atlantic Herring Fishery (FMP): A. Trawl fishery ...... A. Trawl. B. Purse seine fishery ...... B. Purse seine. C. Gillnet fishery ...... C. Gillnet. D. Herring pair trawl fishery ...... D. Pair trawl. E. Dredge fishery ...... E. Dredge. F. Recreational fishery ...... F. Hook and line, gillnet. 8. Spiny Dogfish Fishery (FMP jointly managed by MAFMC and NEFMC): A. Gillnet fishery ...... A. Gillnet. B. Trawl fishery ...... B. Trawl. C. Hook and line fishery ...... C. Hook and line, rod and reel, spear. D. Dredge fishery ...... D. Dredge. E. Longline fishery ...... E. Longline. F. Recreational fishery ...... F. Hook and line, rod and reel, spear. 9. Atlantic Bluefish Fishery (FMP managed by MAFMC): A. Pelagic longline and hook and line fishery ...... A. Longline, handline. B. Seine fishery ...... B. Purse seine, seine. C. Mixed species pot and trap fishery ...... C. Pot, trap. D. Bluefish, croaker, flounder trawl fishery ...... D. Trawl. E. Gillnet fishery ...... E. Gillnet. F. Dredge fishery ...... F. Dredge. G. Recreational fishery ...... G. Rod and reel, handline, trap, pot, spear. 10. Atlantic Mackerel, Squid and Butterfish Fishery (FMP managed by the MAFMC): A. Mackerel, squid, and butterfish trawl fishery ...... A. Trawl. B. Gillnet fishery ...... B. Gillnet. C. Longline and hook-and-line fishery ...... C. Longline, handline, rod and reel. D. Purse seine fishery ...... D. Purse seine. E. Mixed species pot and trap fishery ...... E. Pot, trap. F. Dredge fishery ...... F. Dredge. G. Dip net fishery ...... G. Dip net. H. Bandit gear fishery ...... H. Bandit gear. I. Recreational fishery ...... I. Rod and reel, handline, pot, spear. 11. Surf Clam and Ocean Quahog Fishery (FMP managed by the MAFMC): A. Commercial fishery ...... A. Dredge, hand harvest. B. Recreational fishery ...... B. Hand harvest. 12. Atlantic Menhaden Fishery (Non-FMP): A. Purse seine fishery ...... A. Purse seine. B. Trawl fishery ...... B. Trawl. C. Gillnet fishery ...... C. Gillnet. D. Commercial hook-and-line fishery ...... D. Hook and line. E. Recreational fishery ...... E. Hook and line, snagging, cast nets. 13. Weakfish Fishery (Non-FMP): A. Commercial fishery ...... A. Trawl, gillnet, hook and line. B. Recreational fishery ...... B. Hook and line, spear.

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Fishery Authorized gear types

14. Atlantic Mussel and Sea Urchin Fishery (Non-FMP): A. Dredge fishery ...... A. Dredge. B. Hand harvest fishery ...... B. Hand harvest. C. Recreational fishery ...... C. Hand harvest. 15. Atlantic Skate Fishery (Non-FMP): A. Trawl fishery ...... A. Trawl. B. Gillnet fishery ...... B. Gillnet. C. Hook-and-line fishery ...... C. Longline and handline. D. Dredge fishery ...... D. Dredge. E. Recreational fishery ...... E. Rod and reel. 16. Crab Fishery (Non-FMP): A. Dredge fishery ...... A. Dredge. B. Trawl fishery ...... B. Trawl. C. Trap and pot fishery ...... C. Trap, pot. 17. Northern Shrimp Fishery (Non-FMP): A. Shrimp trawl fishery ...... A. Trawl. B. Shrimp pot fishery ...... B. Pot. 18. Monkfish Fishery (FMP jointly managed by NEFMC and MAFMC): A. Trawl fishery ...... A. Trawl. B. Gillnet fishery ...... B. Gillnet. C. Longline fishery ...... C. Longline. D. Dredge fishery ...... D. Dredge. E. Trap and pot fishery ...... E. Trap, pot. F. Recreational fishery ...... F. Rod and reel, spear. 19. Summer Flounder, Scup, Black Sea Bass Fishery (FMP managed by MAFMC): A. Trawl fishery ...... A. Trawl. B. Longline and hook and line fishery ...... B. Longline, handline. C. Mixed species pot and trap fishery ...... C. Pot, trap. D. Gillnet fishery ...... D. Gillnet. E. Dredge fishery ...... E. Dredge. F. Recreational fishery ...... F. Rod and reel, handline, pot, trap, spear. 20. Hagfish Fishery (Non-FMP) ...... Trap, pot. 21. Tautog Fishery (Non-FMP): ...... A. Gillnet fishery ...... A. Gillnet. B. Pot and trap fishery ...... B. Pot, trap. C. Rod and reel, hook and line fishery ...... C. Rod and reel, handline, hook and line. D. Trawl fishery ...... D. Trawl. E. Spear fishery ...... E. Spear. F. Fyke net fishery ...... F. Fyke net. G. Recreational fishery ...... G. Rod and reel, hook and line, handline, spear. 22. Recreational Fishery (Non-FMP) ...... Rod and reel, handline, spear, hook and line, hand harvest, bandit gear, powerhead, gillnet, cast net, pot, trap, dip net, bully net, snare. 23. Commercial Fishery (Non-FMP) ...... Trawl, pot, trap, gillnet, pound net, dredge, seine, handline, longline, hook and line, rod and reel, hand harvest, purse seine, spear, bandit gear, powerhead, dip net, bully net, snare, cast net, barrier net, slurp gun, allowable chemicals. 24. Dolphin/wahoo fishery (FMP managed by SAFMC) ...... Automatic reel, bandit gear, handline, pelagic longline, rod and reel, spear (including powerheads).

II. Mid-Atlantic Fishery Management Council (MAFMC)

1. Summer Flounder, Scup, Black Sea Bass Fishery (FMP): A. Trawl fishery ...... A. Trawl. B. Pelagic longline and hook and line fishery ...... B. Longline, handline, rod and reel. C. Mixed species pot and trap fishery ...... C. Pot, trap. D. Gillnet fishery ...... D. Gillnet. E. Dredge fishery ...... E. Dredge. F. Recreational fishery ...... F. Rod and reel, handline, pot, trap, spear. 2. Atlantic Bluefish Fishery (FMP): A. Bluefish, croaker, and flounder trawl fishery ...... A. Trawl. B. Pelagic longline and hook and line fishery ...... B. Longline, handline, bandit gear, rod and reel. C. Mixed species pot and trap fishery ...... C. Pot, trap. D. Gillnet fishery ...... D. Gillnet. E. Seine fishery ...... E. Purse seine, seine. F. Dredge fishery ...... F. Dredge. G. Recreational fishery ...... G. Rod and reel, handline, trap, pot, spear. 3. Atlantic Mackerel, Squid, and Butterfish Fishery (FMP): A. Mackerel, squid, and butterfish trawl fishery ...... A. Trawl. B. Gillnet fishery ...... B. Gillnet. C. Longline and hook-and-line fishery ...... C. Longline, handline, rod and reel.

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Fishery Authorized gear types

D. Purse seine fishery ...... D. Purse seine. E. Mixed species pot and trap fishery ...... E. Pot, trap. F. Dredge fishery ...... F. Dredge. G. Dip net fishery ...... G. Dip net. H. Bandit gear fishery ...... H. Bandit gear. I. Recreational fishery ...... I. Rod and reel, handline, pot, spear. 4. Surf Clam and Ocean Quahog Fishery (FMP): A. Commercial fishery ...... A. Dredge, hand harvest. B. Recreational fishery ...... B. Hand harvest. 5. Atlantic Sea Scallop Fishery (FMP managed by NEFMC): A. Dredge fishery ...... A. Dredge. B. Trawl fishery ...... B. Trawl. C. Hand harvest fishery ...... C. Hand harvest. D. Recreational fishery ...... D. Hand harvest. 6. Atlantic Menhaden Fishery (Non-FMP): A. Purse seine fishery ...... A. Purse seine. B. Trawl fishery ...... B. Trawl. C. Gillnet fishery ...... C. Gillnet. D. Commercial hook-and-line fishery ...... D. Hook and line. E. Recreational fishery ...... E. Hook and line, snagging, cast nets. 7. Striped Bass Fishery (Non-FMP) ...... No harvest or possession in the EEZ. 8. Northern Shrimp Trawl Fishery (Non-FMP) ...... Trawl. 9. American Lobster Fishery (FMP managed by NEFMC): A. Pot and trap fishery ...... A. Pot, trap. B. Hand harvest fishery ...... B. Hand harvest. C. Trawl fishery ...... C. Trawl. D. Dredge fishery ...... D. Dredge. E. Gillnet fishery ...... E. Gillnet. F. Recreational fishery ...... F. Pot, trap, hand harvest. 10. Weakfish Fishery (Non-FMP): A. Commercial fishery ...... A. Trawl, gillnet, hook and line, rod and reel. B. Recreational fishery ...... B. Hook and line, spear. 11. Whelk Fishery (Non-FMP): A. Trawl fishery ...... A. Trawl. B. Pot and trap fishery ...... B. Pot, trap. C. Dredge ...... C. Dredge. D. Pound net, gillnet, seine ...... D. Pound net, gillnet, seine. E. Recreational fishery ...... E. Hand harvest. 12. Monkfish Fishery (FMP jointly managed by NEFMC and MAFMC): A. Trawl fishery ...... A. Trawl. B. Longline fishery ...... B. Longline, rod and reel. C. Gillnet fishery ...... C. Gillnet. D. Dredge fishery ...... D. Dredge. E. Trap and pot fishery ...... E. Trap and pot. F. Recreational fishery ...... F. Rod and reel, spear. 13. Tilefish Fishery (Non-FMP): A. Groundfish hook-and-line fishery ...... A. Longline, handline, rod and fishery reel. B. Trawl fishery ...... B. Trawl. C. Recreational fishery ...... C. Rod and reel, spear. 14. Spiny Dogfish Fishery (FMP jointly managed by MAFMC and NEFMC): A. Gillnet fishery ...... A. Gillnet. B. Trawl fishery ...... B. Trawl. C. Hook and line fishery ...... C. Hook and line, rod and reel, spear. D. Dredge fishery ...... D. Dredge. E. Longline fishery ...... E. Longline. F. Recreational fishery ...... F. Hook and line, rod and reel, spear. 15. Tautog Fishery (Non-FMP): A. Gillnet fishery ...... A. Gillnet. B. Pot and trap fishery ...... B. Pot, trap. C. Rod and reel, hook and line handline fishery ...... C. Rod and reel, hook and line, handline. D. Trawl fishery ...... D. Trawl. E. Spear fishery ...... E. Spear. F. Fyke net fishery ...... F. Fyke net. G. Recreational fishery ...... G. Rod and reel, handline, hook and line, spear. 16. Coastal Gillnet Fishery (Non-FMP) ...... Gillnet 17. Recreational Fishery (Non-FMP) ...... Rod and reel, handline, spear, hook and line, hand harvest, bandit gear, powerhead, gillnet, cast net. 18. NE Multispecies Fishery (FMP managed by NEFMC): A. NE multispecies sink gillnet fishery ...... A. Gillnet. B. North Atlantic bottom trawl fishery ...... B. Trawl. C. Groundfish hook and line ...... C. Longline, handline, rod and fishery reel. D. Mixed species trap and pot fishery ...... D. Trap, pot. E. Dredge fishery ...... E. Dredge.

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Fishery Authorized gear types

F. Seine fishery ...... F. Seine. G. Recreational fishery ...... G. Rod and reel, handline, spear. 19. Atlantic Skate Fishery (Non-FMP): A. Trawl fishery ...... A. Trawl. B. Gillnet fishery ...... B. Gillnet. C. Hook-and-line fishery ...... C. Longline and handline. D. Dredge fishery ...... D. Dredge. E. Recreational fishery ...... E. Rod and reel. 20. Crab Fishery (Non-FMP): A. Dredge fishery ...... A. Dredge. B. Trawl fishery ...... B. Trawl. C. Trap and pot fishery ...... C. Trap, pot. 21. Atlantic Herring Fishery (FMP managed by the NEFMC): A. Trawl fishery ...... A. Trawl. B. Purse seine fishery ...... B. Purse seine. C. Gillnet fishery ...... C. Gillnet. D. Herring pair trawl fishery ...... D. Pair trawl. E. Dredge fishery ...... E. Dredge. F. Recreational fishery ...... F. Hook and line, gillnet. 22. South Atlantic Snapper-Grouper Fishery (FMP managed by the SAFMC): A. Commercial fishery ...... A. Longline, rod and reel, bandit gear, handline, spear, powerhead. B. Black sea bass trap and pot fishery ...... B. Pot, trap. C. Wreckfish fishery ...... C. Rod and reel, bandit gear, handline. D. Recreational fishery...... D. Handline, rod and reel, bandit gear, spear, powerhead. 23. South Atlantic Coastal Migratory Pelagics Fishery (FMP managed by the SAFMC): A. Commercial Spanish mackerel fishery ...... A. Handline, rod and reel, bandit gear, gillnet, cast net. B. Commercial king mackerel fishery ...... B. Handline, rod and reel, bandit gear. C. Other commercial coastal migratory pelagics fishery ...... C. Longline, handline, rod and reel, bandit gear. D. Recreational fishery ...... D. Bandit gear, rod and reel, handline, spear. 24. Calico Scallops Fishery (Non-FMP): A. Trawl fishery ...... A. Trawl. B. Dredge fishery ...... B. Dredge. C. Recreational fishery ...... C. Hand harvest. 25. Sargassum Fishery (Non-FMP) ...... Trawl. 26. South Atlantic Shrimp Fishery (FMP) ...... Trawl. 27. Commercial Fishery (Non-FMP) ...... Trawl, pot, trap, gillnet, pound net, dredge, seine, handline, longline, hook and line, rod and reel, spear. 28. Dolphin/wahoo fishery (FMP managed by SAFMC) ...... Automatic reel, bandit gear, handline, pelagic longline, rod and reel, spear (including powerheads).

III. South Atlantic Fishery Management Council

1. Golden Crab Fishery (FMP) ...... Trap. 2. Crab Fishery (Non-FMP): A. Dredge fishery ...... A. Dredge. B. Trawl fishery ...... B. Trawl. C. Trap and pot fishery ...... C. Trap, pot. 3. Atlantic Red Drum Fishery (FMP) ...... No harvest or possession in the EEZ. 4. Coral and Coral Reef Fishery (FMP): A. Octocoral commercial fishery ...... Hand harvest. B. Live rock aquaculture fishery ...... Hand harvest. 5. South Atlantic Shrimp Fishery (FMP) ...... Trawl. 6. South Atlantic Snapper-Grouper Fishery (FMP): A. Commercial fishery ...... A. Longline, rod and reel, bandit gear, handline, spear, powerhead. B. Black sea bass pot fishery ...... B. Pot. C. Wreckfish fishery ...... C. Rod and reel, bandit gear, handline. D. Recreational fishery...... D. Handline, rod and reel, bandit gear, spear, powerhead. 7. South Atlantic Spiny Lobster Fishery (FMP): A. Commercial fishery ...... A. Trap, pot, dip net, bully net, snare, hand harvest. B. Recreational fishery ...... B. Trap, pot, dip net, bully net, snare, hand harvest. 8. South Atlantic Coastal Migratory Pelagics Fishery (FMP): A. Commercial Spanish mackerel fishery ...... A. Handline, rod and reel, bandit gear, gillnet, cast net. B. Commercial king mackerel fishery ...... B. Handline, rod and reel, bandit gear. C. Other commercial coastal migratory pelagics fishery ...... C. Longline, handline, rod and reel, bandit gear.

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Fishery Authorized gear types

D. Recreational fishery ...... D. Bandit gear, rod and reel, handline, spear. 9. Spiny Dogfish Fishery (FMP jointly managed by NEFMC and SAFMC): A. Gillnet fishery ...... A. Gillnet. B. Trawl fishery ...... B. Trawl. C. Hook and line fishery ...... C. Hook and line, rod and reel, spear, bandit gear. D. Dredge fishery ...... D. Dredge. E. Longline fishery ...... E. Longline. F. Recreational fishery ...... F. Hook and line, rod and reel, spear. 10. Smooth Dogfish Fishery (Non-FMP): A. Gillnet fishery ...... A. Gillnet. B. Trawl fishery ...... B. Trawl. C. Hook and line fishery ...... C. Hook and line, rod and reel, spear, bandit gear. D. Dredge fishery ...... D. Dredge. E. Longline fishery ...... E. Longline. F. Recreational fishery ...... F. Hook and line, rod and reel, spear. 11. Atlantic Menhaden Fishery (Non-FMP): A. Purse seine fishery ...... A. Purse seine. B. Trawl fishery ...... B. Trawl. C. Gillnet fishery ...... C. Gillnet. D. Commercial hook-and-line ...... D. Hook and line fishery. E. Recreational fishery ...... E. Hook and line, snagging, cast nets. 12. Atlantic Mackerel, Squid, and Butterfish Trawl Fishery (Non-FMP) .... Trawl. 13. Bait Fisheries (Non-FMP) ...... Purse seine. 14. Weakfish Fishery (Non-FMP): A. Commercial fishery ...... A. Trawl, gillnet, hook and line. B. Recreational fishery ...... B. Hook and line, spear. 15. Whelk Fishery (Non-FMP): A. Trawl fishery ...... A. Trawl. B. Pot and trap fishery ...... B. Pot, trap. C. Dredge fishery ...... C. Dredge. D. Recreational fishery ...... D. Hand harvest. 16. Marine Life Aquarium Fishery (Non-FMP) ...... Dip net, slurp gun, barrier net, drop net, allowable chemical, trap, pot, trawl. 17. Calico Scallop Fishery (Non-FMP): A. Dredge fishery ...... A. Dredge. B. Trawl fishery ...... B. Trawl. C. Recreational fishery ...... C. Hand harvest. 18. Summer Flounder Fishery (FMP managed by MAFMC): A. Commercial fishery ...... A. Trawl, longline, handline, rod and reel, pot, trap, gillnet, dredge. B. Recreational fishery ...... B. Rod and reel, handline, pot, trap, spear. 19. Bluefish, Croaker, and Flounder Trawl and Gillnet Fishery (Bluefish Trawl, gillnet. FMP managed by MAFMC). 20. Commercial Fishery (Non-FMP) ...... Trawl, gillnet, longline, handline, hook and line, rod and reel, bandit gear, cast net, pot, trap, lampara net, spear. 21. Recreational Fishery (Non-FMP) ...... Rod and reel, handline, spear, hook and line, hand harvest, bandit gear, powerhead, gillnet, cast net. 22. Sargassum Fishery (Non-FMP) ...... Trawl. 23. Octopus Fishery (Non-FMP) ...... Trap, pot. 24. Dolphin/wahoo fishery (FMP)...... Automatic reel, bandit gear, handline, pelagic longline, rod and reel, spear (including powerheads).

IV. Gulf of Mexico Fishery Management Council

1. Gulf of Mexico Red Drum Fishery (FMP) ...... No harvest or possession in the EEZ. 2. Coral Reef Fishery (FMP): A. Commercial fishery ...... A. Hand harvest. B. Recreational fishery ...... B. Hand harvest. 3. Gulf of Mexico Reef Fish Fishery (FMP): A. Snapper-Grouper reef fish longline and hook and line fishery A. Longline, handline, bandit gear, rod and reel, buoy gear. B. Other commercial fishery ...... B. Spear, powerhead, cast net, trawl. C. Recreational fishery ...... C. Spear, powerhead, bandit gear, handline, rod reel, cast net. 4. Gulf of Mexico Shrimp Fishery (FMP): A. Gulf of Mexico commercial fishery ...... A. Trawl butterfly net, skimmer, cast net. B. Recreational fishery ...... B. Trawl. 5. Gulf of Mexico Coastal Migratory Pelagics Fishery (FMP): A. Large pelagics longline fishery ...... A. Longline. B. King/Spanish mackerel gillnet fishery ...... B. Gillnet. C. Pelagic hook and line fishery ...... C. Bandit gear, handline, rod and reel.

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D. Pelagic species purse seine fishery ...... D. Purse seine. E. Recreational fishery ...... E. Bandit gear, handline, rod and reel, spear. Gulf of Mexico Spiny Lobster Fishery (FMP): A. Commercial fishery ...... A. Trap, pot, dip net, bully net, hoop net, trawl, snare, hand harvest. C. Recreational fishery ...... C. Dip net, bully net, pot, trap, snare, hand harvest. 6. Stone Crab Fishery (FMP): A. Trap and pot fishery ...... A. Trap, pot B. Recreational fishery ...... B. Trap, pot, hand harvest. 7. Blue Crab Fishery (Non-FMP) ...... Trap, pot. 8. Golden Crab Fishery (Non-FMP) ...... Trap. 9. Mullet Fishery (Non-FMP): A. Trawl fishery ...... A. Trawl. B. Gillnet fishery ...... B. Gillnet. C. Pair trawl fishery ...... C. Pair trawl. D. Cast net fishery ...... D. Cast net. E. Recreational fishery ...... E. Bandit gear, handline, rod and reel, spear, cast net. 10. Inshore Coastal Gillnet Fishery (Non-FMP) ...... Gillnet. 11. Octopus Fishery (Non-FMP) ...... Trap, pot. 12. Marine Life Aquarium Fishery (Non-FMP) ...... Dip net, slurp gun, barrier net, drop net, allowable chemical, trap, pot, trawl. 13. Coastal Herring Trawl Fishery (Non-FMP) ...... Trawl. 14. Butterfish Trawl Fishery (Non-FMP) ...... Trawl. 15. Gulf of Mexico Groundfish (Non-FMP): A. Commercial fishery ...... A. Trawl, purse seine, gillnet. B. Recreational fishery ...... B. Hook and line, rod and reel, spear. 16. Gulf of Mexico Menhaden Purse Seine Fishery (Non-FMP) ...... Purse seine. 17. Sardine Purse Seine Fishery (Non-FMP) ...... Purse seine. 18. Oyster Fishery (Non-FMP) ...... Dredge, tongs. 19. Commercial Fishery (Non-FMP) ...... Trawl, gillnet, hook and line, longline, handline, rod and reel, bandit gear, cast net, lampara net, spear. 20. Recreational Fishery (Non-FMP) ...... Bandit gear, handline, rod and reel, spear, bully net, gillnet, dip net, longline, powerhead, seine, slurp gun, trap, trawl, harpoon, cast net, hoop net, hook and line, hand harvest.

V. Caribbean Fishery Management Council

1. Caribbean Spiny Lobster Fishery (FMP): A. Trap/pot fishery ...... A. Trap/pot. B. Dip net fishery ...... B. Dip net. C. Hand harvest fishery ...... C. Hand harvest, snare. D. Recreational fishery ...... D. Dip net, trap, pot. 2. Caribbean Reef Fish Fishery (FMP): A. Longline/hook and line fishery ...... A. Longline, hook and line. B. Trap/pot fishery ...... B. Trap, pot. C. Recreational fishery ...... C. Dip net, handline, rod and reel, slurp gun, spear. D. Other commercial fishery ...... D. Spear. 3. Coral and Reef Resources Fishery (FMP): A. Commercial fishery ...... A. Dip net, slurp gun. B. Recreational fishery ...... B. Dip net, slurp gun, hand harvest. 4. Queen Conch Fishery (FMP): A. Commercial fishery ...... A. Hand harvest. B. Recreational fishery ...... B. Hand harvest. 5. Caribbean Pelagics Fishery (Non-FMP): A. Pelagics drift gillnet fishery ...... A. Gillnet. B. Pelagics longline/hook and line fishery ...... B. Longline/hook and line. C. Recreational fishery ...... C. Spear, handline, longline, rod and reel. 6. Commercial Fishery (Non-FMP) ...... Trawl, gillnet, hook and line, longline, handline, rod and reel, bandit gear, cast net, spear. 7. Recreational Fishery (Non-FMP)...... Rod and reel, hook and line, spear, powerhead, handline, hand harvest, cast net.

VI. Pacific Fishery Management Council

1. Washington, Oregon, and California Salmon Fisheries (FMP): A. Salmon set gillnet fishery ...... A. Gillnet. B. Salmon hook and line fishery ...... B. Hook and line. C. Trawl fishery ...... C. Trawl. D. Recreational fishery ...... D. Rod and reel. 2. West Coast Groundfish Fisheries (FMP): A. Pacific groundfish trawl fishery ...... A. Trawl. B. Set gillnet fishery ...... B. Gillnet.

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C. Groundfish longline and setline fishery ...... C. Longline. D. Groundfish handline and hook and line fishery ...... D. Handline, hook and line. E. Groundfish pot and trap fishery ...... E. Pot, trap. F. Recreational fishery ...... F. Rod and reel, handline, spear, hook and line. 3. Northern Anchovy Fishery (FMP) ...... Purse seine, lampara net. 4. Angel Shark, White Croaker, California Halibut, White Sea Bass, Pa- Gillnet. cific Mackerel Large-Mesh Set Net Fishery (Non-FMP). 5. Thresher Shark and Swordfish Drift Gillnet Fishery (Non-FMP) ...... Gillnet. 6. Pacific Shrimp and Prawn Fishery (Non-FMP): A. Pot and trap fishery ...... A. Pot, trap. B. Trawl fishery ...... B. Trawl. 7. Lobster and Rock Crab Pot and Trap Fishery (Non-FMP) ...... Pot, trap. 8. Pacific Halibut Fishery (Non-FMP): A. Longline and setline fishery ...... A. Longline. B. Hook-and-line fishery ...... B. Hook and line. 9. California Halibut Trawl and Trammel Net Fishery ...... Trawl, trammel net. 10. Shark and Bonito Longline and Setline Fishery (Non-FMP) ...... Longline. 11. Dungeness Crab Pot and Trap Fishery (Non-FMP) ...... Pot, trap. 12. Hagfish Pot and Trap Fishery (Non-FMP) ...... Pot, trap. 13. Pacific Albacore and Other Tuna Hook-and-line Fishery (Non-FMP) Hook and line. 14. Pacific Swordfish Harpoon Fishery (Non-FMP) ...... Harpoon. 15. Pacific Scallop Dredge Fishery (Non-FMP) ...... Dredge. 16. Pacific Yellowfin, Skipjack Tuna, Purse Seine Fishery, (Non-FMP) .... Purse seine. 17. Market Squid Fishery (Non-FMP) ...... Purse seine, dip net. 18. Pacific Sardine, Pacific Mackerel, Pacific Saury, Pacific Bonito, and Purse seine. Jack Mackerel Purse Seine Fishery (Non-FMP). 19. Finfish and Shellfish Live Trap, Hook-and-line, and Handline Fishery Trap, handline, hook and line. (Non-FMP). 20. Recreational Fishery (Non-FMP) ...... Spear, trap, handline, pot, hook and line, rod and reel, hand harvest. 21. Commercial Fishery (Non-FMP) ...... Trawl, gillnet, hook and line, longline, handline, rod and reel, bandit gear, cast net, spear.

VII. North Pacific Fishery Management Council

1. Alaska Scallop Fishery (FMP) ...... Dredge. 2. Bering Sea (BS) and Aleutian Islands (AI) King and Tanner Crab Fishery (FMP): Pot fishery ...... Pot. 3. Bering Sea (BS) and Aleutian Islands (AI) King and Tanner Crab Fishery (FMP): Recreational fishery ...... Pot. 4. BS and AI Groundfish Fishery (FMP): A. Groundfish trawl fishery ...... A. Trawl. B. Bottomfish hook-and-line, and handline fishery ...... B. Hook and line, handline. C. Longline fishery ...... C. Longline. D. BS and AI pot and trap fishery ...... D. Pot, trap. 5. BS and AI Groundfish Recreational Fishery (Non-FMP) ...... Handline, rod and reel, hook and line, pot, trap. 6. Gulf of Alaska (GOA) Groundfish Fishery (FMP): A. Groundfish trawl fishery ...... A. Trawl. B. Bottomfish hook-and-line and handline fishery ...... B. Hook and line, handline. C. Longline fishery ...... C. Longline. D. GOA pot and trap fishery ...... D. Pot, trap. E. Recreational fishery ...... E. Handline, rod and reel, hook and line, pot, trap. 7. Pacific Halibut Fishery (Non-FMP): A. Commercial (IFQ and CDQ) ...... A. Hook and line. B. Recreational ...... B. Single line with no more than 2 hooks attached or spear. C. Subsistence ...... C. Setline gear and hand held gear of not more than 30 hooks, including longline, handline, rod and reel, spear, jig, and hand-troll gear. 8. Alaska High Seas Salmon Hook and Line Fishery: (FMP) ...... Hook and line. 9. Alaska Salmon Fishery (Non-FMP): A. Hook-and-line fishery ...... A. Hook and line. B. Gillnet fishery ...... B. Gillnet. C. Purse seine fishery...... C. Purse seine. D. Recreational fishery ...... D. Handline, rod and reel, hook and line. 10. Finfish Purse Seine Fishery (Non-FMP) ...... Purse seine. 11. Octopus/Squid Longline Fishery (Non-FMP) ...... Longline. 12. Finfish Handline and Hook-and-line Fishery (Non-FMP) ...... Handline, hook and line. 13. Recreational Fishery (Non-FMP) ...... Handline, rod and reel, hook line. 14. Commercial Fishery (Non-FMP) ...... Trawl, gillnet, hook and line, longline, handline, rod and reel, bandit gear, cast net, spear.

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Fishery Authorized gear types

VIII. Western Pacific Fishery Management Council

1. Western Pacific Crustacean Fishery (FMP) (Fishery Ecosystem Plan, Trap, hand harvest, hoop net. FEP). 2. Western Pacific Crustacean Fishery (Non-FEP): A. Commercial fishery ...... A. Gillnet, hand harvest, hoop net, spear, snare, trap, trawl. B. Recreational fishery ...... B. Gillnet, hand harvest, hoop net, spear, snare, trap. C. Charter fishery ...... C. Hand harvest, spear. 3. Western Pacific Precious Corals Fishery (FEP): A. Tangle net dredge fishery ...... A. Tangle net dredge. B. Submersible fishery ...... B. Submersible. C. Dive fishery ...... C. Hand harvest. D. Recreational fishery ...... D. Hand harvest. 4. Western Pacific Precious Corals Fishery (Non-FEP) ...... Hand harvest, submersible, tangle net dredge. 5. Western Pacific Bottomfish and Seamount Groundfish Fishery (FEP) A. Bottomfish hook-and-line fishery ...... A. Bandit gear, buoy gear, handline, hook and line, rod and reel, hand harvest. B. Seamount groundfish fishery ...... B. Longline, trawl. C. Bottom longline fishery ...... C. Longline, hook and line. D. Trap fishery ...... D. Trap. E. Spear fishery ...... E. Spear, powerhead. 6. Western Pacific Bottomfish and Seamount Groundfish Fishery (Non- FEP): A. Commercial fishery ...... A. Bandit gear, buoy gear, gillnet, handline, hook- and-line, longline, rod and reel, spear, trap. B. Recreational fishery ...... B. Bandit gear, buoy gear, Gillnet, handline, hook and line, longline, rod and reel, spear, trap, slurp gun, hand harvest. C. Charter fishery ...... C. Bandit gear, buoy gear, handline, hook-and-line, rod and reel, spear. 7. Western Pacific Pelagics Fishery (FEP): A. Longline Fishery ...... A. Longline. B. Hook and line fishery ...... B. Bandit gear, buoy gear, handline, hook and line, rod and reel. C. Purse seine fishery ...... C. Lampara net, purse seine. D. Spear fishery ...... D. Spear, powerhead. E. Squid jig fishery ...... E. Squid jig. 8. Western Pacific Pelagics Fishery (Non-FEP): A. Recreational fishery ...... A. Bandit gear, buoy gear, dip net, handline, hook and line, hoop net, powerhead, rod and real, spear. B. Commercial fishery ...... B. Bandit gear, buoy gear, dip net, handline, hook and line, hoop net, powerhead, rod and reel, spear. C. Charter fishery ...... C. Bandit gear, buoy gear, dip net, handline, hook and line, hoop net, powerhead, rod and reel, spear. 9. Western Pacific Coastal Pelagics Fishery (Non-FEP) ...... Bandit gear, buoy gear, dip net, gillnet, handline, hook and line, hoop net, lampara net, purse seine, rod and reel, spear. 10. Western Pacific Squid and Octopus Fishery (Non-FEP) ...... Bandit gear, hand harvest, hook and line, rod and reel, spear, trap. 11. Western Pacific Coral Reef Fishery (Non-FEP) ...... Allowable chemical, barrier net, dip net, gillnet, hand harvest, seine, slurp gun, trap, spear, rod and reel, hook and line. 12. Recreational Fishery (Non-FEP) ...... Rod and reel, hook and line, handline, hand harvest, spear. 13. Commercial Fishery (Non-FEP) ...... Trawl, gillnet, hook and line, longline, handline, rod and reel, bandit gear, cast net, spear.

IX. Secretary of Commerce

1. Atlantic Highly Migratory Species Fisheries (FMP): A. Swordfish handgear fishery ...... A. Rod and reel, harpoon, handline, bandit gear, buoy gear. B. Swordfish recreational fishery ...... B. Rod and reel, handline. C. Pelagic longline fishery ...... C. Longline. D. Shark gillnet fishery ...... D. Gillnet E. Shark bottom longline fishery ...... E. Longline. F. Shark handgear fishery ...... F. Rod and reel, handline, bandit gear. G. Shark recreational fishery ...... G. Rod and reel, handline. H. Tuna purse seine fishery ...... H. Purse seine. I. Tuna recreational fishery ...... I. Speargun gear (for bigeye, albacore, yellowfin, and skipjack tunas only); Rod and reel, handline (all tunas); green-stick gear (HMS Charter/Headboat Category only).

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J. Tuna handgear fishery ...... J. Rod and reel, harpoon, handline, bandit gear. K. Tuna harpoon fishery ...... K. Harpoon. L. Atlantic billfish recreational fishery ...... L. Rod and reel. M. Tuna green-stick fishery ...... M. Green-stick gear. 2. Commercial Fisheries (Non-FMP) ...... Rod and reel, handline, longline, gillnet, harpoon, bandit gear, purse seine, green-stick gear.

(w) Fail to maintain safe conditions EFFECTIVE DATE NOTE: At 77 FR 59849, Oct. for the protection of observers includ- 1, 2012, § 600.725 was amended in the table in ing compliance with all U.S. Coast paragraph (v), under the heading ‘‘IX. Sec- Guard and other applicable rules, regu- retary of Commerce,’’ entry 1, by adding lations, or statutes applicable to the entry ‘‘N’’, effective Jan. 2, 2013. For the con- vessel and which pertain to safe oper- venience of the user, the added text is set forth as follows: ation of the vessel. [61 FR 32540, June 24, 1996] § 600.725 General prohibitions. EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 600.725, see the List of CFR * * * * * Sections Affected, which appears in the (v) * * * Finding Aids section of the printed volume and at www.fdsys.gov.

***** ** IX. Secretary of Commerce

1. Atlantic Highly Migratory Species Fisheries (FMP):

***** ** N. Commercial Caribbean Small Boat Fishery .. N. Rod and reel, handline, harpoon, bandit gear, green-stick gear, buoy gear.

* * * * * the bulwarks for the purpose of boarding personnel, freeboard means the dis- § 600.730 Facilitation of enforcement. tance between the threshold of the bul- (a) General. The operator of, or any wark cut-out and the water’s surface. other person aboard, any fishing vessel (2) For the purposes of this section, subject to parts 622 through 699 of this ‘‘pilot ladder’’ means a flexible ladder chapter must immediately comply constructed and approved to meet the with instructions and signals issued by U.S. Coast Guard standards for pilot an authorized officer to stop the vessel ladders at 46 CFR subpart 163.003 enti- and with instructions to facilitate safe tled Pilot Ladder. boarding and inspection of the vessel, (b) Communications. (1) Upon being its gear, equipment, fishing record approached by a USCG vessel or air- (where applicable), and catch for pur- craft, or other vessel or aircraft with poses of enforcing the Magnuson-Ste- an authorized officer aboard, the oper- vens Act or any other statute adminis- ator of a fishing vessel must be alert tered by NOAA and this chapter. for communications conveying enforce- (1) For the purposes of this section ment instructions. ‘‘freeboard’’ means the working distance between the top rail of the gun- (2) VHF-FM radiotelephone is the wale of a vessel and the water’s sur- preferred method for communicating face. Where cut-outs are provided in between vessels. If the size of the vessel

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and the wind, sea, and visibility condi- (d) Signals. The following signals, ex- tions allow, a loudhailer may be used tracted from the International Code of instead of the radio. Hand signals, plac- Signals, may be sent by flashing light ards, high frequency radiotelephone, or by an enforcement unit when condi- voice may be employed by an author- tions do not allow communications by ized officer, and message blocks may be loudhailer or radiotelephone. Knowl- dropped from an aircraft. edge of these signals by vessel opera- (3) If other communications are not tors is not required. However, knowl- practicable, visual signals may be edge of these signals and appropriate transmitted by flashing light directed action by a vessel operator may pre- at the vessel signaled. USCG units will clude the necessity of sending the sig- normally use the flashing light signal nal ‘‘L’’ and the necessity for the ves- ‘‘L’’ as the signal to stop. In the Inter- sel to stop instantly. (Period (.) means national Code of Signals, ‘‘L’’ (.–..) a short flash of light; dash (-) means a means ‘‘you should stop your vessel in- long flash of light.) stantly.’’ (Period (.) means a short (1) ‘‘AA’’ repeated (.-.-) is the call to flash of light; dash (–) means a long an unknown station. The operator of flash of light.) the signaled vessel should respond by (4) Failure of a vessel’s operator identifying the vessel by radio- promptly to stop the vessel when di- telephone or by illuminating the ves- rected to do so by an authorized officer sel’s identification. using loudhailer, radiotelephone, flash- (2) ‘‘RY-CY’’ (.-. -.— -.-. -.—) means ing light signal, or other means con- ‘‘you should proceed at slow speed, a stitutes prima facie evidence of the of- boat is coming to you.’’ This signal is fense of refusal to permit an authorized normally employed when conditions officer to board. allow an enforcement boarding without (5) The operator of a vessel who does the necessity of the vessel being not understand a signal from an en- boarded coming to a complete stop, or, forcement unit and who is unable to in some cases, without retrieval of fish- obtain clarification by loudhailer or ing gear which may be in the water. radiotelephone must consider the sig- (3) ‘‘SQ3’’ (... —.- ...—) means ‘‘you nal to be a command to stop the vessel should stop or heave to; I am going to instantly. board you.’’ (c) Boarding. The operator of a vessel directed to stop must: [61 FR 32540, June 24, 1996, as amended at 61 FR 37225, July 17, 1996; 63 FR 7075, Feb. 12, (1) Guard Channel 16, VHF-FM, if so 1998; 73 FR 67809, Nov. 17, 2008] equipped. (2) Stop immediately and lay to or § 600.735 Penalties. maneuver in such a way as to allow the Any person committing, or fishing authorized officer and his/her party to vessel used in the commission of a vio- come aboard. lation of the Magnuson-Stevens Act or (3) Except for fishing vessels with a any other statute administered by freeboard of 4 feet (1.25 m) or less, pro- NOAA and/or any regulation issued vide, when requested by an authorized under the Magnuson-Stevens Act, is officer or observer personnel, a pilot subject to the civil and criminal pen- ladder capable of being used for the alty provisions and civil forfeiture pro- purpose of enabling personnel to em- visions of the Magnuson-Stevens Act, bark and disembark the vessel safely. to this section, to 15 CFR part 904 The pilot ladder must be maintained in (Civil Procedures), and to other appli- good condition and kept clean. cable law. (4) When necessary to facilitate the boarding or when requested by an au- [61 FR 32540, June 24, 1996, as amended at 63 thorized officer or observer, provide a FR 7075, Feb. 12, 1998] manrope or safety line, and illumination for the pilot ladder. § 600.740 Enforcement policy. (5) Take such other actions as nec- (a) The Magnuson-Stevens Act pro- essary to facilitate boarding and to en- vides four basic enforcement remedies sure the safety of the authorized officer for violations, in ascending order of se- and the boarding party. verity, as follows:

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(1) Issuance of a citation (a type of § 600.745 Scientific research activity, warning), usually at the scene of the exempted fishing, and exempted offense (see 15 CFR part 904, subpart E). educational activity. (2) Assessment by the Administrator (a) Scientific research activity. Nothing of a civil money penalty. in this part is intended to inhibit or (3) For certain violations, judicial prevent any scientific research activity forfeiture action against the vessel and conducted by a scientific research ves- its catch. sel. Persons planning to conduct sci- (4) Criminal prosecution of the owner entific research activities on board a or operator for some offenses. It shall scientific research vessel in the EEZ be the policy of NMFS to enforce vigor- are encouraged to submit to the appro- ously and equitably the provisions of priate Regional Administrator or Di- the Magnuson-Stevens Act by utilizing rector, 60 days or as soon as practicable that form or combination of authorized prior to its start, a scientific research remedies best suited in a particular plan for each scientific activity. The case to this end. Regional Administrator or Director (b) Processing a case under one reme- will acknowledge notification of sci- dial form usually means that other entific research activity by issuing to remedies are inappropriate in that the operator or master of that vessel, case. However, further investigation or or to the sponsoring institution, a Let- later review may indicate the case to ter of Acknowledgment. This Letter of be either more or less serious than ini- Acknowledgment is separate and dis- tially considered, or may otherwise re- tinct from any permit or consultation veal that the penalty first pursued is required by the MMPA, the ESA, or inadequate to serve the purposes of the any other applicable law. The Regional Magnuson-Stevens Act. Under such cir- Administrator or Director will include cumstances, the Agency may pursue text in the Letter of Acknowledgment other remedies either in lieu of or in informing the applicant that such a addition to the action originally taken. permit may be required and should be Forfeiture of the illegal catch does not obtained from the agency prior to em- fall within this general rule and is con- barking on the activity. If the Regional sidered in most cases as only the ini- Administrator or Director, after review tial step in remedying a violation by of a research plan, determines that it removing the ill-gotten gains of the of- does not constitute scientific research fense. but rather fishing, the Regional Ad- (c) If a fishing vessel for which a per- ministrator or Director will inform the mit has been issued under the Magnu- applicant as soon as practicable and in son-Stevens Act is used in the commis- writing. In making this determination, sion of an offense prohibited by section the Regional Administrator, Director, 307 of the Magnuson-Stevens Act, or designee shall consider: the merits NOAA may impose permit sanctions, of the individual proposal and the in- whether or not civil or criminal action stitution(s) involved; whether the pro- has been undertaken against the vessel posed activity meets the definition of or its owner or operator. In some cases, scientific research activity; and wheth- the Magnuson-Stevens Act requires er the vessel meets all the requirements for a scientific research vessel. permit sanctions following the assess- The Regional Administrator or Direc- ment of a civil penalty or the imposi- tor may also make recommendations tion of a criminal fine. In sum, the to revise the research plan to ensure Magnuson-Stevens Act treats sanctions the activity will be considered to be against the fishing vessel permit to be scientific research activity or rec- the carrying out of a purpose separate ommend the applicant request an EFP. from that accomplished by civil and The Regional Administrator or Direc- criminal penalties against the vessel or tor may designate a Science and Re- its owner or operator. search Director, or the Assistant Re- [61 FR 32540, June 24, 1996, as amended at 63 gional Administrator for Sustainable FR 7075, Feb. 12, 1998] Fisheries, to receive scientific research

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plans and issue Letters of Acknowledg- fishing procedures. An EFP exempts a ment. In order to facilitate identifica- vessel only from those regulations tion of the activity as scientific respecified in the EFP. All other applica- search, persons conducting scientific ble regulations remain in effect. The research activities are advised to carry Regional Administrator or Director a copy of the scientific research plan may charge a fee to recover the admin- and the Letter of Acknowledgment on istrative expenses of issuing an EFP. board the scientific research vessel and The amount of the fee will be cal- to make it available for inspection culated, at least annually, in accord- upon the request of any authorized offi- ance with procedures of the NOAA cer. It is recommended that for any sci- Handbook for determining administra- entific research activity, any fish, or tive costs of each special product or parts thereof, retained pursuant to service; the fee may not exceed such such activity be accompanied, during costs. Persons may contact the appro- any ex-vessel activities, by a copy of priate Regional Administrator or Di- the Letter of Acknowledgment. Activ- rector to determine the applicable fee. ity conducted in accordance with a sci- (2) Application. An applicant for an entific research plan acknowledged by EFP shall submit a completed applica- such a Letter of Acknowledgment is tion package to the appropriate Re- presumed to be scientific research ac- gional Administrator or Director, as tivity. An authorized officer may over- soon as practicable and at least 60 days come this presumption by showing that before the desired effective date of the an activity does not fit the definition EFP. Submission of an EFP applica- of scientific research activity or is out- tion less than 60 days before the de- side the scope of the scientific research sired effective date of the EFP may re- plan. sult in a delayed effective date because (b) Exempted fishing—(1) General. A of review requirements. The applica- NMFS Regional Administrator or Di- tion package must include payment of rector may authorize, for limited test- any required fee as specified by para- ing, public display, data collection, ex- graph (b)(1) of this section, and a writ- ploratory fishing, compensation fish- ten application that includes, but is ing, conservation engineering, health not limited to, the following informa- and safety surveys, environmental tion: cleanup, and/or hazard removal pur- (i) The date of the application. poses, the target or incidental harvest (ii) The applicant’s name, mailing ad- of species managed under an FMP or dress, and telephone number. fishery regulations that would other- (iii) A statement of the purposes and wise be prohibited. Exempted fishing goals of the exempted fishery for which may not be conducted unless author- an EFP is needed, including justifica- ized by an EFP issued by a Regional tion for issuance of the EFP. Administrator or Director in accord- (iv) For each vessel to be covered by ance with the criteria and procedures the EFP, as soon as the information is specified in this section. Compensation available and before operations begin fishing must be conducted under an under the EFP: EFP if the activity would otherwise be (A) A copy of the USCG documenta- prohibited by applicable regulations tion, state license, or registration of unless the activity is specifically au- each vessel, or the information con- thorized under an FMP or a scientific tained on the appropriate document. research permit. Conservation engi- (B) The current name, address, and neering that does not meet the defini- telephone number of the owner and tion of scientific research activity, but master, if not included on the docu- does meet the definition of fishing ment provided for the vessel. must be conducted under an EFP if the (v) The species (target and inci- activity would otherwise be prohibited dental) expected to be harvested under by applicable regulations. Data collec- the EFP, the amount(s) of such harvest tion designed to capture and land quan- necessary to conduct the exempted tities of fish for product development, fishing, the arrangements for disposi- market research, and/or public display tion of all regulated species harvested must be permitted under exempted under the EFP, and any anticipated

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impacts on the environment, including ing activity. The Regional Adminis- impacts on fisheries, marine mammals, trator or Director will also forward threatened or endangered species, and copies of the application to the Coun- EFH. cil(s), the U.S. Coast Guard, and the (vi) For each vessel covered by the appropriate fishery management agen- EFP, the approximate time(s) and cies of affected states, accompanied by place(s) fishing will take place, and the the following information: type, size, and amount of gear to be (A) The effect of the proposed EFP on used. the target and incidental species, in- (vii) The signature of the applicant. cluding the effect on any TAC. (viii) The Regional Administrator or (B) A citation of the regulation or Director, as appropriate, may request regulations that, without the EFP, from an applicant additional informa- would prohibit the proposed activity. tion necessary to make the determina- (C) Biological information relevant tions required under this section. An to the proposal, including appropriate incomplete application or an applica- statements of environmental impacts, tion for which the appropriate fee has including impacts on fisheries, marine not been paid will not be considered mammals, threatened or endangered until corrected in writing and the fee species, and EFH. paid. An applicant for an EFP need not (ii) If the application is complete and be the owner or operator of the ves- warrants additional consultation, the sel(s) for which the EFP is requested. Regional Administrator or Director (3) Issuance. (i) The Regional Admin- istrator or Director, as appropriate, may consult with the appropriate will review each application and will Council(s) concerning the permit appli- make a preliminary determination cation during the period in which com- whether the application contains all of ments have been requested. The Coun- the required information and con- cil(s) or the Regional Administrator or stitutes an activity appropriate for fur- Director shall notify the applicant in ther consideration. If the Regional Ad- advance of any public meeting at which ministrator or Director finds that any the application will be considered, and application does not warrant further offer the applicant the opportunity to consideration, both the applicant and appear in support of the application. the affected Council(s) will be notified (iii) As soon as practicable after re- in writing of the reasons for the deci- ceiving a complete application, includ- sion. If the Regional Administrator or ing all required analyses and consulta- Director determines that any applications (e.g., NEPA, EFH, ESA and tion warrants further consideration, MMPA), and having received responses notification of receipt of the applica- from the public, the agencies identified tion will be published in the FEDERAL in paragraph (b)(3)(i) of this section, REGISTER with a brief description of and/or after the consultation, if any, the proposal. Interested persons will be described in paragraph (b)(3)(ii) of this given a 15- to 45-day opportunity to section, the Regional Administrator or comment on the notice of receipt of the Director shall issue the EFP or notify EFP application. In addition, com- the applicant in writing of the decision ments may be requested during public to deny the EFP and the reasons for testimony at a Council meeting. If the the denial. Grounds for denial of an Council intends to take comments on EFP include, but are not limited to, EFP applications at a Council meeting, the following: it must include a statement to this ef- (A) The applicant has failed to dis- fect in the Council meeting notice and close material information required, or meeting agenda. Multiple applications has made false statements as to any for EFPs may be published in the same material fact, in connection with his or FEDERAL REGISTER document and may her application; or be discussed under a single Council (B) According to the best scientific agenda item. The notification may es- information available, the harvest to tablish a cut-off date for receipt of ad- be conducted under the permit would ditional applications to participate in detrimentally affect the well-being of the same, or a similar, exempted fish- the stock of any regulated species of

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fish, marine mammal, threatened or (G) Data reporting requirements nec- endangered species, or EFH; or essary to document the activities, in- (C) Issuance of the EFP would have cluding catches and incidental catches, economic allocation as its sole purpose and to determine compliance with the (other than compensation fishing); or terms and conditions of the EFP and (D) Activities to be conducted under established time frames and formats the EFP would be inconsistent with for submission of the data to NMFS. the intent of this section, the manage- (H) Other conditions as may be nec- ment objectives of the FMP, or other essary to assure compliance with the applicable law; or purposes of the EFP, consistent with (E) The applicant has failed to dem- the objectives of the FMP and other onstrate a valid justification for the applicable law. permit; or (I) Provisions for public release of (F) The activity proposed under the data obtained under the EFP that are EFP could create a significant enforce- consistent with NOAA confidentiality ment problem. of statistics procedures at set out in subpart E. An applicant may be re- (iv) The decision of a Regional Ad- quired to waive the right to confiden- ministrator or Director to grant or tiality of information gathered while deny an EFP is the final action of conducting exempted fishing as a con- NMFS. If the permit, as granted, is sig- dition of an EFP. nificantly different from the original (4) . application, or is denied, NMFS may Acknowledging permit conditions Upon receipt of an EFP, the permit publish notification in the FEDERAL holder must date and sign the permit, REGISTER describing the exempted fish- and retain the permit on board the ves- ing to be conducted under the EFP or sel(s). The permit is not valid until the reasons for denial. signed by the permit holder. In signing (v) The Regional Administrator or the permit, the permit holder: Director should attach, as applicable, (i) Agrees to abide by all terms and terms and conditions to the EFP, con- conditions set forth in the permit, and sistent with the purpose of the exempt- all restrictions and relevant regula- ed fishing and as otherwise necessary tions; and for the conservation and management (ii) Acknowledges that the authority of the fishery resources and the marine to conduct certain activities specified environment, including, but not lim- in the permit is conditional and subject ited to: to authorization and revocation by the (A) The maximum amount of each Regional Administrator or Director. regulated species that can be harvested (5) Duration. Unless otherwise speci- and landed during the term of the EFP, fied in the EFP or a superseding notice including trip limitations, where ap- or regulation, an EFP is valid for no propriate. longer than 1 year. EFPs may be re- (B) The number, size(s), name(s), and newed following the application proce- identification number(s) of the ves- dures in this section. sel(s) authorized to conduct fishing ac- (6) Alteration. Any permit that has tivities under the EFP. been altered, erased, or mutilated is in- (C) A citation of the regulations from valid. which the vessel is exempted. (7) Inspection. Any EFP issued under (D) The time(s) and place(s) where this section must be carried on board exempted fishing may be conducted. the vessel(s) for which it was issued. (E) The type, size, and amount of The EFP must be presented for inspec- gear that may be used by each vessel tion upon request of any authorized of- operated under the EFP. ficer. Any fish, or parts thereof, re- (F) Whether observers, a vessel moni- tained pursuant to an EFP issued toring system, or other electronic under this paragraph must be accom- equipment must be carried on board panied, during any ex-vessel activities, vessels operating under the EFP, and by a copy of the EFP. any necessary conditions, such as (8) Inspection. Any EFP issued under predeployment notification require- this section must be carried on board ments. the vessel(s) for which it was issued.

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The EFP must be presented for inspec- (2) Application. An applicant for an tion upon request of any authorized of- exempted educational activity author- ficer. ization shall submit to the appropriate (9) Sanctions. Failure of a permittee Regional Administrator or Director, at to comply with the terms and condi- least 15 days before the desired effec- tions of an EFP may be grounds for tive date of the authorization, a writ- revocation, suspension, or modification ten application that includes, but is of the EFP with respect to all persons not limited to, the following informa- and vessels conducting activities under tion: the EFP. Any action taken to revoke, (i) The date of the application. suspend, or modify an EFP for enforce- (ii) The applicant’s name, mailing ad- ment purposes will be governed by 15 dress, and telephone number. CFR part 904, subpart D. (iii) A brief statement of the purposes (c) Reports. (1) NMFS requests that and goals of the exempted educational persons conducting scientific research activity for which authorization is re- activities from scientific research ves- quested, including a general descrip- sels submit a copy of any report or tion of the arrangements for disposi- other publication created as a result of tion of all species collected. the activity, including the amount, (iv) Evidence that the sponsoring in- composition, and disposition of their stitution is a valid educational institu- catch, to the appropriate Science and tion, such as accreditation by a recog- Research Director and Regional Ad- nized national or international accreditation body. ministrator or Director. (v) The scope and duration of the ac- (2) Upon completion of the activities tivity. of the EFP, or periodically as required (vi) For each vessel to be covered by by the terms and conditions of the the authorization: EFP, persons fishing under an EFP (A) A copy of the U.S. Coast Guard must submit a report of their catches documentation, state license, or reg- and any other information required, to istration of the vessel, or the informa- the appropriate Regional Adminis- tion contained on the appropriate doc- trator or Director, in the manner and ument. within the time frame specified in the (B) The current name, address, and EFP, but no later than 6 months after telephone number of the owner and concluding the exempted fishing activ- master, if not included on the docu- ity. Persons conducting EFP activities ment provided for the vessel. are also requested to submit a copy of (vii) The species and amounts ex- any publication prepared as a result of pected to be caught during the exempt- the EFP activity. ed educational activity, and any antici- (d) Exempted educational activities—(1) pated impacts on the environment, in- General. A NMFS Regional Adminis- cluding impacts on fisheries, marine trator or Director may authorize, for mammals, threatened or endangered educational purposes, the target or in- species, and EFH. cidental harvest of species managed (viii) For each vessel covered by the under an FMP or fishery regulations authorization, the approximate time(s) that would otherwise be prohibited. and place(s) fishing will take place, and The trade, barter or sale of fish taken the type, size, and amount of gear to be under this authorization is prohibited. used. The decision of a Regional Adminis- (ix) The signature of the applicant. trator or Director to grant or deny an (x) The Regional Administrator or exempted educational activity author- Director may request from an appli- ization is the final action of NMFS. Ex- cant additional information necessary empted educational activities may not to make the determinations required be conducted unless authorized in writ- under this section. An incomplete ap- ing by a Regional Administrator or Di- plication will not be considered until rector in accordance with the criteria corrected in writing. and procedures specified in this sec- (3) Issuance. (i) The Regional Admin- tion. Such authorization will be issued istrator or Director, as appropriate, without charge. will review each application and will

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make a determination whether the ap- educational activity is effective for no plication contains all of the required longer than 1 year, unless revoked, sus- information, is consistent with the pended, or modified. Authorizations goals, objectives, and requirements of may be renewed following the applica- the FMP or regulations and other ap- tion procedures in this section. plicable law, and constitutes a valid ex- (5) Alteration. Any authorization that empted educational activity. The ap- has been altered, erased, or mutilated plicant will be notified in writing of is invalid. the decision within 5 working days of (6) Transfer. Authorizations issued receipt of the application. under this paragraph (d) are not trans- (ii) The Regional Administrator or ferable or assignable. Director should attach, as applicable, (7) Inspection. Any authorization terms and conditions to the authoriza- issued under this paragraph (d) must be tion, consistent with the purpose of the carried on board the vessel(s) for which exempted educational activity and as it was issued, or be in the possession of otherwise necessary for the conserva- at least one of the persons identified in tion and management of the fishery re- the authorization, who must be present sources and the marine environment, while the exempted educational activ- including, but not limited to: ity is being conducted. The authoriza- (A) The maximum amount of each tion must be presented for inspection regulated species that may be har- upon request of any authorized officer. vested. Activities that meet the definition of (B) A citation of the regulations from ‘‘fishing,’’ despite an educational pur- which the vessel is being exempted. pose, are fishing. An authorization may (C) The time(s) and place(s) where allow covered fishing activities; how- the exempted educational activity may ever, fishing activities conducted out- be conducted. side the scope of an authorization for (D) The type, size, and amount of exempted educational activities are il- gear that may be used by each vessel legal. Any fish, or parts thereof, re- operated under the authorization. tained pursuant to an authorization (E) Data reporting requirements nec- issued under this paragraph must be essary to document the activities and accompanied, during any ex-vessel ac- to determine compliance with the tivities, by a copy of the authorization. terms and conditions of the exempted (e) Observers. NMFS-sanctioned ob- educational activity. servers or biological technicians con- (F) Such other conditions as may be ducting activities within NMFS-ap- necessary to assure compliance with proved sea sampling and/or observer the purposes of the authorization, con- protocols are exempt from the require- sistent with the objectives of the FMP ment to obtain an EFP. For purposes or regulations. of this section, NMFS-sanctioned ob- (G) Provisions for public release of servers or biological technicians in- data obtained under the authorization, clude NMFS employees, NMFS observ- consistent with NOAA confidentiality ers, observers who are employees of of statistics procedures in subpart E. NMFS-contracted observer providers, An applicant may be required to waive and observers who are employees of the right to confidentiality of informa- NMFS-permitted observer providers. tion gathered while conducting ex- [61 FR 32540, June 24, 1996, as amended at 63 empted educational activities as a con- FR 7075, Feb. 12, 1998; 74 FR 42794, Aug. 25, dition of the authorization. 2009] (iii) The authorization will specify the scope of the authorized activity § 600.746 Observers. and will include, at a minimum, the (a) Applicability. This section applies duration, vessel(s), persons, species, to any fishing vessel required to carry and gear involved in the activity, as an observer as part of a mandatory ob- well as any additional terms and condi- server program or carrying an observer tions specified under paragraph as part of a voluntary observer pro- (d)(3)(ii) of this section. gram under the Magnuson-Stevens Act, (4) Duration. Unless otherwise speci- MMPA (16 U.S.C. 1361 et seq.), the ATCA fied, authorization for an exempted (16 U.S.C. 971 et seq.), the South Pacific

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Tuna Act of 1988 (16 U.S.C. 973 et seq.), tion, in a manner and according to a or any other U.S. law. timeframe as directed by NMFS. A ves- (b) Observer safety. An observer will sel owner or operator must also allow not be deployed on, or stay aboard, a an observer, a NMFS employee, or a vessel that is inadequate for observer designated observer provider to vis- deployment as described in paragraph ually examine any such item. (c) of this section. (f) Vessel safety check. Prior to the (c) Vessel inadequate for observer de- initial deployment, the vessel owner or ployment. A vessel is inadequate for ob- operator or the owner or operator’s server deployment if it: designee must accompany the observer (1) Does not comply with the applica- in a walk through the vessel’s major ble regulations regarding observer ac- spaces to ensure that no obviously haz- commodations (see 50 CFR parts 229, ardous conditions exist. This action 285, 300, 600, 622, 635, 648, 660, and 679), may be a part of the vessel safety ori- or entation to be provided by the vessel to (2) Has not passed a USCG Commer- the observer as required by 46 CFR cial Fishing Vessel Safety Examina- 28.270. The vessel owner or operator or tion, or for vessels less than 26 ft (8 m) the owner or operator’s designee must in length, has not passed an alternate also accompany the observer in check- safety equipment examination, as de- ing the following major items as re- scribed in paragraph (g) of this section. quired by applicable USCG regulations: (d) Display or show proof. A vessel (1) Personal flotation devices/ immer- that has passed a USCG Commercial sion suits; Fishing Vessel Safety Examination (2) Ring buoys; must display or show proof of a valid (3) Distress signals; USCG Commercial Fishing Vessel Safe- (4) Fire extinguishing equipment; ty Examination decal that certifies (5) Emergency position indicating compliance with regulations found in radio beacon (EPIRB), when required, 33 CFR Chapter 1 and 46 CFR Chapter 1, shall be registered to the vessel at its and which was issued within the last 2 documented homeport; years or at a time interval consistent (6) Survival craft, when required, with current USCG regulations or pol- with sufficient capacity to accommo- icy. date the total number of persons, in- (1) In situations of mitigating cir- cluding the observer(s), that will em- cumstances, which may prevent a ves- bark on the voyage; and sel from displaying a valid safety decal (7) Other fishery-area and vessel spe- (broken window, etc.), NMFS, the ob- cific items required by the USCG. server, or NMFS’ designated observer (g) Alternate safety equipment examina- provider may accept the following as- tion. If a vessel is under 26 ft (8 m) in sociated documentation as proof of the length, and in a remote location, and missing safety decal described in para- NMFS has determined that the USCG graph (d) of this section: cannot provide a USCG Commercial (i) A certificate of compliance issued Fishing Vessel Safety Examination due pursuant to 46 CFR 28.710; to unavailability of inspectors or to (ii) A certificate of inspection pursu- unavailability of transportation to or ant to 46 U.S.C. 3311; or from an inspection station, the vessel (iii) For vessels not required to ob- will be adequate for observer deploy- tain the documents identified in ment if it passes an alternate safety (d)(1)(i) and (d)(1)(ii) of this section, a equipment examination conducted by a dockside examination report form indi- NMFS certified observer, observer pro- cating the decal number and date and vider, or a NMFS observer program em- place of issue. ployee, using a checklist of USCG safe- (e) Visual inspection. Upon request by ty requirements for commercial fishing an observer, a NMFS employee, or a vessels under 26 ft (8 m) in length. Pas- designated observer provider, a vessel sage of the alternative examination owner or operator must provide correct will only be effective for the single trip information concerning any item relat- selected for observer coverage. ing to any safety or accommodation re- (h) Duration. The vessel owner or op- quirement prescribed by law or regula- erator is required to comply with the

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requirements of this section when the § 600.725(v) and to the existing gear defi- vessel owner or operator is notified nitions in § 600.10. orally or in writing by an observer, a (2) If the gear in question falls within NMFS employee, or a designated ob- the bounds of a definition in § 600.10 for server provider, that his or her vessel an allowable gear type within that has been selected to carry an observer. fishery, as listed under § 600.725(v), then The requirements of this section con- the gear is not considered different, is tinue to apply through the time of the considered allowable gear, and does not observer’s boarding, at all times the require notification of the Council or observer is aboard, and at the time the Secretary 90 days before it can be used observer disembarks from the vessel at in that fishery. the end of the observed trip. (3) If, for any reason, the gear is not (i) Effect of inadequate status. A vessel consistent with a gear definition for a that would otherwise be required to listed fishery as described in paragraph carry an observer, but is inadequate for (b)(2) of this section, the gear is consid- the purposes of carrying an observer, ered different and requires Council or as described in paragraph (c) of this Secretarial notification as described in section, and for allowing operation of paragraph (c) of this section 90 days be- normal observer functions, is prohib- fore it can be used in that fishery. ited from fishing without observer cov- (4) If a fishery falls within the bounds erage. of the list of authorized fisheries and [63 FR 27217, May 18, 1998, as amended at 67 gear in § 600.725(v) under the Council’s FR 64312, Oct. 18, 2002; 72 FR 61818, Nov. 1, or Secretary’s authority, then the fish- 2007] ery is not considered different, is considered an allowable fishery and does § 600.747 Guidelines and procedures not require notification of the Council for determining new fisheries and or Director before that fishery can gear. occur. (a) General. Section 305(a) of the Mag- (5) If a fishery is not already listed in nuson-Stevens Act requires the Sec- the list of authorized fisheries and gear retary to prepare a list of all fisheries in § 600.725(v), then the fishery is con- under the authority of each Council, or sidered different and requires notifica- the Director in the case of Atlantic tion as described in paragraph (c) of highly migratory species, and all gear this section 90 days before it can occur. used in such fisheries. This section con- (c) Procedures. If a gear or fishery tains guidelines in paragraph (b) for de- does not appear on the list in termining when fishing gear or a fish- § 600.725(v), or if the gear is different ery is sufficiently different from those from that defined in § 600.10, the proc- listed in § 600.725(v) as to require notifi- ess for notification, and consideration cation of a Council or the Director in by a Council or the Director, is as fol- order to use the gear or participate in lows: the unlisted fishery. This section also (1) Notification. After July 26, 1999, no contains procedures in paragraph (c) person or vessel may employ fishing for notification of a Council or the Di- gear or engage in a fishery not included rector of potentially new fisheries or on the list of approved gear types in gear, and for amending the list of fish- § 600.725(v) without notifying the appro- eries and gear. priate Council or the Director at least (b) Guidelines. The following guidance 90 days before the intended use of that establishes the basis for determining gear. when fishing gear or a fishery is suffi- (2) Notification procedures. (i) A signed ciently different from those listed to return receipt for the notice serves as require notification of the appropriate adequate evidence of the date that the Council or the Director. notification was received by the appro- (1) The initial step in the determina- priate Council or the Director, in the tion of whether a fishing gear or fish- case of Atlantic highly migratory spe- ery is sufficiently different to require cies, and establishes the beginning of notification is to compare the gear or the 90-day notification period, unless fishery in question to the list of au- required information in the notifica- thorized fisheries and gear in tion is incomplete.

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(ii) The notification must include: mental to conservation and manage- (A) Name, address, and telephone ment efforts, it will recommend to the number of the person submitting the RA that the authorized list of fisheries notification. and gear not be amended, that a pro- (B) Description of the gear. posed rule not be published, give rea- (C) The fishery or fisheries in which sons for its recommendation of a dis- the gear is or will be used. approval, and may request NMFS to (D) A diagram and/or photograph of publish emergency or interim regula- the gear, as well as any specifications tions, and begin preparation of an FMP and dimensions necessary to define the or amendment to an FMP, if appro- gear. priate. (E) The season(s) in which the gear (D) After considering information in will be fished. the notification and Council’s rec- (F) The area(s) in which the gear will ommendation, NMFS will decide be fished. whether to publish a proposed rule. If (G) The anticipated bycatch species information on the new gear or fishery associated with the gear, including pro- being considered indicates it is likely tected species, such as marine mam- that it will compromise conservation mals, sea turtles, sea birds, or species and management efforts under the listed as endangered or threatened Magnuson-Stevens Act, and no addi- under the ESA. tional new information is likely to be (H) How the gear will be deployed and gained from a public comment period, fished, including the portions of the then a proposed rule will not be pub- marine environment where the gear lished and NMFS will notify the appro- will be deployed (surface, midwater, priate Council. In such an instance, and bottom). NMFS will publish emergency or in- (iii) Failure to submit complete and terim regulations to prohibit or re- accurate information will result in a strict use of the gear or participation delay in beginning the 90-day notifica- in the fishery. If NMFS determines tion period. The 90-day notification pe- that the proposed amendment is not riod will not begin until the informa- likely to compromise conservation and tion received is determined to be accu- management efforts under the Magnu- rate and complete. son-Stevens Act, NMFS will publish a (3) Action upon receipt of notification— proposed rule in the FEDERAL REGISTER (i) Species other than Atlantic Highly Mi- with a request for public comment. gratory Species. (A) Upon signing a re- (ii) Atlantic Highly Migratory Species. turn receipt of the notification by cer- (A) Upon signing a return receipt of the tified mail regarding an unlisted fish- notification by certified mail regarding ery or gear, a Council must imme- an unlisted fishery or gear for Atlantic diately begin consideration of the noti- highly migratory species (HMS), NMFS fication and send a copy of the notifi- will immediately begin consideration cation to the appropriate Regional Ad- of the notification. ministrator. (B) Based on information in the noti- (B) If the Council finds that the use fication and submitted by the Council, of an unlisted gear or participation in NMFS will make a determination a new fishery would not compromise whether the use of an unlisted gear or the effectiveness of conservation and participation in an unlisted HMS fish- management efforts, it shall: ery will compromise the effectiveness (1) Recommend to the RA that the of conservation and management ef- list be amended; forts under the Magnuson-Stevens Act. (2) Provide rationale and supporting If it is determined that the proposed analysis, as necessary, for proper con- amendment will not compromise consideration of the proposed amendment; servation and management efforts, and NMFS will publish a proposed rule. (3) Provide a draft proposed rule for (C) If NMFS finds that the proposed notifying the public of the proposed ad- gear or fishery will be detrimental to dition, with a request for comment. conservation and management efforts (C) If the Council finds that the pro- in this initial stage of review, it will posed gear or fishery will be detri- not publish a proposed rule and notify

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the applicant of the negative deter- § 600.751 Determination of need for a mination with the reasons therefor. fishery negotiation panel. (4) Final determination and publication A Council or NMFS may establish an of a final rule. Following public com- FNP to assist in the development of ment, NMFS will approve or disapprove specific fishery conservation and man- the amendment to the list of gear and agement measures. In determining fisheries. whether to establish an FNP, NMFS or (i) If approved, NMFS will publish a the Council, as appropriate, shall con- final rule in the FEDERAL REGISTER and sider whether: notify the applicant and the Council, if (a) There is a need for specific fishery appropriate, of the final approval. conservation and management meas- (ii) If disapproved, NMFS will with- ures. draw the proposed rule, notify the ap- (b) There are a limited number of plicant and the Council, if appropriate, identifiable interests that will be sig- of the disapproval; publish emergency or interim regulations, if necessary, to nificantly affected by the conservation prohibit or restrict the use of gear or and management measure. the participation in a fishery; and ei- (c) There is a reasonable likelihood ther notify the Council of the need to that an FNP can be convened with a amend an FMP or prepare an amend- balanced representation of persons ment to an FMP in the case of Atlantic who: highly migratory species. (1) Can adequately represent the interests identified under paragraph (b) [64 FR 4043, Jan. 27, 1999] of this section. (2) Are willing to negotiate in good Subpart I—Fishery Negotiation faith to reach a consensus on a report Panels regarding the issues presented. (d) There is a reasonable likelihood SOURCE: 62 FR 23669, May 1, 1997, unless that an FNP will reach otherwise noted. a consensus on a report regarding the issues presented within 1 year from § 600.750 Definitions. date of establishment of the FNP. Consensus means unanimous concur- (e) The use of an FNP will not unrea- rence among the members on a Fishery sonably delay Council or NMFS fishery Negotiation Panel established under management plan development or rule- this rule, unless such Panel: making procedures. (1) Agrees to define such term to (f) The costs of establishment and op- mean a general but not unanimous con- eration of an FNP are reasonable when currence; or compared to fishery management plan (2) agrees upon another specified defi- development or rulemaking procedures nition. that do not use FNP procedures. Fishery negotiation panel (FNP) means (g) The Council or NMFS has ade- an advisory committee established by quate resources and is willing to com- one or more Councils or the Secretary mit such resources, including technical in accordance with these regulations to assistance, to an FNP. assist in the development of fishery (h) The use of an FNP is in the public conservation and management meas- interest. ures. Interest means, with respect to an § 600.752 Use of conveners and issue or matter, multiple parties that facilitators. have a similar point of view or that are (a) Purposes of conveners. A Council or likely to be affected in a similar man- NMFS may use the services of a ner. trained convener to assist the Council Report means a document submitted or NMFS in: (1) Conducting discussions by an FNP in accordance with the Mag- to identify the issues of concern, and to nuson-Stevens Act. ascertain whether the establishment of [62 FR 23669, May 1, 1997, as amended at 63 an FNP regarding such matter is fea- FR 7075, Feb. 12, 1998] sible and appropriate.

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(2) Identifying persons who will be cil or NMFS decides to establish an significantly affected by the issues pre- FNP, NMFS shall publish in the FED- sented in paragraph (a)(1) of this sec- ERAL REGISTER and, as appropriate, in tion. trade or other specialized publications, (b) Duties of conveners. The convener a document that shall include: shall report findings under paragraph (1) An announcement that the Coun- (a)(2) of this section and shall make cil or NMFS intends to establish an recommendations to the Council or FNP to negotiate and develop a report NMFS. Upon request of the Council or concerning specific conservation and NMFS, the convener shall ascertain management measures. the names of persons who are willing (2) A description of the subject and and qualified to represent interests scope of the conservation and manage- that will be significantly affected by ment measure, and the issues to be the potential conservation and man- considered. agement measures relevant to the (3) A list of the interests that are issues to be negotiated. The report and likely to be significantly affected by any recommendations of the convener the conservation and management shall be made available to the public upon request. measure. (c) Selection of facilitator. Notwith- (4) A list of the persons proposed to standing section 10(e) of the Federal represent such interests and the person Advisory Committee Act (FACA), a or persons proposed to represent the Council or NMFS may nominate a per- Council or NMFS. son trained in facilitation either from (5) A proposed agenda and schedule the Federal Government or from out- for completing the work of the FNP. side the Federal Government to serve (6) A description of administrative as an impartial, neutral facilitator for support for the FNP to be provided by the negotiations of the FNP, subject to the Council or NMFS, including tech- the approval of the FNP, by consensus. nical assistance. The facilitator may be the same person (7) A solicitation for comments on as the convener used under paragraph the proposal to establish the FNP, and (a) of this section. If the FNP does not the proposed membership of the FNP. approve the nominee of the Council or (8) An explanation of how a person NMFS for facilitator, the FNP shall may apply or nominate another person submit a substitute nomination. If an for membership on the FNP, as pro- FNP does not approve any nominee of vided under paragraph (b) of this sec- the Council or NMFS for facilitator, tion. the FNP shall select, by consensus, a (b) Nomination of members and public person to serve as facilitator. A person comment. Persons who may be signifi- designated to represent the Council or cantly affected by the development of NMFS in substantive issues may not conservation and management measure serve as facilitator or otherwise chair and who believe that their interests the FNP. will not be adequately represented by (d) Roles and duties of facilitator. A any person specified in a document facilitator shall: under paragraph (a)(4) of this section (1) Chair the meetings of the FNP in an impartial manner. may apply for, or nominate another (2) Impartially assist the members of person for, membership on the FNP to the FNP in conducting discussions and represent such interests. Each applica- negotiations. tion or nomination shall include: (3) Manage the keeping of minutes (1) The name of the applicant or and records as required under section nominee and a description of the inter- 10(b) and (c) of FACA. ests such person shall represent. (2) Evidence that the applicant or § 600.753 Notice of intent to establish a nominee is authorized to represent par- fishery negotiation panel. ties related to the interests the person (a) Publication of notice. If, after con- proposes to represent. sidering the report of a convener or (3) A written commitment that the conducting its own assessment, a Coun- applicant or nominee shall actively

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participate in good faith in the devel- 304(g), regarding highly migratory spe- opment of the conservation and man- cies; or agement measure under consideration. (iii) Any fishery with the approval of (4) The reasons that the persons spec- the appropriate Council. ified in the document under paragraph (b) Federal Advisory Committee Act (a)(4) of this section do not adequately (FACA) In establishing and admin- represent the interests of the person istering such an FNP, the Council or submitting the application or nomina- NMFS shall comply with the FACA tion. with respect to such FNP. (c) Public comment. The Council or (c) Balance. Each potentially affected NMFS shall provide at least 30 cal- organization or individual does not endar days for the submission of com- necessarily have to have its own rep- ments and applications under this sec- resentative, but each interest must be tion. adequately represented. The intent is to have a group that as a whole reflects § 600.754 Decision to establish a fish- a proper balance and mix of interests. ery negotiation panel. Representatives must agree, in writing, to negotiate in good faith. (a) Determination to establish an FNP. (d) Membership. The Council or NMFS If, after considering comments and ap- shall limit membership on an FNP to plications submitted under § 600.753, the no more than 25 members, unless the Council or NMFS determines that an Council or NMFS determines that a FNP can adequately represent the in- greater number of members is nec- terests that will be significantly af- essary for the functioning of the FNP fected and that it is feasible and appro- or to achieve balanced membership. priate in the particular case, the Coun- Each FNP shall include at least one cil or NMFS may establish an FNP. person representing the Council in ad- (b) Determination not to establish FNP. dition to at least one person rep- If, after considering such comments resenting NMFS. and applications, the Council or NMFS decides not to establish an FNP, the § 600.756 Conduct and operation of a Council or NMFS shall promptly pub- fishery negotiation panel. lish notification of such decision and (a) Roles and duties of an FNP. Each the reasons therefor in the FEDERAL FNP shall consider the issue proposed REGISTER and, as appropriate, in trade by the Council or NMFS for consider- or other specialized publications, a ation and shall attempt to reach a con- copy of which shall be sent to any per- sensus concerning a report to assist in son who applied for, or nominated an- the development of a conservation and other person for membership on the management measure with respect to FNP to represent such interests with such matter and any other matter the respect to the issues of concern. FNP determines is relevant to the development of a conservation and man- § 600.755 Establishment of a fishery negotiation panel. agement measure. An FNP may adopt procedures for the operation of the (a) General authority. (1) A Council FNP. may establish an FNP to assist in the (b) Roles and duties of representative of development of specific conservation the council or NMFS. The person or per- and management measures for a fish- sons representing the Council or NMFS ery under its authority. on an FNP shall participate in the de- (2) NMFS may establish an FNP to liberations and activities of the FNP assist in the development of specific with the same rights and responsibil- conservation and management meas- ities as other members of the FNP, and ures required for: shall be authorized to fully represent (i) A fishery for which the Secretary the Council or NMFS in the discussions has authority under section 304(e)(5) of and negotiations of the FNP. the Magnuson-Stevens Act, regarding rebuilding of overfished fisheries; § 600.757 Operational protocols. (ii) A fishery for which the Secretary (a) Services of conveners and has authority under 16 U.S.C. section facilitators. A Council or NMFS may

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employ or enter into contracts for the § 600.760 Fishery Negotiation Panel services of an individual or organiza- lifetime. tion to serve as a convener or (a) An FNP shall terminate upon ei- facilitator for an FNP established ther: under § 600.755, or may use the services (1) Submission of a report prepared in of a government employee to act as a accordance with § 600.758; or convener or a facilitator for such an (2) Submission of a written state- FNP. ment from the FNP to the Council or (b) Councils. For an FNP proposed NMFS that no consensus can be and established by one or more Coun- reached. cils approved expenses shall be paid out (b) In no event shall an FNP exist for of the Council’s operating budget. longer than 1 year from the date of es- (c) Expenses of FNP members. Members tablishment unless granted an exten- of an FNP shall be responsible for their sion. Upon written request by the FNP own expenses of participation in such to the Council or NMFS, and written an FNP, except that NMFS or the authorization from the Council or Council may, in accordance with sec- NMFS (whichever is appropriate), the tion 7(d) of FACA, pay for a member’s Secretary may authorize an extension reasonable travel and per diem ex- for a period not to exceed 6 months. No penses, and a reasonable rate of com- more than one extension may be grant- pensation, if: ed per FNP. (1) Such member certifies a lack of adequate financial resources to partici- Subpart J—Essential Fish Habitat pate in the FNP. (EFH) (2) The Council or NMFS determines that such member’s participation in SOURCE: 67 FR 2376, Jan. 17, 2002, unless the FNP is necessary to assure an ade- otherwise noted. quate representation of the member’s interest. § 600.805 Purpose and scope. (d) Administrative support. The Coun- (a) Purpose. This subpart provides cil or NMFS shall provide appropriate guidelines for Councils and the Sec- administrative support to an FNP in- retary to use in adding the required cluding technical assistance. EFH provisions to an FMP, i.e., description and identification of EFH, ad- § 600.758 Preparation of report. verse effects on EFH (including mini- (a) At the conclusion of the negotia- mizing, to the extent practicable, ad- tions, an FNP may submit a report. verse effects from fishing), and actions Such report shall specify: to conserve and enhance EFH. (1) All the areas where consensus was (b) Scope—(1) Species covered. An EFH reached by the FNP, including, if ap- provision in an FMP must include all propriate, proposed conservation and fish species in the fishery management management measures. unit (FMU). An FMP may describe, identify, and protect the habitat of spe- (2) Any other information submitted cies not in an FMU; however, such by members of the FNP. habitat may not be considered EFH for (b) Upon receipt of the report, the the purposes of sections 303(a)(7) and Council or NMFS shall publish such re- 305(b) of the Magnuson-Stevens Act. port in the FEDERAL REGISTER for pub- (2) Geographic. EFH may be described lic comment. and identified in waters of the United States, as defined in 33 CFR 328.3, and § 600.759 Use of report. in the exclusive economic zone, as de- A Council or NMFS may, at its dis- fined in § 600.10. Councils may describe, cretion, use all or a part of a report identify, and protect habitats of man- prepared in accordance with § 600.758 in aged species beyond the exclusive eco- the development of conservation and nomic zone; however, such habitat may management measures. Neither a not be considered EFH for the purposes Council nor NMFS, whichever is appro- of sections 303(a)(7) and 305(b) of the priate, is required to use such report. Magnuson-Stevens Act. Activities that

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may adversely affect such habitat can (b) Word usage. The terms ‘‘must’’, be addressed through any process con- ‘‘shall’’, ‘‘should’’, ‘‘may’’, ‘‘may not’’, ducted in accordance with inter- ‘‘will’’, ‘‘could’’, and ‘‘can’’ are used in national agreements between the the same manner as in § 600.305(c). United States and the foreign nation(s) undertaking or authorizing the action. § 600.815 Contents of Fishery Manage- ment Plans. § 600.810 Definitions and word usage. (a) Mandatory contents—(1) Description (a) Definitions. In addition to the defi- and identification of EFH—(i) Overview. nitions in the Magnuson-Stevens Act FMPs must describe and identify EFH and § 600.10, the terms in this subpart in text that clearly states the habitats have the following meanings: or habitat types determined to be EFH Adverse effect means any impact that for each life stage of the managed spe- reduces quality and/or quantity of cies. FMPs should explain the physical, EFH. Adverse effects may include di- biological, and chemical characteris- rect or indirect physical, chemical, or tics of EFH and, if known, how these biological alterations of the waters or characteristics influence the use of substrate and loss of, or injury to, EFH by the species/life stage. FMPs benthic organisms, prey species and must identify the specific geographic their habitat, and other ecosystem location or extent of habitats described components, if such modifications re- as EFH. FMPs must include maps of duce the quality and/or quantity of the geographic locations of EFH or the EFH. Adverse effects to EFH may re- geographic boundaries within which sult from actions occurring within EFH for each species and life stage is EFH or outside of EFH and may in- found. clude site-specific or habitat-wide im- (ii) Habitat information by life stage. pacts, including individual, cumu- (A) Councils need basic information to lative, or synergistic consequences of understand the usage of various habi- actions. tats by each managed species. Perti- Council includes the Secretary, as ap- nent information includes the geo- plicable, when preparing FMPs or graphic range and habitat require- amendments under sections 304(c) and ments by life stage, the distribution (g) of the Magnuson-Stevens Act. and characteristics of those habitats, Ecosystem means communities of or- and current and historic stock size as ganisms interacting with one another it affects occurrence in available habi- and with the chemical and physical factors making up their environment. tats. FMPs should summarize the life history information necessary to un- Habitat areas of particular concern derstand each species’ relationship to, means those areas of EFH identified pursuant to § 600.815(a)(8). or dependence on, its various habitats, using text, tables, and figures, as ap- Healthy ecosystem means an ecosystem where ecological productive ca- propriate. FMPs should document pat- pacity is maintained, diversity of the terns of temporal and spatial variation flora and fauna is preserved, and the in the distribution of each major life ecosystem retains the ability to regu- stage (defined by developmental and late itself. Such an ecosystem should functional shifts) to aid in under- be similar to comparable, undisturbed standing habitat needs. FMPs should ecosystems with regard to standing summarize (e.g., in tables) all available crop, productivity, nutrient dynamics, information on environmental and trophic structure, species richness, sta- habitat variables that control or limit bility, resilience, contamination levels, distribution, abundance, reproduction, and the frequency of diseased orga- growth, survival, and productivity of nisms. the managed species. The information Overfished means any stock or stock should be supported with citations. complex, the status of which is re- (B) Councils should obtain informa- ported as overfished by the Secretary tion to describe and identify EFH from pursuant to section 304(e)(1) of the the best available sources, including Magnuson-Stevens Act. peer-reviewed literature, unpublished

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scientific reports, data files of govern- habitat availability and utilization ment resource agencies, fisheries land- should be considered. ing reports, and other sources of infor- (3) Level 3: Growth, reproduction, or mation. Councils should consider dif- survival rates within habitats are avail- ferent types of information according able. At this level, data are available to its scientific rigor. FMPs should on habitat-related growth, reproduc- identify species-specific habitat data tion, and/or survival by life stage. The gaps and deficits in data quality (in- habitats contributing the most to pro- cluding considerations of scale and res- ductivity should be those that support olution; relevance; and potential biases the highest growth, reproduction, and in collection and interpretation). FMPs survival of the species (or life stage). must demonstrate that the best sci- (4) Level 4: Production rates by habitat entific information available was used are available. At this level, data are in the description and identification of available that directly relate the pro- EFH, consistent with national stand- duction rates of a species or life stage ard 2. to habitat type, quantity, quality, and (iii) Analysis of habitat information. location. Essential habitats are those (A) The following approach should be necessary to maintain fish production used to organize the information nec- consistent with a sustainable fishery essary to describe and identify EFH. and the managed species’ contribution (1) Level 1: Distribution data are avail- to a healthy ecosystem. able for some or all portions of the geo- (B) Councils should strive to describe graphic range of the species. At this habitat based on the highest level of level, only distribution data are avail- detail (i.e., Level 4). If there is no infor- able to describe the geographic range mation on a given species or life stage, of a species (or life stage). Distribution and habitat usage cannot be inferred data may be derived from systematic from other means, such as information presence/absence sampling and/or may on a similar species or another life include information on species and life stage, EFH should not be designated. stages collected opportunistically. In (iv) EFH determination. (A) Councils the event that distribution data are should analyze available ecological, en- available only for portions of the geo- vironmental, and fisheries information graphic area occupied by a particular and data relevant to the managed spe- life stage of a species, habitat use can cies, the habitat requirements by life be inferred on the basis of distributions stage, and the species’ distribution and among habitats where the species has habitat usage to describe and identify been found and on information about EFH. The information described in its habitat requirements and behavior. paragraphs (a)(1)(ii) and (iii) of this Habitat use may also be inferred, if ap- section will allow Councils to assess propriate, based on information on a the relative value of habitats. Councils similar species or another life stage. should interpret this information in a (2) Level 2: Habitat-related densities of risk-averse fashion to ensure adequate the species are available. At this level, areas are identified as EFH for man- quantitative data (i.e., density or rel- aged species. Level 1 information, if ative abundance) are available for the available, should be used to identify habitats occupied by a species or life the geographic range of the species at stage. Because the efficiency of sam- each life stage. If only Level 1 informa- pling methods is often affected by habi- tion is available, distribution data tat characteristics, strict quality as- should be evaluated (e.g., using a fre- surance criteria should be used to en- quency of occurrence or other appro- sure that density estimates are com- priate analysis) to identify EFH as parable among methods and habitats. those habitat areas most commonly Density data should reflect habitat uti- used by the species. Level 2 through 4 lization, and the degree that a habitat information, if available, should be is utilized is assumed to be indicative used to identify EFH as the habitats of habitat value. When assessing habi- supporting the highest relative abun- tat value on the basis of fish densities dance; growth, reproduction, or sur- in this manner, temporal changes in vival rates; and/or production rates

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within the geographic range of a spe- tainable fishery and the managed species. FMPs should explain the analyses cies’ contribution to a healthy eco- conducted to distinguish EFH from all system. habitats potentially used by a species. (F) If degraded or inaccessible aquat- (B) FMPs must describe EFH in text, ic habitat has contributed to reduced including reference to the geographic yields of a species or assemblage and if, location or extent of EFH using bound- in the judgment of the Secretary and aries such as longitude and latitude, the appropriate Council(s), the de- isotherms, isobaths, political bound- graded conditions can be reversed aries, and major landmarks. If there through such actions as improved fish are differences between the descrip- passage techniques (for stream or river tions of EFH in text, maps, and tables, blockages), improved water quality the textual description is ultimately determinative of the limits of EFH. measures (removal of contaminants or Text and tables should explain perti- increasing flows), and similar measures nent physical, chemical, and biological that are technologically and economi- characteristics of EFH for the managed cally feasible, EFH should include species and explain any variability in those habitats that would be necessary habitat usage patterns, but the bound- to the species to obtain increased aries of EFH should be static. yields. (C) If a species is overfished and habi- (v) EFH mapping requirements. (A) tat loss or degradation may be contrib- FMPs must include maps that display, uting to the species being identified as within the constraints of available in- overfished, all habitats currently used formation, the geographic locations of by the species may be considered essen- EFH or the geographic boundaries tial in addition to certain historic within which EFH for each species and habitats that are necessary to support life stage is found. Maps should iden- rebuilding the fishery and for which tify the different types of habitat des- restoration is technologically and eco- ignated as EFH to the extent possible. nomically feasible. Once the fishery is Maps should explicitly distinguish EFH no longer considered overfished, the from non-EFH areas. Councils should EFH identification should be reviewed confer with NMFS regarding mapping and amended, if appropriate. standards to ensure that maps from (D) Areas described as EFH will nor- different Councils can be combined and mally be greater than or equal to shared efficiently and effectively. Ulti- aquatic areas that have been identified as ‘‘critical habitat’’ for any managed mately, data used for mapping should species listed as threatened or endan- be incorporated into a geographic in- gered under the Endangered Species formation system (GIS) to facilitate Act. analysis and presentation. (E) Ecological relationships among (B) Where the present distribution or species and between the species and stock size of a species or life stage is their habitat require, where possible, different from the historical distribu- that an ecosystem approach be used in tion or stock size, then maps of histor- determining the EFH of a managed spe- ical habitat boundaries should be in- cies. EFH must be designated for each cluded in the FMP, if known. managed species, but, where appro- (C) FMPs should include maps of any priate, may be designated for assem- habitat areas of particular concern blages of species or life stages that identified under paragraph (a)(8) of this have similar habitat needs and require- section. ments. If grouping species or using spe- (2) Fishing activities that may adversely cies assemblages for the purpose of des- affect EFH—(i) Evaluation. Each FMP ignating EFH, FMPs must include a must contain an evaluation of the po- justification and scientific rationale. tential adverse effects of fishing on The extent of the EFH should be based EFH designated under the FMP, in- on the judgment of the Secretary and the appropriate Council(s) regarding cluding effects of each fishing activity the quantity and quality of habitat that are necessary to maintain a sus-

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regulated under the FMP or other Fed- the practicability of potential new ac- eral FMPs. This evaluation should con- tions, and adopt any new measures sider the effects of each fishing activ- that are necessary and practicable. ity on each type of habitat found with- Amendments to the FMP or to its im- in EFH. FMPs must describe each fish- plementing regulations must ensure ing activity, review and discuss all that the FMP continues to minimize to available relevant information (such as the extent practicable adverse effects information regarding the intensity, on EFH caused by fishing. FMPs must extent, and frequency of any adverse explain the reasons for the Council’s effect on EFH; the type of habitat conclusions regarding the past and/or within EFH that may be affected ad- new actions that minimize to the ex- versely; and the habitat functions that tent practicable the adverse effects of may be disturbed), and provide conclu- fishing on EFH. sions regarding whether and how each (iii) Practicability. In determining fishing activity adversely affects EFH. whether it is practicable to minimize The evaluation should also consider an adverse effect from fishing, Councils the cumulative effects of multiple fish- should consider the nature and extent ing activities on EFH. The evaluation of the adverse effect on EFH and the should list any past management ac- long and short-term costs and benefits tions that minimize potential adverse of potential management measures to effects on EFH and describe the bene- EFH, associated fisheries, and the na- fits of those actions to EFH. The eval- tion, consistent with national standard uation should give special attention to 7. In determining whether management adverse effects on habitat areas of par- measures are practicable, Councils are ticular concern and should identify for not required to perform a formal cost/ possible designation as habitat areas of benefit analysis. particular concern any EFH that is (iv) Options for managing adverse ef- particularly vulnerable to fishing ac- fects from fishing. Fishery manage- tivities. Additionally, the evaluation ment options may include, but are not should consider the establishment of limited to: research closure areas or other measures to evaluate the impacts of fishing (A) Fishing equipment restrictions. activities on EFH. In completing this These options may include, but are not evaluation, Councils should use the limited to: seasonal and areal restric- best scientific information available, tions on the use of specified equipment, as well as other appropriate informa- equipment modifications to allow tion sources. Councils should consider escapement of particular species or different types of information accord- particular life stages (e.g., juveniles), ing to its scientific rigor. prohibitions on the use of explosives (ii) Minimizing adverse effects. Each and chemicals, prohibitions on anchor- FMP must minimize to the extent ing or setting equipment in sensitive practicable adverse effects from fishing areas, and prohibitions on fishing ac- on EFH, including EFH designated tivities that cause significant damage under other Federal FMPs. Councils to EFH. must act to prevent, mitigate, or mini- (B) Time/area closures. These actions mize any adverse effects from fishing, may include, but are not limited to: to the extent practicable, if there is closing areas to all fishing or specific evidence that a fishing activity ad- equipment types during spawning, mi- versely affects EFH in a manner that is gration, foraging, and nursery activi- more than minimal and not temporary ties and designating zones for use as in nature, based on the evaluation con- marine protected areas to limit ad- ducted pursuant to paragraph (a)(2)(i) verse effects of fishing practices on cer- of this section and/or the cumulative tain vulnerable or rare areas/species/ impacts analysis conducted pursuant life stages, such as those areas des- to paragraph (a)(5) of this section. In ignated as habitat areas of particular such cases, FMPs should identify a concern. range of potential new actions that (C) Harvest limits. These actions may could be taken to address adverse ef- include, but are not limited to, limits fects on EFH, include an analysis of on the take of species that provide

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structural habitat for other species as- fied pursuant to paragraphs (a)(3) semblages or communities and limits through (5) of this section, especially on the take of prey species. in habitat areas of particular concern. (3) Non-Magnuson-Stevens Act fishing (7) Prey species. Loss of prey may be activities that may adversely affect EFH. an adverse effect on EFH and managed FMPs must identify any fishing activi- species because the presence of prey ties that are not managed under the makes waters and substrate function Magnuson-Stevens Act that may ad- as feeding habitat, and the definition of versely affect EFH. Such activities EFH includes waters and substrate nec- may include fishing managed by state essary to fish for feeding. Therefore, agencies or other authorities. actions that reduce the availability of (4) Non-fishing related activities that a major prey species, either through di- may adversely affect EFH. FMPs must rect harm or capture, or through ad- identify activities other than fishing verse impacts to the prey species’ habi- that may adversely affect EFH. Broad tat that are known to cause a reduc- categories of such activities include, tion in the population of the prey spe- but are not limited to: dredging, fill- cies, may be considered adverse effects ing, excavation, mining, impoundment, on EFH if such actions reduce the qual- discharge, water diversions, thermal ity of EFH. FMPs should list the major additions, actions that contribute to prey species for the species in the fish- non-point source pollution and sedi- ery management unit and discuss the mentation, introduction of potentially location of prey species’ habitat. Ad- hazardous materials, introduction of verse effects on prey species and their exotic species, and the conversion of habitats may result from fishing and aquatic habitat that may eliminate, di- non-fishing activities. minish, or disrupt the functions of (8) Identification of habitat areas of EFH. For each activity, the FMP particular concern. FMPs should iden- should describe known and potential tify specific types or areas of habitat adverse effects to EFH. within EFH as habitat areas of par- (5) Cumulative impacts analysis. Cumu- ticular concern based on one or more of lative impacts are impacts on the envi- the following considerations: ronment that result from the incre- mental impact of an action when added (i) The importance of the ecological to other past, present, and reasonably function provided by the habitat. foreseeable future actions, regardless (ii) The extent to which the habitat of who undertakes such actions. Cumu- is sensitive to human-induced environ- lative impacts can result from individ- mental degradation. ually minor, but collectively signifi- (iii) Whether, and to what extent, de- cant actions taking place over a period velopment activities are, or will be, of time. To the extent feasible and stressing the habitat type. practicable, FMPs should analyze how (iv) The rarity of the habitat type. the cumulative impacts of fishing and (9) Research and information needs. non-fishing activities influence the Each FMP should contain rec- function of EFH on an ecosystem or ommendations, preferably in priority watershed scale. An assessment of the order, for research efforts that the cumulative and synergistic effects of Councils and NMFS view as necessary multiple threats, including the effects to improve upon the description and of natural stresses (such as storm dam- identification of EFH, the identifica- age or climate-based environmental tion of threats to EFH from fishing and shifts) and an assessment of the eco- other activities, and the development logical risks resulting from the impact of conservation and enhancement of those threats on EFH, also should be measures for EFH. included. (10) Review and revision of EFH compo- (6) Conservation and enhancement. nents of FMPs. Councils and NMFS FMPs must identify actions to encour- should periodically review the EFH age the conservation and enhancement provisions of FMPs and revise or of EFH, including recommended op- amend EFH provisions as warranted tions to avoid, minimize, or com- based on available information. FMPs pensate for the adverse effects identi- should outline the procedures the

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Council will follow to review and up- Subpart K—EFH Coordination, date EFH information. The review of Consultation, and Rec- information should include, but not be ommendations limited to, evaluating published scientific literature and unpublished scientific reports; soliciting information SOURCE: 67 FR 2376, Jan. 17, 2002, unless from interested parties; and searching otherwise noted. for previously unavailable or inaccessible data. Councils should report on § 600.905 Purpose, scope, and NMFS/ Council cooperation. their review of EFH information as part of the annual Stock Assessment (a) Purpose. These procedures address and Fishery Evaluation (SAFE) report the coordination, consultation, and prepared pursuant to § 600.315(e). A recommendation requirements of sec- complete review of all EFH informa- tions 305(b)(1)(D) and 305(b)(2–4) of the tion should be conducted as rec- Magnuson-Stevens Act. The purpose of ommended by the Secretary, but at these procedures is to promote the pro- least once every 5 years. tection of EFH in the review of Federal (b) Development of EFH recommenda- and state actions that may adversely tions for Councils. After reviewing the affect EFH. best available scientific information, (b) Scope. Section 305(b)(1)(D) of the as well as other appropriate informa- Magnuson-Stevens Act requires the tion, and in consultation with the Secretary to coordinate with, and pro- Councils, participants in the fishery, vide information to, other Federal interstate commissions, Federal agen- agencies regarding the conservation cies, state agencies, and other inter- and enhancement of EFH. Section ested parties, NMFS will develop writ- 305(b)(2) requires all Federal agencies ten recommendations to assist each to consult with the Secretary on all ac- Council in the identification of EFH, tions or proposed actions authorized, adverse impacts to EFH, and actions funded, or undertaken by the agency that should be considered to ensure the that may adversely affect EFH. Sec- conservation and enhancement of EFH tions 305(b)(3) and (4) direct the Sec- for each FMP. NMFS will provide such retary and the Councils to provide recommendations for the initial incor- comments and EFH Conservation Rec- poration of EFH information into an ommendations to Federal or state FMP and for any subsequent modifica- agencies on actions that affect EFH. tion of the EFH components of an Such recommendations may include FMP. The NMFS EFH recommenda- measures to avoid, minimize, mitigate, tions may be provided either before the or otherwise offset adverse effects on Council’s development of a draft EFH EFH resulting from actions or proposed document or later as a review of a draft actions authorized, funded, or under- EFH document developed by a Council, taken by that agency. Section as appropriate. 305(b)(4)(B) requires Federal agencies (c) Relationship to other fishery man- to respond in writing to such com- agement authorities. Councils are en- ments. The following procedures for co- couraged to coordinate with state and ordination, consultation, and rec- interstate fishery management agen- ommendations allow all parties in- cies where Federal fisheries affect volved to understand and implement state and interstate managed fisheries the requirements of the Magnuson-Ste- or where state or interstate fishery vens Act. regulations affect the management of (c) Cooperation between Councils and Federal fisheries. Where a state or NMFS. The Councils and NMFS should interstate fishing activity adversely af- cooperate closely to identify actions fects EFH, NMFS will consider that ac- that may adversely affect EFH, to de- tion to be an adverse effect on EFH velop comments and EFH Conservation pursuant to paragraph (a)(3) of this sec- Recommendations to Federal and state tion and will provide EFH Conserva- agencies, and to provide EFH information Recommendations to the appro- tion to Federal and state agencies. priate state or interstate fishery man- NMFS will work with each Council to agement agency on that activity. share information and to coordinate

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Council and NMFS comments and rec- Federal operations to promote the con- ommendations on actions that may ad- servation and enhancement of EFH. versely affect EFH. However, NMFS Federal and state agencies empowered and the Councils also have the author- to authorize, fund, or undertake ac- ity to act independently. tions that may adversely affect EFH are encouraged to contact NMFS and § 600.910 Definitions and word usage. the Councils to become familiar with (a) Definitions. In addition to the defi- areas designated as EFH, potential nitions in the Magnuson-Stevens Act threats to EFH, and opportunities to and § 600.10, the terms in this subpart promote the conservation and enhance- have the following meanings: ment of EFH. Adverse effect means any impact that reduces quality and/or quantity of § 600.920 Federal agency consultation EFH. Adverse effects may include di- with the Secretary. rect or indirect physical, chemical, or (a) Consultation generally—(1) Actions biological alterations of the waters or requiring consultation. Pursuant to sec- substrate and loss of, or injury to, tion 305(b)(2) of the Magnuson-Stevens benthic organisms, prey species and their habitat, and other ecosystem Act, Federal agencies must consult components, if such modifications re- with NMFS regarding any of their ac- duce the quality and/or quantity of tions authorized, funded, or under- EFH. Adverse effects to EFH may re- taken, or proposed to be authorized, sult from actions occurring within funded, or undertaken that may ad- EFH or outside of EFH and may in- versely affect EFH. EFH consultation clude site-specific or habitat-wide im- is not required for actions that were pacts, including individual, cumu- completed prior to the approval of EFH lative, or synergistic consequences of designations by the Secretary, e.g., actions. issued permits. Consultation is re- Anadromous fishery resource under quired for renewals, reviews, or sub- Council authority means an anadromous stantial revisions of actions if the re- species managed under an FMP. newal, review, or revision may ad- Federal action means any action au- versely affect EFH. Consultation on thorized, funded, or undertaken, or pro- Federal programs delegated to non- posed to be authorized, funded, or un- Federal entities is required at the time dertaken by a Federal agency. of delegation, review, and renewal of Habitat areas of particular concern the delegation. EFH consultation is re- means those areas of EFH identified quired for any Federal funding of ac- pursuant to § 600.815(a)(8). tions that may adversely affect EFH. State action means any action author- NMFS and Federal agencies respon- ized, funded, or undertaken, or pro- sible for funding actions that may ad- posed to be authorized, funded, or un- versely affect EFH should consult on a dertaken by a state agency. programmatic level under paragraph (j) (b) Word usage. The terms ‘‘must’’, of this section, if appropriate, with re- ‘‘shall’’, ‘‘should’’, ‘‘may’’, ‘‘may not’’, spect to these actions. Consultation is ‘‘will’’, ‘‘could’’, and ‘‘can’’ are used in required for emergency Federal actions the same manner as in § 600.305(c). that may adversely affect EFH, such as § 600.915 Coordination for the con- hazardous material clean-up, response servation and enhancement of EFH. to natural disasters, or actions to pro- To further the conservation and en- tect public safety. Federal agencies hancement of EFH in accordance with should contact NMFS early in emer- section 305(b)(1)(D) of the Magnuson- gency response planning, but may con- Stevens Act, NMFS will compile and sult after-the-fact if consultation on an make available to other Federal and expedited basis is not practicable be- state agencies, and the general public, fore taking the action. information on the locations of EFH, (2) Approaches for conducting consulta- including maps and/or narrative de- tion. Federal agencies may use one of scriptions. NMFS will also provide in- the five approaches described in para- formation on ways to improve ongoing graphs (f) through (j) of this section to

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fulfill the EFH consultation require- NMFS. If a non-Federal representative ments. The selection of a particular ap- is used, the Federal action agency re- proach for handling EFH consultation mains ultimately responsible for com- depends on the nature and scope of the pliance with sections 305(b)(2) and actions that may adversely affect EFH. 305(b)(4)(B) of the Magnuson-Stevens Federal agencies should use the most Act. efficient approach for EFH consulta- (d) Best available information. The tion that is appropriate for a given ac- Federal agency and NMFS must use tion or actions. The five approaches the best scientific information avail- are: use of existing environmental re- able regarding the effects of the action view procedures, General Concurrence, on EFH and the measures that can be abbreviated consultation, expanded taken to avoid, minimize, or offset consultation, and programmatic con- such effects. Other appropriate sources sultation. of information may also be considered. (3) Early notification and coordination. (e) EFH Assessments—(1) Preparation The Federal agency should notify requirement. For any Federal action NMFS in writing as early as prac- that may adversely affect EFH, Fed- ticable regarding actions that may ad- eral agencies must provide NMFS with versely affect EFH. Notification will a written assessment of the effects of facilitate discussion of measures to that action on EFH. For actions cov- conserve EFH. Such early coordination ered by a General Concurrence under should occur during pre-application paragraph (g) of this section, an EFH planning for projects subject to a Fed- Assessment should be completed during eral permit or license and during pre- the development of the General Con- liminary planning for projects to be currence and is not required for the in- funded or undertaken directly by a dividual actions. For actions addressed Federal agency. by a programmatic consultation under (b) Designation of lead agency. If more paragraph (j) of this section, an EFH than one Federal agency is responsible Assessment should be completed during for a Federal action, the consultation the programmatic consultation and is requirements of sections 305(b)(2) not required for individual actions im- through (4) of the Magnuson-Stevens plemented under the program, except Act may be fulfilled through a lead in those instances identified by NMFS agency. The lead agency should notify in the programmatic consultation as NMFS in writing that it is rep- requiring separate EFH consultation. resenting one or more additional agen- Federal agencies are not required to cies. Alternatively, if one Federal provide NMFS with assessments re- agency has completed an EFH con- garding actions that they have deter- sultation for an action and another mined would not adversely affect EFH. Federal agency acts separately to au- Federal agencies may incorporate an thorize, fund, or undertake the same EFH Assessment into documents pre- activity (such as issuing a permit for pared for other purposes such as En- an activity that was funded via a sepa- dangered Species Act (ESA) Biological rate Federal action), the completed Assessments pursuant to 50 CFR part EFH consultation may suffice for both 402 or National Environmental Policy Federal actions if it adequately ad- Act (NEPA) documents and public no- dresses the adverse effects of the ac- tices pursuant to 40 CFR part 1500. If tions on EFH. Federal agencies may an EFH Assessment is contained in an- need to consult with NMFS separately other document, it must include all of if, for example, only one of the agen- the information required in paragraph cies has the authority to implement (e)(3) of this section and be clearly measures necessary to minimize ad- identified as an EFH Assessment. The verse effects on EFH and that agency procedure for combining an EFH con- does not act as the lead agency. sultation with other environmental re- (c) Designation of non-Federal rep- views is set forth in paragraph (f) of resentative. A Federal agency may des- this section. ignate a non-Federal representative to (2) Level of detail. The level of detail conduct an EFH consultation by giving in an EFH Assessment should be com- written notice of such designation to mensurate with the complexity and

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magnitude of the potential adverse ef- Federal Power Act. The requirements fects of the action. For example, for of sections 305(b)(2) and 305(b)(4) of the relatively simple actions involving Magnuson-Stevens Act, including con- minor adverse effects on EFH, the as- sultations that would be considered to sessment may be very brief. Actions be abbreviated or expanded consulta- that may pose a more serious threat to tions under paragraphs (h) and (i) of EFH warrant a correspondingly more this section, can be combined with ex- detailed EFH Assessment. isting procedures required by other (3) Mandatory contents. The assess- statutes if such processes meet, or are ment must contain: modified to meet, the following cri- (i) A description of the action. teria: (ii) An analysis of the potential ad- (i) The existing process must provide verse effects of the action on EFH and NMFS with timely notification of ac- the managed species. tions that may adversely affect EFH. (iii) The Federal agency’s conclu- The Federal agency should notify sions regarding the effects of the ac- NMFS according to the same time- tion on EFH. frames for notification (or for public (iv) Proposed mitigation, if applica- comment) as in the existing process. ble. Whenever possible, NMFS should have (4) Additional information. If appro- at least 60 days notice prior to a final priate, the assessment should also in- decision on an action, or at least 90 clude: days if the action would result in sub- (i) The results of an on-site inspec- stantial adverse impacts. NMFS and tion to evaluate the habitat and the the action agency may agree to use site-specific effects of the project. shorter timeframes provided that they (ii) The views of recognized experts allow sufficient time for NMFS to de- on the habitat or species that may be velop EFH Conservation Recommenda- affected. tions. (iii) A review of pertinent literature (ii) Notification must include an as- and related information. sessment of the impacts of the action (iv) An analysis of alternatives to the on EFH that meets the requirements action. Such analysis should include for EFH Assessments contained in alternatives that could avoid or mini- paragraph (e) of this section. If the mize adverse effects on EFH. EFH Assessment is contained in an- (v) Other relevant information. other document, the Federal agency (5) Incorporation by reference. The as- must identify that section of the docu- sessment may incorporate by reference ment as the EFH Assessment. a completed EFH Assessment prepared (iii) NMFS must have made a finding for a similar action, supplemented with pursuant to paragraph (f)(3) of this sec- any relevant new project specific infor- tion that the existing process can be mation, provided the proposed action used to satisfy the requirements of sec- involves similar impacts to EFH in the tions 305(b)(2) and 305(b)(4) of the Mag- same geographic area or a similar eco- nuson-Stevens Act. logical setting. It may also incorporate (2) NMFS response to Federal agency. If by reference other relevant environ- an existing environmental review proc- mental assessment documents. These ess is used to fulfill the EFH consulta- documents must be provided to NMFS tion requirements, the comment dead- with the EFH Assessment. line for that process should apply to (f) Use of existing environmental review the submittal of NMFS EFH Conserva- procedures—(1) Purpose and criteria. tion Recommendations under section Consultation and commenting under 305(b)(4)(A) of the Magnuson-Stevens sections 305(b)(2) and 305(b)(4) of the Act, unless NMFS and the Federal Magnuson-Stevens Act should be con- agency agree to a different deadline. If solidated, where appropriate, with NMFS EFH Conservation Rec- interagency consultation, coordina- ommendations are combined with tion, and environmental review proce- other NMFS or NOAA comments on a dures required by other statutes, such Federal action, such as NOAA com- as NEPA, the Fish and Wildlife Coordi- ments on a draft Environmental Im- nation Act, Clean Water Act, ESA, and pact Statement, the EFH Conservation

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Recommendations will be clearly iden- more than minimal. In most cases, tified as such (e.g., a section in the tracking actions covered by a General comment letter entitled ‘‘EFH Con- Concurrence will be the responsibility servation Recommendations’’) and a of the Federal agency. However, NMFS Federal agency response pursuant to may agree to track such actions. section 305(b)(4)(B) of the Magnuson- Tracking should include numbers of ac- Stevens Act is required for only the tions and the amount and type of habi- identified portion of the comments. tat adversely affected, and should (3) NMFS finding. A Federal agency specify the baseline against which the with an existing environmental review actions will be tracked. The agency re- process should contact NMFS at the sponsible for tracking such actions appropriate level (regional offices for should make the information available regional processes, headquarters office to NMFS, the applicable Council(s), for national processes) to discuss how and to the public on an annual basis. to combine the EFH consultation re- (iii) Categories of Federal actions quirements with the existing process, with or without modifications. If, at may also qualify for General Concur- the conclusion of these discussions, rence if they are modified by appro- NMFS determines that the existing or priate conditions that ensure the ac- modified process meets the criteria of tions will meet the criteria in para- paragraph (f)(1) of this section, NMFS graph (g)(2)(i) of this section. For ex- will make a finding that the process ample, NMFS may provide General can be used to satisfy the EFH con- Concurrence for additional actions consultation requirements of the Magnu- tingent upon project size limitations, son-Stevens Act. If NMFS does not seasonal restrictions, or other condi- make such a finding, or if there are no tions. existing consultation processes rel- (iv) If a General Concurrence is pro- evant to the Federal agency’s actions, posed for actions that may adversely the agency and NMFS should follow affect habitat areas of particular con- one of the approaches for consultation cern, the General Concurrence should discussed in the following sections. be subject to a higher level of scrutiny (g) General Concurrence—(1) Purpose. than a General Concurrence not involv- A General Concurrence identifies spe- ing a habitat area of particular con- cific types of Federal actions that may cern. adversely affect EFH, but for which no (3) General Concurrence development. A further consultation is generally re- Federal agency may request a General quired because NMFS has determined, Concurrence for a category of its ac- through an analysis of that type of actions by providing NMFS with an EFH tion, that it will likely result in no Assessment containing a description of more than minimal adverse effects in- the nature and approximate number of dividually and cumulatively. General the actions, an analysis of the effects Concurrences may be national or re- of the actions on EFH, including cumu- gional in scope. lative effects, and the Federal agency’s (2) Criteria. (i) For Federal actions to qualify for General Concurrence, NMFS conclusions regarding the magnitude of must determine that the actions meet such effects. If NMFS agrees that the all of the following criteria: actions fit the criteria in paragraph (A) The actions must be similar in (g)(2)(i) of this section, NMFS will pro- nature and similar in their impact on vide the Federal agency with a written EFH. statement of General Concurrence that (B) The actions must not cause great- further consultation is not required. If er than minimal adverse effects on NMFS does not agree that the actions EFH when implemented individually. fit the criteria in paragraph (g)(2)(i) of (C) The actions must not cause great- this section, NMFS will notify the Fed- er than minimal cumulative adverse ef- eral agency that a General Concur- fects on EFH. rence will not be issued and that an- (ii) Actions qualifying for General other type of consultation will be re- Concurrence must be tracked to ensure quired. If NMFS identifies specific that their cumulative effects are no types of Federal actions that may meet

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the requirements for a General Concur- needed, NMFS will notify the Federal rence, NMFS may initiate and com- agency either informally or in writing plete a General Concurrence. of its determination. If NMFS believes (4) Further consultation. NMFS may that the action may result in substan- request notification for actions covered tial adverse effects on EFH, or that ad- under a General Concurrence if NMFS ditional analysis is needed to assess concludes there are circumstances the effects of the action, NMFS will re- under which such actions could result quest in writing that the Federal agen- in more than a minimal impact on cy initiate expanded consultation. EFH, or if it determines that there is Such request will explain why NMFS no process in place to adequately as- believes expanded consultation is need- sess the cumulative impacts of actions ed and will specify any new informa- covered under the General Concur- tion needed. If expanded consultation rence. NMFS may request further con- is not necessary, NMFS will provide sultation for these actions on a case- EFH Conservation Recommendations, by-case basis. Each General Concur- if appropriate, pursuant to section rence should establish specific proce- 305(b)(4)(A) of the Magnuson-Stevens dures for further consultation, if appro- Act. priate. (4) Timing. The Federal agency must (5) Notification. After completing a submit its EFH Assessment to NMFS General Concurrence, NMFS will pro- as soon as practicable, but at least 60 vide a copy to the appropriate Coun- days prior to a final decision on the ac- cil(s) and will make the General Con- tion. NMFS must respond in writing currence available to the public by within 30 days. NMFS and the Federal posting the document on the internet agency may agree to use a compressed or through other appropriate means. schedule in cases where regulatory ap- (6) Revisions. NMFS will periodically provals or emergency situations cannot review and revise its General Concur- accommodate 30 days for consultation, rences, as appropriate. or to conduct consultation earlier in (h) Abbreviated consultation proce- the planning cycle for actions with dures—(1) Purpose and criteria. Abbre- lengthy approval processes. viated consultation allows NMFS to (i) Expanded consultation procedures— determine quickly whether, and to (1) Purpose and criteria. Expanded con- what degree, a Federal action may ad- sultation allows maximum opportunity versely affect EFH. Federal actions for NMFS and the Federal agency to that may adversely affect EFH should work together to review the action’s be addressed through the abbreviated impacts on EFH and to develop EFH consultation procedures when those ac- Conservation Recommendations. Ex- tions do not qualify for a General Con- panded consultation procedures must currence, but do not have the potential be used for Federal actions that would to cause substantial adverse effects on result in substantial adverse effects to EFH. For example, the abbreviated EFH. Federal agencies are encouraged consultation procedures should be used to contact NMFS at the earliest oppor- when the adverse effect(s) of an action tunity to discuss whether the adverse could be alleviated through minor effects of an action make expanded modifications. consultation appropriate. (2) Notification by agency and submittal (2) Notification by agency and submittal of EFH Assessment. Abbreviated con- of EFH Assessment. Expanded consulta- sultation begins when NMFS receives tion begins when NMFS receives from from the Federal agency an EFH As- the Federal agency an EFH Assessment sessment in accordance with paragraph in accordance with paragraph (e) of (e) of this section and a written request this section and a written request for for consultation. expanded consultation. Federal agen- (3) NMFS response to Federal agency. If cies are encouraged to provide in the NMFS determines, contrary to the EFH Assessment the additional infor- Federal agency’s assessment, that an mation identified under paragraph action would not adversely affect EFH, (e)(4) of this section to facilitate re- or if NMFS determines that no EFH view of the effects of the action on Conservation Recommendations are EFH.

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(3) NMFS response to Federal agency. tions that may adversely affect EFH. NMFS will: Programmatic consultation will gen- (i) Review the EFH Assessment, any erally be the most appropriate option additional information furnished by to address funding programs, large- the Federal agency, and other relevant scale planning efforts, and other in- information. stances where sufficient information is (ii) Conduct a site visit, if appro- available to address all reasonably priate, to assess the quality of the foreseeable adverse effects on EFH of habitat and to clarify the impacts of an entire program, parts of a program, the Federal agency action. Such a site or a number of similar individual ac- visit should be coordinated with the tions occurring within a given geo- Federal agency and appropriate Coun- graphic area. cil(s), if feasible. (2) Process. A Federal agency may re- (iii) Coordinate its review of the ac- quest programmatic consultation by tion with the appropriate Council(s). providing NMFS with an EFH Assess- (iv) Discuss EFH Conservation Rec- ment in accordance with paragraph (e) ommendations with the Federal agency of this section. The description of the and provide such recommendations to proposed action in the EFH Assessment the Federal agency, pursuant to sec- should describe the program and the tion 305(b)(4)(A) of the Magnuson-Ste- nature and approximate number (annu- vens Act. ally or by some other appropriate time (4) Timing. The Federal agency must frame) of the actions. NMFS may also submit its EFH Assessment to NMFS initiate programmatic consultation by as soon as practicable, but at least 90 requesting pertinent information from days prior to a final decision on the ac- a Federal agency. tion. NMFS must respond within 60 (3) NMFS response to Federal agency. days of submittal of a complete EFH NMFS will respond to the Federal Assessment unless consultation is ex- agency with programmatic EFH Con- tended by agreement between NMFS servation Recommendations and, if ap- and the Federal agency. NMFS and plicable, will identify any potential ad- Federal agencies may agree to use a verse effects that could not be ad- compressed schedule in cases where dressed programmatically and require regulatory approvals or emergency sit- project-specific consultation. NMFS uations cannot accommodate 60 days may also determine that programmatic for consultation, or to conduct con- consultation is not appropriate, in sultation earlier in the planning cycle which case all EFH Conservation Rec- for actions with lengthy approval proc- ommendations will be deferred to esses. project-specific consultations. If appro- (5) Extension of consultation. If NMFS priate, NMFS’ response may include a determines that additional data or General Concurrence for activities that analysis would provide better informa- qualify under paragraph (g) of this section for development of EFH Conserva- tion. tion Recommendations, NMFS may re- (k) Responsibilities of Federal agency quest additional time for expanded following receipt of EFH Conservation consultation. If NMFS and the Federal Recommendations—(1) Federal agency re- agency agree to an extension, the Fed- sponse. As required by section eral agency should provide the addi- 305(b)(4)(B) of the Magnuson-Stevens tional information to NMFS, to the ex- Act, the Federal agency must provide a tent practicable. If NMFS and the Fed- detailed response in writing to NMFS eral agency do not agree to extend con- and to any Council commenting on the sultation, NMFS must provide EFH action under section 305(b)(3) of the Conservation Recommendations to the Magnuson-Stevens Act within 30 days Federal agency using the best sci- after receiving an EFH Conservation entific information available to NMFS. Recommendation from NMFS. Such a (j) Programmatic consultation—(1) Pur- response must be provided at least 10 pose. Programmatic consultation pro- days prior to final approval of the ac- vides a means for NMFS and a Federal tion if the response is inconsistent agency to consult regarding a poten- with any of NMFS’ EFH Conservation tially large number of individual ac- Recommendations, unless NMFS and

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the Federal agency have agreed to use agencies for actions that would ad- alternative time frames for the Federal versely affect EFH. NMFS will not rec- agency response. The response must in- ommend that state or Federal agencies clude a description of measures pro- take actions beyond their statutory posed by the agency for avoiding, miti- authority. gating, or offsetting the impact of the (b) Recommendations to Federal agen- activity on EFH. In the case of a re- cies. For Federal actions, EFH Con- sponse that is inconsistent with NMFS servation Recommendations will be Conservation Recommendations, the provided to Federal agencies as part of Federal agency must explain its rea- EFH consultations conducted pursuant sons for not following the recommenda- to § 600.920. If NMFS becomes aware of tions, including the scientific justifica- a Federal action that would adversely tion for any disagreements with NMFS over the anticipated effects of the ac- affect EFH, but for which a Federal tion and the measures needed to avoid, agency has not initiated an EFH con- minimize, mitigate, or offset such ef- sultation, NMFS may request that the fects. Federal agency initiate EFH consulta- (2) Further review of decisions incon- tion, or NMFS will provide EFH Con- sistent with NMFS or Council rec- servation Recommendations based on ommendations. If a Federal agency deci- the information available. sion is inconsistent with a NMFS EFH (c) Recommendations to state agencies— Conservation Recommendation, the As- (1) Establishment of procedures. The sistant Administrator for Fisheries Magnuson-Stevens Act does not require may request a meeting with the head state agencies to consult with the Sec- of the Federal agency, as well as with retary regarding EFH. NMFS will use any other agencies involved, to discuss existing coordination procedures or es- the action and opportunities for resolv- tablish new procedures to identify ing any disagreements. If a Federal state actions that may adversely affect agency decision is also inconsistent EFH, and to determine the most appro- with a Council recommendation made priate method for providing EFH Con- pursuant to section 305(b)(3) of the servation Recommendations to state Magnuson-Stevens Act, the Council agencies. may request that the Assistant Admin- (2) Coordination with states on rec- istrator initiate further review of the ommendations to Federal agencies. When Federal agency’s decision and involve the Council in any interagency discus- an action that would adversely affect sion to resolve disagreements with the EFH is authorized, funded, or under- Federal agency. The Assistant Admin- taken by both Federal and state agen- istrator will make every effort to ac- cies, NMFS will provide the appro- commodate such a request. NMFS may priate state agencies with copies of develop written procedures to further EFH Conservation Recommendations define such review processes. developed as part of the Federal con- (l) Supplemental consultation. A Fed- sultation procedures in § 600.920. NMFS eral agency must reinitiate consulta- will also seek agreements on sharing tion with NMFS if the agency substan- information and copies of recommenda- tially revises its plans for an action in tions with Federal or state agencies a manner that may adversely affect conducting similar consultation and EFH or if new information becomes recommendation processes to ensure available that affects the basis for coordination of such efforts. NMFS EFH Conservation Rec- (d) Coordination with Councils. NMFS ommendations. will coordinate with each Council to identify the types of actions on which § 600.925 NMFS EFH Conservation Recommendations to Federal and Councils intend to comment pursuant state agencies. to section 305(b)(3) of the Magnuson- Stevens Act. For such actions NMFS (a) General. Under section 305(b)(4)(A) will share pertinent information with of the Magnuson-Stevens Act, NMFS is required to provide EFH Conservation the Council, including copies of NMFS’ Recommendations to Federal and state EFH Conservation Recommendations.

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§ 600.930 Council comments and rec- § 600.1000 Definitions. ommendations to Federal and state In addition to the definitions in the agencies. Magnuson-Stevens Fishery Conserva- Under section 305(b)(3) of the Magnu- tion and Management Act (Magnuson- son-Stevens Act, Councils may com- Stevens Act) and in § 600.10 of this title, ment on and make recommendations to the terms used in this subpart have the the Secretary and any Federal or state following meanings: agency concerning any activity or pro- Address of Record means the business posed activity authorized, funded, or address of a person, partnership, or cor- undertaken by the agency that, in the poration. Addresses listed on permits view of the Council, may affect the or other NMFS records are presumed to habitat, including EFH, of a fishery re- be business addresses, unless clearly in- source under its authority. Councils dicated otherwise. must provide such comments and rec- Bid means the price a vessel owner or ommendations concerning any activity reduction fishery permit holder re- that, in the view of the Council, is like- quests for reduction of his/her fishing ly to substantially affect the habitat, capacity. It is an irrevocable offer in including EFH, of an anadromous fish- response to the invitation to bid in ery resource under Council authority. § 600.1009. (a) Establishment of procedures. Each Borrower means, individually and col- Council should establish procedures for lectively, each post-reduction fishing reviewing Federal or state actions that permit holder and/or fishing vessel may adversely affect the habitat, in- owner fishing in the reduction fishery. cluding EFH, of a species under its au- Business plan means the document thority. Each Council may receive in- containing the information specified in formation on actions of concern by § 600.1003(n) and required to be sub- methods such as directing Council staff mitted with a request for a financed to track proposed actions, recom- program. mending that the Council’s habitat Business week means a 7-day period, committee identify actions of concern, Saturday through Friday. or entering into an agreement with Controlling fishery management plan or NMFS to have the appropriate Re- program (CFMP) means either any fish- gional Administrator notify the Coun- ery management plan or any state fish- cil of actions of concern that would ad- ery management plan or program, in- versely affect EFH. Federal and state cluding amendments to the plan or pro- actions often follow specific timetables gram, pursuant to which a fishery is which may not coincide with Council managed. meetings. Therefore, Councils should Delivery value means: consider establishing abbreviated pro- (1) For unprocessed fish, all com- cedures for the development of Council pensation that a fish buyer pays to a recommendations. fish seller in exchange for fee fish; and (b) Early involvement. Councils should (2) For processed fish, all compensa- provide comments and recommendation that a fish buyer would have paid tions on proposed state and Federal ac- to a fish seller in exchange for fee fish tions of concern as early as practicable if the fee fish had been unprocessed fish in project planning to ensure thorough instead of processed fish. consideration of Council concerns by Delivery value encompasses fair mar- the action agency. Each Council should ket value, as defined herein, and in- provide NMFS with copies of its com- cludes the value of all in-kind comments and recommendations to state pensation or all other goods or services and Federal agencies. exchanged in lieu of cash. It is synony- mous with the statutory term ‘‘ex-ves- Subpart L—Fishing Capacity sel value’’ as used in section 312 of the Magnuson Act. Reduction Framework Deposit principal means all collected fee revenue that a fish buyer deposits AUTHORITY: 16 U.S.C. 1861a(b)–(e). in a segregated account maintained at SOURCE: 65 FR 31443, May 18, 2000, unless a federally insured financial institu- otherwise noted. tion for the sole purpose of aggregating

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collected fee revenue before sending each program, established in the U.S. the fee revenue to NMFS for repaying a Treasury for the deposit into, and dis- reduction loan. bursement from, all funds, including Fair market value means the amount all reduction loan capital and all fee that a buyer pays a seller in an arm’s revenue, involving each program. length transaction or, alternatively, Implementation plan means the plan would pay a seller if the transaction in § 600.1008 for carrying out each pro- were at arm’s length. gram. Fee means the amount that fish buy- Implementation regulations mean the ers deduct from the delivery value regulations in § 600.1008 for carrying under a financed reduction program. out each program. The fee is the delivery value times the Net delivery value means the delivery reduction fishery’s applicable fee rate value minus the fee. under section 600.1013. Post-bidding referendum means a ref- Fee fish means all fish harvested from erendum that follows bidding under a reduction fishery involving a fi- § 600.1009. nanced program during the period in Post-reduction means after a program which any amount of the reduction reduces fishing capacity in a reduction loan remains unpaid. The term fee fish fishery. excludes fish harvested incidentally Pre-bidding referendum means a ref- while fishing for fish not included in erendum that occurs at any time after the reduction fishery. a request for a financed program but Final development plan means the doc- before a proposal under § 600.1008 of an ument NMFS prepares, under implementation plan and implementa- § 600.1006(b) and based on the prelimi- tion regulations. nary development plan the requester Preliminary development plan means submits, for a subsidized program. the document specified in § 600.1005(g) Financed means funded, in any part, and required to be submitted with a re- by a reduction loan. quest for a subsidized program. Fish buyer means the first ex-vessel party who: Processed fish means fish in any form (1) In an arm’s—length transaction, different from the form in which the purchases fee fish from a fish seller; fish existed at the time the fish was (2) Takes fish on consignment from a first harvested, unless any such dif- fish seller; or ference in form represents, in the re- (3) Otherwise receives fish from a fish duction fishery involved, the standard seller in a non arm’s-length trans- ex-vessel form upon which fish sellers action. and fish buyers characteristically base Fish delivery means the point at the delivery value of unprocessed fish. which a fish buyer first purchases fee Program means each instance of re- fish or takes possession of fee fish from duction under this subpart, in each re- a fish seller. duction fishery—starting with a re- Fishing capacity reduction specifica- quest and ending, for a financed pro- tions means the minimum amount of gram, with full reduction loan repay- fishing capacity reduction and the ment. maximum amount of reduction loan Reduction means the act of reducing principal specified in a business plan. fishing capacity under any program. Fish seller means the party who har- Reduction amendment means any vests and first sells or otherwise deliv- amendment, or, where appropriate, ers fee fish to a fish buyer. framework adjustment, to a CFMP Fishery Management Plan (FMP) that may be necessary for a program to means any Federal fishery manage- meet the requirements of this subpart. ment plan, including amendments to Reduction amendment specifications the plan, that the Secretary of Com- mean the reduction amendment to a merce approves or adopts pursuant to CFMP specified in a business plan. section 303 of the Magnuson-Stevens Reduction contract means the invita- Act. tion to bid under § 600.1009, together Fund means the Fishing Capacity Re- with each bidder’s irrevocable offer and duction Fund, and each subaccount for NMFS’ conditional or non-conditional

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acceptance of each such bid under tural components to fragments having § 600.1009. value, if any, only as raw materials for Reduction cost means the total dollar reprocessing or for other non-fisheries amount of all reduction payments to use. fishing permit owners, fishing vessel Subsidized means wholly funded by owners, or both, in a reduction fishery. anything other than a reduction loan. Reduction fishery means the fishery or Treasury percentage means the annual portion of a fishery to which a program percentage rate at which NMFS must applies. The reduction fishery must pay interest to the U.S. Treasury on specify each included species, as well any principal amount that NMFS bor- as any limitations by gear type, fishing rows from the U.S. Treasury in order to vessel size, geographic area, and any generate the funds with which to later other relevant factor(s). disburse a reduction loan’s principal Reduction loan means a loan, under amount. section 1111 and section 1112 of Title XI Unprocessed fish means fish in the of the Merchant Marine Act, 1936, as same form as the fish existed at the amended (46 U.S.C. 1279f and g App.), time the fish was harvested, unless any for financing any portion, or all, of a fi- difference in form represents, in the re- nanced program’s reduction cost and duction fishery involved, the standard repayable by a fee under, and in ac- ex-vessel form upon which fish sellers cordance with, § 600.1012, § 600.1013, and and fish buyers characteristically base § 600.1014. the delivery value of unprocessed fish. Reduction payment means the Federal Vote means a vote in a referendum. Government’s fishing capacity reduc- [65 FR 31443, May 18, 2000, as amended at 75 tion payment to a fishing permit FR 62328, Oct. 8, 2010] owner, fishing vessel owner, or both, under a reduction contract. Addition- § 600.1001 Requests. ally, it is payment for reduction to (a) A Council, the Governor of a each bidder whose bid NMFS accepts State under whose authority a pro- under § 600.1009. In a financed program posed reduction fishery is subject, or a each reduction payment constitutes a majority of permit holders in the fish- disbursement of a reduction loan’s pro- ery may request that NMFS conduct a ceeds and is for either revoking a fish- program in that fishery. Each request ing permit or both revoking a fishing shall be in writing. Each request shall permit and withdrawing a vessel from satisfy the requirements of § 600.1003 or fishing either by scrapping or title re- § 600.1005, as applicable, and enable striction. NMFS to make the determinations re- Reduction permit means any fishing quired by § 600.1004 or § 600.1006, as ap- permit revoked in a program in ex- plicable. change for a reduction payment under (b) NMFS cannot conduct a program a reduction contract. in any fishery subject to the jurisdic- Reduction vessel means any fishing tion of a Council or a state unless vessel withdrawn from fishing either NMFS first receives a request from the by scrapping or title restriction in ex- Council or the governor to whose juris- change for a reduction payment under diction the fishery is subject. a reduction contract. (c) For a fishery subject to the juris- Referendum means the voting process diction of a Council, only that Council under § 600.1010 for approving the fee can or must make the request. If the system for repaying a reduction loan. fishery is subject to the jurisdiction of Request means a request, under two or more Councils, those Councils § 600.1001, for a program. must make a joint request. No Council Requester means a Council for a fish- may make a request, or join in making ery identified in § 600.1001(c) or a state a request, until after the Council con- governor for a fishery identified in ducts a public hearing about the re- § 600.1001(d), or a majority of permit quest. holders in the fishery. (d) For a fishery subject to the juris- Scrap means to completely and per- diction of a State, only the Governor of manently reduce a fishing vessel’s hull, that State can make the request. If the superstructures, and other fixed struc- fishery is subject to the jurisdiction of

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two or more states, the Governors of the borrower’s ability to repay the re- those States shall make a joint reduction loan. quest. No Governor of a State may (c) The Secretary may not make a make a request, or join in making a re- fishing capacity reduction program quest, until the State conducts a public payment with respect to a reduction hearing about the request. vessel that will not be scrapped unless (e) For a fishery under the direct the Secretary certifies that the vessel management authority of the Sec- will not be used for fishing in the wa- retary, NMFS may conduct a program ters of the U.S., a foreign nation, or on on NMFS’ own motion by fulfilling the requirements of this subpart that rea- the high seas. sonably apply to a program not initi- [65 FR 31443, May 18, 2000, as amended at 75 ated by a request. FR 62328, Oct. 8, 2010] (f) Where necessary to accommodate special circumstances in a particular § 600.1003 Content of a request for a fi- fishery, NMFS may waive, as NMFS nanced program. deems necessary and appropriate, com- A request for a financed program pliance with any specific requirements shall: under this subpart not required by (a) Specify the reduction fishery. statute. (b) Project the amount of the reduc- [65 FR 31443, May 18, 2000, as amended at 75 tion and specify what a reduction of FR 62328, Oct. 8, 2010] that amount achieves in the reduction § 600.1002 General requirements. fishery. (c) Specify whether the program is to (a) Each program must be: be wholly or partially financed and, if (1) Necessary to prevent or end over- the latter, specify the amount and de- fishing, rebuild stocks of fish, or scribe the availability of all funding achieve measurable and significant im- provements in the conservation and from sources other than a reduction management of the reduction fishery; loan. (2) Accompanied by the appropriate (d) Project the availability of all environmental, economic and/or socio- Federal appropriation authority or economic analyses, in accordance with other funding, if any, that the financed applicable statutes, regulations, or program requires, including the time other authorities; and at which funding from each source will (3) Consistent with the CFMP, in- be available and how that relates to cluding any reduction amendment, for the time at which elements of the re- the reduction fishery. duction process are projected to occur. (b) Each CFMP for a reduction fish- (e) Demonstrate how the program ery must: meets, or will meet after an appro- (1) Prevent the replacement of fish- priate reduction amendment, the re- ing capacity removed by the program quirements in § 600.1002(a). through a moratorium on new en- (f) Demonstrate how the CFMP trants, restrictions on vessel upgrades, meets, or will meet after an appro- and other effort control measures, tak- priate reduction amendment, the re- ing into account the full potential fish- quirements in § 600.1002(b). ing capacity of the fleet; (g) If a reduction amendment is nec- (2) Establish a specified or target essary, include an actual reduction total allowable catch or other measures that trigger closure of the fishery amendment or the requester’s endorse- or adjustments to reduce catch; and ment in principle of the reduction (3) Include, for a financed program in amendment specifications in the busi- a reduction fishery involving only a ness plan. Endorsement in principle is portion of a fishery, appropriate provi- non-binding. sions for the post-reduction allocation (h) Request that NMFS conduct, at of fish between the reduction fishery the appropriate time, a referendum and the rest of the fishery that both under § 600.1010 of this subpart. protect the borrower’s reduction in- (i) List the names and addresses of vestment in the program and support record of all fishing permit or fishing

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vessel owners who are currently au- (n) Include a business plan, prepared thorized to harvest fish from the reduc- by, or on behalf of, knowledgeable and tion fishery, excluding those whose au- concerned harvesters in the reduction thority is limited to incidentally har- fishery, that: vesting fish from the reduction fishery (1) Specifies a detailed reduction during directed fishing for fish not in methodology that accomplishes the the reduction fishery. The list shall be maximum sustained reduction in the based on the best information available reduction fishery’s fishing capacity at to the requester. The list shall take the least reduction cost and in the into account any limitation by type of minimum period of time, and otherwise fishing gear operated, size of fishing achieves the program result that the vessel operated, geographic area of op- requester specifies under paragraph (b) eration, or other factor that the proof this section. The methodology shall: posed program involves. The list may (i) Establish the appropriate point for include any relevant information that NMFS to conduct a pre-bidding ref- NMFS may supply to the requester. erendum and be sufficiently detailed to (j) Specify the aggregate total allow- enable NMFS to readily: able catch in the reduction fishery dur- (A) Design, propose, and adopt a ing each of the preceding 5 years and timely and reliable implementation the aggregate portion of such catch plan, harvested by the parties listed under (B) Propose and issue timely and reli- paragraph (i) of this section. able implementation regulations, (k) Specify the criteria for deter- (C) Invite bids, mining the types and number of fishing (D) Accept or reject bids, and permits or fishing permits and fishing (E) Complete a program in accord- vessels that are eligible for reduction ance with this subpart, and under the program. The criteria shall (ii) Address, consistently with this take into account: subpart: (1) The characteristics of the fishery; (A) The contents and terms of invita- (2) Whether the program is limited to tions to bid, a particular gear type within the re- (B) Bidder eligibility, duction fishery or is otherwise limited (C) The type of information that bid- by size of fishing vessel operated, geo- ders shall supply, graphic area of operation, or other fac- (D) The criteria for accepting or re- tor; jecting bids, (3) Whether the program is limited to (E) The terms of bid acceptances, fishing permits or involves both fishing (F) Any referendum procedures in ad- permits and fishing vessels; dition to, but consistent with, those in (4) The reduction amendment re- § 600.1010, and quired; (G) All other technical matters nec- (5) The needs of fishing communities; essary to conduct a program; (6) Minimizing the program’s reduc- (2) Projects and supports the reduction cost; and tion fishery’s annual delivery value (7) All other relevant factors. during the reduction loan’s repayment (l) Include the requester’s assessment period based on documented analysis of of the program’s potential impact on actual representative experience for a fisheries other than the reduction fish- reasonable number of past years in the ery, including an evaluation of the reduction fishery; likely increase in participation or ef- (3) Includes the fishing capacity re- fort in such other fisheries, the general duction specifications upon which both economic impact on such other fish- the pre-bidding referendum and the eries, and recommendations that could bidding under § 600.1009 will be based. mitigate, or enable such other fisheries The reduction loan’s maximum prin- to mitigate, any undesirable impacts. cipal amount cannot, at the interest (m) Include any other information or rate projected to prevail at the time of guidance that would assist NMFS in reduction, exceed the principal amount developing an implementation plan and that can be amortized in 20 years by 5 implementation regulations. percent of the projected delivery value;

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(4) States the reduction loan’s repay- cumstances in the reduction fishery ment term and the fee rate, or range of that may require the implementing fee rates, prospectively necessary to regulations to contain provisions in ad- amortize the reduction loan over its re- dition to, or different from, those con- payment term; tained in § 600.1013 and/or § 600.1014 in (5) Analyzes and demonstrates the order to accommodate the cir- ability to repay the reduction loan at cumstances of, and practices in, the re- the minimum reduction level and at duction fishery while still fulfilling the various reduction-level increments rea- intent and purpose of § 600.1013 and/or sonably greater than the minimum § 600.1014—including, but not limited to: one, based on the: (i) In the case of reduction fisheries (i) Best and most representative his- in which state data confidentiality torical fishing revenue and expense laws or other impediments may nega- data and any other relevant productively affect the efficient and effective tivity measures available in the reduc- conduct of the same, specification of tion fishery, and who needs to take what action to re- (ii) Projected effect of the program solve any such impediments, and on the post-reduction operating eco- (ii) In the case of reduction fisheries nomics of typical harvesters in the re- in which some fish sellers sell unproc- duction fishery, with particular empha- essed, and other fish sellers sell proc- sis on the extent to which the reduc- essed fish to fish buyers, specification tion increases the ratio of delivery of an accurate and efficient method of value to fixed cost and improves establishing the delivery value of proc- harvesting’s other relevant produc- essed fish; and tivity measures; (12) Demonstrates by a survey of po- (6) Demonstrates how the business tential voters, or by any other con- plan’s proposed program meets, or will vincing means, a substantial degree of meet after an appropriate reduction amendment, the requirements in potential voter support for the business § 600.1002(a); plan and confidence in its feasibility. (7) Demonstrates how the CFMP (o) Include the requester’s statement meets, or will meet after an appro- of belief that the business plan, the priate reduction amendment, the re- CFMP, the reduction amendment spec- quirements in § 600.1002(b); ifications, and all other request aspects (8) Includes, if a reduction amend- constitute a complete, realistic, and ment is necessary, the reduction practical prospect for successfully amendment specifications upon which completing a program in accordance the pre-bidding referendum will be with this subpart. based; (9) Includes an assessment of the pro- § 600.1004 Accepting a request for, and determinations about initiating, a gram’s potential impact on fisheries financed program. other than the reduction fishery, including an evaluation of the likely in- (a) Accepting a request. Once it re- crease in participation or effort in such ceives a request, NMFS will review any other fisheries, the general economic request for a financed program to de- impact on such other fisheries, and rec- termine whether the request conforms ommendations that could mitigate, or with the requirements of § 600.1003. If enable such other fisheries to mitigate, the request does not conform, NMFS any undesirable impacts; will return the request with guidance (10) Specifies the names and address- on how to make the request conform. If es of record of all fish buyers who can, the request conforms, NMFS shall ac- after reduction, reasonably be expected cept it and publish a notice in the FED- to receive deliveries of fee fish. This ERAL REGISTER requesting public com- shall be based on the best information ments on the request. Such notice shall available, including any information state the name and address of record of that NMFS may be able to supply to each eligible voter, as well as the basis the business planners; for having determined the eligibility of (11) Specifies, after full consultation those voters. This shall constitute no- with fish buyers, any special cir- tice and opportunity to respond about

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adding eligible voters, deleting ineli- quires, including the time at which gible voters, and/or correcting any vot- funding from each source will be avail- er’s name and address of record. If, in able and how that relates to the time NMFS’ discretion, the comments re- at which elements of the reduction ceived in response to such notice war- process are projected to occur. rants it, or other good cause warrants (e) List the names and addresses of it, NMFS may modify such list by pub- record of all fishing permit or fishing lishing another notice in the FEDERAL vessel owners who are currently au- REGISTER. thorized to harvest fish from the reduc- (b) Determination about initiating a fi- tion fishery, excluding those whose au- nanced program. After receipt of a con- thority is limited to incidentally har- forming request for a financed pro- vesting fish from the reduction fishery gram, NMFS will, after reviewing and during directed fishing for fish not in responding to any public comments re- the reduction fishery. The list shall be ceived in response to the notice pub- based on the best information available lished in the FEDERAL REGISTER under to the requester, including any infor- paragraph (a) of this section, initiate mation that NMFS may supply to the the program if NMFS determines that: requester, and take into account any (1) The program meets, or will meet limitation by type of fishing gear oper- after an appropriate reduction amend- ated, size of fishing vessel operated, ge- ment, the requirements in § 600.1002(a); ographic area of operation, or other (2) The CFMP meets, or will meet factor that the proposed program in- after an appropriate reduction amendment, the requirements in § 600.1002(b); volves. (3) The program, if successfully im- (f) Specify the aggregate total allow- plemented, is cost effective; able catch in the reduction fishery dur- (4) The reduction requested con- ing each of the preceding 5 years and stitutes a realistic and practical pros- the aggregate portion of such catch pect for successfully completing a pro- harvested by the parties listed under gram in accordance with this subpart paragraph (e) of this section. and the borrower is capable of repaying (g) Include a preliminary develop- the reduction loan. This includes ena- ment plan that: bling NMFS to readily design, propose, (1) Specifies a detailed reduction and adopt a timely and reliable imple- methodology that accomplishes the mentation plan as well as propose and maximum sustained reduction in the issue timely and reliable implementa- reduction fishery’s fishing capacity at tion regulations and otherwise com- the least cost and in a minimum period plete the program in accordance with of time, and otherwise achieves the this subpart; and program result that the requester (5) The program accords with all specifies under paragraph (b) of this other applicable law. section. The methodology shall: (i) Be sufficiently detailed to enable § 600.1005 Content of a request for a NMFS to prepare a final development subsidized program. plan to serve as the basis for NMFS to A request for a subsidized program readily design, propose, and adopt a shall: timely and reliable implementation (a) Specify the reduction fishery. plan and propose and issue timely and (b) Project the amount of the reduc- reliable implementation regulations, tion and specify what a reduction of and that amount achieves in the reduction (ii) Include: fishery. (c) Project the reduction cost, the (A) The contents and terms of invita- amount of reduction cost to be funded tions to bid, by Federal appropriations, and the (B) Eligible bidders, amount, if any, to be funded by other (C) The type of information that bid- sources. ders shall supply, (d) Project the availability of Federal (D) The criteria for accepting or re- appropriations or other funding, if any, jecting bids, and that completion of the program re- (E) The terms of bid acceptances;

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(2) Specifies the criteria for deter- will prepare a final development plan if mining the types and numbers of fish- NMFS determines that the reduction ing permits or fishing permits and fish- requested constitutes a realistic and ing vessels that are eligible for reduc- practical prospect for successfully tion under the program. The criteria completing a program in accordance shall take into account: with this subpart. This includes ena- (i) The characteristics of the fishery, bling NMFS to readily design, propose, (ii) Whether the program is limited and adopt a timely and reliable imple- to a particular gear type within the re- mentation plan as well as propose and duction fishery, or is otherwise limited issue timely and reliable implementa- by size of fishing vessel operated, geo- tion regulations and otherwise com- graphic area of operation, or other fac- plete the program in accordance with tor, this subpart. NMFS will, as far as pos- (iii) Whether the program is limited sible, base the final development plan to fishing permits or involves both on the requester’s preliminary develop- fishing permits and fishing vessels, ment plan. Before completing the final (iv) The reduction amendment re- development plan, NMFS will consult, quired, as NMFS deems necessary, with the re- (v) The needs of fishing communities, quester, Federal agencies, state and re- and (vi) The need to minimize the pro- gional authorities, affected fishing gram’s reduction cost; and communities, participants in the re- (3) Demonstrates the program’s cost duction fishery, conservation organiza- effectiveness. tions, and other interested parties in (h) Demonstrate how the program preparing the final development plan. meets, or will meet after an appro- (c) Reaffirmation of the request. After priate reduction amendment, the re- completing the final development plan, quirements in § 600.1002(a). NMFS will submit the plan to the re- (i) Demonstrate how the CFMP quester for the requester’s reaffirma- meets, or will meet after an appro- tion of the request. Based on the final priate reduction amendment, the re- development plan, the reaffirmation quirements in § 600.1002(b)(1) and (2). shall: (1) Certify that the final develop- (j) Specify any other information or ment plan meets, or will meet after an guidance that assists NMFS in pre- appropriate reduction amendment, the paring a final development plan and a requirements in § 600.1002(a); proposed implementation plan and pro- (2) Certify that the CFMP meets, or posed implementation regulations. will meet after an appropriate reduc- (k) Include the requester’s statement tion amendment, the requirements in of belief that the program constitutes a § 600.1002(b)(1) and (2); and reasonably realistic and practical pros- (3) Project the date on which the re- pect for successfully completing a pro- quester will forward any necessary re- gram in accordance with this subpart. duction amendment and, if the re- § 600.1006 Accepting a request for, and quester is a Council, proposed regula- determinations about conducting, a tions to implement the reduction subsidized program. amendment. The requester shall base (a) Accepting a request. NMFS will re- any necessary reduction amendment on view any request for a subsidized pro- the final development plan. gram submitted to NMFS to determine (d) Determinations about conducting a whether the request conforms with the subsidized program. After NMFS’ receipt requirements of § 600.1005. If the request of the requester’s reaffirmation, any does not conform, NMFS will return it required reduction amendment, and with guidance on how to make the re- any proposed regulations required to quest conform. If the request conforms, implement the amendment, NMFS will NMFS shall accept it and publish a no- initiate the program if NMFS deter- tice in the FEDERAL REGISTER request- mines that: ing public comments about the request. (1) The program meets, or will meet (b) Final development plan. After re- after an appropriate reduction amend- ceipt of a conforming request, NMFS ment, the requirements in § 600.1002(a);

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(2) The CFMP meets, or will meet tions involving such dependent provi- after an appropriate reduction amend- sions shall then be repealed. ment, the requirements in § 600.1002(b)(1) and (2); and § 600.1008 Implementation plan and (3) The program is reasonably capa- implementation regulations. ble of being successfully implemented; (a) As soon as practicable after decid- (4) The program, if successfully im- ing to initiate a program, NMFS will plemented, will be cost effective; and prepare and publish, for a 60-day public (5) The program is in accord with all comment period, a proposed implemen- other applicable provisions of the Mag- tation plan and implementation regu- nuson-Stevens Act and this subpart. lations. During the public comment period, NMFS will conduct a public hear- § 600.1007 Reduction amendments. ing of the proposed implementation (a) Each reduction amendment may plan and implementation regulations contain provisions that are either de- in each state that the program affects. pendent upon or independent of a pro- (b) To the greatest extent prac- gram. Each provision of a reduction ticable, NMFS will base the implemen- amendment is a dependent provision tation plan and implementation regu- unless the amendment expressly des- lations for a financed program on the ignates the provision as independent. business plan. The implementation (b) Independent provisions are effec- plan for a financed program will de- tive without regard to any subsequent scribe in detail all relevant aspects of program actions. implementing the program, including: (c) Dependent provisions are initially (1) The reduction fishery; effective for the sole limited purpose of enabling initiation and completion of (2) The reduction methodology; the pre-reduction processing stage of a (3) The maximum reduction cost; program. (4) The maximum reduction loan (d) All dependent provisions of a re- amount, if different from the max- duction amendment for a financed pro- imum reduction cost; gram are fully in force and effect for (5) The reduction cost funding, if any, all other purposes only when NMFS ei- other than a reduction loan; ther: (6) The minimum acceptable reduc- (1) For bidding results that conform tion level; to the fishing capacity reduction speci- (7) The potential amount of the fee; fications and are not subject to any (8) The criteria for determining the other condition, notifies bidders, under types and number of fishing permits or § 600.1009(e)(3), that reduction contracts fishing permits and fishing vessels eli- then exist between the bidders and the gible to participate in the program; United States; or (9) The invitation to bid and bidding (2) For bidding results that do not procedures; conform to the fishing capacity reduc- (10) The criteria for determining bid tion specifications or are subject to acceptance; any other condition, notifies bidders (11) The referendum procedures; and whose bids NMFS had conditionally accepted, under § 600.1010 (d)(8)(iii), that (12) Any relevant post-referendum re- the condition pertaining to the reduc- duction procedures other than those in tion contracts between them and the the implementation regulations or this United States is fulfilled. subpart. (e) If NMFS does not, in accordance (c) NMFS will base each implementa- with this subpart and any special pro- tion plan and implementation regula- visions in the implementation regulations for a subsidized program on the tions, subsequently make all reduction final development plan. The implemen- payments that circumstances, in tation plan will describe in detail all NMFS’ judgment, reasonably permit relevant aspects of implementing the NMFS to make and, thus, complete a program, including: program, no dependent provisions shall (1) The reduction fishery; then have any further force or effect (2) The reduction methodology; for any purpose and all final regula- (3) The maximum reduction cost;

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(4) The reduction-cost funding, if counting, record keeping, and/or re- any, other than Federal appropria- porting. tions; (e) NMFS will issue final implemen- (5) The criteria for determining the tation regulations and adopt a final types and number of fishing permits or implementation plan within 45 days of fishing permits and fishing vessels eli- the close of the public-comment period. gible to participate in the program; (f) NMFS may repeal the final imple- (6) The invitation to bid and bidding mentation regulations for any program procedures; if: (7) The criteria for determining bid (1) For a financed program, the bid- acceptance; and ding results do not conform to the fish- (8) Any relevant post-bidding pro- ing capacity reduction specifications gram procedures other than those in or a post-bidding referendum does not the implementation regulations or this subsequently approve an industry fee subpart. system based on the bidding results; (d) The implementation regulations will: (2) For a subsidized program, NMFS (1) Specify, for invitations to bid, does not accept bids; and bids, and reduction contracts under (3) For either a financed program or § 600.1009: a subsidized program, if NMFS is un- (i) Bidder eligibility, able to make all reduction payments (ii) Bid submission requirements and due to a material adverse change. procedures, (iii) A bid opening date, before which § 600.1009 Bids. a bidder may not bid, and a bid closing (a) Each invitation to bid, bid, bid ac- date, after which a bidder may not bid, ceptance, reduction contract, and bid- (iv) A bid expiration date after which der—or any other party in any way af- the irrevocable offer contained in each fected by any of the foregoing—under bid expires unless NMFS, before that this subpart is subject to the terms and date, accepts the bid by mailing a writ- conditions in this section: ten acceptance notice to the bidder at (1) Each invitation to bid constitutes the bidder’s address of record, the entire terms and conditions of a re- (v) The manner of bid submission and duction contract under which: the information each bidder shall sup- (i) Each bidder makes an irrevocable ply for NMFS to deem a bid responsive, offer to the United States of fishing ca- (vi) The conditions under which pacity for reduction, and NMFS will accept or reject a bid, (ii) NMFS accepts or rejects, on be- (vii) The manner in which NMFS will half of the United States, each bidder’s accept or reject a bid, and (viii) The manner in which NMFS offer; will notify each bidder of bid accept- (2) NMFS may, at any time before ance or rejection; the bid expiration date, accept or re- (2) Specify any other special ref- ject any or all bids; erendum procedures or criteria; and (3) For a financed program in which (3) Specify such other provisions, in bidding results do not conform to the addition to and consistent with those fishing capacity reduction specifica- in this subpart, necessary to regulate tions, NMFS’ acceptance of any bid is the individual terms and conditions of subject to the condition that the indus- each program and reduction loan. This try fee system necessary to repay the includes, but is not limited to: reduction loan is subsequently ap- (i) Provisions for the payment of proved by a successful post-bidding ref- costs and penalties for non-payment, erendum conducted under § 600.1010. Ap- non-collection, non-deposit, and/or proval or disapproval of the industry non-disbursement of the fee in accord- fee system by post-bidding referendum ance with § 600.1013 and § 600.1014, is an event that neither the United (ii) Prospective fee rate determina- States nor the bidders can control. Dis- tions, and approval of the industry fee system by (iii) Any other aspect of fee payment, an unsuccessful post-bidding ref- collection, deposit, disbursement, ac- erendum fully excuses both parties

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from any performance and fully dis- necessary to recover from the reduc- charges all duties under any reduction tion vessel owner any cost, damages, or contract; other expense NMFS incurred in the (4) For a financed program in one re- scrapping of the reduction vessel. duction fishery that is being conducted (6) Money damages not being an ade- under appropriate implementation reg- quate remedy for a bidder’s breach of a ulations simultaneously with another reduction contract, the United States financed program in another reduction is, in all particulars, entitled to spe- fishery, where the acceptance of bids cific performance of each reduction for each financed program is condi- contract. This includes, but is not lim- tional upon successful post-bidding ited to, the scrapping of a reduction referenda approving industry fee sys- vessel; tems for both financed programs, (7) Any reduction payment is avail- NMFS’ acceptance of all bids is, in ad- able, upon timely and adequately docu- dition to any condition under para- mented notice to NMFS, to satisfy graph (a)(3) of this section, also subject liens, as allowed by law, against any to the additional conditions that both reduction permit/and or reduction ves- referenda approve the industry fee sys- sel; provided, however, that: tems required for both financed pro- (i) No reduction payment to any bid- grams—all as otherwise provided in der either relieves the bidder of respon- paragraph (a)(3) of this section; sibility to discharge the obligation (5) Upon NMFS’ acceptance of the bid which gives rise to any lien or relieves and tender of a reduction payment, the any lien holder of responsibility to pro- bidder consents to: tect the lien holder’s interest, (i) The revocation, by NMFS, of any reduction permit, and (ii) No reduction payment in any way (ii) Where the program also involves gives rise to any liability of the United the withdrawal of reduction vessels States for the obligation underlying from fishing: any lien, (A) Title restrictions imposed by the (iii) No lien holder has any right or U.S. Coast Guard on any reduction ves- standing, not otherwise provided by sel that is Federally documented to law, against the United States in con- forever prohibit and effectively prevent nection with the revocation of any re- any future use of the reduction vessel duction permit or the title restriction for fishing: or scrapping of any reduction vessel (1) In any area subject to the juris- under this subpart, and diction of the United States, or any (iv) This subpart does not provide state, territory, commonwealth, or any lien holder with any right or possession of the United States, or standing to seek to set aside any rev- (2) On the high seas, or ocation of any reduction permit or the (3) In the waters of a foreign nation; title restriction or scrapping of any re- or duction vessel for which the United (B) Scrapping of all reduction vessels States made, or has agreed to make, involved in a fishing capacity reduc- any reduction payment. A lien holder tion program, unless the reduction pro- is limited to recovery against the hold- gram vessel has been certified by the er of the reduction permit or the owner Secretary, and the requirements estab- of the reduction vessel as otherwise lished under § 600.1002(c) are met. Where provided by law; and reduction vessel scrapping is involved (8) Each invitation to bid may specify and the reduction vessel’s owner does such other terms and conditions as not comply with the owner’s obligation NMFS believes necessary to enforce under the reduction contract to scrap specific performance of each reduction the reduction vessel, the Secretary contract or otherwise to ensure com- may take such measures as necessary pleting each program. This includes, to cause the reduction vessel’s prompt but is not limited to, each bidder’s cer- scrapping. The scrapping will be at the tification, subject to the penalties in reduction vessel owner’s risk and ex- § 600.1017, of the bidder’s full authority pense. Upon completion of scrapping, to submit each bid and to dispose of NMFS will take such action as may be the property involved in the bid in the

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manner contemplated by each invita- bidders whose bids NMFS does accept tion to bid. until after completing a successful (b) NMFS will not invite bids for any post-bidding referendum under program until NMFS determines that: § 600.1010. (1) Any necessary reduction amend- [65 FR 31443, May 18, 2000, as amended at 75 ment is fully and finally approved and FR 62329, Oct. 8, 2010] all provisions except those dependent on the completion of reduction are im- § 600.1010 Referenda. plemented; (a) Referendum success. A referendum (2) The final implementation plan is is successful if at least a majority of adopted and the final implementation the permit holders in the fishery who regulations are issued; participate in the fishery cast ballots (3) All required program funding is in favor of an industry fee system. approved and in place, including all (b) Pre-bidding referendum—(1) Initial Federal appropriation and apportion- referendum. An initial pre-bidding ref- ment authority; erendum shall be conducted for each fi- (4) Any reduction loan involved is nanced program. The business plan fully approved; shall, subject to this subpart, deter- (5) Any non-Federal funding involved mine the chronological relationship of is fully available at the required time the initial pre-bidding referendum to for NMFS disbursement as reduction other pre-bidding aspects of the reduc- payments; and tion process sequence. The initial pre- (6) All other actions necessary to dis- bidding referendum shall be based on burse reduction payments, except for the fishing capacity reduction speci- matters involving bidding and post-bid- fications. If the initial pre-bidding ref- ding referenda, are completed. erendum precedes the adoption of any (c) After making the affirmative de- necessary reduction amendment, the terminations required under paragraph initial pre-bidding referendum shall (b) of this section, NMFS will publish a also be based on the reduction amend- FEDERAL REGISTER notice inviting eli- ment specifications. If the initial pre- gible bidders to offer to the United bidding referendum follows the adop- States, under this subpart, fishing cation of any necessary reduction amend- pacity for reduction. ment, the initial pre-bidding ref- (d) NMFS may extend a bid closing erendum shall also be based on the date and/or a bid expiration date for a adopted reduction amendment; reasonable period. NMFS may also (2) Successful initial pre-bidding ref- issue serial invitations to bid if the re- erendum. If the initial pre-bidding ref- sult of previous bidding, in NMFS’ erendum is successful, the reduction judgment, warrant this. process will proceed as follows: (e) After the bid expiration date, (i) If the initial pre-bidding ref- NMFS will: erendum follows reduction amendment (1) Analyze responsive bids; adoption, no second pre-bidding ref- (2) Determine which bids, if any, erendum shall be conducted, NMFS accepts; and (ii) If the initial pre-bidding ref- (3) Notify, by U.S. mail at each bid- erendum precedes reduction amend- der’s address of ment adoption, a second pre-bidding record, those bidders whose bids referendum shall be conducted if, in NMFS accepts that a reduction con- NMFS’ judgment, the reduction tract now exists between them and the amendment subsequently adopted dif- United States—subject, where appro- fers, in any respect materially affect- priate, to the conditions provided for ing the borrower’s reduction invest- elsewhere in this subpart. ment in the program and the bor- (f) NMFS will keep confidential the rower’s ability to repay the reduction identity of all bidders whose bids loan, from the reduction amendment NMFS does not accept. In financed pro- specifications upon which the initial grams where bidding results do not pre-bidding referendum successfully oc- conform to the fishing capacity reduc- curred. The sole purpose of any second tion specifications, NMFS also will pre-bidding referendum shall be to de- keep confidential the identity of all termine whether the voters authorize

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an industry fee system despite any having authority to vote and cast the such difference between the reduction ballot on the organization’s behalf. amendment specifications and a subse- Each ballot will contain a place for the quently adopted reduction amendment. person signing the ballot to print his or (3) Unsuccessful initial pre-bidding ref- her name. NMFS will enclose with each erendum. If the initial pre-bidding ref- ballot a specially-marked, postage- erendum is unsuccessful, the reduction paid, pre-addressed envelope that each process will either cease or NMFS may voter shall use to return the ballot to suspend the process pending an appro- NMFS; priate amendment of the business plan (3) Voter certification. Each ballot will and the request. contain a certification, subject to the (c) Post-bidding referendum. A post- penalties set forth in § 600.1017, that the bidding referendum shall occur only if, person signing the ballot is the fishing in NMFS’ judgment, the result of bid- permit or fishing vessel owner to whom ding under § 600.1009 does not conform, the ballot is addressed or, if the fishing in any material respect, to the fishing permit or fishing vessel owner is an or- capacity reduction specifications and ganization, the person having author- such result justifies, in NMFS’ judg- ity to vote and cast the ballot on the ment, conducting a post-bidding ref- organization’s behalf; erendum. Bidding that results in reduc- (4) ing fishing capacity in any amount not Information included on a ballot. less than the minimum fishing capac- Each ballot mailing will: ity reduction amount for any reduction (i) Summarize the referendum’s na- loan amount not more than the max- ture and purpose, imum reduction loan amount, and oth- (ii) Specify the date by which NMFS erwise achieves all material require- must receive a ballot in order for the ments of the fishing capacity reduction ballot to be counted as a qualified vote, specifications, shall conform to the (iii) Identify the place on the ballot fishing capacity reduction specifica- for the voter to vote for or against the tions. The sole purpose of any post-bid- proposed industry fee system, the place ding referendum shall be to determine on the ballot where the voter shall sign whether voters authorize an industry the ballot, and the purpose of the re- fee system for bidding that results in turn envelope, reducing fishing capacity in any (iv) For each pre-bidding referendum, amount materially less than the min- state: imum amount in the fishing capacity (A) The fishing capacity reduction reduction specifications. specifications, (d) NMFS will conduct referenda in (B) The reduction loan’s repayment accordance with the following: term, and (1) Eligible voters. The parties eligible (C) The fee rate, or range of fee rates, to vote in each referendum are the par- prospectively necessary to amortize ties whose names are listed as being el- the reduction loan over the loan’s igible to vote in the notice published in term, the FEDERAL REGISTER under § 600.1004(a); (v) For each initial pre-bidding ref- (2) Ballot issuance. NMFS will mail, erendum that precedes reduction by U.S. certified mail, return receipt amendment adoption, state the reduc- requested, a ballot to each eligible tion amendment specifications, voter. Each ballot will bear a randomly (vi) For each initial pre-bidding ref- derived, 5-digit number assigned to erendum that follows reduction amend- each eligible voter. Each ballot will ment adoption, summarize the mate- contain a place for the voter to vote for rial aspects of the reduction amend- or against the proposed industry fee ment adopted, system and a place, adjacent to the 5- (vii) For each second pre-bidding ref- digit number, for the signature of the erendum, summarize how the adopted fishing permit or fishing vessel owner reduction amendment materially dif- to whom the ballot is addressed or, if fers from the reduction amendment the fishing permit or fishing vessel specifications upon which a successful owner is an organization, the person initial pre-bidding referendum occurred

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and how this material difference af- at the same time and in the same man- fects the borrower’s reduction invest- ner, also notify the bidders whose bids ment in the program and the bor- were conditionally accepted that the rower’s ability to repay the reduction condition pertaining to the reduction loan, contracts between them and the United (viii) For each post-bidding ref- States is fulfilled; erendum, specify the actual bidding re- (7) Conclusiveness of referendum deter- sults that do not conform to the fish- minations. NMFS’ determinations about ing capacity reduction specifications, ballot qualifications and about all and other referendum matters, including, (ix) State or include whatever else but not limited to, eligible voters and NMFS deems appropriate; their addresses of record, are conclu- (5) Enclosures to accompany a ballot. sive and final as of the date NMFS Each ballot mailing will include: makes such determinations. No matter (i) A specially-marked, postage-paid, respecting such determinations shall and pre-addressed envelope that a voter impair, invalidate, avoid, or otherwise must use to return the original of a render unenforceable any referendum, ballot to NMFS by whatever means of reduction contract, reduction loan, or delivery the voter chooses, and fee payment and collection obligation (ii) Such other materials as NMFS under § 600.1013 and § 600.1014 necessary deems appropriate; to repay any reduction loan; (6) Vote qualification. A completed (8) Ballot confidentiality. NMFS will ballot qualifies to be counted as a vote not voluntarily release the name of if the ballot: any party who voted. NMFS will re- (i) Is physically received by NMFS on strict the availability of all voter in- or before the last day NMFS specifies formation to the maximum extent al- for receipt of the ballot, lowed by law; and (ii) Is cast for or against the proposed (9) Conclusive authorization of industry industry fee system, fee system. Each successful referendum (iii) Is signed by the voter, conclusively authorizes NMFS’ imposi- (iv) Is the original ballot NMFS sent tion of an industry fee system—includ- to the voter bearing the same 5-digit ing the fee payment, collection, and number that NMFS assigned to the other provisions regarding fee payment voter, and and collection under § 600.1013 and (v) Was returned to NMFS in the spe- § 600.1014—to repay the reduction loan cially-marked envelope that NMFS for each financed program that NMFS provided for the ballot’s return; conducts under this subpart. (6) Vote tally and notification. NMFS [65 FR 31443, May 18, 2000, as amended at 75 will: FR 62329, Oct. 8, 2010] (i) Tally all ballots qualified to be counted as referendum votes, § 600.1011 Reduction methods and (ii) Notify, by U.S. mail at the ad- other conditions. dress of record, all eligible voters who (a) Reduction permits or reduction per- received ballots of: mits and reduction vessels. Each program (A) The number of potential voters, may involve either the surrender and (B) The number of actual voters who revocation of reduction permits or both returned a ballot, the surrender and revocation of reduc- (C) The number of returned ballots tion permits and the withdrawal from that qualified to be counted as ref- fishing either by title restriction or by erendum votes, scrapping of reduction vessels. No fi- (D) The number of votes for and the nanced program may, however, require number of votes against the industry such title restriction or scrapping of fee system, and reduction vessels unless the business (E) Whether the referendum was suc- plan voluntarily includes the same. cessful and approved the industry fee (b) Reduction permit revocation and system or unsuccessful and disapproved surrender. Each reduction permit is, the industry fee system, and upon NMFS’ tender of the reduction (iii) If a successful referendum is a payment for the reduction permit, for- post-bidding referendum, NMFS will, ever revoked. Each reduction permit

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holder shall, upon NMFS’ tender of the surrender any fishing permit in any reduction payment, surrender the non-reduction fishery or restrict or re- original reduction permit to NMFS. voke any fishing permit other than a The reduction permit holder, upon reduction permit in the reduction fish- NMFS’ tender of the reduction pay- ery, except those fishing permits au- ment, forever relinquishes any claim thorizing the incidental harvesting of associated with the reduction permit species in any non-reduction fishery and with the fishing vessel that was during, and as a consequence of, di- used to harvest fishery resources under rected fishing for species in the reduc- the reduction permit that could qualify tion fishery. the reduction permit holder or the fish- (e) Reduction vessels disposition. Where ing vessel owner for any present or fu- a business plan requires the withdrawal ture limited access system fishing per- from fishing of reduction vessels as mit in the reduction fishery. well as the revocation of reduction per- (c) Reduction vessel title restriction or mits: scrapping. For each program that in- (1) Each reduction vessel that is not volves reduction vessel title restriction documented under Federal law must in or scrapping: every case always be scrapped, without (1) Each reduction vessel that is sub- regard to whether a program is a fi- ject to title restriction only and is thus nanced program or a subsidized pro- not required to be scrapped, is, upon gram; NMFS’ tender of the reduction pay- (2) No financed program may require ment, forever prohibited from any fu- any disposition of a reduction vessel ture use for fishing in any area subject documented under Federal law other to the jurisdiction of the United States than the title restriction in paragraph or any State, territory, possession, or (b) of this section unless the business commonwealth of the United States. plan volunteers to do otherwise; and NMFS will request that the U.S. Coast (3) Any subsidized program may re- Guard permanently restrict each such quire the scrapping of reduction vessels reduction vessel’s title to exclude the documented under Federal law. reduction vessel’s future use for fishing (f) Reduction payments. NMFS will in any such area; disburse all reduction payments in the (2) Each reduction vessel owner amount and in the manner prescribed whose reduction vessel is required to be in reduction contracts, except reduc- scrapped shall, upon NMFS’ tender of tion payments that a bidder’s reduc- the reduction payment, immediately tion-contract nonperformance prevents cease all further use of the reduction NMFS from disbursing. In financed vessel and arrange, without delay and programs, the reduction loan’s prin- at the reduction vessel owner’s ex- cipal amount is the total amount of all pense, to scrap the reduction vessel to reduction payments that NMFS dis- NMFS’ satisfaction, including ade- burses from the proceeds of a reduction quate provision for NMFS to document loan. Any reduction payment that the physical act of scrapping; and NMFS, because of a bidder’s reduction- (3) Each reduction vessel owner, upon contract nonperformance, disburses NMFS’ tender of the reduction pay- but subsequently recovers, shall reduce ment, forever relinquishes any claim the principal amount of the reduction associated with the reduction vessel loan accordingly. and with the reduction permit that (g) Effect of reduction-contract non- could qualify the reduction vessel performance. No referendum, no reduc- owner or the reduction permit holder tion contract, no reduction loan, and for any present or future limited access no fee payment and collection obliga- system fishing permit in the reduction tion under § 600.1013 and § 600.1014 nec- fishery. essary to repay any reduction loan, (d) Fishing permits in a non-reduction shall be impaired, invalidated, avoided, fishery. A financed program that does or otherwise rendered unenforceable by not involve the withdrawal from fish- virtue of any reduction contract’s non- ing or scrapping of reduction vessels performance. This is without regard to may not require any holder of a reduc- the cause of, or reason for, nonperform- tion permit in a reduction fishery to ance. NMFS shall endeavor to enforce

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the specific performance of all reduc- deposit, and/or non-disbursement in action contracts, but NMFS’ inability, cordance with § 600.1013 and § 600.1014. for any reason, to enforce specific per- (c) Effect of prospective interest rate. formance for any portion of such reduc- Any difference between a prospective tion contracts shall not relieve fish interest rate projected, for the purpose sellers of their obligation to pay, and of any aspect of reduction planning or fish buyers of their obligation to col- processing under this subpart, before lect, the fee necessary to fully repay the U.S. Treasury determines the the full reduction loan balance that re- Treasury percentage and an interest sults from all reduction payments that rate first known after the U.S. Treas- NMFS actually makes and does not re- ury determines the Treasury percent- cover. age shall not void, invalidate, or other- (h) Program completion. Other than wise impair any reduction contract, the payment and collection of the fee any reduction loan repayment obliga- that repays a reduction loan and any tion, or any other aspect of the reduc- other residual matters regarding reduction process under this subpart. Should tion payments and the disposition of any such difference result in a reduc- reduction permits and reduction ves- tion loan that cannot, at the maximum sels, a program shall be completed fee rate allowed by law, be repaid, as when NMFS tenders or makes all re- previously projected, within the max- duction payments under all reduction imum maturity, any amount of the re- contracts that circumstances, in duction loan remaining unpaid at ma- NMFS’ judgment, reasonably permit turity shall be repaid after maturity by NMFS to make. continuing fee payment and collection under this subpart at such maximum § 600.1012 Reduction loan. fee rate until the reduction loan’s un- (a) Obligation. The borrower shall be paid principal balance and accrued in- obligated to repay a reduction loan. terest is fully repaid. The above not- The borrower’s obligation to repay a withstanding, at the discretion of the reduction loan shall be discharged by Secretary, the reduction contract can fish sellers paying a fee in accordance be voided if a material adverse change with § 600.1013. Fish buyers shall be ob- affects the reduction contract, reduc- ligated to collect the fee in accordance tion loan obligation, or any other as- with § 600.1013 and to deposit and dis- pect of the reduction process under this burse the fee revenue in accordance subpart. with § 600.1014. (b) Principal amount, interest rate, re- § 600.1013 Fee payment and collection. payment term, and penalties for non-pay- (a) Amount. The fee amount is the de- ment or non-collection. The reduction livery value times the fee rate. loan shall be: (b) Rate. NMFS will establish the fee (1) In a principal amount that shall rate. The fee rate may not exceed 5 per- be determined by subsequent program cent of the delivery value. NMFS will events under this subpart, but which establish the initial fee rate by calcu- shall not exceed the maximum prin- lating the fee revenue annually re- cipal amount in the fishing capacity quired to amortize a reduction loan reduction specifications; over the reduction loan’s term, pro- (2) At an annual rate, that shall be jecting the annual delivery value, and determined by subsequent events, of expressing such fee revenue as a per- simple interest on the reduction loan’s centage of such delivery value. Before principal balance that shall equal 2 each anniversary of the initial fee rate percent plus the Treasury percentage; determination, NMFS will recalculate (3) Repayable over the repayment the fee rate reasonably required to en- term specified in the business plan or sure reduction loan repayment. This otherwise determined by subsequent will include any changed delivery value events; and projections and any adjustment re- (4) Subject to such provisions as im- quired to correct for previous delivery plementation regulations shall specify values higher or lower than projected. for the payment of costs and penalties (c) Payment and collection. (1) The full for non-payment, non-collection, non- fee is due and payable at the time of

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fish delivery. Each fish buyer shall col- not subject to this subpart or to whom lect the fee at the time of fish delivery or against whom NMFS cannot other- by deducting the fee from the delivery wise apply or enforce this subpart, value before paying, or promising to (ii) In each such case the fish seller pay, the net delivery value. Each fish shall, with respect to the fee fish in- seller shall pay the fee at the time of volved in each such case, discharge, in fish delivery by receiving from the fish addition to the fee payment require- buyer the net delivery value, or the ments of this subpart, all the fee col- fish buyer’s promise to pay the net de- lection, deposit, disbursement, ac- livery value, rather than the delivery counting, record keeping, and report- value. Regardless of when the fish ing requirements that this subpart oth- buyer pays the net delivery value, the erwise imposes on the fish buyer, and fish buyer shall collect the fee at the the fish seller shall be subject to all time of fish delivery; the penalties this subpart provides for (2) In the event of any post-delivery a fish buyer’s failure to discharge such payment for fee fish—including, but requirements; not limited to bonuses—whose amount (4) Fee payment begins on the date depends on conditions that cannot be NMFS specifies under the notification known until after fish delivery, that ei- procedures of paragraph (d) of this sec- ther first determines the delivery value tion and continues without interrup- or later increases the previous delivery tion at the fee rates NMFS specifies in value, the fish seller shall pay, and the accordance this subpart until NMFS fish buyer shall collect, at the time the determines that the reduction loan is amount of such post-delivery payment fully repaid. If a reduction loan is, for first becomes known, the fee that any reason, not fully repaid at the ma- would otherwise have been due and turity of the reduction loan’s original payable as if the amount of the post- amortization period, fee payment and delivery payment had been known, and collection shall continue until the re- as if the post-delivery payment had duction loan is fully repaid, notwith- consequently occurred, at the time of standing that the time required to initial fish delivery; fully repay the reduction loan exceeds (3)(i) Each fish seller shall be deemed the reduction loan’s initially permis- to be, for the purpose of the fee collec- sible maturity. tion, deposit, disbursement, and ac- (d) Notification. (1) At least 30 days counting requirements of this subpart, before the effective date of any fee or both the fish seller and the fish buyer, of any fee rate change, NMFS will pub- and shall be responsible for all require- lish a FEDERAL REGISTER notice estab- ments and liable for any penalties lishing the date from and after which under this subpart applicable to fish the fee or fee rate change is effective. sellers and/or fish buyers, each time NMFS will then also send, by U.S. that a fish seller sells fee fish to: mail, an appropriate notification to (A) Any party whose place of busi- each affected fish seller and fish buyer ness is not located in the United of whom NMFS has notice; States, who does not take delivery or (2) When NMFS determines that a re- possession of the fee fish in the United duction loan is fully repaid, NMFS will States, who is not otherwise subject to publish a FEDERAL REGISTER notice this subpart, or to whom or against that the fee is no longer in effect and whom NMFS cannot otherwise apply or should no longer be either paid or col- enforce this subpart, lected. NMFS will then also send, by (B) Any party who is a general food- U.S. mail, notification to each affected service wholesaler or supplier, a res- fish seller and fish buyer of whom taurant, a retailer, a consumer, some NMFS has knowledge; other type of end-user, or some other (3) If NMFS fails to notify a fish sell- party not engaged in the business of er or a fish buyer by U.S. mail, or if the buying fish from fish sellers for the fish seller or fish buyer otherwise does purpose of reselling the fish, either not receive the notice, of the date fee with or without processing the fish, or payments start or of the fee rate in ef- (C) Any other party who the fish sell- fect, each fish seller is, nevertheless, er has good reason to believe is a party obligated to pay the fee at the fee rate

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in effect and each fish buyer is, never- cumstances in a reduction fishery re- theless, obligated to collect the fee at quire, in NMFS’s judgment, fee pay- the fee rate in effect. ment and/or collection provisions in (e) Failure to pay or collect. (1) If a fish addition to, or different from, those in buyer refuses to collect the fee in the this section in order to accommodate amount and manner that this subpart the circumstances of, and practices in, requires, the fish seller shall then ad- a reduction fishery while still fulfilling vise the fish buyer of the fish seller’s the intent and purpose of this section, fee payment obligation and of the fish NMFS may, notwithstanding this sec- buyer’s fee collection obligation. If the tion, include such provisions in the im- fish buyer still refuses to properly col- plementation regulations for such re- lect the fee, the fish seller, within the duction fishery. next 7 calendar days, shall forward the fee to NMFS. The fish seller at the § 600.1014 Fee collection deposits, dis- same time shall also advise NMFS in bursements, records, and reports. writing of the full particulars, includ- (a) Deposit accounts. Each fish buyer ing: that this subpart requires to collect a (i) The fish buyer’s and fish seller’s fee shall maintain a segregated ac- name, address, and telephone number, count at a federally insured financial (ii) The name of the fishing vessel institution for the sole purpose of de- from which the fish seller made fish depositing collected fee revenue and dis- livery and the date of doing so, bursing the fee revenue directly to (iii) The quantity and delivery value NMFS in accordance with paragraph of each species of fee fish that the fish (c) of this section. seller delivered, and (b) Fee collection deposits. Each fish (iv) The fish buyer’s reason, if buyer, no less frequently than at the known, for refusing to collect the fee in end of each business week, shall de- accordance with this subpart; posit, in the deposit account estab- (2) If a fish seller refuses to pay the lished under paragraph (a) of this sec- fee in the amount and manner that this tion, all fee revenue, not previously de- subpart requires, the fish buyer shall posited, that the fish buyer collects then advise the fish seller of the fish through a date not more than two cal- buyer’s collection obligation and of the endar days before the date of deposit. fish seller’s payment obligation. If the Neither the deposit account nor the fish seller still refuses to pay the fee, principal amount of deposits in the ac- the fish buyer shall then either deduct count may be pledged, assigned, or the fee from the delivery value over used for any purpose other than aggre- the fish seller’s protest or refuse to buy gating collected fee revenue for dis- the fee fish. The fish buyer shall also, bursement to the Fund in accordance within the next 7 calendar days, advise with paragraph (c) of this section. The NMFS in writing of the full particu- fish buyer is entitled, at any time, to lars, including: withdraw deposit interest, if any, but (i) The fish buyer’s and fish seller’s never deposit principal, from the de- name, address, and telephone number, posit account for the fish buyer’s own (ii) The name of the fishing vessel use and purposes. from which the fish seller made or at- (c) Deposit principal disbursement. On tempted to make fish delivery and the the last business day of each month, or date of doing so, more frequently if the amount in the (iii) The quantity and delivery value account exceeds the account limit for of each species of fee fish the fish seller insurance purposes, the fish buyer shall delivered or attempted to deliver, disburse to NMFS the full amount of (iv) Whether the fish buyer deducted deposit principal then in the deposit the fee over the fish seller’s protest or account. The fish buyer shall do this by refused to buy the fee fish, and check made payable to the Fund sub- (v) The fish seller’s reason, if known, account to which the deposit principal for refusing to pay the fee in accord- relates. The fish buyer shall mail each ance with this subpart. such check to the Fund subaccount (f) Implementation regulations at vari- lockbox that NMFS establishes for the ance with this section. If any special cir- receipt of the disbursements for each

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program. Each disbursement shall be (4) Total fee collection amounts de- accompanied by the fish buyer’s settle- posited by month; ment sheet completed in the manner (5) Dates and amounts of monthly and form that NMFS specifies. NMFS disbursements to each Fund lockbox will specify the Fund subaccount account; lockbox and the manner and form of (6) Total amount of interest earned settlement sheet by means of the noti- on deposits; and fication in § 600.1013(d). (7) Depository account balance at (d) Records maintenance. Each fish year-end. buyer shall maintain, in a secure and (f) State records. If landing records orderly manner for a period of at least that a state requires from fish sellers 3 years from the date of each trans- contain some or all of the data that action involved, at least the following this section requires and state con- information: fidentiality laws or regulations do not (1) For all deliveries of fee fish that prevent NMFS’ access to the records the fish buyer buys from each fish sell- maintained for the state, then fish buyer: ers can use such records to meet appro- (i) The date of delivery, priate portions of this section’s record- (ii) The seller’s identity, keeping requirements. If, however, (iii) The weight, number, or volume state confidentiality laws or regula- of each species of fee fish delivered, tions make such records unavailable to (iv) The identity of the fishing vessel NMFS, then fish buyers shall maintain that delivered the fee fish, separate records for NMFS that meet (v) The delivery value of each species the requirements of this section. If any of fee fish, state law or regulation prohibits fish (vi) The net delivery value, buyers, or fish sellers where appropriate, from keeping, for the purpose of (vii) The identity of the party to complying with any requirement of whom the net delivery value is paid, if this section, separate records that in- other than the fish seller, volve some or all of the same data ele- (viii) The date the net delivery value ments as the landing records that the was paid, and fish buyers also keep, for state pur- (ix) The total fee amount collected; poses and under state law or regula- (2) For all fee collection deposits to tion, then a financed reduction pro- and disbursements from the deposit ac- gram will not be possible. count: (g) Audits. NMFS or its agents may (i) The dates and amounts of depos- audit, in whatever manner NMFS be- its, lieves reasonably necessary for the (ii) The dates and amounts of dis- duly diligent administration of reduc- bursements to the Fund’s lockbox action loans, the financial records of fish count, and buyers and fish sellers in each reduc- (iii) The dates and amounts of dis- tion fishery in order to ensure proper bursements to the fish buyer or other fee payment, collection, deposit, dis- parties of interest earned on deposits. bursement, accounting, record keeping, (e) Annual report. In each year, on the and reporting. Fish buyers and fish date to be specified in each implemen- sellers shall make all records of all tation regulation, succeeding the year program transactions involving post- during which NMFS first implemented reduction fish harvests, fish deliveries, a fee, each fish buyer shall submit to and fee payments, collections, deposits, NMFS a report, on or in the form disbursements, accounting, record NMFS specifies, containing the fol- keeping, and reporting available to lowing information for the preceding NMFS or NMFS’ agents at reasonable year, or whatever longer period may be times and places and promptly provide involved in the first annual report, for all requested information reasonably all fee fish each fish buyer purchases related to these records that such fish from fish sellers: (1) Total weight, sellers and fish buyers may otherwise number, or volume bought; lawfully provide. Trip tickets (or simi- (2) Total delivery value paid; lar accounting records establishing the (3) Total fee amounts collected; pounds of fee fish that each fish buyer

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buys from each fish seller each time er and/or fish buyer responsible for that each fish buyer does so and each non-payment, non-collection, non-de- price that each fish buyer then pays to posit, and/or non-disbursement of the each fish seller for the fee fish) are es- fee in accordance with this subpart to sential audit documentation. enforce the collection from such fish (h) Confidentiality of records. NMFS seller and/or fish buyer of any fee (in- and NMFS’ auditing agents shall main- cluding penalties and all costs of col- tain the confidentiality of all data to lection) due and owing the United which NMFS has access under this sec- States on account of the loan that such tion and shall neither release the data fish seller and/or fish buyer should nor allow the data’s use for any pur- have, but did not, pay, collect, deposit, pose other than the purpose of this sub- and/or disburse in accordance with this part; provided, however, that NMFS subpart. All such loan recoveries shall may aggregate such data so as to pre- be applied to reduce the unpaid balance clude their identification with any fish of the loan. buyer or any fish seller and use them in the aggregate for other purposes). § 600.1017 Prohibitions and penalties. (i) Refunds. When NMFS determines (a) The following activities are pro- that a reduction loan is fully repaid, hibited, and it is unlawful for any NMFS will refund any excess fee re- party to: ceipts, on a last-in/first-out basis, to (1) Vote in any referendum under this the fish buyers. Fish buyers shall re- subpart if the party is ineligible to do turn the refunds, on a last-in/first-out so; basis, to the fish sellers who paid the (2) Vote more than once in any ref- amounts refunded. erendum under this subpart; (j) Implementation regulations at vari- (3) Sign or otherwise cast a ballot on ance with this section. If any special cir- behalf of a voter in any referendum cumstances in a reduction fishery re- under this subpart unless the voter has quire, in NMFS’s judgment, fee collec- fully authorized the party to do so and tion deposit, disbursement, or records doing so otherwise comports with this provisions in addition to, or different subpart; from, those in this section in order to (4) Interfere with or attempt to accommodate the circumstances of, hinder, delay, buy, or otherwise unduly and practices in, a reduction fishery or unlawfully influence any eligible while still fulfilling the intent and pur- voter’s vote in any referendum under pose of this section, NMFS may, not- this subpart; withstanding this section, include such (5) Submit a fraudulent, unauthor- provisions in the implementation regu- ized, incomplete, misleading, unen- lations for such reduction fishery. forceable by specific performance, or inaccurate bid in response to an invita- § 600.1015 Late charges. tion to bid under this subpart or, in The late charge to fish buyers for fee any other way, interfere with or at- payment, collection, deposit, and/or tempt to interfere with, hinder, or disbursement shall be one and one-half delay, any invitation to bid, any bid (1.5) percent per month, or the max- submitted under any invitation to bid, imum rate permitted by state law, for any reduction contract, or any other the total amount of the fee not paid, reduction process in connection with collected, deposited, and/or disbursed any invitation to bid; when due to be paid, collected, depos- (6) Revoke or attempt to revoke any ited, and/or disbursed. The full late bid under this subpart; charge shall apply to the fee for each (7) Fail to comply with the terms and month or portion of a month that the conditions of any invitation to bid, bid, fee remains unpaid, uncollected, or reduction contract under this sub- undeposited, and/or undisbursed. part, including NMFS’ right under such reduction contracts to specific per- § 600.1016 Enforcement. formance; In accordance with applicable law or (8) Fail to fully and properly pay and other authority, NMFS may take ap- collect any fee due payable, and col- propriate action against each fish sell- lectible under this subpart or otherwise

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avoid, decrease, interfere with, hinder, erwise provided by any other applicable or delay any such payment and collec- law of the United States. tion, (c) Additionally, NMFS may take (9) Convert, or otherwise use for any any and all appropriate actions, includ- purpose other than the purpose this ing the communication of action at subpart intends, any paid or collected law, against each party responsible for fee; the non-payment, non-collection, non- (10) Fail to fully and properly deposit deposit, and/or non-disbursement in ac- on time the full amount of all fee rev- cordance with § 600.1013 and/or § 600.1014 enue collected under this subpart into to enforce the United States’ receipt a deposit account and disburse the full from such party of any fee—including amount of all deposit principal to the penalties and all costs of collection— Fund’s lockbox account—all as this due and owing the United States on ac- subpart requires; count of the reduction loan that such (11) Fail to maintain full, timely, and party should have, but did not, pay, proper fee payment, collection, deposit, collect, deposit, and/or disburse in accordance with § 600.1013 and/or § 600.1014. and/or disbursement records or make All such reduction loan recoveries shall full, timely, and proper reports of such be applied to reduce the unpaid bal- information to NMFS-all as this sub- ances of reduction loans. part requires; (12) Fail to advise NMFS of any fish seller’s refusal to pay, or of any fish Subpart M—Specific Fishery or buyer’s refusal to collect, any fee due Program Fishing Capacity Re- and payable under this subpart; duction Regulations (13) Refuse to allow NMFS or agents that NMFS designates to review and AUTHORITY: 5 U.S.C. 561, 16 U.S.C. 1801 et audit at reasonable times all books and seq., 16 U.S.C. 1861a(b) through (e), 46 App. records reasonably pertinent to fee U.S.C. 1279f and 1279g, section 144(d) of Divi- payment, collection, deposit, disburse- sion B of Pub. L. 106–554, section 2201 of Pub. L. 107–20, and section 205 of Pub. L. 107–117, ment, and accounting under this sub- Pub. L. 107–206, Pub. L. 108–7, Pub. L. 108–199, part or otherwise interfere with, Pub. L. 108–447, Pub. L. 109–479, Pub. L. 110– hinder, or delay NMFS or it agents in 161, Section 209 of Title II of Division B of the course of their activities under this Pub. L. 108–447, Section 121 of Pub. L. 109–447, subpart; Section 121 of Pub. L. 109–479, Pub. L. 110–161, (14) Make false statements to NMFS, and 46 U.S.C. 53701 et seq. any of the NMFS’ employees, or any of SOURCE: 69 FR 53361, Sept. 1, 2004, unless NMFS’ agents about any of the mat- otherwise noted. ters in this subpart; EFFECTIVE DATE NOTE: At 77 FR 58779, (15) Obstruct, prevent, or unreason- Sept. 24, 2012, the authority citation to sub- ably delay or attempt to obstruct, pre- part M of part 600 was revised, effective Oct. vent, or unreasonably delay any audit 24, 2012. For the convenience of the user, the or investigation NMFS or its agents revised text is set forth as follows: conduct, or attempt to conduct, in con- AUTHORITY: 5 U.S.C. 561, 16 U.S.C. 1801 et seq., 16 U.S.C. 1861a(b) through (e), 46 App. nection with any of the matters in this U.S.C. 53735, section 144(d) of Division B of subpart; and/or Pub. L. 106–554, section 2201 of Pub. L. 107–20, (16) Otherwise materially interfere and section 205 of Pub. L. 107–117, Pub. L. with the efficient and effective conduct 107–206, Pub. L. 108–7, Pub. L. 108–199, and of reduction and the repayment of re- Pub. L. 108–447. duction loans under this subpart. § 600.1100 [Reserved] (b) Any party who violates one or more of the prohibitions of paragraph § 600.1101 Inshore fee system for re- (a) of this section is subject to the full payment of the loan to harvesters range of penalties the Magnuson-Ste- of Pollock from the directed fishing vens Act and 15 CFR part 904 provide— allowance allocated to the inshore including, but not limited to: civil pen- component under section 206(b)(1) alties, sanctions, forfeitures, and pun- of the AFA. ishment for criminal offenses—and to (a) Definition. In addition to the defi- the full penalties and punishments oth- nitions in the Magnuson-Stevens Act

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and in § 679.2 of this title, the terms fully repays the loan, accrue at a fixed used in this subpart have the following rate of 7.09 percent. Interest shall be meanings: simple interest and shall accrue on the American Fisheries Act (AFA) means basis of a 365-day year. Title II of Pub.L. 105–277. (3) Repayment. The fee shall be the Borrower means (individually and col- exclusive source of loan repayment. lectively) all persons who, after Janu- The fee shall be paid on all fee fish. ary 1, 2000, harvest fee fish from the IC (4) Application of fee receipts. NMFS directed fishing allowance. shall apply all fee receipts it receives, Business week means a 7-day period, first, to payment of the loan’s accrued Saturday through Friday. interest and, second, to reduction of Delivery value means the gross ex-ves- the loan’s principal balance. sel value of all fee fish at fish delivery. (5) Obligation. The borrower shall Deposit principal means all collected repay the loan in accordance with the fee revenue that a fish buyer deposits AFA and this subpart. in a segregated deposit account main- (c) Fee payment and collection—(1) tained in a federally chartered national Payment and collection. (i) The fee is bank for the sole purpose of aggre- due and payable at the time of fish de- gating collected fee revenue before livery. Each fish buyer shall collect the sending the fee revenue to NMFS for fee at the time of fish delivery by de- repaying the loan. ducting the fee from the delivery value Fee means the six-tenths (0.6) of one before paying or promising later to pay cent that fish buyers deduct at fish delivery from the delivery value of each the net delivery value. Each fish seller pound of round weight fee fish. shall pay the fee at the time of fish de- Fee fish means all pollock harvested livery by receiving from the fish buyer from the IC directed fishing allowance the net delivery value or the fish buy- beginning on February 10, 2000 and end- er’s promise later to pay the net deliv- ing at such time as the loan’s principal ery value rather than the delivery and interest are fully repaid. value. Regardless of when the fish Fish buyer means the first ex-vessel buyer pays the net delivery value, the fish buyer who purchases fee fish from fish buyer shall collect the fee at the a fish seller. time of fish delivery; Fish delivery means the point at (ii)(A) Each fish seller shall be which a fish buyer first takes delivery deemed, for the purpose of the fee col- or possession of fee fish from a fish lection, deposit, disbursement, and ac- seller. counting requirements of this subpart, Fish seller means the harvester who to be both the fish seller and the fish catches and first sells fee fish to a fish buyer—and all requirements and pen- buyer. alties under this subpart applicable to IC directed fishing allowance means both a fish seller and a fish buyer shall the directed fishing allowance allo- equally apply to the fish seller—each cated to the inshore component under time that the fish seller sells fee fish section 206(b)(1) of the AFA. to: Loan means the loan authorized by (1) Any fish buyer whose place of section 207(a) of the AFA. business is not located in the United Net delivery value means the delivery States, who does not take delivery or value minus the fee. possession of the fee fish in the United Subaccount means the Inshore Com- States, who is not otherwise subject to ponent Pollock Subaccount of the this subpart, or to whom or against Fishing Capacity Reduction Fund in whom NMFS cannot otherwise apply or the U.S. Treasury for the deposit of all enforce this subpart, funds involving the loan. (2) Any fish buyer who is a general (b) Loan—(1) Principal amount. The food-service wholesaler or supplier, a loan’s principal amount is $75,000,000 restaurant, a retailer, a consumer, (seventy five million dollars). some other type of end-user, or some (2) Interest. Interest shall, from De- other fish buyer not engaged in the cember 30, 1998, when NMFS disbursed business of buying fish from fish sellers the loan, until the date the borrower for the purpose of reselling the fish, or

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(3) Any other fish buyer who the fish (ii) If a fish seller refuses to pay the seller has good reason to believe is a fee in the amount and manner that this fish buyer not subject to this subpart subpart requires, the fish buyer shall or to whom or against whom NMFS then advise the fish seller of the fish cannot otherwise apply or enforce this buyer’s collection obligation and of the subpart, fish seller’s payment obligation. If the (B) In each such case the fish seller fish seller still refuses to pay the fee, shall, with respect to the fee fish in- the fish buyer shall then either deduct volved in each such case, discharge, in the fee from the delivery value over addition to the fee payment require- the fish seller’s protest or refuse to buy ments of this subpart, all the fee col- the fee fish. The fish buyer shall also, lection, deposit, disbursement, ac- within the next 7 calendar days, advise counting, recordkeeping, and reporting NMFS in writing of the full particu- requirements that this subpart other- lars, including: wise imposes on the fish buyer, and the (A) The fish buyer’s and fish seller’s fish seller shall be subject to all the name, address, and telephone number, penalties this subpart provides for a (B) The name of the fishing vessel fish buyer’s failure to discharge such from which the fish seller made or at- requirements; tempted to make fish delivery and the (2) Notification. (i) NMFS will send an date of doing so, appropriate fee payment and collection (C) The quantity and delivery value commencement notification to each af- of fee fish the fish seller delivered or fected fish seller and fish buyer of attempted to deliver, whom NMFS has knowledge. (D) Whether the fish buyer deducted (ii) When NMFS determines that the the fee over the fish seller’s protest or loan is fully repaid, NMFS will publish refused to buy the fee fish, and a FEDERAL REGISTER notification that (E) The fish seller’s reason (if known) the fee is no longer in effect and should for refusing to pay the fee in accord- no longer be either paid or collected. ance with this subpart. NMFS will then also send an appro- (d) Fee collection deposits, disburse- priate fee termination notification to ments, records, and reports—(1) Deposit each affected fish seller and fish buyer accounts. Each fish buyer that this sub- of whom NMFS has knowledge; part requires to collect a fee shall (3) Failure to pay or collect. (i) If a fish maintain a segregated account at a fed- buyer refuses to collect the fee in the erally insured financial institution for amount and manner that this subpart the sole purpose of depositing collected requires, the fish seller shall then ad- fee revenue and disbursing the fee rev- vise the fish buyer of the fish seller’s enue directly to NMFS in accordance fee payment obligation and of the fish with paragraph (c) of this section. buyer’s fee collection obligation. If the (2) Fee collection deposits. Each fish fish buyer still refuses to properly col- buyer, no less frequently than at the lect the fee, the fish seller, within the end of each business week, shall de- next 7 calendar days, shall forward the posit, in the deposit account estab- fee to NMFS. The fish seller at the lished under paragraph (a) of this sec- same time shall also advise NMFS in tion, all fee revenue, not previously de- writing of the full particulars, includ- posited, that the fish buyer has col- ing: lected through a date not more than 2 (A) The fish buyer’s and fish seller’s calendar days before the date of de- name, address, and telephone number, posit. Neither the deposit account nor (B) The name of the fishing vessel the principal amount of deposits in the from which the fish seller made fish de- account may be pledged, assigned, or livery and the date of doing so, used for any purpose other than aggre- (C) The quantity and delivery value gating collected fee revenue for dis- of fee fish that the fish seller delivered, bursement to the subaccount in accord- and ance with paragraph (c) of this section. (D) The fish buyer’s reason (if known) The fish buyer is entitled, at any time, for refusing to collect the fee in ac- to withdraw deposit interest, if any, cordance with this subpart; but never deposit principal, from the

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deposit account for the fish buyer’s (5) Annual report. By January 15, 2001, own use and purposes. and by each January 15 thereafter until (3) Deposit principal disbursement. On the loan is fully repaid, each fish buyer the last business day of each month, or shall submit to NMFS a report, on or more frequently if the amount in the in the form NMFS specifies, containing account exceeds the account limit for the following information for the pre- insurance purposes, the fish buyer shall ceding year for all fee fish each fish disburse to NMFS the full amount of buyer purchases from fish sellers: deposit principal then in the deposit (i) Total round weight bought; account. The fish buyer shall do this by (ii) Total delivery value paid; check made payable to ‘‘NOAA Inshore (iii) Total fee amount collected; Component Pollock Loan Subaccount.’’ (iv) Total fee collection amounts de- The fish buyer shall mail each such posited by month; check to the subaccount lockbox ac- (v) Dates and amounts of monthly count that NMFS establishes for the disbursements to the subaccount receipt of the disbursements of deposit lockbox; principal. Each disbursement shall be (vi) Total amount of interest earned accompanied by the fish buyer’s settle- on deposits; and ment sheet completed in the manner (vii) Depository account balance at and form that NMFS specifies. NMFS year-end. will specify the subaccount’s lockbox (6) State records. If landing records and the manner and form of settlement that a state requires from fish sellers sheet by means of the notification in contain some or all of the data that § 600.1101(c). this section requires and state con- (4) Records maintenance. Each fish fidentiality laws or regulations do not buyer shall maintain, in a secure and prevent NMFS’ access to the records orderly manner for a period of at least maintained for the state, then fish buy- 3 years from the date of each trans- ers can use such records to meet appro- action involved, at least the following priate portions of this section’s record- information: keeping requirements. If, however, (i) For all deliveries of fee fish that state confidentiality laws or regula- the fish buyer buys from each fish sell- tions make such records unavailable to er: NMFS, then fish buyers shall maintain (A) The date of delivery, separate records for NMFS that meet (B) The fish seller’s identity, the requirements of this section. (C) The round weight of fee fish deliv- (7) Audits. NMFS or its agents may ered, audit, in whatever manner NMFS believes reasonably necessary for the (D) The identity of the fishing vessel duly diligent administration of the that delivered the fee fish, loan, the financial records of the fish (E) The delivery value, buyers and the fish sellers in order to (F) The net delivery value, ensure proper fee payment, collection, (G) The identity of the party to deposit, disbursement, accounting, rec- whom the net delivery value is paid, if ordkeeping, and reporting. Fish buyers other than the fish seller, and fish sellers shall make all records (H) The date the net delivery value of all transactions involving fee fish was paid, and catches, fish deliveries, and fee pay- (I) The total fee amount collected; ments, collections, deposits, disburse- (ii) For all fee collection deposits to ments, accounting, recordkeeping, and and disbursements from the deposit ac- reporting available to NMFS or its count: agents at reasonable times and places (A) The dates and amounts of depos- and promptly provide all requested in- its, formation reasonably related to these (B) The dates and amounts of dis- records that such fish sellers and fish bursements to the subaccount’s buyers may otherwise lawfully provide. lockbox account, and Trip tickets (or similar accounting (C) The dates and amounts of dis- records establishing the round weight bursements to the fish buyer or other pounds of fee fish that each fish buyer parties of interest earned on deposits. buys from each fish seller each time

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that each fish buyer does so) are essen- (g) Prohibitions and penalties. (1) The tial audit documentation. following activities are prohibited, and (8) Confidentiality of records. NMFS it is unlawful for anyone to: and its auditing agents shall maintain (i) Avoid, decrease, interfere with, the confidentiality of all data to which hinder, or delay payment or collection NMFS has access under this section of, or otherwise fail to fully and prop- and shall neither release the data nor erly pay or collect, any fee due and allow the data’s use for any purpose payable under this subpart or convert, other than the purpose of this subpart, or otherwise use for any purpose other unless otherwise required by law; pro- than the purpose this subpart intends, vided, however, that NMFS may aggre- any paid or collected fee; gate such data so as to preclude their (ii) Fail to fully and properly deposit on time the full amount of all fee rev- identification with any fish buyer or enue collected under this subpart into any fish seller and use them in the ag- a deposit account and disburse the full gregate for other purposes. amount of all deposit principal to the (9) Refunds. When NMFS determines subaccount’s lockbox account—all as that the loan is fully repaid, NMFS this subpart requires; will refund any excess fee receipts, on a (iii) Fail to maintain full, timely, last-in/first-out basis, to the fish buy- and proper fee payment, collection, de- ers. Fish buyers shall return the re- posit, and/or disbursement records or funds, on a last-in/first-out basis, to make full, timely, and proper reports the fish sellers who paid the amounts of such information to NMFS-all as refunded. this subpart requires; (e) Late charges. The late charge to (iv) Fail to advise NMFS of any fish fish buyers for fee payment, collection, seller’s refusal to pay, or of any fish deposit, and/or disbursement shall be buyer’s refusal to collect, any fee due one and one-half (1.5) percent per and payable under this subpart; month, or the maximum rate per- (v) Refuse to allow NMFS or agents mitted by state law, for the total that NMFS designates to review and amount of the fee not paid, collected, audit at reasonable times all books and deposited, and/or disbursed when due to records reasonably pertinent to fee be paid, collected, deposited, and/or payment, collection, deposit, disburse- disbursed within 5 days of the date due. ment, and accounting under this sub- The full late charge shall apply to the part or otherwise interfere with, fee for each month or portion of a hinder, or delay NMFS or it agents in month that the fee remains unpaid, un- the course of their activities under this collected, undeposited, and/or subpart; undisbursed. (vi) Make false statements to NMFS, any of the NMFS’ employees, or any of (f) Enforcement. In accordance with NMFS’ agents about any of the mat- applicable law or other authority, ters in this subpart; NMFS may take appropriate action (vii) Obstruct, prevent, or unreason- against each fish seller and/or fish ably delay or attempt to obstruct, pre- buyer responsible for non-payment, vent, or unreasonably delay any audit non-collection, non-deposit, and/or or investigation NMFS or its agents non-disbursement of the fee in accord- conduct, or attempt to conduct, in con- ance with this subpart to enforce the nection with any of the matters in this collection from such fish seller and/or subpart; and/or fish buyer of any fee (including pen- (viii) Otherwise materially interfere alties and all costs of collection) due with the efficient and effective repay- and owing the United States on ac- ment of the loan. count of the loan that such fish seller (2) Anyone who violates one or more and/or fish buyer should have, but did of the prohibitions of paragraph (a) of not, pay, collect, deposit, and/or dis- this section is subject to the full range burse in accordance with this subpart. of penalties the Magnuson-Stevens Act All such loan recoveries shall be ap- and 15 CFR part 904 provide (including, plied to reduce the unpaid balance of but not limited to: civil penalties, the loan. sanctions, forfeitures, and punishment

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for criminal offenses) and to the full trawl fishery under the Federal Pacific penalties and punishments otherwise Coast Groundfish Fishery Management provided by any other applicable law of Plan that is conducted under permits, the United States. excluding those registered to whiting catcher-processors, which are endorsed § 600.1102 Pacific Coast groundfish for trawl gear operation. fee. Reduction fishery subaccount means (a) Purpose. This section implements the subaccount established in the the fee for repaying the reduction loan groundfish program’s fund subaccount financing the Pacific Coast Groundfish in which the reduction fishery sub- Program authorized by section 212 of amount is deposited. Division B, Title II, of Public Law 108– Subamount means each portion of the 7 and implemented by a final notifica- reduction loan’s original principal tion in the FEDERAL REGISTER (July 18, amount which is allocated either to the 2003; 68 FR 42613). reduction fishery or to any one of the (b) Definitions. Unless otherwise de- fee-share fisheries. fined in this section, the terms defined (c) Reduction loan amount. The reduc- in § 600.1000 of subpart L expressly tion loan’s original principal amount is apply to this section. The following $35,662,471. terms have the following meanings for the purpose of this section: (d) Subamounts. The subamounts of Borrower means, individually and col- the reduction loan amount are: lectively, each post-reduction fishing (1) Reduction fishery, $28,428,719; and permit holder and/or fishing vessel (2) Fee-share fisheries: owner fishing in the reduction fishery, (i) California coastal Dungeness crab in any or all of the fee-share fisheries, fee-share fishery, $2,334,334, or in both the reduction fishery and (ii) California pink shrimp fee-share any or all of the fee-share fisheries. fishery, $674,202, Deposit principal means all collected (iii) Oregon coastal Dungeness crab fee revenue that a fish buyer deposits fee-share fishery, $1,367,545, in an account maintained at a federally (iv) Oregon pink shrimp fee-share insured financial institution for the fishery, $2,228,845, purpose of aggregating collected fee (v) Washington coastal Dungeness revenue before sending the fee revenue crab fee-share fishery, $369,426, and to NMFS for repaying the reduction (vi) Washington ocean pink shrimp loan. fee-share fishery, $259,400. Fee fish means all fish harvested from (e) Interest accrual inception. Interest the reduction fishery during the period began accruing on each portion of the in which any portion of the reduction reduction loan amount on and from the fishery’s subamount is outstanding and date each such portion was disbursed. all fish harvested from each of the fee- share fisheries during the period in (f) Interest rate. The reduction loan’s which any portion of each fee-share interest rate is 6.97 percent. This is a fishery’s subamount is outstanding. fixed rate of interest for the full term Fee-share fishery means each of the of the reduction loan’s life. fisheries for coastal Dungeness crab (g) Repayment term. For the purpose and pink shrimp in each of the States of determining fee rates, the reduction of California and Oregon and the fish- loan’s repayment term shall be 30 years ery for coastal Dungeness crab and from March 1, 2004, but each fee shall ocean pink shrimp in the State of continue for as long as necessary to Washington. fully repay each subamount. Fee-share fishery subaccount means (h) Reduction loan. The reduction each of the six subaccounts established loan shall be subject to the provisions in the groundfish program’s fund sub- of § 600.1012 of subpart L, except that: account in which each of the six fee- (1) The borrower’s obligation to share fishery subamounts are depos- repay the reduction loan shall be dis- ited. charged by fish sellers in the reduction Reduction fishery means all species in, fishery and in each of the fee-share and that portion of, the limited entry fisheries paying the fee applicable to

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each such fishery’s subamount in ac- (vii) All fee collections from the cordance with § 600.1013 of subpart L, Washington coastal Dungeness crab and fishery shall be accounted for in a (2) Fish buyers in the reduction fish- Washington crab fee-share fishery sub- ery and in each of the fee-share fish- account; eries shall be obligated to collect the (2) Fee collection deposits. Each fish fee applicable to each such fishery’s buyer, no less frequently than at the subamount in accordance with § 600.1013 end of each month, shall deposit, in the of this subpart. deposit account established under para- (i) Fee collection, deposits, disburse- graph (i)(1) of this section, all collected ments, records, and reports. Fish buyers fee revenue not previously deposited in the reduction fishery and in each of that the fish buyer collects through a the fee share fisheries shall deposit and date not more than two calendar days disburse, as well as keep records for before the date of deposit. The deposit and submit reports about, the fees ap- principal may not be pledged, assigned, plicable to each such fishery in accord- or used for any purpose other than ag- ance with § 600.1014 of this subpart, ex- gregating collected fee revenue for dis- cept that: bursement to the fund in accordance (1) Deposit accounts. Each fish buyer with paragraph (i)(3) of this section. that this section requires to collect a The fish buyer is entitled, at any time, fee shall maintain an account at a fed- to withdraw interest (if any) on the de- erally insured financial institution for posit principal, but never the deposit the purpose of depositing collected fee fee principal itself, for the fish buyer’s revenue and disbursing the deposit own use and purposes; principal directly to NMFS in accord- (3) Deposit principal disbursement. Not ance with paragraph (i)(3) of this sec- later than the 14th calendar day after tion. The fish buyer may use this ac- the last calendar day of each month, or count for other operational purposes as more frequently if the amount in the well, but the fish buyer shall ensure account exceeds the account limit for that the account separately accounts insurance purposes, the fish buyer shall for all deposit principal collected from disburse to NMFS the full deposit prin- the reduction fishery and from each of cipal then in the deposit account, pro- the six fee-share fisheries. The fish vided that the deposit principal then buyer shall separately account for all totals $100 or more. If the deposit prin- fee collections as follows: cipal then totals less than $100, the fish (i) All fee collections from the reduc- buyer need not disburse the deposit tion fishery shall be accounted for in a principal until either the next month reduction fishery subaccount, during which the deposit principal then (ii) All fee collections from the Cali- totals $100 or more, or not later than fornia pink shrimp fee-share fishery the 14th calendar day after the last cal- shall be accounted for in a California endar day of any year in which the de- shrimp fee-share fishery subaccount, posit principal has not since the last (iii) All fee collections from the Cali- required disbursement totaled $100 or fornia coastal Dungeness crab fishery more, whichever comes first. The fish shall be accounted for in a California buyer shall disburse deposit principal crab fee-share fishery subaccount, by check made payable to the ground- (iv) All fee collections from the Or- fish program’s fund subaccount. The egon pink shrimp fee-share fishery fish buyer shall mail each such check shall be accounted for in an Oregon to the groundfish program’s fund sub- shrimp fee-share fishery subaccount, account lockbox that NMFS estab- (v) All fee collections from the Or- lishes for the receipt of groundfish pro- egon coastal Dungeness crab fee-share gram disbursements. Each disburse- fishery shall be accounted for in an Or- ment shall be accompanied by the fish egon crab fee-share fishery subaccount, buyer’s fee collection report completed (vi) All fee collections from the in the manner and form which NMFS Washington ocean pink shrimp fee- specifies. NMFS will, before fee pay- share fishery shall be accounted for in ment and collection begins, specify the a Washington ocean shrimp fee-share groundfish program’s fund subaccount fishery subaccount, and lockbox and the manner and form of

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fee collection report. NMFS will do parties, of interest earned on deposits; this by means of the notification in and § 600.1013(d) of subpart L. NMFS’ fee (5) Annual report. No fish buyer needs collection report instructions will in- to submit an annual report about fee clude provisions for the fish buyer to fish collection activities unless, during specify the amount of each disburse- the course of an audit under ment which was disbursed from the re- § 600.1014(g), NMFS requires a fish duction fishery subaccount and/or from buyer to submit such a report or re- each of the six fee-share fishery sub- ports. accounts; (j) Other provisions. The reduction (4) Records maintenance. Each fish loan is, in all other respects, subject to buyer shall maintain, in a secure and the provisions of § 600.1012 through ap- orderly manner for a period of at least plicable portions of § 600.1017, except 3 years from the date of each trans- § 600.1014(e). action involved, at least the following [70 FR 40229, July 13, 2005, as amended at 71 information: FR 28, Jan. 3, 2006] (i) For all deliveries of fee fish that the fish buyer buys from each fish sell- § 600.1103 Bering Sea and Aleutian Is- er: lands (BSAI) Crab species program. (A) The date of delivery, (a) Purpose. This section’s purpose is (B) The fish seller’s identity, to implement the program that Section (C) The weight, number, or volume of 144(d) of Division B of Pub. L. 106–554, each species of fee fish delivered, as amended by section 2201 of Pub. L. (D) Information sufficient to specifi- 107–20 and section 205 of Pub. L. 107–117, cally identify the fishing vessel which enacted for BSAI crab species. delivered the fee fish, (b) Terms. Unless otherwise defined in (E) The delivery value of each species this section, the terms defined in of fee fish, § 600.1000 expressly apply to the pro- (F) The net delivery value of each gram for BSAI crab. Likewise, the species of fee fish, terms defined in § 679.2 of this chapter (G) The identity of the payor to also apply to terms not otherwise de- whom the net delivery value is paid, if fined in either § 600.1000 or this section. different than the fish seller, The following terms used in this sec- (H) The date the net delivery value tion have the following meanings for was paid, the purpose of this section: (I) The total fee amount collected as Acceptance means NMFS’ acceptance, a result of all fee fish, and on behalf of the United States, of a bid. (J) The total fee amount collected as Bid means a bidder’s irrevocable a result of all fee fish from the reduc- offer, in response to an invitation to tion fishery and/or all fee fish from bid under this section, to surrender, to each of the six fee-share fisheries; and have revoked, to have restricted, to re- (ii) For all collected fee deposits to, linquish, to have withdrawn, or to have and disbursements of deposit principal extinguished by other means, in the from, the deposit account include: manner this section requires, the bid- (A) The date of each deposit, der’s reduction fishing interest. (B) The total amount deposited, Bid amount means the dollar amount (C) The total amount deposited in the of each bid. reduction fishery subaccount and/or in Bidder means either a qualifying bid- each of the six fee-share fishery sub- der bidding alone or a qualifying bidder accounts, and a co-bidder bidding together who (D) The date of each disbursement to at the time of bidding holds the reduc- the Fund’s lockbox, tion fishing interests specified at (E) The total amount disbursed, § 600.1018(e). (F) The total amount disbursed from Bid crab means the crab that NMFS the reduction fishery subaccount and/ determines each bidder’s reduction/his- or from each of the six fee-share fish- tory vessel (see definition) harvested, ery subaccounts, and according to the State of Alaska’s (G) The dates and amounts of dis- records of the documented harvest of bursements to the fish buyer, or other crab, from each reduction endorsement

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fishery and from the Norton Sound species endorsement is for the Norton fishery during the most recent 5 cal- Sound fishery. endar years in which each reduction RAM Program means NMFS’ Re- endorsement fishery was for any length stricted Access Management Program of time open for directed crab fishing located in NMFS’ Juneau, AK, regional during a 10–calendar-year period begin- office. ning on January 1, 1990, and ending on Reduction endorsement fishery means December 31, 1999. any of the seven fisheries that § 679.2 of Bid score means the criterion by this chapter defines as area/species en- which NMFS decides in what order to dorsements except the area/species en- accept bids in the reverse auction this dorsement for the Norton Sound fish- section specifies. ery. Co-bidder means a person who is not a Reduction fishery means the fishery qualifying bidder, but who at the time for all crab covered by the Bering Sea/ of bidding owns the reduction/privilege Aleutian Islands King and Tanner vessel this section requires to be in- Crabs Fishery Management Plan under cluded in a bid and is bidding together all area/species endorsements that sec- with a qualifying bidder. tion 679.2 of the chapter defines, except Crab means the crab species covered the area/species endorsement for the by the Fishery Management Plan for Norton Sound fishery. the Bering Sea/Aleutian Islands King Reduction fishing history means, for and Tanner Crabs pursuant to § 679.2 of each bid, the complete documented this chapter. harvest of the bidder’s reduction/his- Crab license means a License Limita- tory vessel, upon any part of which tion Program license for crab issued such harvest NMFS based issuance of pursuant to § 679.4(k)(5) of this chapter. the crab license included in the bid as Crab reduction permit means a non-in- a crab reduction permit, plus such fish- terim crab license endorsed for one or ing history, after the issuance of such more reduction endorsement fisheries, crab license, of any other vessel upon regardless of whether it is also en- which the bidder used such crab li- dorsed for the Norton Sound fishery. cense. FSD means NMFS’ Financial Serv- Reduction fishing interest means, for ices Division, located in NMFS’ Silver each bid, the bidder’s: Spring, MD, headquarters office. (1) Reduction fishing privilege (see Non-crab reduction permit means a definition); fishing license, including all of its (2) Crab reduction permit; predecessor history, for which a bidder (3) Non-crab reduction permit; is the holder of record on December 12, (4) Reduction fishing history (see def- 2003 and which was issued based on the inition); and fishing history of the bidder’s -reduc- (5) Any other claim that could in any tion/history vessel. way qualify the owner, holder, or re- Norton Sound fishery means the non- tainer of any of the reduction compo- reduction fishery defined in § 679.2 of nents, or any person claiming under this chapter as the area/species en- such owner, holder, or retainer, for any dorsement for Norton Sound red king present or future limited access system and Norton Sound blue king crab. fishing license or permit in any United NVDC means the U.S. Coast Guard’s States fishery (including, but not lim- National Vessel Documentation Center ited to, any harvesting privilege or located in Falling Waters, WV. quota allocation under any present or Qualifying bidder means a person who future individual fishing quota sys- at the time of bidding is the license tem). holder of record of a crab reduction Reduction fishing privilege means the permit. worldwide fishing privileges of a bid’s Qualifying voter means a person who reduction/privilege vessel (see defini- at the time of voting in a referendum is tion). the license holder of record either of an Reduction/history vessel means the interim or a non-interim crab license, vessel or vessels which generated the except a crab license whose sole area/ reduction fishing history.

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Reduction loan sub-amount means the (iii) The portions of § 600.1009: portion of the original principal (A) Pertaining to fishing capacity re- amount of reduction loan this section duction specifications, specifies each reduction endorsement (B) Within paragraph (a)(4), fishery must repay with interest. (C) Pertaining to a reduction amend- Reduction/privilege vessel means the ment, vessel designated on a crab license on (D) Within paragraph (a)(5)(ii), to the December 12, 2003. extent that the paragraph is incon- Referendum means a referendum sistent with the requirements of this under this section to determine wheth- section, er voters approve the fee required to (E) Within paragraph (b)(i), and repay this program’s reduction loan. (F) Pertaining to an implementation Replacement vessel means a reduction/ plan, history vessel which replaced the lost (iv) The portions of § 600.1010: or destroyed one whose reduction fish- (A) Within paragraph (b), ing history qualified during the general (B) Pertaining to fishing capacity re- qualification period and the endorse- duction specifications, ment qualification period and, which (C) Within paragraph (d)(1), and under the exceptions in Amendment 10, (D) Within paragraphs (d)(4))(iv) qualified during the recent participa- through (vii), tion period. (v) The portions of § 600.1011: (c) Relationship to this subpart—(1) (A) That comprise the last sentence Provisions that apply. The provisions of of paragraph (a), § 600.1000 through § 600.1017 of this sub- (B) Within paragraph (d), and part apply to this program except as (C) Within paragraph (e)(2), paragraph (c)(2) of this section pro- (vi) The portions of § 600.1012: vides; and (A) Within paragraph (b)(3) following (2) Provisions that do not apply. The the word ‘‘subpart’’, and following sections, or portions of them, (B) Within paragraph (b)(3), and of this subpart do not apply to this pro- (vii) The last sentence of § 600.1014(f). gram: (d) Reduction cost financing. NMFS (i) All of: will use the proceeds of a reduction (A) Section 600.1001, loan, authorized for this purpose, to fi- (B) Section 600.1002, nance 100 percent of the reduction cost. (C) Section 600.1003, The original principal amount of the (D) Section 600.1004, reduction loan will be the total of all (E) Section 600.1005, reduction payments that NMFS makes (F) Section 600.1006, and under reduction contracts. This (G) Section 600.1007, amount shall not exceed $100 million. (ii) The portions of § 600.1008: (e) Who constitutes a bidder. A bidder (A) Pertaining to an implementation is a person or persons who is the: plan, (1) Holder of record and person other- (B) Pertaining to a 60–day comment wise fully and legally entitled to offer, period for a proposed implementation in the manner this section requires, regulation, the bid’s crab reduction permit and the (C) Pertaining to public hearings in bid’s non-crab reduction permit; each State that the this program af- (2) Reduction/privilege vessel owner, fects, title holder of record, and person other- (D) Pertaining to basing the imple- wise fully and legally entitled to offer, mentation regulation on a business in the manner this section requires, plan, the bid’s reduction fishing privilege; (E) Within paragraphs (d)(1)(ii) and through (viii), (3) Retainer and person otherwise (F) Within paragraph (d)(2)(ii), fully and legally entitled to offer, in (G) Within paragraph (e), and the manner this section requires, the (H) Within paragraph (f) and per- bid’s reduction fishing history. taining to fishing capacity reduction (f) How crab licenses determine quali- specifications and a subsidized pro- fying bidders and qualifying voters—(1) gram, Non-interim crab licenses. Each person

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who is the record holder of a non-in- and be fully and legally entitled to terim crab license endorsed for one or offer, in the manner that this section more reduction endorsement fisheries requires, the reduction fishing interest, is both a qualifying bidder and a quali- and fying voter and can both bid and vote; (iii) Continuously thereafter hold, (2) Interim crab licenses. Each person own, or retain the reduction fishing in- who is the record holder of an interim terest and remain fully and legally en- crab license endorsed for one or more titled to offer, in the manner that this reduction endorsement fisheries is a section requires, the reduction fishing qualifying voter but not a qualifying interest until: bidder and can vote but not bid; (A) The bid expires without NMFS (3) Crab licenses endorsed solely for the first having accepted the bid, Norton Sound Fishery. Each person who (B) NMFS notifies the bidder that is the record holder of any crab license NMFS rejects the bid, endorsed solely for the Norton Sound (C) NMFS notifies the bidder that a fishery is neither a qualifying bidder reduction contract between the bidder nor a qualifying voter and can neither and the United States no longer exists, bid nor vote; and or (4) Time at which qualifying bidders (D) NMFS tenders reduction payment and voters must hold required crab li- to the bidder; censes. A qualifying bidder must be the (2) Reduction/privilege vessel require- record holder of the required crab li- ments. The reduction/privilege vessel in cense at the time the qualifying bidder each bid must be: submits its bid. A qualifying voter (i) The vessel designated, at the time must be the record holder of the re- this final rule is published in the FED- quired crab license at the time the ERAL REGISTER, on a crab license which qualifying voter submits its ref- becomes a bid’s crab reduction permit, erendum ballot. and (g) Qualifying bidders and co-bidders— (ii) Be neither lost nor destroyed at (1) Qualifying bidders bidding alone. the time of bidding; There is no co-bidder when a qualifying bidder owns, holds, or retains all the (3) Reduction fishing privilege require- required components of the reduction ments. The reduction fishing privilege fishing interest; in each bid must be the reduction/privi- (2) Qualifying bidders bidding together lege vessel’s: with co-bidders. When a qualifying bid- (i) Fisheries trade endorsement under der does not own the reduction/privi- the Merchant Marine Act, 1936 (46 lege vessel, the person who does may be U.S.C.A. 12108), the qualifying bidder’s co-bidder; and (ii) Qualification for any present or (3) Minimum reduction components that future U.S. Government approval under qualifying bidders must hold or retain section (9)(c)(2) of the Shipping Act, when bidding with co-bidders. At a min- 1916 (46 U.S.C. App. 808(c)(2)) for place- imum, a qualifying bidder must hold ment under foreign registry or oper- the crab reduction permit and the non- ation under the authority of a foreign crab reduction permit and retain the country, and reduction fishing history. The reduc- (iii) Any other privilege to ever fish tion/privilege vessel may, however, be anywhere in the world; owned by another person who is a co- (4) Crab reduction permit requirements. bidder. (i) Except as otherwise provided in (h) Reduction fishing interest—(1) Gen- paragraph (i) of this section, the crab eral requirements. Each bidder must: reduction permit must in each bid: (i) In its bid, offer to surrender, to (A) Be the crab license that NMFS have revoked, to have restricted, to re- issued on the basis of the bidder’s relinquish, to have withdrawn, or to have duction fishing history, extinguished by other means, in the (B) Be non-interim at the time each manner that this section requires, the bidder submits its bid, and reduction fishing interest, (C) Include an area/species endorse- (ii) At the time of bidding, hold, own, ment for any one or more reduction en- or retain the reduction fishing interest dorsement fisheries,

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(ii) Although the Norton Sound fish- documented harvest of crab from one ery is not a reduction endorsement vessel and has acquired a replacement fishery, an area/species endorsement vessel’s documented harvest of crab: for the Norton Sound fishery occurring (i) The crab portion of the reduction on a crab reduction permit must be fishing history is the total of the ac- surrendered and revoked (and all fish- quired documented harvest of crab ing history involving it relinquished) through December 31, 1994, plus the in the same manner as all other reduc- documented harvest of crab after De- tion endorsement fisheries occurring cember 31, 1994, of the vessel from on the crab reduction permit; which the bidder made the documented (5) Non-crab reduction permit require- crab harvest § 679.4(k)(5)(iv) of this ments. The non-crab reduction permit chapter requires, and must in each bid be every license, per- (ii) [Reserved] mit, or other harvesting privilege that: (iii) For the purposes of this pro- (i) NMFS issued on the basis of the gram, the acquired documented harvest fishing history of the bidder’s reduc- of crab merges with, and becomes a tion/history vessel, and part of, the non-acquired documented (ii) For which the bidder was the li- harvest of crab. cense holder of record on the effective (j) Determining value of reduction/his- date of this section; and tory vessels’ bid crab—(1) In each fishery. (6) Reduction fishing history require- NMFS will determine the dollar value ments. Except as otherwise provided in of each reduction/history vessel’s bid paragraph (i) of this section, the reduc- crab in each reduction endorsement tion fishing history in each bid must fishery and in the Norton Sound Fish- that of a single reduction/history ves- ery by multiplying each reduction/his- sel. tory vessel’s number of pounds of each (i) Exceptions to the reduction fishing species of bid crab by the average ex- interest requirements—(1) Lost or de- vessel price per pound that the State of stroyed vessel salvaged. When a bidder Alaska annually publishes for each has salvaged a lost or destroyed vessel crab species in the bid crab; and and has made from the salvaged vessel (2) In all fisheries. NMFS will deter- the documented harvest of crab mine the dollar value of each reduc- § 679.4(k)(5)(iii)(B)(3) of this chapter re- tion/history vessel’s bid crab in all requires, the crab portion of the reduc- duction endorsement fisheries and in tion fishing history is the salvaged ves- the Norton Sound fishery by adding sel’s documented harvest of crab; and each of the products of the multiplica- (2) Lost or destroyed vessel not tions in paragraph (j)(1) of this section; salvaged. When a bidder has not and salvaged the lost or destroyed vessel (3) Crab excluded from bid crab. A re- but has made from a replacement ves- duction/history vessel’s bid crab may sel the documented harvest of crab not include, to the extent that NMFS § 679.4(k)(5)(iii)(B)(3) of this chapter re- has knowledge: quires: (i) Triangle tanner crab, grooved tan- (i) The crab portion of the reduction ner crab, and any other crab not in- fishing history is the total of the lost volved in the various area/species en- or destroyed vessel’s documented har- dorsements, vest of crab through the date of such (ii) Discarded crab, vessel’s loss or destruction plus the re- (iii) Crab caught for personal use, placement vessel’s documented harvest (iv) Unspecified crab, and of crab after such date, and (v) Any other crab for which the dol- (ii) For the purposes of this program, lar value, crab fishery, landing date, or the lost or destroyed vessel’s docu- harvesting vessel NMFS cannot, for mented harvest of crab merges with, whatever reason, determine. and becomes a part of, the replacement (k) Determining bid score. NMFS will vessel’s documented harvest of crab; determine each bid score by dividing and each bid amount by the sum in para- (3) Acquired crab fishing history. When graph (j)(2) of this section. a bidder, in the manner § 679.4(k)(5)(iv) (l) Determining reduction loan sub- of this chapter requires, has made a amount—(1) Value of all bid crab in each

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fishery. NMFS will add the dollar value holder records for crab licenses meet- of bid crab of all accepted bidders’ re- ing the requirements of § 679.4(k)(5) of duction/history vessels in each reduc- this chapter as well as the require- tion endorsement fishery; ments of this section; (2) Value of all bid crab in all fisheries. (5) Purpose. The purpose of the notifi- NMFS will add the dollar value of bid cation is to provide the public notice crab of all accepted bidders’ reduction/ of: history vessels in all reduction en- (i) The prospectively qualifying bid- dorsement fisheries plus the Norton ders, and Sound fishery; (ii) The prospectively qualifying vot- (3) Each fishery as a percentage of all ers; and fisheries. NMFS will divide each of the (6) Public comment. Any person who sums in paragraph (l)(1) of this section wants to comment about the notifica- by the sum in paragraph (l)(2) of this tion has 30 days from the notification’s section. The result of this calculation publication date to do so. Persons will be the dollar value of all bid crab should send their comments to both in each reduction endorsement fishery FSD and the RAM Program (at ad- as a percentage of the dollar value of dresses that the notification will speci- all bid crab in all reduction endorse- fy). Comments may address: ment fisheries plus the Norton Sound (i) Persons who appear on one or fishery; more lists but should not, (4) Applying percentages to loan (ii) Persons who do not appear on one amount. NMFS will multiply the reduc- or more lists but should, and tion loan’s full original principal amount by each of the yields in para- (iii) Persons who believe their names graph (l)(3) of this section; and and/or business mailing addresses ap- (5) Loan sub-amount. Each of the pearing on one or more lists are incor- amounts resulting from the calculation rect. in paragraph (l)(4) of this section will (n) Invitation to bid—(1) Notification. be the reduction loan subamount that At the appropriate point after issuing a reduction endorsement fishery must the notification in paragraph (m) of repay. this section, NMFS will publish the in- (m) Prospectively qualifying bidder and vitation to bid in the FEDERAL REG- voter notification—(1) General. At the ISTER notification further specified in appropriate point before issuing an in- § 600.1009(c) of this subpart, along with vitation to bid, NMFS will publish a a bidding form and terms of capacity notification in the FEDERAL REGISTER reduction agreement. No person may, listing all persons who at the time of however, bid at this stage; publishing the notification prospec- (2) Notification contents. The invita- tively are qualifying bidders and quali- tion to bid notification will state all fying voters; applicable bid submission requirements (2) Qualifying bidder list. The prospec- and procedures (including, but not lim- tively qualifying bidder list will in- ited to, those included in this section). clude the names and addresses of In particular, the invitation to bid no- record of each license holder of record tification will: for all non-interim crab licenses except (i) State the date on which NMFS only crab licenses whose sole area/spe- will invite bids by mailing an invita- cies endorsement is for the Norton tion to bid to each person on the pro- Sound fishery; spectively qualifying bidder list, (3) Qualifying voter list. The prospec- (ii) State a bid opening date, before tively qualifying voter list will include which a bidder may not bid, and a bid the names and addresses of record of closing date, after which a bidder may each license holder of record for all not bid, non-interim and interim crab licenses (iii) State a bid expiration date after except only crab licenses whose sole which each bid expires unless, prior to area/species endorsement is for the that date, NMFS accepts the bid by Norton Sound fishery; mailing a written acceptance notice to (4) Basis of lists. NMFS will base both the bidder at the bidder’s address of the lists on the RAM Program’s license record,

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(iv) State the manner of bid submis- offices issued for licenses or permits in- sion and the information each bidder volving species under those offices’ ju- must submit for NMFS to deem a bid risdiction), responsive, (vi) Identify, separately for crab and (v) State any other information re- for each other species: quired for bid submission, and (A) The qualifying bidder’s reduction (vi) Include a facsimile of the invita- fishing history, and tion to bid, along with a bidding form (B) The dates that each portion of and terms of capacity reduction agree- the reduction fishing history encom- ment comprising the entire terms and passes; the name and official number of conditions of the reduction contract the reduction/history vessel or vessels under which each bidder must bid and which gave rise to it; and the dates under which NMFS must accept a bid; during which the qualifying bidder and owned such vessels or, if the qualifying (3) Mailing. On the date specified in bidder acquired any reduction fishing this notification, NMFS will invite history from another person, the name bids by mailing the invitation to bid of the person from which the qualifying and a bidding package, including a bid- bidder acquired such reduction fishing ding form terms of capacity reduction history and the manner in which and agreement, to each person then on the the date on which the qualifying bidder prospectively qualifying bidder list. did so, NMFS will not mail the invitation to (vii) State, declare, and affirm that bid to any potential co-bidder because the qualifying bidder holds the crab re- NMFS will not then know which bids duction permit and retains the com- may include a co-bidder. Each quali- plete reduction fishing history, and is fying bidder is solely responsible to fully and legally entitled to offer both have any required co-bidder properly in the manner this section requires, complete the bid. No person may bid (viii) State, declare, and affirm that before receiving the invitation to bid either the qualifying bidder or the co- and the bidding package that NMFS bidder owns the reduction/privilege mailed to that person. vessel and holds the non-crab reduction (o) Bids—(1) Content. Each invitation permit and is fully and legally entitled to bid that NMFS mails to a qualifying to offer both in the manner that this bidder will have a bid form requiring section requires, and each bid to: (ix) Provide any other information or (i) Identify, by name, regular mail materials that NMFS believes is nec- address, telephone number, and (if essary and appropriate; and available) electronic mail address, the (2) Rejection. NMFS, regardless of bid qualifying bidder and each co-bidder, scores, will reject any bid that NMFS (ii) State the bid amount in U.S. dol- believes is unresponsive to the invita- lars, tion to bid. All bid rejections will con- (iii) Identify, by crab license number, stitute final agency action as of the the qualifying bidder’s crab reduction date of rejection. Before rejection, permit and include an exact copy of NMFS may, however, contact any bid- this crab license (which the RAM Pro- der to attempt to correct a bid defi- gram issued), ciency if NMFS, in its discretion, be- (iv) Identify, by vessel name and offi- lieves the attempt warranted. cial number, the bidder’s reduction/ (p) Acceptance—(1) Reverse auction. privilege vessel, and include an exact NMFS will determine which responsive copy of this vessel’s official document bids NMFS accepts by using a reverse (which NVDC issued), auction in which NMFS first accepts (v) Identify, by license or permit the responsive bid with the lowest bid number, each of the bidder’s non-crab score and successively accepts each ad- reduction permits; and include an ditional responsive bid with the next exact copy of each of these licenses or lowest bid score until either there are permits (which the RAM Program no more responsive bids to accept or issued for licenses or permits involving acceptance of the last responsive bid species under the jurisdiction of NMFS’ with the next lowest bid score would Alaska Region and which other NMFS cause the reduction cost to exceed $100

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million. If two or more responsive bid (5) Potential reduction results stated. scores are exactly the same, NMFS will Each referendum ballot that NMFS first accept the bid that NMFS first re- mails will state the aggregate poten- ceived; tial reduction results of all the bids (2) Notification. NMFS will, after the that NMFS accepted, including: conclusion of a successful referendum, (i) The amount of reduction that all notify accepted bidders that NMFS accepted bids potentially effect, includ- had, before the referendum, accepted ing: their bids; and (A) The number of crab reduction (3) Post-acceptance reduction permit permits, together with each area/spe- transfer. After NMFS has accepted bids, cies endorsement for which each of neither the RAM Program (nor any these licenses is endorsed, other NMFS office) will transfer to (B) The number of reduction/privilege other persons any reduction permits vessels and reduction/history vessels, that accepted bidders included in the and bids unless and until FSD advises the (C) The aggregate and average dollar RAM Program (or some other NMFS value of bid crab (together with the office) that the resulting reduction number of pounds of bid crab upon contracts are no longer in effect be- which NMFS based the dollar value), in cause a referendum failed to approve each reduction endorsement fishery the fee that this section requires to and in the reduction fishery, for all re- repay this program’s reduction loan. duction/history vessels during the pe- (q) Reduction contracts subject to suc- riod for which NMFS calculates the cessful post-bidding referendum condition. dollar value of bid crab, Although this program involves no (ii) The reduction loan sub-amount fishing capacity reduction specifica- that each reduction endorsement fish- tions under this subpart, each bid, each ery must repay if a referendum ap- acceptance, and each reduction con- proves the fee, and tract is nevertheless subject to the suc- (iii) Any other useful information cessful post-bidding referendum condi- NMFS may then have about the poten- tion that § 600.1009(a)(3) of this subpart tial sub-fee rate initially necessary in specifies for bidding results that do not each reduction endorsement fishery to conform to the fishing capacity reduc- repay each reduction loan sub-amount; tion specifications. and (r) Post-bidding referendum—(1) Pur- (6) Notice that condition fulfilled. If the pose. NMFS will conduct a post-bidding referendum is successful, NMFS will referendum whose sole purpose is to de- notify accepted bidders, in the manner termine whether, based on the bidding that § 600.1010(d)(6)(iii) of this subpart results, qualifying voters who cast ref- specifies, that a successful referendum erendum ballots in the manner that has fulfilled the reduction contracts’ this section requires authorize the fee successful post-bidding referendum required to repay this program’s reduc- condition specified in paragraph (q) of tion loan; this section. (2) Manner of conducting. NMFS will (s) Reduction method. In return for mail a referendum ballot to each per- each reduction payment, NMFS will son then on the prospectively quali- permanently: fying voter list for each crab license (1) Revoke each crab reduction per- that the person holds and otherwise mit; conduct the referendum as specified in (2) Revoke each non-crab reduction § 600.1010 of this subpart; permit; (3) One vote per crab license. Each (3) Revoke each reduction fishing qualifying voter may cast only one privilege (which revocation will run vote for each crab license that each with the reduction/privilege vessel’s qualifying voter holds; title in the manner § 600.1009(a)(5)(ii)(A) (4) Crab license numbers on ballots. of this subpart requires and in accord- Each referendum ballot that NMFS ance with 46 U.S.C. 12108(d)); mails will contain the license number (4) Effect relinquishment of each re- of the prospectively qualifying voter’s duction fishing history for the purposes crab license to which the ballot relates; specified in this section by noting in

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the RAM Program records (or such make their own arrangements with ac- other records as may be appropriate for cepted bidders; reduction permits issued elsewhere) (5) Time of tender. At the end of the that the reduction fishing history has reduction payment tender notification been relinquished under this section period, NMFS will tender reduction and will never again be available to payments to accepted bidders, unless anyone for any fisheries purpose; and NMFS then knows of a material dis- (5) Otherwise restrict in accordance pute about an accepted bidder’s author- with this subpart each reduction/privi- ity to enter into the reduction contract lege vessel and fully effect the sur- with respect to any one or more com- render, revocation, restriction, relin- ponents of the reduction fishing inter- quishment, withdrawal, or extinguish- est that warrants, in NMFS’ discretion, ment by other means of all components an alternative course of action; of each reduction fishing interest. (6) Method of tender and disbursement. (t) Reduction payment tender and dis- NMFS will tender reduction payment bursement—(1) Fishing continues until by requesting from each accepted bid- tender. Each accepted bidder may con- der specific, written instructions for tinue fishing as it otherwise would paying the reduction payments. Upon have absent the program until NMFS, receipt of these payment instructions, after a successful referendum, tenders NMFS will immediately disburse re- reduction payment to the accepted bid- duction payments in accordance with der; the payment instructions; and (2) Notification to the public. After a (7) Effect of tender. Concurrently with successful referendum but before ten- NMFS’ tender of reduction payment to dering reduction payment, NMFS will each accepted bidder: publish a notification in the FEDERAL (i) All fishing activity for any species REGISTER listing all proposed reduction payments and putting the public on no- anywhere in the world in any way asso- tice: ciated with each accepted bidder’s re- (i) Of the crab reduction permits, the duction fishing interest must cease, reduction/privilege vessels, the reduc- (ii) Each accepted bidder must re- tion fishing histories, and the non-crab trieve all fixed fishing gear for whose reduction permits upon whose holding, deployment the accepted bidder’s re- owning, retaining, or other legal au- duction/privilege vessel was respon- thority representations accepted bid- sible, and ders based their bids and NMFS based (iii) NMFS will fully exercise its re- its acceptances, and duction contract rights with respect to (ii) That NMFS intends, in accord- the reduction fishing interest by tak- ance with the reduction contracts, to ing the actions specified in paragraph tender reduction payments in return (s) of this section. for the actions specified in paragraph (u) Fee payment and collection—(1) (s) of this section; Fish sellers who pay the fee. Any person (3) Public response. The public has 30 who harvests any crab, but whom days after the date on which NMFS ADF&G’s fisheries reporting require- publishes the reduction payment ten- ments do not require to record and sub- der notification to advise NMFS in mit an ADF&G fish ticket for that writing of any holding, owning, or re- crab, is a fish seller for the purpose of taining claims that conflict with the paying any fee on that crab and other- representations upon which the accept- wise complying with the requirements ed bidders based their bids and on of § 600.1013 of this subpart; which NMFS based its acceptances; (2) Fish buyers who collect the fee. Any (4) Tender and disbursement parties. person whom ADF&G’s fisheries re- NMFS will tender reduction payments porting requirements require to record only to accepted bidders, unless other- and submit an ADF&G fish ticket for wise provided contrary written instruc- any crab that another person harvested tions by accepted bidders. Creditors or is a fish buyer for the purpose of col- other parties with secured or other in- lecting the fee on that crab and other- terests in reduction/privilege vessels or wise complying with the requirements reduction permits are responsible to of § 600.1013 of this subpart; and

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(3) Persons who are both fish sellers and or future individual quota allocation fish buyers and both pay and collect the system) based in any way on any por- fee. Any person who harvests any crab, tion of a reduction fishing interest sur- and whom ADF&G’s fisheries reporting rendered, revoked, restricted, relin- requirements require to record and quished, withdrawn, or extinguished by submit an ADF&G fish ticket for that other means under this section; and crab, is both a fish seller and a fish (3) Penalties. The activities that this buyer for the purpose of paying and paragraph prohibits are subject to the collecting the fee on that crab and oth- full penalties provided in § 600.1017 of erwise complying with the require- this subpart, and immediate cause for ments of § 600.1013 of this subpart. NMFS to take action to, among other (v) Fishing prohibition and penalties— things: (1) General. Fishing, for the purpose of (i) At the reduction/privilege vessel this section, includes the full range of owner’s expense, seize and scrap the re- activities defined in the term ‘‘fishing’’ duction/privilege vessel, and in the Magnuson-Stevens Fishery Con- (ii) Pursue such other remedies and servation and Management Act (16 enforce such other penalties as may be U.S.C. 1801), applicable. (2) Prohibitions. Concurrently with (w) Program administration—(1) FSD NMFS’ tender of each reduction pay- responsibilities. FSD is responsible for ment, and with the sole exception in implementing and administering this paragraph (t)(7)(i) of this section, no program. FSD will: person whatsoever may, and it is un- (i) Issue all notifications and mail- lawful for any person to: ings that this section requires, (i) Fish with or attempt to fish with, (ii) Prepare and issue the invitation or allow others to fish with or attempt to bid, to fish with, the reduction/privilege (iii) Receive bids, vessel anywhere in the world for any (iv) Reject bids, species under any conditions and re- (v) Score bids, gardless of the reduction/privilege ves- (vi) Make acceptances, sel’s ownership or registry for so long (vii) Prepare and issue referendum as the reduction/privilege vessel exists. ballots, This prohibition includes, but is not (viii) Receive referendum ballots, limited to, fishing on the high seas or (ix) Tally referendum ballots, in the jurisdiction of any foreign coun- (x) Determine referendum success or try (to the extent prohibited by law) failure, while operating under U.S. flag, (xi) Tender and disburse reduction (ii) Place or attempt to place, or payments, allow others to place or attempt to (xii) Administer reduction contracts, place, the reduction/privilege vessel (xiii) Administer fees and reduction under foreign flag or registry, loan repayment, and (iii) Operate or attempt to operate, (xiv) Discharge all other manage- or allow others to operate or attempt ment and administration functions to operate, the reduction/privilege ves- that this section requires; sel under the authority of a foreign (2) RAM Program responsibilities. Upon country to the extent prohibited by FSD’s advice, the RAM Program (for law, fishing licenses under the jurisdiction (iv) Otherwise avoid or attempt to of NMFS’s Alaska Region) and any avoid, or allow others to avoid or at- other appropriate NMFS authority (for tempt to avoid, the revocation of the fishing licenses under the jurisdiction reduction fishing privilege with respect of any other NMFS office) will revoke to any reduction/privilege vessel, and reduction permits and effect the sur- (v) Make any claim or attempt to render of fishing histories in accord- make any claim, or allow others to ance with this section; and claim or attempt to make any claim, (3) NVDC and MARAD responsibilities. for any present or future limited access FSD will advise NVDC, MARAD, such fishing license or permit in any U.S. other agency or agencies as may be in- fishery (including, but not limited to, volved, or all of them to revoke reduc- any quota allocation under any present tion/privilege vessels’ fisheries trade

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endorsements and otherwise restrict one for Eastern Aleutian Islands golden reduction/privilege vessels in accord- king crab and another for Western ance with this section. Aleutian Islands golden king crab), (x) Reduction loan and reduction loan (4) Aleutian Islands red king (the cor- sub-amounts. [Reserved] responding crab rationalization fishery [68 FR 69337, Dec. 12, 2003. Redesignated at 69 is Western Aleutian Islands red king FR 53362, Sept. 1, 2004] crab), (5) Pribilof red king and Pribilof blue § 600.1104 Bering Sea and Aleutian Is- king (the corresponding crab rational- lands (BSAI) crab species fee pay- ization fishery is Pribilof red king and ment and collection system. blue king crab), and (a) Purpose. As authorized by Public (6) St. Matthew blue king (the cor- Law 106–554, this section’s purpose is responding crab rationalization fishery to: is also St. Matthew blue king crab). (1) In accordance with § 600.1012 of Reduction fishery means the fishery subpart L, establish: for all crab rationalization crab, ex- (i) The borrower’s obligation to repay cluding CDQ allocations, in all crab ra- a reduction loan, and tionalization fisheries. (ii) The loan’s principal amount, in- Sub-amount means the portion of the terest rate, and repayment term; and reduction loan amount for whose re- (2) In accordance with § 600.1013 payment the borrower in each reduc- through § 600.1016 of subpart L, imple- tion endorsement fishery is obligated. ment an industry fee system for the re- (c) Reduction loan amount. The reduc- duction fishery. tion loan’s original principal amount is (b) Definitions. Unless otherwise de- $97,399,357.11. fined in this section, the terms defined (d) Sub-amounts. The sub-amounts in § 600.1000 of subpart L and § 600.1103 of are: this subpart expressly apply to this (1) For Bristol Bay red king, section. The following terms have the $17,129,957.23; following meanings for the purpose of (2) For Bering Sea and Aleutian Is- this section: lands Area C. opilio and C. bairdi, Crab rationalization crab means the $66,410,767.20; same as in § 680.2 of this chapter. (3) For Aleutian Islands brown king, Crab rationalization fisheries means $6,380,837.19; the same as in § 680.2 of this chapter. (4) For Aleutian Islands red king, Reduction endorsement fishery means $237,588.04; any of the seven fisheries that § 679.2 of (5) For Pribilof red king and Pribilof this chapter formerly (before adoption blue king, $1,571,216.35; and of part 680 of this chapter) defined as (6) For St. Matthew blue king, crab area/species endorsements, except $5,668,991.10. the area/species endorsement for Nor- (e) Interest accrual from inception. In- ton Sound red king. More specifically, terest began accruing on each portion the reduction endorsement fisheries, of the reduction loan amount on and and the crab rationalization fisheries from the date on which NMFS dis- which (after adoption of part 680 of this bursed each such portion. chapter) correspond to the reduction (f) Interest rate. The reduction loan’s endorsement fisheries, are: interest rate shall be the applicable (1) Bristol Bay red king (the cor- rate which the U.S. Treasury deter- responding crab rationalization fishery mines at the end of fiscal year 2005 plus is Bristol Bay red king crab), 2 percent. (2) Bering Sea and Aleutian Islands (g) Repayment term. For the purpose Area C. opilio and C. bairdi (the cor- of determining fee rates, the reduction responding crab rationalization fish- loan’s repayment term is 30 years from eries are two separate fisheries, one for January 19, 2005, but each fee shall con- Bering Sea snow crab and another for tinue indefinitely for as long as nec- Bering Sea Tanner crab), essary to fully repay each subamount. (3) Aleutian Islands brown king (the (h) Reduction loan repayment. (1) The corresponding crab rationalization borrower shall, in accordance with fisheries are the two separate fisheries, § 600.1012, repay the reduction loan;

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(2) Fish sellers in each reduction en- Auditor means Jack V. Tagart, Ph.D., dorsement fishery shall, in accordance d.b.a. Tagart Consulting. with § 600.1013, pay the fee at the rate Authorized Party means the individ- applicable to each such fishery’s sub- uals authorized by Subsector Members amount; on the application form to execute and (3) Fish buyers in each reduction en- submit Offers, Rankings, protests and dorsement fishery shall, in accordance other documents and/or notices on be- with § 600.1013, collect the fee at the half of Subsector Member. rate applicable to each such fishery; Ballot means the form found on the (4) Fish buyers in each reduction en- auditor’s website used to cast a vote in dorsement fishery shall in accordance favor of, or in opposition to, the cur- with § 600.1014, deposit and disburse, as rently Selected Offers. well as keep records for and submit re- BS means the Bering Sea. ports about, the fees applicable to each BSAI means the Bering Sea and the such fishery; except the requirements Aleutian Islands. specified under paragraph (c) of this BSAI Pacific Cod ITAC means the section concerning the deposit prin- Total Allowable Catch for Pacific cod cipal disbursement shall be made to after the subtraction of the 7.5 percent NMFS not later than the 7th calendar Community Development Program re- day of each month; and the require- serve. ments specified under paragraph (e) of Capacity Reduction Agreement or Re- this section concerning annual reports duction Agreement means an agreement which shall be submitted to NMFS by entered into by the Subsector Members July 1 of each calendar year; and, and the FLCC under which the FLCC is (5) The reduction loan is, in all other permitted to develop and submit a Ca- respects, subject to the provisions of pacity Reduction Plan to the Sec- § 600.1012 through § 600.1017. retary. [70 FR 54656, Sept. 16, 2005, as amended at 71 Certificate of Documentation (COD) FR 27210, May 10, 2006] means a document issued by the U.S. Coast Guard’s National Documentation § 600.1105 Longline catcher processor Center that registers the vessel with subsector of the Bering Sea and the United States Government. Aleutian Islands (BSAI) non-pollock Closing Vote means a vote held pursu- groundfish fishery program. ant to paragraph (d)(7) of this section, (a) Purpose. This section implements after two-thirds (2⁄3) or more of the the capacity reduction program that Nonoffering Subsector Members submit Title II, Section 219(e) of Public Law Ranking Forms electing to accept the 108–447 enacted for the longline catcher Selected Offerors and close the Selec- processor subsector of the Bering Sea tion Process, and there are no unre- and Aleutian Islands (BSAI) non-pol- solved Protests or Arbitrations. lock groundfish fishery. Current Offer means an Offer sub- (b) Definitions. Unless otherwise de- mitted by a Subsector Member to the fined in this section, the terms defined Auditor during any Submission Period in § 600.1000 of subpart L of this part ex- and, with regard to such Offer, Offeror pressly apply to this section. The fol- has not become a Rejected Offeror. The lowing terms have the following mean- term ‘‘Current Offer’’ includes Selected ings for the purpose of this section: Offers. Act means Title II, Section 219 of Current Offeror means an Offering Public Law 108–447. Subsector Member that has submitted AI means the Aleutian Islands. an Offer to the Auditor during any Application Form means the form pub- Submission Period and, with regard to lished on the FLCC’s website that sets such Offer, Offeror has not become a forth whether the qualifying LLP Li- Rejected Offeror. The term ‘‘Current cense is a Latent License and identifies Offeror’’ includes Selected Offerors. the individual(s) authorized to execute Database means the online LLP Li- and deliver Offers and Offer Ranking cense database maintained by NMFS as Ballots on behalf of the Subsector downloaded by the Auditor pursuant to Member. paragraph (c)(1) of this section.

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Effective Date means the date the Ca- Person includes any natural person(s) pacity Reduction Agreement becomes and any corporation, partnership, lim- effective pursuant to section 4.e of the ited partnership, limited liability com- Capacity Reduction Agreement. pany, association or any other entity Fishing Capacity Reduction Contract or whatsoever, organized under the laws Reduction Contract means the contract of the United States or of a state. that any Current Offeror must sign and Prequalification Offer shall have the agree to abide by if NMFS accepts the meaning ascribed thereto in paragraph offer by signing the Reduction Con- (d)(2)(iii) of this section. tract. Ranking Form means the form posted FLCC Counsel means Bauer Moynihan by the Auditor pursuant to paragraph & Johnson LLP or other counsel rep- (d)(5)(iii) of this section. resenting the FLCC in any review or Ranking Period shall have the mean- arbitration under the Capacity Reduc- ing ascribed thereto in paragraph tion Agreement. (d)(5)(ii) of this section. Latent License means an LLP License Reduction Fishery means the BSAI on which a vessel was not designated at non-pollock groundfish fishery. the time an Offer is submitted. Reduction Fishing Interests shall have LLP License means a Federal License the meaning ascribed thereto in the Limitation Program groundfish license Fishing Capacity Reduction Contract. issued pursuant to § 679.4(k) of this Reduction Plan means a business plan chapter or successor regulation that is prepared by the Subsector Members in noninterim and transferable, or that is accordance with Section 1 of the Ca- interim and subsequently becomes non- pacity Reduction Agreement and for- interim and transferable, and that is warded to the Secretary for approval. endorsed for BS or AI catcher processor Reduction Privilege Vessel means the fishing activity, C/P, Pacific cod and vessel listed on the Offeror’s License hook and line gear. Limitation Program license. Longline Subsector means the longline Rejected Offer means an Offer that catcher processor subsector of the has been through one or more BSAI non-pollock groundfish fishery as Rankings and is not a Selected Offer defined in the Act. following the latest Ranking Period, Longline Subsector ITAC means the with respect to which the Offering Sub- longline catcher processor subsector sector Member’s obligations have ter- remainder of the Total Allowable minated pursuant to paragraphs Catch after the subtraction of the 7.5 (d)(2)(i) and (d)(6)(v) of this section. percent Community Development Pro- Rejected Offeror means a Subsector gram reserve. Member that has submitted an Offer Nonoffering Subsector Member shall which has been ranked and was not have the meaning ascribed thereto in posted as a Selected Offer pursuant to paragraph (d)(5)(i) of this section. paragraph (d)(6)(ii) of this section. Offer Content means all information Restricted Access Management (RAM) included in Offers submitted to the means the Restricted Access Manage- Auditor pursuant to paragraph (d)(2)(ii) ment Program in the Alaska Region, of this section. NMFS, located in Juneau, Alaska. Offer Form means the form found on Secretary means the Secretary of the Auditor’s website used to make an Commerce or a designee. offer. Selected Offer shall have the meaning Offer(s) means a binding offer(s) from ascribed thereto in paragraph (d)(6)(iv) a Subsector Member to sell its LLP, of this section. right to participate in the fisheries, the Selected Offeror means a Subsector fishing history associated with such Member that has submitted an Offer LLP, and any vessel set forth on the which has been ranked and is posted as Offer Form submitted by Offeror pursu- a Selected Offer pursuant to paragraph ant to the terms of this Capacity Re- (d)(6)(ii) of this section. duction Agreement. Selection Process means the process Opening Date means the first Monday set forth in paragraph (d) of this sec- following the Effective Date set forth tion for selecting the fishing capacity in paragraph (c)(3) of this section. to be removed by the Reduction Plan.

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Submission Period(s) or Submitting Pe- Ranking Ballots on behalf of the Sub- riod(s) shall have the meaning ascribed sector Member. thereto in paragraph (d)(3)(ii) of this (3) Examination by Auditor—(i) In gen- section. eral. Each application must be sub- Subsector Member(s) means a mem- mitted to the Auditor who will exam- ber(s) of the Longline Subsector. ine applications for completeness and Web site means the internet Web site inconsistencies, whether on the face of developed and maintained on behalf of the documents or with the Database. the FLCC for implementation of the Any application which is incomplete or Selection Process described herein which contains inconsistencies shall be with a URL address of http:// invalid. The Auditor shall notify by e- www.freezerlonglinecoop.org. mail or mail an applicant of the basis (c) Qualification and enrollment of sub- for the Auditor’s finding an application sector members—(1) Distribution. A copy invalid. An applicant may resubmit a of the Reduction Agreement, Applica- revised application. If the application tion Form, and Reduction Contract meets all requirements, the Auditor shall be mailed to each holder of record may accept the application as valid of an LLP License endorsed for BS or and enroll the applicant. AI catcher processor activity, C/P, Pa- (ii) Interim LLP Licenses. If an LLP cific cod and hook and line gear, as the License is interim and/or nontransfer- Auditor determines from the Database able, the applicant’s enrollment shall downloaded by the Auditor as of Janu- be accepted as a Subsector Member and ary 30, 2006, regardless of whether the LLP License is indicated in the Data- may fully participate in the Selection base as noninterim and transferable or Process. However, any posting of an otherwise. Offer submitted with respect to such (2) Application. Any person, regard- LLP License shall note the status of less of whether having received the such LLP License until that Subsector mailing described in paragraph (c)(1) of Member submits to the Auditor a let- this section, may as a Subsector Mem- ter from the RAM confirming that it is ber apply to enroll with the FLCC to within the Subsector Member’s control participate in the Reduction Program, to cause the qualifying LLP License to by submitting all of the following doc- be issued as noninterim and transfer- uments: able upon withdrawal of all applicable (i) Fully executed Reduction Agree- appeals. ment; (4) Enrollment period. Applications (ii) Photocopy of the LLP License(s) that meet all requirements will be ac- evidencing Subsector Member’s quali- cepted until the Selection Process is fication as a member of the Longline completed. Subsector; (5) Effective date. The Effective Date (iii) Unless applying as the holder of of any Reduction Agreement shall be a Latent License, a photocopy of Fed- ten (10) calendar days after written no- eral Fisheries Permit for the vessel(s) tice is sent by the Auditor to each designated on the LLP License(s) on holder of record of an LLP License en- the date the Reduction Agreement is dorsed for BS or AI catcher processor signed by the Subsector Member; activity, C/P, Pacific cod and hook and (iv) Unless applying as the holder of line gear (as determined by the Auditor a Latent License, a photocopy of the from the Auditor’s examination of the Certificate of Documentation (COD) for Database) advising that the number of the vessel(s) designated on the LLP Li- Subsector Members that have delivered cense(s) on the date the Reduction to the Auditor a complete Application, Agreement is signed by the Subsector including a fully executed Reduction Member; and Agreement, exceeds seventy percent (70 (v) An executed Application Form percent) of the members of the which sets forth whether the qualifying Longline Subsector (as determined by LLP License is a Latent License and identifies the individual(s) authorized the Auditor from the Auditor’s exam- to execute and deliver Offers and Offer ination of the Database).

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(6) Notice. All notices related to the Process. Once submitted, an Offer may effective date of the Reduction Agree- not be revoked or withdrawn while ment shall be sent by the Auditor via that Offer is a Current Offer or Se- registered mail. lected Offer. An Offer that is submitted (7) Withdrawal. A Subsector Member, by a Subsector Member, but is not a unless such Subsector Member is a Cur- Selected Offer during the subsequent rent Offeror or Selected Offeror, may Ranking Period, shall be deemed to be terminate the Reduction Agreement at terminated and the Subsector Member any time with respect to that Sub- shall have no further obligation with sector Member by giving ten (10) cal- respect to performance of that Offer. endar days written notice to the Audi- (ii) Offer content. All Offers submitted tor preferably via e-mail. Withdrawal to the Auditor shall include the fol- of a Subsector Member shall not affect lowing information: LLP License num- the validity of the Reduction Agree- ber; LLP License number(s) of any ment with respect to any other Sub- linked crab LLP Licenses; license sector Members. Once effective, the Re- MLOA (MLOA—maximum length over- duction Agreement shall continue in all of a vessel is defined at § 679.2 of this full force and effect regardless of chapter); the license area, gear and spe- whether subsequent withdrawals re- cies endorsements; a summary of the duce the number of Subsector Members Pacific cod catch history for the cal- below that level required to effectuate endar years 1995–2004; and the offered the Reduction Agreement. Attempted price. The Offer shall also state wheth- withdrawal by a Current Offeror or Se- er a vessel is currently designated on lected Offeror shall be invalid, and the LLP License and as such will be such Offer shall remain a binding, ir- withdrawn from all fisheries if the revocable Offer, unaffected by the at- Offer is selected for reduction in the tempted withdrawal. Reduction Plan. If so, the Offer shall (d) Selection of fishing capacity to be identify such vessel by name, official removed by Reduction Plan. The fishing number, and current owner. In addi- capacity removed by the Reduction tion, the Offer shall provide a summary Plan will be the Reduction Fishing In- of the Pacific cod catch history for the terests voluntarily offered through the calendar years 1995–2004 of the vessel to Reduction Plan by offering Subsector be retired from the fisheries. All sum- Members and as selected by the Non- mary catch histories included in Offers offering Subsector Members, up to an shall be calculated utilizing both the aggregate amount of thirty six million weekly production report and best dollars ($36,000,000) as set forth in this blend methodology and shall sepa- paragraph (d). rately state for each methodology the (1) Overview. The Selection Process Pacific cod catch in metric tons and as will begin upon the Effective Date of a percentage of the overall catch for the Reduction Agreement. The Selec- the longline catcher processor sub- tion Process will alternate on a weekly sector on an annual basis for each of basis between: the required years. If the vessel stated (i) Submitting Periods, during which to be withdrawn from the fisheries is individual Subsector Members may not owned by the LLP License owner of submit Offers of fishing capacity they record, the Offer shall be countersigned wish to include in the Reduction Plan; by the owner of record of the vessel. An and Offer offering a Latent License shall (ii) Ranking Periods, during which state on the Offer Form that the of- Nonoffering Subsector Members will fered LLP License is a Latent License. rank the submitted Offers. The Offer Form shall also include a (2) Offers—(i) Binding agreement. An comment section for any additional in- Offer from a Subsector Member shall formation that Offerors wish to provide be a binding, irrevocable offer from a to the Subsector Members concerning Subsector Member to relinquish to the Offer. NMFS the Reduction Fishing Interests (iii) Prequalification of offers. A Sub- for the price set forth on the Offer con- sector Member may submit a tingent on such Offer being a Selected Prequalification Offer to the Auditor Offer at the closing of the Selection at any time prior to the Opening Date.

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A Prequalification Offer shall contain mail that the Offer is nonconforming all elements of an Offer, except that a as soon as practicable after discovering price need not be provided. The Auditor the basis of invalidity. The Subsector shall notify the Subsector Member sub- Member may submit a revised, con- mitting a Prequalification Offer as to forming Offer prior to the close of that any deficiencies as soon as practicable. Submission Period or, in any subse- All details of a Prequalification Offer quent Submission Period. Only one shall be kept confidential by the Audi- Offer may be submitted with respect to tor. an LLP License during a Submission (3) Submitting an offer—(i) Offer sub- Period. In the event a Subsector Mem- mission. Commencing on the first Tues- ber submits more than one Offer with day following the Opening Date and respect to an LLP License during a during all Submission Periods until the Submission Period, the first con- Selection Process is closed, any Sub- forming Offer received by the Auditor sector Member may submit an Offer. shall be binding and irrevocable and All Offers are to be on the applicable any subsequent Offers shall be deemed form provided on the FLCC website, ex- invalid. ecuted by an Authorized Party and sub- (iv) Warranty. By submitting an mitted to the Auditor by facsimile. Offer, the Offering Subsector Member, Any Subsector Member may submit an warrants and represents that the Offer- Offer during any Submission Period, ing Subsector Member has read and un- even if that Subsector Member has not derstands the terms of the Reduction submitted an Offer in any previous Agreement, the Offer, and the Reduc- Submission Period. If a Subsector tion Contract and has had the oppor- Member holds more than one LLP Li- tunity to seek independent legal coun- cense, such Subsector Member may, sel regarding such documents and/or but is not required to, submit an Offer agreements and the consequences of for each LLP License held during a submitting an Offer. Submission Period. (4) Posting offers—(i) Current offers. (ii) Submission periods. The initial For each Offer received during a Sub- Submission Period shall commence at 9 mission Period, the Auditor shall post a.m. (Pacific time) on the Tuesday fol- on the Website no later than 5 p.m. lowing the Opening Date and end at 5 (Pacific time) on the following Tuesday p.m. (Pacific time) on the Friday of all of the details of such Offer as set that week. Subsequent Submission Pe- forth on the Offer Form. In addition, riods shall commence at 9 a.m. (Pacific the Auditor shall post, as available to time) on the first Tuesday following Auditor, a summary by year of up to the preceding Ranking Period and end ten (10) years catch history during the at 5 p.m. (Pacific time) on the Friday period 1995–2004 in total round weight of that week. All times set forth in the equivalents and percentage of Longline Reduction Agreement and used in the Subsector ITAC harvested for any ves- Offer process shall be the time kept in sel that is included in the Offer. Sub- the Pacific time zone as calculated by sector Member (or vessel owner, if the National Institute of Standards other than the Subsector Member) ex- and Technology. pressly authorizes Auditor to release (iii) Validity of offer. The Auditor the catch history summary informa- shall examine each Offer for consist- tion previously prepared for that Sub- ency with the Database and informa- sector Member or vessel owner by the tion contained in the enrollment docu- Auditor as part of the analysis of ments. If there is an inconsistency in FLCC’s membership’s catch history the information contained in the Offer, previously conducted by the Auditor on any of the elements required of an behalf of the FLCC. Offer pursuant to paragraph (d)(2)(ii) of (ii) Posting order. Offers shall be post- this section are missing, or the Auditor ed on the Website by the Auditor in al- does not receive the original Offer phabetical order of the Offering Sub- Form before the Offers are to be posted sector Member’s name. pursuant to paragraph (d)(4) of this sec- (iii) Questions as to offer. The Auditor tion, the Auditor shall notify the offer- shall respond to no questions from Sub- ing Subsector Member by e-mail or sector Member regarding Offers except

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to confirm that the posting accurately quentially until the Offer that the Sub- reflects the details of the Offer. If an sector Member would least like to see Offering Subsector Member notices an accepted is ranked with the highest nu- error in an Offer posting on the merical score. A Subsector Member Website, such Subsector Member shall wishing to call for a Closing Vote shall, notify the Auditor as soon as prac- in lieu of ranking the Current Offers, ticable. The Auditor shall review such mark the Ranking Form to accept the notice, the posting and the original Selected Offers selected during the Offer. If an error was made in posting prior Ranking Period and close the Se- the Auditor shall correct the posting as lection Process. To be valid, the Rank- soon as practicable and notify the Sub- ing Form must rank each Current Offer sector Members via e-mail or mail of listed on the Ranking Form or, if appli- the correction. In the event such an cable, be marked to call for a Closing error is not discovered prior to Rank- Vote. Ranking Forms shall be sub- ing, an Offering Subsector Member mitted by sending a completed Rank- shall be bound to the terms of the sub- ing Form, signed by an Authorized mitted Offer, not the terms of the post- Party, to the Auditor by facsimile or ed Offer. mail prior to the end of the Ranking (iv) Archive. The Auditor shall main- Period. A Subsector Member is not retain on the Website an archive of prior quired to rank the Offers during a Offers posted, which shall be available Ranking Period or call for a Closing for review by all Subsector Members. Vote. (5) Ranking—(i) Eligibility. Each Sub- (iv) Validity of subsector member rank- sector Member that has not submitted ing. The Auditor shall examine each an Offer during the preceding Submis- Ranking Form for completeness, sion Period, or whose vessel is not in- whether the form either ranks the Of- cluded as a withdrawing vessel in an fers or calls for a Closing Vote (but not Offer during the preceding Submission both), and authorized signature. Any Period (i.e., a Nonoffering Subsector incomplete or otherwise noncompliant Member), may submit to the Auditor a Ranking Form(s) shall be invalid, and Ranking Form during a Ranking Pe- shall not be included in the Rankings riod. With respect to Ranking, a Sub- of the Current Offers. The Auditor sector Member that holds more than shall notify the Subsector Member of one LLP License may participate in the reason for declaring any Ranking the Ranking process for each LLP Li- Form invalid as soon as practicable. A cense not included in an Offer. Subsector Member may cure the sub- (ii) Ranking period. The initial Rank- mission of an invalid Ranking Form by ing Period shall commence imme- submitting a complying Ranking Form diately after the Offers from the pre- if accomplished before the end of the ceding Submission Period have been applicable Ranking Period. posted and end at 5 p.m. (Pacific time) (6) Ranking results—(i) Compiling the on the Friday of that week. Subsequent rankings. Unless two-thirds (2⁄3) of the Ranking Periods shall commence im- Nonoffering Subsector Members have mediately after the Offers from the called for a Closing Vote, the Auditor preceding Submission Period have been shall compile the results of the Rank- posted and end at 5 p.m. (Pacific time) ing Forms by assigning one point for on the Friday of that week. each position on a Ranking Form. That (iii) Ranking form. Prior to each is, the Offer ranked number one (1) on Ranking Period, the Auditor will post a Ranking Form shall be awarded one a Ranking Form on the Website in (1) point, the Offer ranked two (2) shall ‘‘pdf’’ file format. Each eligible Sub- receive two (2) points, and continuing sector Member wishing to rank the on in this manner until all Offers have current Offers shall rank the Offers on been assigned points correlating to its the Ranking Form numerically in the ranking on each valid Ranking Form. Subsector Member’s preferred order of The Offer with the least number of purchase. The Offer that Subsector total points assigned shall be the high- Member would most like to have ac- est ranked Offer, and the Offer with the cepted should be ranked number one greatest total points assigned shall be (1), and subsequent Offers ranked se- the lowest ranked Offer.

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(ii) Posting rankings. The Auditor or elect not to submit an Offer during shall post the results of the compila- any subsequent Submission Period tion of the Ranking Forms on the until the Selection Process is closed. Website in alphabetical order based on (vi) Ties. In the event there is a tie the Offering Subsector Member’s name with respect to Offers which results in no later than 5 p.m. (Pacific time) on the tied Offers exceeding thirty-six the Monday following the Ranking Pe- million dollars ($36,000,000), the tied Of- riod. The Auditor shall post the high- fers and all Offers ranked lower than est consecutive ranking Offers that the tied Offers shall be deemed to be total thirty six million dollars rejected and the Rejected Offerors ($36,000,000) or less. Those Offering Sub- may, at their option, submit an Offer sector Members whose Offers are post- in a subsequent Submission Period. ed shall be deemed Selected Offerors (vii) Archive. Auditor shall maintain and their Offers shall be deemed Se- on the Website an archive of prior Offer lected Offers. Those Offering Subsector Rankings as posted over the course of Members whose Offers are not posted the Selection Process, which shall be shall be deemed Rejected Offerors. available for Subsector Member review. (iii) Selected offer information or con- (7) Closing. The Selection Process will fidentiality. The Auditor shall post the close when two-thirds (2⁄3) or more of name of the Offering Subsector Mem- the Nonoffering Subsector Members of ber, the amount of the Offer, and a the Longline Subsector, as determined summary of the total number of Rank- by the Auditor, affirmatively vote to ing Forms received and the number of accept the Selected Offerors selected such forms on which the Members during the prior Ranking Period as called for a Closing Vote. Other than part of the Reduction Plan to be sub- the foregoing, the Auditor shall not mitted to the Secretary. post any details of the compilation of the Ranking Forms. (i) Call for vote. A Closing Vote will 2 (iv) Selected offerors. Selected Offerors be held when: at least two-thirds ( ⁄3) of may not withdraw their Offers unless the Nonoffering Subsector Members in subsequent rankings their Offers no submit Ranking Forms electing to ac- longer are within the highest ranking cept the Selected Offerors and close the Offers and they become Rejected Selection Process in lieu of Ranking Offerors. A Selected Offeror may, how- the current Offers; and there are no un- ever, modify a Selected Offer solely to resolved Protests or Arbitrations. The the extent such modification consists Auditor shall notify all Subsector of a reduction in the Offer price. A Se- Members by e-mail or mail and posting lected Offeror may submit a modified a notice on the Website as soon as Offer to the Auditor during the next practicable that a Closing Vote is to be Offering Period as set forth in para- held. Such notice shall state the start- graph (d)(3) of this section. Unless a Se- ing and ending dates and times of the lected Offeror becomes a Rejected Of- voting period, which shall be not less feror in a subsequent Ranking, a Se- than three (3) nor more than seven (7) lected Offeror shall be bound by the calendar days from the date of such no- terms of the lowest Selected Offer sub- tice. A voting period shall commence mitted as if such modified Offer had at 9 a.m. (Pacific time) on Monday and been the original Selected Offer. In the end at 5 p.m. on the Friday of that event a Selected Offeror submits a week. modified Offer and such Offer is not (ii) Voting. No less than three (3) cal- ranked because sufficient votes are re- endar days prior to the voting period, ceived to call for a Closing Vote, the the Auditor will post a Closing Ballot previously Selected Offer shall remain on the Website in ‘‘pdf’’ file format. the Selected Offer. Each eligible Nonoffering Subsector (v) Rejected offerors. The Offer of a Re- Member wishing to vote shall print out jected Offeror is terminated and the the Closing Ballot, and, with respect to Rejected Offeror is no longer bound by each of the currently Selected Offers the terms of its Offer. A Rejected Offer- on the Closing Ballot, vote either in or may, at its sole discretion, resubmit favor of or opposed to accepting that the same Offer, submit a revised Offer, Selected Offer and submit a completed

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and signed Closing Ballot to the Audi- with the FLCC’s supporting documents tor preferably by facsimile prior to the and rationale for recognizing that end of the Voting Period. these offers represent the expenditure (iii) Ballot verification. The Auditor of the least money for the greatest ca- shall examine each submitted Closing pacity reduction, constitute the Reduc- Ballot for completeness and authorized tion Plan to be submitted to NMFS for signature. Any incomplete Closing Bal- approval on behalf of the Secretary of lot shall be void, and shall not be in- Commerce. cluded in the voting results. The Audi- (2) Loan repayment—(i) Term. As au- tor shall not notify the Subsector thorized by Section 219(B)(2) of the Act, Member of an invalid Closing Ballot. the capacity reduction loan (the ‘‘Re- (iv) Voting results. The Auditor shall duction Loan’’) shall be amortized over post the results of the Vote as soon as a thirty (30) year term. The Reduction practicable after voting closes. Each Loan’s original principal amount may Offer on the Closing Ballot that re- not exceed thirty-six million dollars ceives votes approving acceptance of ($36,000,000), but may be less if the re- such Offer from two-thirds (2⁄3) or more duction cost is less. Subsector Mem- of the total number of Nonoffering bers acknowledge that in the event Subsector Members shall be a Selected payments made under the Reduction Offeror and shall be the basis for the Plan are insufficient to repay the ac- Reduction Plan submitted to NMFS. tual loan, the term of repayment shall Any Offer on the Closing Ballot that be extended by NMFS until the loan is does not receive such two-thirds (2⁄3) paid in full. approval shall be rejected and shall not (ii) Interest. The Reduction Loan’s in- be included among the Offers included terest rate will be the U.S. Treasury’s among the Reduction Plan submitted cost of borrowing equivalent maturity to NMFS. funds plus 2 percent. NMFS will deter- (v) Notification to NMFS. Upon closing mine the Reduction Loan’s initial in- of the Selection Process, FLCC shall terest rate when NMFS borrows from notify NMFS in writing of the identi- the U.S. Treasury the funds with which ties of the Selected Offerors and pro- to disburse reduction payments. The vide to NMFS a completed and fully initial interest rate will change to a executed original Reduction Agree- final interest rate at the end of the ment from each of the Selected Federal fiscal year in which NMFS bor- Offerors and a certified copy of the rows the funds from the U.S. Treasury. fully executed Reduction Agreement The final interest rate will be 2 percent and Reduction Contract. plus a weighted average, throughout (e) Submission of reduction plan, in- that fiscal year, of the U.S. Treasury’s cluding repayment. Upon completion of cost of borrowing equivalent maturity the offering process, the FLCC on be- funds. The final interest rate will be half of the Subsector Members shall fixed, and will not vary over the resubmit to NMFS the Reduction Plan mainder of the reduction loan’s 30-year which shall include the provisions set term. The Reduction loan will be sub- forth in this paragraph (e). ject to a level debt amortization. There (1) Capacity reduction. The Reduction is no prepayment penalty. Plan shall identify as the proposed ca- (iii) Fees. The Reduction Loan shall pacity reduction, without auction proc- be repaid by fees collected from the ess, the LLP Licenses as well as the Longline Subsector. The fee amount vessels and the catch histories related will be based upon: The principal and to the LLP Licenses, linked crab LLP interest due over the next twelve Licenses, and any other fishing rights months divided by the product of the or other interests associated with the Hook & Line, Catcher Processor LLP Licenses and vessels included in (Longline Subsector; sometimes re- the Selected Offers. The aggregate of ferred to as the ‘‘H&LCP Subsector’’) all Reduction Agreements and Reduc- portion of the BSAI Pacific cod ITAC tion Contracts signed by Subsector (in metric tons) set by the North Pa- Members whose offers to participate in cific Fishery Management Council this buyback were accepted by votes of (NPFMC) in December of each year the Subsector Members, will together multiplied by 2,205 (i.e., the number of

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pounds in a metric ton). In the event available, or for any other reason that the Longline Subsector portion NMFS believes the calculation must be for the ensuing year is not available, postponed, the fee will remain at the the Longline Subsector portion fore- previous year’s amount until such a cast from the preceding year will be time that new calculations are made used to calculate the fee. and communicated to the post reduc- (A) The fee will be expressed in cents tion fishery participants. per pound rounded up to the next one- (D) It is possible that the fishery may tenth of a cent. For example: If the not open during some years and no principal and interest due equal Longline Subsector portion of the $2,900,000 and the Longline Subsector ITAC is granted. Consequently, the portion equals 100,000 metric tons, then fishery will not produce fee revenue the fee per round weight pound of Pa- with which to service the reduction cific cod will equal 1.4 cents per pound. loan during those years. However, in- [2,900,000 /(100,000 × 2,205) = .01315]. The terest will continue to accrue on the fee will be accessed and collected on principal balance. When this happens, Pacific cod to the extent possible and if if the fee rate is not already at the not, will be accessed and collected as maximum 5 percent, NMFS will in- provided for in this paragraph (e). crease the fisheries’ fee rate to the (B) Fees must be accessed and col- maximum 5 percent of the revenues for lected on Pacific cod used for bait or Pacific cod and the species mentioned discarded. Although the fee could be up in paragraph (e)(2)(iii)(B), apply all to 5 percent of the ex-vessel production subsequent fee revenue first to the pay- value of all post-reduction Longline ment of accrued interest, and continue Subsector landings, the fee will be less the maximum fee rates until all prin- than 5 percent if NMFS projects that a cipal and interest payments become lesser rate can amortize the fishery’s current. Once all principal and interest reduction loan over the reduction payments are current, NMFS will loan’s 30-year term. In the event that make a determination about adjusting the total principal and interest due ex- the fee rate. ceeds 5 percent of the ex-vessel Pacific (iv) Reduction loan. NMFS has pro- cod revenues, a penny per pound round mulgated framework regulations gen- weight fee will be calculated based on erally applicable to all fishing capacity the latest available revenue records reduction programs (§ 600.1000 et seq.). and NMFS conversion factors for pol- The reduction loan shall be subject to lock, arrowtooth flounder, Greenland the provisions of § 600.1012, except that: turbot, skate, yellowfin sole and rock the borrower’s obligation to repay the sole. reduction loan shall be discharged by (C) The additional fee will be limited the owner of the Longline Subsector li- to the amount necessary to amortize cense regardless of which vessel the remaining twelve months principal catches fish under this license and re- and interest in addition to the 5 per- gardless of who processes the fish in cent fee accessed against Pacific cod. the reduction fishery in accordance The additional fee will be a minimum with § 600.1013. Longline Subsector li- of one cent per pound. In the event cense owners in the reduction fishery that collections exceed the total prin- shall be obligated to collect the fee in cipal and interest needed to amortize accordance with § 600.1013. the payment due, the principal balance (v) Collection. The LLP License hold- of the loan will be reduced. To verify er of the vessel harvesting in the post- that the fees collected do not exceed 5 capacity reduction plan Longline Sub- percent of the fishery revenues, the an- sector shall be responsible for self-col- nual total of principal and interest due lecting the repayment fees owed by will be compared to the latest avail- that LLP License holder. Fees shall be able annual Longline Subsector reve- submitted to NMFS monthly and shall nues to ensure it is equal to or less be due no later than fifteen (15) cal- than 5 percent of the total ex-vessel endar days following the end of each production revenues. In the event that calendar month. any of the components necessary to (vi) Record keeping and Reporting. The calculate the next year’s fee are not holder of the LLP License on which a

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vessel harvesting in the post-capacity the Reduction Agreement expressly ac- reduction plan Longline Subsector is knowledge that money damages are an designated shall be responsible for inadequate means of redress and agree compliance with the applicable record that upon the failure of the Selected keeping and reporting requirements. Offeror, and vessel owner if not a Sub- (3) Agreement with Secretary. Each Se- sector Member, to fulfill its obligations lected Offeror, and vessel owner if not under the Reduction Agreement that the Subsector Member, that has sub- specific performance of those obliga- mitted a Selected Offer shall complete tions may be obtained by suit in equity and deliver to the FLCC for inclusion brought by the FLCC in any court of in the Reduction Plan submitted to competent jurisdiction without obliga- NMFS, designee for the Secretary, a tion to arbitrate such action. completed and fully executed Reduc- (h) Miscellaneous—(1) Time/Holidays. tion Contract. Any and all LLP Li- All times related to the Selection cense(s) and or vessels set forth on a Process shall be the time kept in the Selected Offer shall be included as Re- Pacific time zone as calculated by the duction Fishing Interests in such Re- National Institute of Standards and duction Contract. Technology. In the event that any date (f) Decisions of the Auditor and the occurring within the Selection Process FLCC. Time is of the essence in devel- is a Federal holiday, the date shall roll oping and implementing a Reduction over to the next occurring business Plan and, accordingly, the Offerors day. shall be limited to, and bound by, the (2) Termination. The Reduction Agree- decisions of the Auditor and the FLCC. ment shall automatically terminate if (1) The Auditor’s examination of sub- no vote of acceptance is completed by mitted applications, Offers, December 31, 2007. The Reduction Prequalification Offers and Rankings Agreement may be terminated at any shall be solely ministerial in nature. time prior to approval of the Reduction That is, the Auditor will verify wheth- Plan by NMFS, on behalf of the Sec- er the documents submitted by Sub- retary, by written notice from 50 per- sector Members are, on their face, con- cent of Subsector Members. sistent with each other and the Data- (3) Choice of law/venue. The Reduction base, in compliance with the require- Agreement shall be construed and en- ments set forth in the Reduction forced in accordance with the laws of Agreement, and, signed by an Author- the State of Washington without re- ized Party. The Auditor may presume gard to its choice of law provisions. the validity of all signatures on docu- The parties submit to the exclusive ments submitted. The Auditor shall personal jurisdiction of the United not make substantive decisions as to States District Court located in Se- compliance (e.g., whether an interim attle, Washington, with respect to any LLP License satisfies the requirements litigation arising out of or relating to of the Act, or whether a discrepancy in the Reduction Agreement or out of the the name appearing on LLP Licenses performance of services hereunder. and other documents is material). (4) Incorporation. All executed coun- (2) [Reserved] terparts of the Reduction Agreement, (g) Enforcement/specific performance. Application Forms and Offers con- The parties to the Reduction Agree- stitute the agreement between the par- ment have agreed that the opportunity ties with respect to the subject matter to develop and submit a capacity re- of the Reduction Agreement and are in- duction program for the Longline Sub- corporated into the Reduction Agree- sector under the terms of the Act is ment as if fully written. both unique and finite and that failure (5) Counterparts. The Reduction of a Selected Offeror, and vessel owner, Agreement may be executed in mul- if not a Subsector Member, to perform tiple counterparts and will be effective the obligations provided by the Reduc- as to signatories on the Effective Date. tion Agreement will result in irrep- The Reduction Agreement may be exe- arable damage to the FLCC, the Sub- cuted in duplicate originals, each of sector Members and other Selected which shall be deemed to be an original Offerors. Accordingly, the parties to instrument. All such counterparts and

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duplicate originals together shall con- the governing documents of Subsector stitute the same agreement, whether Member; or not all parties execute each counter- (4) The person executing the Reduc- part. tion Agreement has been duly author- (i) The facsimile signature of any ized by Subsector Member to execute party to the Reduction Agreement and deliver the Reduction Agreement shall constitute the duly authorized, and to undertake and perform the ac- irrevocable execution and delivery of tions contemplated herein; and the Reduction Agreement as fully as if (5) Subsector Member has taken all the Reduction Agreement contained actions necessary for the Reduction the original ink signatures of the party Agreement to constitute the valid and or parties supplying a facsimile signa- binding obligation of Subsector Mem- ture. ber, enforceable in accordance with its (ii) [Reserved] terms. (i) Amendment. Subsector Member ac- (k) Approval of the reduction plan. Ac- knowledges that the Reduction Agree- ceptance of the Offers are at the sole ment, the Reduction Contract, and the discretion of NMFS on behalf of the Reduction Plan may be subject to Secretary of Commerce. To be ap- amendment to conform to the require- proved by NMFS, on behalf of the Sec- ments for approval of the Reduction retary, any Reduction Plan developed and submitted in accordance with this Plan by NMFS on behalf of the Sec- section and subpart M to this part retary. The Auditor shall distribute to must be found by the Assistant Admin- each Subsector Member in electronic istrator of NMFS, to: format the amended form of the Reduc- (1) Be consistent with the require- tion Agreement, the Reduction Con- ments of Section 219(e) of the FY 2005 tract, and the Reduction Plan, which Appropriations Act (Public Law 108– amended documents in the form dis- 447); tributed by the Auditor and identified (2) Be consistent with the require- by the Auditor by date and version, the ments of Section 312(b) of the Magnu- version of each such document then in son-Stevens Fishery Conservation and effect at the time of any dispute aris- Management Act (16 U.S.C. 1861(a)) ex- ing or action taken shall be deemed cept for the requirement that a Council binding upon the parties with respect or Governor of a State request such a to such dispute and/or action. program (as set out in section 312(b)(1)) (j) Warranties. Subsector Member and for the requirements of section must expressly warrant and represent 312(b)(4); in the Reduction Agreement that: (3) Contain provisions for a fee sys- (1) Subsector Member has had an op- tem that provides for full and timely portunity to consult with Subsector repayment of the capacity reduction Member’s attorney or other advisors of loan by the Longline Subsector and Subsector Member with respect to the that it provide for the assessment of Reduction Agreement, the Reduction such fees; Contract, and the Act and the rami- (4) Not require a bidding or auction fications of the ratification of the Re- process; duction Plan contemplated therein; (5) Result in the maximum sustained (2) Subsector Member has full under- reduction in fishing capacity at the standing and appreciation of the rami- least cost and in the minimum amount fications of executing and delivering of time; and the Reduction Agreement and, free (6) Permit vessels in the Longline from coercion of any kind by the FLCC Subsector to be upgraded to achieve ef- or any of its members, officers, agents ficiencies in fishing operations pro- and/or employees, executes and deliv- vided that such upgrades do not result ers the Reduction Agreement as the in the vessel exceeding the applicable free and voluntary act of Subsector length, tonnage, or horsepower limita- Member; tions set out in Federal law or regula- (3) The execution and delivery of the tion. Reduction Agreement, does not and (l) Referenda. The provisions of will not conflict with any provisions of § 600.1010 (including §§ 600.1004(a),

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600.1008, 600.1009, 600.1013, 600.1014, and NMFS implements the Reduction Plan pur- 600.1017(a)(5), (6) and (7)) shall apply to suant to Section 219 of the Act as well as the the Reduction Plan of this section to Magnuson-Stevens Fishery Conservation and the extent that they do not conflict Management Act (16 U.S.C. 1861a(b)–(e))(as excepted by the Act, including inter alia, with this section or with subpart M of any requirement that the Reduction Plan in- this part. clude a bidding or auction process) and other applicable law; APPENDIX TO § 600.1105—FISHING CAPACITY RE- Whereas, NMFS has promulgated frame- DUCTION CONTRACT: BERING SEA AND ALEU- work regulations generally applicable to all TIAN ISLANDS LONGLINE CATCHER PROC- fishing capacity reduction programs, por- ESSOR SUBSECTOR tions of which are applicable to the Reduc- FISHING CAPACITY REDUCTION CONTRACT: BER- tion Plan, (50 CFR 600.1000 et seq.); ING SEA AND ALEUTIAN ISLANDS LONGLINE Whereas, NMFS can implement the Reduc- CATCHER PROCESSOR SUBSECTOR tion Plan only after giving notice to all members of the Longline Subsector of the This agreement, (the ‘‘Reduction Con- Reduction Plan pursuant to Section 219(3)(b) tract’’) is entered into by and between the of the Act and approval of the Reduction party or parties named in section 46 of this Plan by referendum of the Longline Sub- contract entitled, ‘‘Fishing Capacity Reduc- sector; and tion Offer Submission Form and Reduction Whereas, this Reduction Contract is sub- Fishing Interests Identification,’’ as the mitted by Offeror and the FLCC as an inte- qualifying Offeror and as the co-Offeror (if gral element of the Reduction Plan and is ex- there is a co-Offeror) (collectively the ‘‘Of- pressly subject to the terms and conditions feror’’) and the United States of America, set forth herein, the framework regulations, acting by and through the Secretary of Com- the final rule (as used in this contract ‘‘final merce, National Oceanic and Atmospheric rule’’ means the final rule promulgated by Administration, National Marine Fisheries NMFS which sets forth the regulations im- Service, Financial Services Division plementing the Reduction Plan for the (‘‘NMFS’’). The Reduction Contract is effec- Longline Subsector) and applicable law. tive when NMFS signs the Reduction Con- Now therefore, for good and valuable contract and, thereby, accepts the Offeror’s sideration and the premises and covenants offer, subject to the condition subsequent of hereinafter set forth the receipt and suffi- NMFS’ formal notification of a successful ciency of which the parties to the Reduction referendum. Contract hereby acknowledge, and intending to be legally bound hereby, the parties here- Witnesseth to agree as follows: Whereas, Section 219, Title II, Division B of 1. Incorporation of Recitals. The foregoing the Consolidated Appropriations Act, 2005, as recitals are true and correct and are ex- enacted on December 8, 2004, (the ‘‘Act’’) au- pressly incorporated herein by this ref- thorizes a fishing capacity reduction pro- erence. gram implementing capacity reduction plans 2. Further Incorporation. The Act, frame- submitted to NMFS by catcher processor work regulations, final rule and any other subsectors of the Bering Sea and Aleutian Is- rule promulgated pursuant to the Act are ex- lands (‘‘BSAI’’) non-pollock groundfish fish- pressly incorporated herein by this ref- ery as set forth in the Act; erence. In the event of conflicting language, Whereas, the longline catcher processor the framework regulations, the final rule subsector (the ‘‘Longline Subsector’’) is and any other rule promulgated pursuant to among the catcher processor subsectors eli- the Act, take precedence over the Reduction gible to submit to NMFS a capacity reduc- Contract. tion plan under the terms of the Act; 3. Contract Form. By completing and sub- Whereas, the Freezer Longline Conserva- mitting the Reduction Contract to NMFS tion Cooperative (the ‘‘FLCC’’) has developed the Offeror hereby irrevocably offers to re- and is submitting to NMFS concurrently linquish its Reduction Fishing Interests. If with this Reduction Contract a capacity re- NMFS discovers any deficiencies in the duction plan for the Longline Subsector (the Offeror’s submission to NMFS, NMFS may, ‘‘Reduction Plan’’); at its sole discretion, contact the Offeror in Whereas, the selection process will be pur- an attempt to correct such offer deficiency. suant to the fishing capacity Reduction Con- ‘‘Reduction Fishing Interests’’ means all of tract and the Reduction Plan; Offeror(s) rights, title and interest to the Whereas, the term ‘‘Reduction Fishery’’ is Groundfish Reduction Permit, Reduction defined by the Reduction Plan as the Permit(s), Reduction Fishing Privilege and longline catcher processor subsector of the Reduction Fishing History as defined in this BSAI non-pollock groundfish fishery; Reduction Contract. Whereas, the Reduction Plan’s express ob- 4. Groundfish Reduction Permit. Offeror ex- jective is to permanently reduce harvesting pressly acknowledges that it hereby offers to capacity in the Reduction Fishery; Whereas, permanently surrender, relinquish, and have

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NMFS permanently revoke the valid non-in- a. The Reduction Privilege Vessel’s full terim Federal License Limitation Program and complete documented harvest of ground- groundfish license issued pursuant to 50 CFR fish; 679.4(k) (or successor regulation) endorsed b. For any documented harvest of the Re- for Bering Sea or Aleutian Islands catcher duction Privilege Vessel whatsoever, includ- processor fishing activity, C/P, Pacific cod, ing that specified in section 8 of this con- and hook and line gear identified in section tract, any right or privilege to make any 46 of this contract as well as any present or claim in any way related to any fishery future claims of eligibility for any fishery privilege derived in whole or in part from privilege based upon such permit, including any such other and documented harvest any Latent License and any offered and ac- which could ever qualify any party for any cepted interim permit that Offeror causes to future limited access system fishing license, become a non-interim permit, (the ‘‘Ground- permit, and other harvest authorization of fish Reduction Permit’’). any kind; including without limitation crab 5. Reduction Permit(s). Offeror hereby ac- LLP licenses linked to License Limitation knowledges that it offers to permanently Program (‘‘LLP’’) licenses, state fishing surrender, relinquish, and have NMFS per- rights appurtenant to Reduction Fishing manently revoke any and all Federal fishery Vessels, and all fishing history associated licenses, fishery permits, and area and species endorsements issued for any vessel therewith, but without prejudice to any named on the Groundfish Reduction Permit party who before submission of this offer as well as any present or future claims of eli- may have for value independently acquired gibility for any fishery privilege based upon the fishing history involving any such docu- such permit, including any Latent License, mented harvest; (the ‘‘Reduction Permits’’). c. Any documented harvest on any other 6. Reduction Privilege Vessel. The Reduction vessel (Reduction Fishing Vessel) that gave Privilege Vessel is the vessel listed on the rise to the Groundfish Reduction Permit; Offeror’s License Limitation Program li- and cense. d. All fishing history associated with the 7. Reduction Fishing Privilege. If a vessel is latent LLP license identified on the Selected specified in section 46 of this contract (the Offer and any fishing history associated with ‘‘Reduction Privilege Vessel’’), Offeror here- the fishing vessel that gave rise to the latent by acknowledges that Offeror offers to relin- LLP license that remains in the Offeror’s quish and surrender the Reduction Privilege possession as of August 11, 2006 (i.e., date of Vessel’s fishing privilege and consents to the publication of the proposed rule in the FED- imposition of Federal vessel documentation ERAL REGISTER). restrictions that have the effect of perma- 9. Halibut, Sablefish and Crab IFQs Excluded. nently revoking the Reduction Privilege Notwithstanding any other provision of this Vessel’s legal ability to fish anywhere in the Reduction Contract, no right, title and/or in- world as well as its legal ability to operate terest to harvest, process or otherwise uti- under foreign registry or control—including lize individual fishing quota (‘‘IFQ’’) quota the Reduction Privilege Vessel’s: fisheries share in the halibut, sablefish and crab fish- trade endorsement under the Commercial eries pursuant to 50 CFR parts 679 and 680, Fishing Industry Vessel Anti-Reflagging Act nor crab LLP license history to the extent (46 U.S.C. 12108); eligibility for the approval necessary for the issuance of crab IFQ pursu- required under section 9(c)(2) of the Shipping ant to 50 CFR part 680 as in effect as of the Act, 1916 (46 U.S.C. App. 808(c)(2)), for the date of this Contract, shall be included placement of a vessel under foreign flag or among Offeror’s Reduction Fishing Interests. registry, as well as its operation under the authority of a foreign country; and the privi- 10. Representations and Warranties. Offeror lege otherwise to ever fish again anywhere in represents and warrants that, as of the date the world (the ‘‘Reduction Fishing Privi- of submission of this Reduction Contract, Of- lege’’). Offeror agrees to instruct the United feror is: States Coast Guard’s Vessel Documentation a. The holder of record, according to Center to remove the fishery endorsement NMFS’ official fishing license records, at the from the Reduction Privilege Vessel. If the time of offer, of the Groundfish Reduction Reduction Privilege Vessel is not a federally Permit and the Reduction Permit(s). documented vessel, the Offeror offers to b. The Reduction Privilege Vessel’s owner promptly scrap the vessel and allow NMFS of record, according to the National Vessel whatever access to the scrapping NMFS Documentation Center’s official vessel docu- deems reasonably necessary to document and mentation records, at the time of offer, and confirm the scrapping. that the Reduction Privilege Vessel is nei- 8. Reduction Fishing History. Offeror surren- ther lost nor destroyed at the time of offer. ders, relinquishes, and consents to NMFS’ c. In retention of and fully and legally en- permanent revocation of the following Re- titled to offer and dispose of hereunder, full duction Fishing History (the ‘‘Reduction and complete rights to the Reduction Privi- Fishing History’’): lege Vessel’s full and complete Reduction

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Fishing History necessary to fully and com- defect and NMFS, in its sole discretion, ac- pletely comply with the requirements of sec- cepts the correction. tion 8 of this contract. 18. Notarized Offeror Signature(s) Required. 11. Offer Amount. NMFS’ payment to Offer- NMFS shall deem as non-responsive and re- or in the exact amount of the amount set ject an offer whose Offer Submission Form forth by Offeror in section 46 of this contract does not contain the notarized signatures of is full and complete consideration for the all persons required to sign the form on be- Offeror’s offer. half of the Offeror. 12. Additional Offer Elements. Offeror shall 19. Offer Rejections Constitute Final Agency include with its offer an exact photocopy of Action. NMFS’s offer rejections are conclu- the Reduction Privilege Vessel’s official ves- sive and constitute final agency action as of sel documentation or registration (i.e., the the rejection date. certificate of documentation the U.S. Coast 20. Effect of Offer Submission. Submitting an Guard’s National Vessel Documentation Cen- irrevocable offer conforming to the require- ter issued for federally documented vessels ments stated herein entitles the Offeror to or the registration a State issues for State have NMFS accept the offer if NMFS, in its registered vessels) and an exact photocopy of sole discretion, deems that the offer is fully the Groundfish Reduction Permit and all Re- responsive and complies with the Act, the duction Permit(s). The Offeror shall also in- final rule and any other rule promulgated clude with the offer all other information re- pursuant to the Act. quired in this Reduction Contract and other- 21. Offeror Retains Use. After submitting an wise comply with Reduction Contract re- offer, the Offeror shall continue to hold, own, quirements. or retain unimpaired every aspect of any and 13. Use of Official Fishing License or Permit all LLP License(s) and or vessels set forth on Databases. Offeror expressly acknowledges an Offer included as Reduction Fishing Inter- that NMFS shall use the appropriate official ests, until such time as: NMFS notifies the governmental fishing license or permit data- Offeror that the Reduction Plan is not in base to: compliance with the Act or other applicable Determine the Offeror’s address of record; law and will not be approved by NMFS; noti- verify the Offeror’s qualification to offer; de- fies the Offeror that the referendum was un- termine the holder of record of the Ground- successful; NMFS tenders the reduction pay- fish Reduction Permit and Reduction Per- ment and the Offeror complies with its obli- mit(s); and verify the Offeror’s inclusion in gations under the Reduction Contract; or the offer of all permits and licenses required NMFS otherwise excuses the Offeror’s per- to be offered in the Offer. formance. 14. Use of National Vessel Documentation Center Database. Offeror expressly acknowl- 22. Acceptance by Referendum. NMFS shall edges that NMFS shall use the records of the formally notify the Offeror in writing wheth- National Vessel Documentation Center to er the referendum is successful, which writ- determine the owner of record for a federally ten notice shall inform Offeror that the con- documented Reduction Privilege Vessel and dition subsequent has been satisfied. There- the appropriate State records to determine fore, Offeror expressly acknowledges that all the owner of record of a non-federally docu- parties must perform under the Reduction mented Reduction Privilege Vessel. Contract and the Reduction Contract is en- 15. Offeror to Ensure Accurate Records. Offer- forceable against, and binding on, the Reduc- or shall, to the best of its ability, ensure tion Contract parties in accordance with the that the records of the databases relevant to terms and conditions herein. sections 13 and 14 of this contract are true, 23. Reduction Contract Subject to Federal accurate, and complete. Law. The Reduction Contract is subject to 16. Submissions are Irrevocable. The parties Federal law. hereto expressly acknowledge as the essence 24. Notice to Creditors. Upon NMFS’ offer ac- hereof that the Offeror voluntarily submits ceptance notice to the Offeror, Offeror agrees to NMFS this firm and irrevocable offer. The to notify all parties with secured interests in Offeror expressly acknowledges that it here- the Reduction Fishing Interests that the Of- by waives any privilege or right to withdraw, feror has entered into the Reduction Con- change, modify, alter, rescind, or cancel any tract. portion of the Reduction Contract and that 25. Referendum. Offeror acknowledges that the receipt date and time which NMFS the outcome of the referendum of the Reduc- marks on the Reduction Contract con- tion Plan is an occurrence over which NMFS stitutes the date and time of the offer’s sub- has no control. mission. 26. Unsuccessful Referendum Excuses Per- 17. Offer Rejection. NMFS shall reject an formance. An unsuccessful referendum ex- offer that NMFS deems is in any way unre- cuses all parties hereto from every obliga- sponsive or not in conformance with the Re- tion to perform under the Reduction Con- duction Contract, and the applicable law or tract. In such event, NMFS need not tender regulations unless the Offeror corrects the reduction payment and the Offeror need not

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surrender and relinquish or allow the revoca- of any claim in any way related to any fish- tion or restriction of any element of the Re- ing privilege derived, in whole or in part, duction Fishing Interest specified in the Re- from the use or holdership of the Groundfish duction Contract. An unsuccessful ref- Reduction Permits and the Reduction Per- erendum shall cause the Reduction Contract mit(s), from the use or ownership of the Re- to have no further force or effect. duction Privilege Vessel (subject to and in 27. Offeror Responsibilities upon Successful accordance with the provisions of section 8 Referendum. Upon NMFS’ formal notification of this contract), and from any documented to the Offeror that the referendum was suc- harvest fishing history arising under or asso- cessful and that NMFS had accepted the Re- ciated with the same which could ever qual- duction Contract, Offeror shall immediately ify the Offeror for any future limited access become ready to surrender and relinquish fishing license, fishing permit, and other and allow the revocation or restriction of (as harvest authorization of any kind. NMFS deems appropriate) the Reduction Fishing Interests. 33. Post Tender Use of Federally Documented 28. Written Payment Instructions. After a Reduction Privilege Vessel. After NMFS’ re- successful referendum, NMFS shall tender duction payment tender to the Offeror, the reduction payment by requesting the Offeror Offeror may continue to use a federally docu- to provide to NMFS, and the Offeror shall mented Reduction Privilege Vessel for any subsequently so provide, written payment in- lawful purpose except ‘‘fishing’’ as defined structions for NMFS’ disbursement of the re- under the Magnuson-Stevens Act and may duction payment to the Offeror or to the transfer—subject to all restrictions in the Offeror’s order. Reduction Contract, other applicable regula- 29. Request for Written Payment Instructions tions, and the applicable law—the vessel to a Constitutes Tender. NMFS’ request to the Of- new owner. The Offeror or any subsequent feror for written payment instructions con- owner shall only operate the Reduction stitutes reduction payment tender, as speci- Privilege Vessel under the United States flag fied in 50 CFR 600.1011. and shall not operate such vessel under the 30. Offeror Responsibilities upon Tender. authority of a foreign country. In the event Upon NMFS’ reduction payment tender to the Offeror fails to abide by such restric- the Offeror, the Offeror shall immediately tions, the Offeror expressly acknowledges surrender and relinquish and allow the rev- and hereby agrees to allow NMFS to pursue ocation or restriction of (as NMFS deems ap- any and all remedies available to it, includ- propriate) the Reduction Fishing Interests. ing, but not limited to, recovering the reduc- The Offeror must then return the original of tion payment and seizing the Reduction its Groundfish Reduction Permit and Reduc- Privilege Vessel and scrapping it at the tion Permit(s) to NMFS. Concurrently with Offeror’s expense. NMFS’ reduction payment tender, the Offer- 34. NMFS’ Actions upon Tender. Contem- or shall forever cease all fishing for any species with the Reduction Privilege Vessel and poraneously with NMFS’ reduction payment immediately retrieve all fishing gear, irre- tender to the Offeror, and without regard to spective of ownership, previously deployed the Offeror’s refusal or failure to perform from the Reduction Privilege Vessel. Offeror any of its Reduction Contract duties and ob- agrees to authorize the United States Coast ligations, NMFS shall: Permanently revoke Guard to cancel the fishery endorsement in the Offeror’s Groundfish Reduction Permit the Reduction Privilege Vessel. and Reduction Permit(s); notify the National 31. Reduction Privilege Vessel Lacking Fed- Vessel Documentation Center to perma- eral Documentation. Upon NMFS’ reduction nently revoke the Reduction Privilege Ves- payment tender to the Offeror, the Offeror sel’s fishery trade endorsement; notify the shall immediately scrap any vessel which the U.S. Maritime Administration to make the Offeror specified as a Reduction Privilege Reduction Privilege Vessel permanently in- Vessel and which is documented solely under eligible for the approval of requests to place state law or otherwise lacks documentation the vessel under foreign registry or operate under Federal law. The Offeror shall scrap the vessel under a foreign country’s author- such vessel at the Offeror’s expense. The Of- ity; record in the appropriate NMFS records feror shall allow NMFS, its agents, or its ap- that the Reduction Fishing History rep- pointees reasonable opportunity to observe resented by any documented harvest fishing and confirm such scrapping. The Offeror history accrued on, under, or as a result of shall conclude such scrapping within a rea- the operation of the Reduction Privilege sonable time. Vessel and/or Reduction Fishing Vessel (sub- 32. Future Harvest Privilege and Reduction ject to and in accordance with the provisions Fishing History Extinguished. Upon NMFS’ re- of section 8 of this contract), the Groundfish duction payment tender to the Offeror, the Reduction Permit, and the Reduction Per- Offeror shall surrender and relinquish and mit(s) which could ever qualify the Offeror consent to the revocation, restriction, with- for any future limited access fishing license, drawal, invalidation, or extinguishment by fishing permit, or other harvesting privilege other means (as NMFS deems appropriate), of any kind shall never again be available to

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anyone for any fisheries purpose; and imple- Federal documentation (which the National ment any other restrictions the applicable Vessel Documentation Center maintains in law or regulations impose. accordance with Federal maritime law and 35. Material Disputes to be Identified. Mem- regulations) in such manner as is acceptable bers of the public shall, up until NMFS re- to NMFS and as shall prevent the Reduction ceives the Offeror’s written payment instruc- Privilege Vessel, regardless of its subsequent tions, be able to advise NMFS in writing of ownership, from ever again being eligible for any material dispute with regard to any as- a fishery trade endorsement or ever again pect of any accepted Reduction Contract. fishing. The term ‘‘fishing’’ includes the full Such a material dispute shall neither relieve range of activities defined in the Magnuson- the Offeror of any Reduction Contract duties Stevens Fishery Conservation and Manage- or obligations nor affect NMFS’ right to en- ment Act (16 U.S.C. 1802). force performance of the Reduction Contract 40. Reduction Element Omission. In the event terms and conditions. NMFS accepts the offer and the Offeror has 36. Reduction Payment Disbursement. Once failed, for any reason, to specify in the Re- NMFS receives the Offeror’s written pay- duction Contract any Groundfish Reduction ment instructions and certification of com- Permit, non-Groundfish Reduction Per- pliance with the Reduction Contract, NMFS mit(s), Reduction Privilege Vessel, Reduc- shall as soon as practicable disburse the re- tion Fishing Vessel, Reduction Fishing His- duction payment to the Offeror. Reduction tory, or any other element of the Reduction payment disbursement shall be in strict ac- Fishing Interest which the Offeror should cordance with the Offeror’s written payment under Reduction Contract, applicable regula- instructions. Unless the Offeror’s written tions and the applicable law have specified in payment instructions direct NMFS to the Reduction Contract, such omitted element contrary, NMFS shall disburse the whole of shall nevertheless be deemed to be included the reduction payment to the Offeror. If the in the Reduction Contract and to be subject qualifying Offeror offers with a co-Offeror, to the Reduction Contract’s terms and condi- both the qualifying Offeror and the co-Offer- tions; and all Reduction Contract terms and or must approve and sign the written pay- conditions which should have applied to such ment instructions. omitted element had it not be omitted shall 37. Reduction Payment Withheld for Scrap- apply as if such element had not been omit- ping or for Other Reasons. In the event that a ted. Upon the Offeror discovering any such Reduction Privilege Vessel which is not omission, the Offeror shall immediately and under Federal documentation must be fully advise NMFS of such omission. Upon ei- scrapped, NMFS shall withhold from reduc- ther NMFS or the Offeror discovering any tion payment disbursement an amount suffi- such omission, the Offeror shall act in ac- cient to scrap such vessel. NMFS shall with- cordance with the Reduction Contract, appli- hold such sum until the vessel is completely cable regulations and the applicable law. scrapped before disbursing any amount with- 41. Remedy for Breach. Because money dam- held. NMFS may confirm, if NMFS so choos- ages are not a sufficient remedy for the Of- es, that the vessel has been scrapped before feror breaching any one or more of the Re- disbursing any amount withheld. If NMFS duction Contract terms and conditions, the has reason to believe the Offeror has failed Offeror explicitly agrees to and hereby au- to comply with any of the Reduction Con- thorizes specific performance of the Reduc- tract terms and conditions, NMFS shall also tion Contract, in addition to any money withhold reduction payment disbursement damages, as a remedy for such breach. In the until such time as the Offeror performs in event of such breach, NMFS shall take any accordance with the Reduction Contract reasonable action, including requiring and terms and conditions. enforcing specific performance of the Reduc- 38. Offeror Assistance with Restriction. The tion Contract, NMFS deems necessary to Offeror shall, upon NMFS’ request, furnish carry out the Reduction Contract, applicable such additional documents, undertakings, regulations and the applicable law. assurances, or take such other actions as 42. Waiver of Data Confidentiality. The Of- may be reasonably required to enable NMFS’ feror consents to the public release of any in- revocation, restriction, invalidation, with- formation provided in connection with the drawal, or extinguishment by other means Reduction Contract or pursuant to Reduc- (as NMFS deems appropriate) of all compo- tion Plan requirements, including any infor- nents of the Reduction Contract’s Reduction mation provided in the Reduction Contract Fishing Interest in accordance with the re- or by any other means associated with, or quirements of the Reduction Contract terms necessary for evaluation of, the Offeror’s Re- and conditions, applicable regulations and duction Contract if NMFS finds that the re- the applicable law. lease of such information is necessary to 39. Recordation of Restrictions. Upon the Re- achieve the Reduction Plan’s authorized pur- duction Fishing Privilege’s revocation, the pose. The Offeror hereby explicitly waives Offeror shall do everything reasonably nec- any claim of confidentiality otherwise af- essary to ensure that such revocation is re- forded to catch, or harvest data and fishing corded on the Reduction Privilege Vessel’s histories otherwise protected from release

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under the Magnuson-Stevens Fishery Con- plete this section 46 of this contract and servation and Management Act (16 U.S.C. thereafter submit the full and complete Re- 1881 a(b)) or any other law. In the event of duction Contract to NMFS in accordance such information release, the Offeror hereby with the Reduction Contract. If completing forever fully and unconditionally releases this section requires inserting more informa- and holds harmless the United States and its tion than the places provided for the inser- officers, agents, employees, representatives, tion of such information allows, the Offeror of and from any and all claims, demands, should attach an addendum to the Reduction debts, damages, duties, causes of action, ac- Contract that: Includes and identifies the ad- tions and suits whatsoever, in law or equity, ditional information, states that the adden- on account of any act, failure to act or event dum is a part of the Reduction Fishing Inter- arising from, out of, or in any way related ests Identification portion of the Reduction to, the release of any information associated Contract, states (as a means of identifying with the Reduction Program. the Reduction Contract to which the adden- 43. Oral Agreement Invalid. The Reduction dum relates) the NMFS license number des- Contract, any addendums to section 46 of ignated on the Reduction Contract’s Ground- this contract, and enclosures of photocopies fish Reduction Permit, and is signed by all of licenses and permits required under sec- persons who signed the Reduction Contract tion 46 of this contract, contain the final as the Offeror. terms and conditions of the agreement be- b. Offeror Information. tween the Offeror and NMFS and represent the entire and exclusive agreement between (1) Offeror name(s). Insert in the table pro- them. NMFS and the Offeror forever waive vided under this section 46.b(1) of this con- all right to sue, or otherwise counterclaim tract the name(s) of the qualifying Offeror against each other, based on any claim of and of the co-Offeror (if there is a co-Offer- past, present, or future oral agreement be- or), and check the appropriate box for each tween them. name listed. 44. Severable Provisions. The Reduction Con- Each name the Offeror inserts must be the tract provisions are severable; and, in the full and exact legal name of record of each event that any portion of the Reduction Con- person, partnership, corporation or other tract is held to be void, invalid, non-binding, business entity identified on the offer. If any or otherwise unenforceable, the remaining Reduction Fishing Interest element is co- portion thereof shall remain fully valid, owned by more than one person, partnership, binding, and enforceable against the Offeror corporation or other business entity, the Of- and NMFS. feror must insert each co-owner’s name. 45. Disputes. Any and all disputes involving In each case, the Offeror is the holder of the Reduction Contract, and any other Re- record, at the time of Offeror’s execution of duction Plan aspect affecting them shall in this Reduction Contract, of the Groundfish all respects be governed by the Federal laws Reduction Permit and the Reduction Per- of the United States; and the Offeror and all mit(s). A co-Offeror is not allowed for either other parties claiming under the Offeror ir- the Groundfish Reduction Permit or the Re- revocably submit themselves to the jurisdic- duction Permit(s). If the Offeror is also the tion of the Federal courts of the United owner of record, at the time of offering, of States and/or to any other Federal adminis- the Reduction Privilege Vessel, the quali- trative body which the applicable law au- fying Offeror is the sole Offeror. If, however, thorizes to adjudicate such disputes. the owner of record, at the time of execution 46. Fishing Capacity Reduction Offer Submis- of this Reduction Contract, of the Reduction sion Form and Reduction Fishing Interests Privilege Vessel is not exactly the same as Identification. the Offeror, then the owner of record is the a. Completion and Submission. The Offeror co-Offeror; and the Offeror and the co-Offeror must fully, faithfully, and accurately com- jointly offer together as the Offeror.

OFFEROR NAME(S) Check appropriate box for each name listed in the adjacent If Offeror or co-Offeror consists of more than one owner, use column one row of this column to name each co-Offeror. If not, use Co-Offeror only one row for Offeror and one row for any co-Offeror Offeror (if any)

(1)

(2)

(3)

(4)

(5)

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(2) Offeror address(s) of record. Insert in the Offeror’s (if there is a co-Offeror) full and table provided under this section 46.b(2) of exact address(s) of record, and check the ap- this contract the Offeror’s and the co- propriate box for each address listed.

OFFEROR ADDRESS(S) Check appropriate box for each address listed in the adjacent If Offeror or co-Offeror consists of more than one owner, use column one row of this column for address of each co-owner. If not, use only one row for Offeror and one row for any co-Offeror. Always use the same row order as is Offeror Name(s) table Co-Offeror in section 46.b(1), i.e., address (1) is for name (1), address Offeror (if any) (2) is for name (2), address (3) is for name (3), etc.

(1)

(2)

(3)

(4)

(5)

(3) Offeror business telephone number(s). In- there is a co-Offeror) full and exact business sert in the table provided under this section telephone number(s), and check the appro- 46.b(3) the Offeror’s and the co-Offeror’s (if priate box for each number listed.

OFFEROR BUSINESS TELEPHONE NUMBER(S) Check appropriate box for each telephone number listed in the If Offeror or co-Offeror consists of more than one owner, use adjacent column one row of this column for the telephone number of each co- owner. If not, use only one row for Offeror and one row for any co-Offeror. Always use the same row order as is Offeror Name(s) table Co-Offeror in section 46.b(1), i.e., telephone number (1) is for name (1), Offeror (if any) telephone number (2) is for name (2), telephone number (3) is for name (3), etc.

(1)

(2)

(3)

(4)

(5)

(4) Offeror electronic mail address(s) (if avail- Offeror’s (if there is a co-Offeror) full and able). Insert in the table printed under this exact electronic mail (e-mail) address(s), and section 46.b(4) the Offeror’s and the co- check the appropriate box for each address.

OFFEROR E-MAIL ADDRESS(S) Check appropriate box for each e-mail address listed in the If Offeror or co-Offeror consists of more than one owner, use adjacent column one row of this column for the e-mail address of each co- owner. If not, use only one row for Offeror and one row for any co-Offeror. Always use the same row order as is Offeror Name in section 46.b(1) of this contract, i.e., e-mail (1) is for Offeror Co-Offeror name (1), e-mail (2) is for name (2), e-mail (3) is for name (if any) (3), etc

(1)

(2)

(3)

(4)

(5)

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c. LLP license number for Groundfish Reduc- LLP LICENSE NUMBER(S) AND FISHERY OF LI- tion Permit. Insert in the place this section CENSE(S) SPECIFIED AS REDUCTION PERMITS 46.c provides the full and exact license num- License ber which NMFS designated on the LLP li- number(s) Fishery(s) cense which the Offeror specifies as the Groundfish Reduction Permit. Attach with (1) the Reduction Contract an exact photocopy of such license. (2) (3) LLP LICENSE NUMBER(S) AND FISHERY(S) OF Of LLP LICENSE(S) SPECIFIED AS GROUNDFISH REDUCTION (4) PERMIT(S) License (5) number(s) Fishery(s) e. Reduction Fishing History. For all Reduc- (1) tion Fishing History insert in the place provided in the table under this section 46.e the (2) chronological and other information with (3) each column heading therein requires. The information required does not include any (4) actual landing data. Any Offeror whose Groundfish Reduction Permit whose issuance (5) NMFS based on the fishing history of a lost or destroyed vessel plus a replacement vessel d. License number(s) for Reduction Permit(s). must insert information for both vessels and Insert in the place this section 46.d provides meet the requirements of the framework reg- the fishery(s) involved in, and the full and ulations, final rule and any other regulations exact license number(s) with NMFS des- promulgated pursuant to the Act. Any Offer- ignated on the license(s) which the Offeror or whose Groundfish Reduction Permit specifies in the Reduction Contract as the whose issuance NMFS in any part based on Reduction Permit(s). Enclose with the Re- acquisition of fishing history from another duction Contract an exact photocopy of each party must insert information regarding such license. such catch history.

NAMES(S) AND OFFICIAL FOR EACH FISHING HISTORY IN 2ND COLUMN NUMBER OF REDUCTION FOR EACH REDUCTION PRIVILEGE VESSEL AND PRIVILEGE VESSEL IN 1ST License No. of each Ground- If Reduction Privilege Vessel NAME(S) AND OFFICIAL COLUMN PROVIDE FROM fish Reduction Permit and acquired fishing history from NUMBER(S) OF ANY VES- TO DATE OF EACH FISH- Reduction Permit(s) associ- another party, provide name SEL FROM WHICH FISHING ING HISTORY OFFEROR ated with each vessel in- of party, manner in which ac- HISTORY WAS ACQUIRED POSSESSES volved quired, and date acquired

(1)

(2)

(3)

(4)

(5)

f. Reduction Privilege Vessel. Insert the full tion Contract, and check the box appropriate and exact name and official number which for the vessel’s ownership of record. the National Vessel Documentation Center Enclose with the Reduction Contract an designated for the Reduction Privilege Ves- exact photocopy of such vessel’s official cer- sel which the Offeror or the co-Offeror (if tificate of documentation. there is a co-Offeror) specifies in the Reduc-

REDUCTION PRIVILEGE VESSEL Check appropriate ownership box below Official name Official No. Offeror Co-Offeror (if any)

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g. Offer Amount. Insert in the place this sions to offer and dispose of, the full Reduc- section 46.g provides the Offeror’s full and tion Fishing Interest which the Reduction exact offer amount, both in words and in Contract specifies and the applicable regula- numbers. tions, and the applicable law requires that any person or entity completing the Reduc- OFFER AMOUNT [U.S. DOLLARS] tion Contract and/or signing the Reduction In words In numbers Contract on behalf of another person or entity, expressly attests, warrants, and represents to NMFS that such completing and/ or signing person or entity has the express h. Reduction Contract Signature. In compli- and written permission or other grant of au- ance with the Reduction Contract, applicable thority to bind such other person or entity regulations and the applicable law, the Offer- to the Reduction Contract’s terms and condi- or submits the Reduction Contract as the tions. The Offeror expressly attests, war- Offeror’s irrevocable offer to NMFS for the rants, and represents to NMFS that every co- permanent surrender and relinquishment and owner of the Offeror necessary to constitute revocation, restriction, withdrawal, invali- the Offeror’s full and complete execution of dation, or extinguishment by other means the Reduction Contract has signed the Re- (as NMFS deems appropriate) of the Ground- duction Contract. The Offeror expressly at- fish Reduction Permit, any Reduction Per- tests, warrants, and represents to NMFS mit(s), the Reduction Fishing Privilege, and that the Offeror: Fully understands the con- the Reduction Fishing History—all as identi- sequences of submitting the completed Re- fied in the Reduction Contract or as required duction Contract of which it is a party to under applicable regulations, or the applica- NMFS; pledges to abide by the terms and ble law. conditions of the Reduction Contract; and is The Offeror expressly acknowledges that aware of, understands, and consents to, any NMFS’ acceptance of the Offeror’s offer here- and all remedies available to NMFS for the under and NMFS’ tender, following a suc- Offeror’s breach of the Reduction Contract cessful referendum, of a reduction payment or submission of an offer which fails to con- in the same amount specified in section 46.g form with the Reduction Contract, final rule, of this contract (less any sum withheld for applicable regulations and the applicable scrapping any Reduction Privilege Vessel law. The Offeror expressly attests, warrants, lacking Federal documentation or for any and represents to NMFS that all information other purpose) to the Offeror shall, among which the Offeror inserted in the Reduction other things, render the Reduction Privilege Contract is true, accurate, complete, and Vessel permanently ineligible or any fishing fully in accordance with the Reduction Con- worldwide, including, but not limited to, tract, final rule, other applicable regulations fishing on the high seas or in the jurisdiction and the applicable law. of any foreign country while operating under In witness whereof, the Offeror has, in the United States flag, and shall impose or cre- place provided below, executed the Reduc- ate other legal and contractual restrictions, tion Contract either as an Offeror offering impediments, limitations, obligations, or alone or as an Offeror and co-Offeror (if there other provisions which restrict, revoke, is a co-Offeror) jointly offering together, in withdraw, invalidate, or extinguish by other accordance with the requirements specified means (as NMFS deems appropriate) the above, and on the date written below. The complete Reduction Fishing Interest and any Reduction Contract is effective as of the date other fishery privileges or claims associated NMFS accepts the Offeror’s offer by signing with the Groundfish Reduction Permit, any the Reduction Contract. Reduction Permit(s), the Reduction Privi- The Offeror and co-Offeror (if there is a co- lege Vessel, and the Reduction Fishing His- Offeror) must each sign the Reduction Con- tory—all as more fully set forth in the Re- tract exactly as instructed herein. Each co- duction Contract, applicable regulations, owner (if there is a co-owner) of each Offeror and the applicable law. and co-Offeror (if there is a co-Offeror) must By completing and signing the Reduction also sign the Reduction Contract exactly as Contract, the Offeror expressly acknowledges instructed herein. A notary public must, for that the Offeror has fully and completely each person or entity signing on behalf of read the entire Reduction Contract. The Of- the Offeror, complete and sign the acknowl- feror expressly states, declares, affirms, at- edgment and certification provision associ- tests, warrants, and represents to NMFS ated with each such person or entity’s signa- that the Offeror is fully able to enter into ture. the Reduction Contract and that the Offeror I. Offeror and co-Offeror’s (if there is a co-Of- legally holds, owns, or retains, and is fully feror) signature(s) and notary’s acknowledg- able under the Reduction Contract provi- ment(s) and certification(s).

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OFFEROR’S SIGNATURE AND NOTARY’S ACKNOWLEDGMENT AND CERTIFICATION If Offeror or co-Offeror consists of more than one owner, use one row of column 1 for each co-owner’s signature. If not, use only one row for Offeror and one row for co-Offeror (if any). Always use same Offeror row order as in Offeror Name in the table under section 46.b(1) of this contract (i.e., signature (1) is for name (1), signature (2) is for name (2) signature (3) is for name (3), etc.) NOTARY SIGNATURE (1) Sign. (2) Print: the following: (a) name, (b) signing date, (3) date commission expires, and (4) State and county. Each notary signature OFFEROR SIGNATURE attests to the following: (1) Sign. (2) Print: the fol- ‘‘I certify that I know or have lowing: (a) signer’s name, (b) satisfactory evidence that the signer’s title (if signing for Check appropriate column for each signature in 1st column person who signed in the 1st corporation or other business column of this same row is entity), and (c) signing date the person who appeared before me and: (1) acknowledged his/her signature; (2) on oath, stated that he/she was authorized to sign; and (3) acknowledged that he/she did so freely and voluntarily.’’ Qualifying Offeror Co-Offeror (if any)

(1)

(2)

(3)

II. United States of America’s signature. following definition applies to this sec- United States of America, Acting by and tion: through the Secretary of Commerce, Na- Reduction fishery means the longline tional Oceanic and Atmospheric Administra- tion, National Marine Fisheries Service, Fi- catcher processor subsector of the nancial Services Division. BSAI non-pollock groundfish fishery Dated: llllllllllllllllllll that § 679.2 of this chapter defined as By: lllllllllllllllllllll groundfish area/species endorsements. Leo C. Erwin, Chief, (c) Reduction loan amount. The reduction loan’s original principal amount is Financial Services Division, National Marine Fisheries Service. $35,000,000. (d) Interest accrual from inception. In- [71 FR 57701, Sept. 29, 2006] terest began accruing on the reduction loan from May 29, 2007, the date on § 600.1106 Longline catcher processor subsector Bering Sea and Aleutian which NMFS disbursed such loan. Islands (BSAI) non-pollock ground- (e) Interest rate. The reduction loan’s fish species fee payment and collec- interest rate shall be the applicable tion system. rate which the U.S. Treasury deter- (a) Purpose. As authorized by Public mines at the end of fiscal year 2007 plus Law 108 447, this section’s purpose is to: 2 percent. (1) In accordance with § 600.1012, es- (f) Repayment term. For the purpose of tablish: determining fee rates, the reduction (i) The borrower’s obligation to repay loan’s repayment term is 30 years from a reduction loan, and May 29, 2007, but fees shall continue in- (ii) The loan’s principal amount, indefinitely for as long as necessary to terest rate, and repayment term; and fully repay the loan. (2) In accordance with §§ 600.1013 (g) Reduction loan repayment. (1) The through 600.1016, implement an indus- borrower shall, in accordance with try fee system for the reduction fish- § 600.1012, repay the reduction loan; ery. (2) For the purpose of the fee collec- (b) Definitions. Unless otherwise de- tion, deposit, disbursement, and ac- fined in this section, the terms defined counting requirements of this subpart, in § 600.1000 and § 600.1105 expressly subsector members are deemed to be apply to this section. In addition, the both the fish buyer and fish seller. In

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this case, all requirements and pen- payment term, and to ensure repay- alties of § 600.1013 that are applicable to ment of the loan. both a fish seller and a fish buyer shall (b) Definitions. Unless otherwise de- equally apply to parties performing fined in this section, the terms defined both functions; in § 600.1000 of subpart L of this part ex- (3) Subsector members in the reduc- pressly apply to this section. The fol- tion fishery shall pay and collect the lowing terms have the following mean- fee amount in accordance with ings for the purpose of this section: § 600.1105; Acceptance means SRA acceptance of (4) Subsector members in the reduc- a bid. tion fishery shall, in accordance with Act means Section 209 of Title II of § 600.1014, deposit and disburse, as well Division B of Public Law 108–447, Con- as keep records for and submit reports solidated Appropriations Act of 2005, as about, the fees applicable to such fish- amended by Section 121 of Public Law ery; except the requirements specified 109–447, Magnuson-Stevens Reauthor- under paragraph (c) of this section con- ization Act of 2006. cerning the deposit principal disburse- Authorized party means the individ- ment shall be made to NMFS no later uals authorized by the Permit Holder than fifteen (15) calendar days fol- on the application form to execute and lowing the end of each calendar month; submit Bids, protests and other docu- and the requirements specified under ments and/or notices on behalf of the paragraph (e) of this section con- Permit Holder. cerning annual reports which shall be Bid means a bidder’s irrevocable offer submitted to NMFS by February 1 of to relinquish a permit. each calendar year; and Bid amount means the dollar amount (5) The reduction loan is, in all other submitted by a bidder. respects, subject to the provisions of Bidder means a permit holder who §§ 600.1012 through 600.1017. submits a bid. [72 FR 54222, Sept. 24, 2007] Commercial Fisheries Entry Commission (CFEC) means the Alaska state com- § 600.1107 Southeast Alaska Purse mission mandated to conserve and Seine Salmon Fishery capacity re- maintain the economic health of Alas- duction program, including fee pay- ka’s commercial fisheries by limiting ment and collection system. the number of participating fishers, by (a) Purpose. This section implements issuing permits and vessel licenses to the fishing capacity reduction program qualified individuals in both limited for the Southeast Alaska purse seine and unlimited fisheries, and by pro- salmon fishery enacted by Section 209 viding due process hearings and ap- of Public Law 108–447 and amended by peals. Section 121 of Public Law 109–479, with CFEC documents means any docu- appropriations authorized by Section ments issued by the CFEC in connec- 121 of Public Law 109–479 and Public tion with the Southeast Alaska purse Law 110–161. The intent of the program seine salmon fishery. is to permanently reduce, through an Conditional notice means the CFEC industry-financed permit buyback, the form that any Bidder must sign and most harvesting capacity in the Reduc- agree to abide by upon submission of a tion Fishery at the least cost, increase Bid Agreement (Appendix B to harvesting productivity for post-reduc- § 600.1107). tion Permit Holders and improve flexi- Conditional relinquishment means the bility in the conservation and manage- CFEC form that any Permit Holder, ment of the fishery. Fishery partici- agreeing to relinquish a permit, must pants will finance this program sign and agree to abide by upon SRA through a federal loan that will be re- acceptance of the bid (Appendix C to paid over 40 years through a fee collec- § 600.1107). tion system. The intent of the fee col- Fishery means the Southeast Alaska lection system is to establish the post- administrative area as defined under reduction Permit Holders’ obligation Title 5 Alaska Administrative Code to repay the Reduction Loan’s prin- Section 33.100 for salmon with purse cipal and accrued interest over the re- seine gear.

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Magnuson-Stevens Act means the Mag- the mailing described in paragraph nuson-Stevens Fishery Conservation (c)(1) of this section, may participate and Management Act codified at 16 in the Capacity Reduction Program by U.S.C. 1801 et seq. submitting all of the following docu- Permit (Southeast Salmon Purse Seine ments to the SRA no later than the bid Entry Permit) means a valid entry per- closing date: mit issued by CFEC to operate in the (i) A fully executed Bid consistent Southeast Alaska purse seine salmon with Appendix A to this section; fishery. (ii) A photocopy of the permit evi- Permit holder means an individual dencing the applicant’s qualification as who at the time of bidding is the holder a participant in the fishery; of record of a permit. (iii) A fully executed Relinquishment Reduction fishery means the South- Contract: Southeast Alaska Salmon east Alaska Purse Seine Salmon Fish- Purse Seine Permit Holders consistent ery. with the appendix B to this section; Reduction loan means the loan used (iv) A fully executed Conditional No- to purchase the relinquished permits tice to CFEC and Request by Permit pursuant to the approved Reduction Holder consistent with the appendix C Plan. to this section; and Reduction loan amount means the Re- duction Loan’s original principal (v) A fully executed Conditional Re- amount up to $23,476,500. linquishment of Southeast Salmon Reduction plan means the aggregate Purse Seine Entry Permit consistent of all Bids, Relinquishment Contracts, with the appendix D to this section. Conditional Notices, Conditional (A) The submitted Bid shall include Relinquishments, and supporting docu- the following information: Name, ad- ments and rationale, submitted to the dress, telephone number, social secu- Secretary for approval. rity number, and (if available) elec- Relinquishment contract means the tronic mail address of the submitting contract that any Permit Holder agree- Permit Holder, permit number, and ing to relinquish a permit pursuant to whether any authorized party holds a Alaska Statute (A.S. 16.43.150(i)) must security interest in the permit. Each sign and agree to abide by upon accept- application must be submitted to the ance of the Bid, and before payment of SRA, c/o Elgee, Rehfeld, Mertz, LLC, the bid amount (Appendix A to Professional Plaza Building B, 9309 Gla- § 600.1107). cier Highway, Suite B–200, Juneau, Secretary means the Secretary of Alaska 99801. The initial determination Commerce or his/her designee. that an application conforms to the Southeast Revitalization Association prescribed requirements is made by (SRA) means the qualified fishery asso- this independent accounting firm and ciation authorized to develop and im- not the SRA. plement this capacity reduction pro- (B) The SRA or the independent ac- gram under Alaska Statute 16.40.250 counting firm will notify the Permit and Federal law. Holder if the Bid is non-conforming (c) Enrollment in the capacity reduction and, in such cases, the Permit Holder program—(1) Distribution. The SRA shall may submit a revised, conforming Bid mail a copy of the following four docu- within the prescribed period (i.e., until ments via certified mail to each Per- the bid closing date). mit Holder: Bid; Fleet Consolidation (3) Enrollment period. Applications Relinquishment Contract (Relinquish- that meet all requirements will be ac- ment Contract); Conditional Notice to cepted until the bid selection process is CFEC and Request by Permit Holder; completed but no later than the bid and (Conditional Relinquishment of closing date specified by the SRA. The Southeast Salmon Purse Seine Entry SRA will have a period of 21 days after Permit. Such mailing shall include a the bid closing date to consult with closing date after which the SRA will CFEC and examine bid results to com- not accept new bids. plete the selection process. (2) Application. Any Permit Holder, (4) Effective date. The effective date of regardless of whether having received any Bid shall be when the SRA has

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completed the selection process and shall be invalid, and the Bid shall re- signed the Bid. main a binding, irrevocable offer, unaf- (5) Notice. The SRA will notify each fected by the attempted withdrawal. Accepted Bidder, via certified mail, of Any bid that is submitted by a Permit the effective date of the Bid Agree- Holder but is not accepted by the SRA ment. shall be deemed terminated and both (6) Conflicts. Where terms and condi- the Permit Holder and the SRA will tions in the Bid, Relinquishment Con- have no further obligation with respect tract, Conditional Notice, and Condi- to the Bid. tional Relinquishment conflict with (i) If a Permit Holder holds more this regulation, the terms and condi- than one permit, the Permit Holder tions in the regulation are controlling. must submit a separate Bid for each (d) Bid selection process. The fishing permit that he/she offers to relinquish. capacity removed by the Reduction (ii) By submitting a Bid, the Permit Plan shall be represented by the total Holder warrants and represents that number of valid CFEC permits, wheth- he/she has read and understands the er active or latent, that are voluntarily terms of the Program Regulations, Bid, offered by Permit Holders and selected Relinquishment Contract, Conditional by the SRA up to an aggregate amount Notice and Conditional Relinquish- of $23,476,500. Due to a rescission of ment, and has had the opportunity to funds, the underlying appropriations seek independent legal counsel regard- for this Reduction Program were re- ing such documents and the con- duced from $250,000 to $234,765, result- sequences of submitting the Bid Agree- ing in a loan ceiling of $23,476,500. ment. (1) Overview. The Selection Process (3) Ranking. The SRA shall rank all shall begin upon the receipt by the conforming bids by using a reverse auc- SRA of the first application and shall tion in which the SRA ranks the Bid continue until: The bid closing date with the lowest dollar amount and suc- specified by the SRA (paragraph (c)(1) cessively ranks each additional Bid of this section); or the ranking of the with the next lowest dollar amount next lowest bid would cause the total until there are no more Bids or the program costs to exceed $23,476,500. The ranking of the next lowest bid would SRA will have a period of 21 days after cause the total program cost to exceed the bid closing date to consult with $23,476,500. In the event of a tie with CFEC and examine bid results to com- bids which results in the tied bids ex- plete the selection process. When ei- ceeding $23,476,500, the SRA will select ther one of these events is reached, the the tied bid first received, if known. If Selection Process shall be completed. the receipt time cannot be determined, (i) During the selection process, the neither bid will be accepted. SRA in consultation with the CFEC (4) Acceptance and post-acceptance re- shall examine each submitted Bid for striction of renewals and transfers. Upon consistency and the necessary ele- expiration of the bid closing date, the ments, including the validity of the SRA shall determine whether the num- permit and whether any authorized ber of ranked bids it is willing to ac- party holds a security interest in the cept is sufficient to achieve a substan- permit. tial reduction in harvest capacity and (ii) [Reserved] increased economic efficiencies for (2) Bids. By submitting the Bid, the those Permit Holders remaining in the bidder expressly acknowledges that he fishery. If the SRA makes such a deter- makes an irrevocable offer to relin- mination and thereafter accepts bids, quish to CFEC a permit for a specific the SRA shall send CFEC the Condi- price, and once having submitted the tional Notice form restricting renewal Bid, the bidder is not entitled to with- and transfer of each permit for which a draw or in any way amend the Bid. The bid was accepted. The Bid, Relinquish- permit will be relinquished for the ment Contract, Conditional Notice and price set forth in the Bid contingent on Conditional Relinquishment are termi- such Bid being accepted by the SRA at nated for any rejected bid and the ap- the closing of the Selection Process. plicant is no longer bound by the terms Any attempted withdrawal by a bidder of these documents.

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(e) Plan submission and approval—(1) a 15 day period to make these changes. Submitting the reduction plan. Within 30 If, in NMFS’ discretion, the comments days of concluding the selection proc- received in response to such notice ess, the SRA shall submit the Reduc- warrants it, or for other good cause, tion Plan, consisting of the aggregate NMFS may modify such list by pub- of all Bid Agreements, Relinquishment lishing another notice in the FEDERAL Contracts, Conditional Notices and REGISTER. NMFS shall issue ballots to Conditional Relinquishments, together eligible voters, tally votes, and notify with supporting documents and ration- voters whether the referendum was ale, to NMFS for final approval on be- successful or unsuccessful in approving half of the Secretary. The Reduction the Reduction Plan consistent with the Plan shall include a listing of accepted provisions of § 600.1010. bids arranged by bid amount from low- (ii) A successful referendum by a ma- est to highest bid, attended by a state- jority of the Permit Holders in the Re- ment from the SRA that all other bids duction Fishery shall bind all parties received were higher than the largest and complete the reduction process. dollar amount of the last bid accepted. NMFS shall publish a notice in the (2) Required findings. In order to ap- FEDERAL REGISTER advising the public prove a Reduction Plan, the Assistant that the referendum was successful. Administrator of NMFS, on behalf of Thereafter the Reduction Program the Secretary, must find that: The Re- shall be implemented. duction Plan is consistent with the (iii) The provisions of § 600.1010 and amended Consolidated Appropriations § 600.1017(a)(1)–(4) shall apply to any ref- Act of 2005 and applicable sections of erendum on the Reduction Plan of this the Magnuson-Stevens Act, particu- section to the extent that they do not larly that it is cost-effective; the Re- conflict with this section or with sub- duction Plan will result in the max- part M of this part. imum sustained reduction in fishing (f) Implementation—(1) Reduction pay- capacity at the least cost; and the Re- ments. Within 60 days of a successful duction Plan will increase harvesting referendum, the CFEC will provide no- productivity for post-reduction Permit tice to NMFS of the permits retired Holders participating in the fishery. from the Reduction Fishery. Upon re- (3) The referendum. If NMFS approves ceiving such notification, NMFS will the Reduction Plan and subsequent to then tender the accepted bid amounts the publication of a final rule resulting to the Permit Holders. Reduction pay- from this rule, NMFS shall conduct a ments may not exceed $23,476,500 and if referendum to determine the industry’s the SRA accepts a total number of bids willingness to repay a fishing capacity in an aggregate amount less than reduction loan to purchase the permits $23,476,500, any remaining funds would identified in the Reduction Plan. be available for reduction payments as NMFS shall publish a notice in the part of a later, separate Reduction FEDERAL REGISTER requesting votes by Plan conforming to these regulations. Permit Holders on whether to accept or Upon NMFS tendering the reduction reject the Reduction Plan for imple- program’s payments to the selected mentation. The notice shall state the Permit Holders, each such Permit starting and ending dates and times of Holder must permanently stop all fish- the voting period, which shall be not ing with the relinquished permit(s). less than twenty one (21) nor more than (2) Repayment term. As authorized by thirty (30) calendar days from the date the Act, the Reduction Loan shall be of such notice. amortized over a forty (40) year term. (i) Such notice shall state the name The Reduction Loan’s original prin- and address of record of each eligible cipal amount may not exceed voter, as well as the basis for having $23,476,500, but may be less if the ulti- determined the eligibility of those vot- mate reduction cost is less. The final ers. This shall constitute notice and Reduction Loan periodic payment opportunity to respond about adding amount will be determined by NMFS’ eligible voters, deleting ineligible vot- analysis of the ability of the post-re- ers, and/or correcting any voter’s name duction fishery to service debt. The and address of record, and will provide provisions of §§ 600.1012–600.1017 shall

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apply to any reduction loan, fee pay- fishery. Although the fee could be up to ment and collection under this section three percent of the ex-vessel price of to the extent they do not conflict with all post-reduction landings, the fee will this section or with subpart M of this be less than three percent if NMFS part. projects that a lesser rate can amortize (3) Loan repayment. Permit Holders the Reduction Loan over the 40-year operating in the fishery shall be obli- term. To verify that the fees collected gated to pay the fee in accordance with do not exceed three percent of the fish- this section. In the event that pay- ery revenues, NMFS will compare the ments made under the Reduction Plan annual total of principal and interest are insufficient to pay the Reduction due with the latest available annual Loan within the 40-year term, NMFS revenues in the fishery to ensure that shall extend the term of the repayment it is equal to or less than three percent until the Reduction Loan is paid in of the total ex-vessel production reve- full. nues. In the event that any of the com- (i) Interest. The Reduction Loan’s in- ponents necessary to calculate the next terest rate will be the U.S. Treasury’s year’s fee are not available, or post- cost of borrowing equivalent maturity poned, the fee will remain at the pre- funds plus two percent. NMFS will de- vious year’s amount until such time as termine the Reduction Loan’s initial new calculations are made and commu- interest rate when NMFS borrows from nicated to the post-reduction fishery the U.S. Treasury the funds with which participants. to disburse reduction payments. Inter- (B) If the fishery does not open dur- est will begin accruing on the Reduc- ing a year, interest will continue to action Loan from the date on which crue on the principal balance even NMFS disburses such loan. The initial though no fee revenue will be gen- interest rate will change to a final in- erated. When this happens, if the fee is terest rate at the end of the Federal not already at the maximum three per- fiscal year in which NMFS borrows the cent, NMFS shall increase the fee to funds from the U.S. Treasury. The final the maximum three percent, apply all interest rate will be two percent plus a subsequent fee revenue first to the pay- weighted average, throughout that fis- ment of accrued interest, and continue cal year, of the U.S. Treasury’s cost of the maximum fee rates until the prin- borrowing equivalent maturity funds. cipal and interest payments become The final interest rate will be fixed and current. Once all principal and interest will not vary over the remainder of the payments are current, NMFS will reduction loan’s 40-year term. The Re- make a determination about adjusting duction Loan will be subject to a level the fee rate. debt amortization. There is no prepay- (iii) Collection. The buyer who first ment penalty. purchases the salmon landed in the (ii) Fees. Post-reduction Permit Hold- fishery shall be responsible for col- ers operating in the fishery shall be ob- lecting and submitting the repayment ligated to pay the fee in accordance fees to NMFS monthly. The fees shall with paragraph (f) of this section. The be submitted to NMFS no later than amount of such fee will be calculated fifteen (15) calendar days following the by NMFS on an annual basis as the end of each calendar month. principal and interest payment amount (iv) Recordkeeping and reporting. The necessary to amortize the loan over a dealer who first purchases the salmon 40-year term. The fee shall be expressed landed in the fishery shall be respon- as a percentage of the ex-vessel value sible for compliance with the applica- of all salmon harvested and landed in ble recordkeeping and reporting re- the fishery. In the event that payments quirements. made under the Reduction Plan are in- (A) All requirements and penalties sufficient to repay the Reduction Loan set forth in the provisions of §§ 600.1013 within the 40-year term, NMFS shall (Fee payment and collection), 600.1014 extend the term of the repayment until (Fee collection deposits, disburse- the Reduction Loan is paid in full. ments, records, and reports), 600.1015 (A) Fees must be assessed and col- (Late charges), and 600.1017 (Prohibi- lected on all salmon harvested in the tions and penalties) shall apply to any

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dealer who purchases salmon in the Bid amount means the dollar amount sub- fishery, and to any fee collection under mitted by a bidder. this section, to the extent they do not Bidder means a permit holder who submits conflict with this section or with sub- a bid. Conditional notice means the Commercial part M of this part. Fisheries Entry Commission (CFEC) form (B) [Reserved] that any Bidder must sign and agree to abide (g) Specific performance under the re- by upon submission of a Bid Agreement. linquishment contract. The parties to Conditional relinquishment means the CFEC the Relinquishment Contract have form that any Permit Holder, agreeing to re- agreed that the opportunity to develop linquish a permit, must sign and agree to and submit a capacity reduction pro- abide by upon SRA acceptance of the bid. Fishery means the Southeast Alaska ad- gram for the fishery under the terms of ministrative area as defined under Title 5 the Act is both unique and finite. The Alaska Administrative Code Section 33.100 failure of a Permit Holder, whose bid for salmon with purse seine gear. was accepted, to perform the obliga- Permit means a valid entry permit issued tions under the Relinquishment Con- by CFEC to operate in the Southeast Alaska tract will result in irreparable damage purse seine salmon fishery. to the SRA and all the other Permit Permit holder means an individual who at the time of bidding is the holder of record of Holders. Accordingly, the parties to a permit. the Relinquishment Contract expressly Reduction plan means the aggregate of all acknowledge that money damages are Bids, Relinquishment Contracts (Appendix an inadequate means of redress and B), Commercial Fisheries Entry Commission agree, that upon failure of the Permit (‘‘CFEC’’) Conditional Notice and Condi- Holder to fulfill his/her obligations tional Relinquishment (Appendices C & D), under the Relinquishment Contract, and supporting documents and rationale; submitted to the Secretary for approval. that specific performance of those obli- Referendum means the voting procedure to gations may be obtained by suit in eq- determine the Permit Holder’s willingness to uity brought by the SRA in any court repay a fishing capacity reduction loan to of competent jurisdiction without obli- purchase the permits identified in the Plan. gation to arbitrate such action. Relinquishment contract means the contract (h) Enforcement for failure to pay fees. that any bidder agreeing to relinquish a per- The provisions and requirements of mit pursuant to Alaska Statute (A.S. § 600.1016 (Enforcement) shall also apply 16.43.150(i) must sign and agree to abide by upon acceptance of the Bid, and before pay- to fish sellers and fish buyers subject ment of the bid amount. to this fishery. Secretary means the Secretary of Com- (i) Prohibitions and penalties. Fish merce or his/her designee. buyers are prohibited from purchasing Southeast Revitalization Association (SRA) fish from fish sellers who do not pay means the qualified fishery association au- the required landing fees. Fish sellers thorized to develop and implement this ca- are prohibited from selling to fish buy- pacity reduction program under Alaska Stat- ute 16.40.250 and Federal law. ers who do not pay the required landing fees. II. RECITALS

APPENDIX A TO § 600.1107—BID Whereas Alaska Statute 16.40.250 and the Act authorize a fishing capacity reduction This Bid (Bid) is entered between the indi- program for the fishery; vidual named in section III, 11(a) of the Whereas, within 30 days of concluding the Agreement and the Southeast Revitalization selection process, the SRA shall submit the Association (SRA). Reduction Plan, together with supporting documents and rationale, to NMFS for final I. DEFINITIONS approval on behalf of the Secretary; Unless otherwise defined, the following Whereas, the reduction Plan’s express ob- terms have the following meanings for the jective is to reduce fishing capacity by per- purpose of this Agreement. manently revoking permits thereby pro- Acceptance means SRA acceptance of a Bid. moting economic efficiency, improving flexi- Act means Section 209 of Title II of Divi- bility in the conservation and management sion B of Public Law 108–447, Consolidated of the fishery and obtain the maximum re- Appropriations Act of 2005; as amended by duction in permits at the least cost; Section 121 of Public Law 109–447, Magnuson- Whereas, the SRA can implement the Re- Stevens (MSA) Reauthorization Act of 2006. duction Plan only after giving notice to all Bid means a bidder’s irrevocable offer to Permit Holders and subsequent approval of relinquish a permit. the reduction Plan by referendum.

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Whereas, the Agreement submitted by the proved; or NMFS notifies the bidder the ref- bidder and the SRA is an integral element of erendum was unsuccessful. the Reduction Plan. 8. Payment. Within 60 days from the close Now, therefore, for good and valuable con- of the voting period of a successful ref- sideration, the sufficiency of which is hereby erendum, the CFEC will provide notice to acknowledged, the SRA and bidder agree as NMFS of the permits retired from the Reduc- follows: tion Fishery. Upon receiving such notice, NMFS will then tender the accepted bid III. TERMS AND CONDITIONS amounts to the Permit Holders. 1. Form. By completing and submitting this 9. Specific Performance. The failure of a bid- Bid to the SRA the bidder hereby offers to der whose Bid was accepted to comply with permanently relinquish, and have the CFEC the terms of this Bid will result in irrep- revoke, the permit. The SRA signing the Bid arable damage to the SRA and its members and subsequent NMFS payment to bidder in because the Bid was part of the basis for the the exact bid amount set forth in section III, Plan submitted to the Secretary for ap- 11(f) of the Bid is full and complete consider- proval. Accordingly, the SRA and bidder ex- ation. pressly acknowledge that money damages 2. Irrevocable. The bidder expressly ac- are an inadequate means of redress and agree knowledges that by submitting the Bid he/ that specific performance of those obliga- she makes an irrevocable offer to relinquish tions may be obtained by suit in equity the permit and once having submitted the brought by the SRA in any court of com- Bid is not entitled to withdraw or in any petent jurisdiction without obligation to ar- manner amend the Bid. The receipt date that bitrate such action. the SRA marks on the Bid constitutes the 10. Submission. This Bid must be submitted date of the bidder’s submittal. within the prescribed period to the SRA, c/o 3. Warranty. The bidder warrants and rep- Elgee, Rehfeld, Mertz, LLC, Professional resents that he/she is the holder of record of Plaza Building B, 9309 Glacier Highway, the permit, according to the CFEC records, Suite B–200, Juneau, AK 99801. and that he/she has read and understands the 11. Complete Bid Information: To fully and terms of the Program Regulations, Bid, Re- accurately complete this Bid, the bidder linquishment Contract, Conditional Notice must fully complete the following questions and the Conditional Relinquishment and has and provide an exact photocopy of the per- had the opportunity to seek independent mit. The Bidder must further sign this form, legal counsel regarding such documents and Appendices B, C, and D to § 600.1107, and ac- the consequences of submitting the Bid. knowledge the signature before a notary 4. Validity. The SRA, in consultation with public. the CFEC, shall examine each Bid for com- (a) BIDDER’S NAME. This must be the full pleteness and consistency. The SRA shall no- and exact legal name of record of the person tify the bidder if the Bid is non-conforming. bidding. Insert the name of the bidder. In such cases, the bidder may submit a revised, conforming Bid within the prescribed period (i.e., until the bid closing date). 5. Ranking. The SRA shall rank the bid amount entered in section III, 11(f) of this Bid by using a reverse auction in which the SRA ranks the Bid with the lowest dollar (b) BIDDER’S ADDRESS OF RECORD. In- amount and successively ranks each addi- sert the full and exact address of record for tional Bid with the next lowest dollar the bidder. amount until there are no more Bids or the ranking of the next lowest Bid would exceed the total program cost. In the event of a tie with bids which results in the tied bids exceeding $23,476,500, the SRA will select the tied bid first received. 6. Acceptance and Rejection. If the Bid is accepted, the SRA shall formally notify the bidder in writing. If the SRA rejects the Bid, the SRA will formally notify the bidder in (c) BIDDER’S TELEPHONE NUMBER. In- writing and the Bid shall terminate without sert the full and exact telephone number of further obligation. the bidder. 7. Restriction of Transfer of permit: Upon acceptance, the SRA will send the CFEC the Conditional Notice, restricting transfer of the permit until such time as: The SRA notifies the bidder that the Plan is not in compliance with the Act and will not be ap-

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(d) BIDDER’S ELECTRONIC MAIL AD- State of: llllllll County/Borough DRESS (if available). Insert the full and of: llllllll exact e-mail address of the bidder. I certify that llllllllllll is the person who appeared before me and said person acknowledged that he/she signed this Bid and on oath stated that he/she was authorized to execute such document and acknowledged it to be the free and voluntary act of him/her for the uses and purposes mentioned (e) PERMIT. Insert the full and exact per- in such document. mit number(s) of the bidder. Enclose with Notary Public’s Signature: this Bid an exact photocopy of the permit. llllllllllllDated: llllll My Commission Expires: llllllllllll 12. SRA SIGNATURE. By signing below, the SRA acknowledges acceptance of this Bid, including the bidder’s bid amount.

(f) BID AMOUNT. Insert, in U.S. dollars, Signature the bid’s full and exact amount, both in words and numbers.

In words In numbers Printed Name

$ Date of Signature (g) SECURITY INTERESTS. Insert the name of any authorized third party that may hold a security interest in the permit. APPENDIX B TO § 600.1107—RELINQUISHMENT CONTRACT: SOUTHEAST ALASKA SALMON PURSE SEINE PERMIT HOLDERS This Relinquishment Contract (‘‘Con- tract’’) and agreement is entered into between the Southeast Revitalization Associa- (h) SOCIAL SECURITY NUMBER. Insert tion (‘‘SRA’’) and the bidder named in Sec- the full and exact social security number of tion 11(a) of the Bid. The contract is effec- the bidder. tive when the bidder signs the Bid and this contract and, thereby, agrees to relinquish his/her permit, issued by the Alaska Com- mercial Fisheries Entry Commission (‘‘CFEC’’) for the Southeast Alaska salmon purse seine fishery (‘‘fishery’’). Whereas Alaska Statute 16.40.250 and Fed- (i) BID SIGNATURE. In compliance with eral law authorize a fishing capacity reduc- applicable law and this Bid, the bidder sub- tion program for the fishery; mits the above bid amount as an offer to the Whereas, upon accepting and signing the SRA for the permanent relinquishment of Bid, the SRA shall submit a Reduction Plan his/her permit. By completing the sections to NMFS; above and signing below, the bidder acknowl- Whereas, the Reduction Plan’s express ob- edges that the bidder has completely re- jective is to reduce fishing capacity by per- viewed this Bid and attachments. The bidder manently revoking permits thereby pro- warrants that the bidder is fully able to moting economic efficiency, improving flexi- enter into the Relinquishment Contract. The bility in the conservation and management bidder expressly warrants and attests that of the fishery and obtain the maximum re- all information included herein is accurate. duction in permits at the least cost; Whereas, this contract is subject to the Signature terms and conditions set forth herein, including the CFEC forms marked as Appen- dices C and D to § 600.1107; Now, therefore, for valuable consideration Printed Name and the covenants hereinafter set forth, the parties hereto agree as follows: 1. The foregoing, including the Bid and spe- Date of Signature cifically the definitions under section 1, are expressly incorporated herein by this reference.

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2. Under AS 16.43.150(i), the Bidder agrees 9. The contract contains the final terms to permanently relinquish and have the and conditions of this agreement between CFEC revoke the permit. the parties and represents the entire and ex- 3. The Bidder represents that, as of the clusive agreement between them. date of submitting the contract, he or she is 10. The contract terms are severable, and, the holder of record of the permit according in the event that any portion of the contract to the CFEC official permit records. is held to be unenforceable, the remaining 4. Upon notification by the SRA to the Bid- portion shall remain fully enforceable der that the SRA accepted the bid; the SRA will submit to the CFEC the Permit Holder’s against the parties. executed notice form (Appendix C to 11. Any and all disputes involving the con- § 600.1107) and executed relinquishment form tract shall be governed by laws of the State (Appendix D to § 600.1107). of Alaska. The bidder expressly acknowl- 5. In the event an authorized third party edges that by submitting the Bid, he/she holds a security interest in the permit, makes an irrevocable offer to relinquish the NMFS will not make payment until receiv- permit, and once having submitted the Bid, ing notice of written consent by the third is not entitled to withdraw or in any way party to the SRA and the CFEC on a form amend the Bid. provided by the CFEC. 12. The failure of a bidder to perform his/ 6. NMFS’ payment to the accepted bidder her obligations under the Bid will result in in the exact amount of the accepted bid irreparable damage to the SRA and its mem- amount is full and complete consideration bers upon submittal of the Plan to the Sec- for the CFEC revoking the permit. retary for approval. Accordingly, the SRA 7. The bidder shall, upon the SRA or the CFEC request, furnish such additional docu- and the bidder expressly acknowledge that ments, information, or take such other ac- money damages are an inadequate means of tions as may be reasonably required to en- redress and agree that upon failure of the able the CFEC to implement relinquishment bidder to fulfill his/her obligations under the of the permit. Bid that specific performance of those obli- 8. The bidder consents to the public release gations may be obtained by suit in equity of any information provided in connection brought by the SRA in any court of com- with the contract or program requirements petent jurisdiction without obligation to ar- after completion of the plan. bitrate such action.

BIDDER’S SIGNATURE AND NOTARY’S ACKNOWLEDGEMENT AND CERTIFICATION

Bidder signature Notary signature

(1) Sign (1) Sign (2) Print the following: (2) Print the following: (a) signer’s name (a) name (b) signing date (b) signing date (c) state and city/borough (3) date commission expires, and State and city/borough. Each notary signature attests to the following: ‘‘I certify that I know or have satisfactory evidence that the person who is signed in the 1st column of this same row is the person who appeared before me and: (1) Acknowledged his/her signature; (2) on oath, stated that he/she was authorized to sign; and (3) acknowledged that he/she did so freely and voluntarily.’’ (1) (1) (2)(a) (2)(a) (2)(b) (2)(b) (2)(c) (3)

II. SOUTHEAST REVITALIZATION ASSOCIATION and authorize the Southeast Revitalization SIGNATURE SOUTHEAST REVITALIZATION AS- Association (SRA) to submit this executed SOCIATION document to the Alaska Commercial Fish- eries Entry Commission (CFEC) in the event Dated: llllllllllllllllllll that the SRA accepts my bid to permanently By: lllllllllllllllllllll relinquish my Southeast Salmon Purse Seine Entry Permit under AS 16.43.150(i). APPENDIX C TO § 600.1107—CONDITIONAL NO- I hereby notify the CFEC that the SRA has TICE TO CFEC AND REQUEST BY PERMIT accepted my Bid to permanently relinquish HOLDER my Southeast Salmon Purse Seine Entry In support of my Bid to the Southeast Re- Permit #lllllll. vitalization Association (SRA), I have executed this Conditional Notice and request

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I request the CFEC: (1) not to renew my set by the North Pacific Fishery Man- above-identified entry permit; and (2) not to agement Council (NPFMC) in Decem- authorize any transfer of my entry permit. ber of each year multiplied by 2,205 DATED this lll day of lllll , 2011. (i.e., the rounded number of pounds in llllllllllllllllllllllll a metric ton)or the Longline Subsector (Permit Holder/Bidder) SUBSCRIBED AND SWORN TO before me of the BSAI non-pollock groundfish this lll day of lllll , 2011. fishery that § 679.2 of this chapter de- llllllllllllllllllllllll fined as groundfish area/species en- Notary Public, State of lllllllll dorsement. My commission expires: lllllll (c) Capacity Reduction Program. As a result of the completion of the Selec- APPENDIX D TO § 600.1107—CONDITIONAL RE- tion Process, written notification from LINQUISHMENT OF SOUTHEAST SALMON the FLCC to NMFS identifying the se- PURSE SEINE ENTRY PERMIT lected offeror, and submission of the [AS 16.43.150(I)] reduction plan, the capacity reduction program is implemented as follows: Upon satisfaction of the conditions that the Southeast Revitalization Association (1) Loan repayment—(i) Term. As au- (SRA) accepts my bid and that NMFS agrees thorized by section 219(B)(2) of the Ap- to pay my full bid amount to me, the SRA propriations Act, the capacity reduc- may submit this executed Conditional Relin- tion loan (the Reduction Loan) shall be quishment of Southeast Salmon Purse Seine amortized over a thirty (30) year term. Entry Permit to the Commercial Fisheries The Reduction Loan’s original prin- Entry Commission. cipal amount may not exceed the I fully understand this relinquishment of amount approved by the subsector. The my permanent entry permit #lllllll under AS 16.43.150(i) is permanent, and I will subsector has currently approved a not be able to reinstate the permit. loan of two million seven hundred DATED this lll day of lllll , 2011. thousand dollars ($2,700,000). Subsector llllllllllllllllllllllll Members acknowledge that in the (Permit Holder/Bidder) event payments made under the Reduc- SUBSCRIBED AND SWORN TO before me tion Plan are insufficient to repay the this lll day of lllll , 2011. actual loan, the term of repayment llllllllllllllllllllllll shall be extended by NMFS until the Notary Public, State of lllllllll loan is paid in full. Repayment calcula- My commission expires: lllllll tions and records will be kept sepa- [76 FR 61990, Oct. 6, 2011] rately for each program. (ii) Interest. The Reduction Loan’s in- § 600.1108 Longline catcher processor terest rate will be the U.S. Treasury’s subsector of the Bering Sea and cost of borrowing equivalent maturity Aleutian Islands (BSAI) non-pollock funds plus 2 percent. NMFS will deter- groundfish fishery program. mine the Reduction Loan’s initial in- (a) Purpose. This section implements terest rate when NMFS borrows from the capacity reduction program that the U.S. Treasury the funds with which Title II, section 219(e) of Public Law to disburse reduction payments. The 108–447 established for the longline initial interest rate will change to a catcher processor subsector of the Ber- final interest rate at the end of the ing Sea and Aleutian Islands (BSAI) Federal fiscal year in which NMFS bor- non-pollock groundfish fishery. rows the funds from the U.S. Treasury. (b) Definitions. Unless otherwise de- The final interest rate will be 2 percent fined in this section, the terms defined plus a weighted average, throughout in § 600.1000 of subpart L and § 600.1105 of that fiscal year, of the U.S. Treasury’s subpart M of this part expressly apply cost of borrowing equivalent maturity to this section. The following terms funds. The final interest rate will be have the following meanings for the fixed, and will not vary over the re- purpose of this section: mainder of the reduction loan’s 30-year Reduction fishery means the Hook & term. The Reduction loan will be sub- Line, Catcher Processor (Longline Sub- ject to a level debt amortization. There sector); sometimes referred to as the is no prepayment penalty. ‘‘H&LCP Subsector) portion of the (iii) Fees. The Reduction Loan shall BSAI Pacific cod ITAC (in metric tons) be repaid by fees collected from the

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Longline Subsector. The fee amount and communicated to the post-reduc- will be based upon: The principal and tion fishery participants. interest due over the next twelve (D) It is possible that the fishery may months divided by the product of the not open during some years and no Longline Subsector. In the event that Longline Subsector portion of the the Longline Subsector portion for the ITAC is granted. Consequently, the ensuing year is not available, the fishery will not produce fee revenue Longline Subsector portion forecast with which to service the reduction from the preceding year will be used to loan during those years. However, in- calculate the fee. terest will continue to accrue on the (A) The fee will be expressed in cents principal balance. When this happens, per pound rounded up to the next one- if the fee rate is not already at the tenth of a cent. For example: If the maximum 5 percent, NMFS will in- principal and interest due equal crease the fishery’s fee rate to the $2,900,000 and the Longline Subsector maximum 5 percent of revenue for Pa- portion equals 100,000 metric tons, then cific cod, apply all subsequent fee rev- the fee per round weight pound of Pa- enue first to the payment of accrued cific cod will equal 1.4 cents per pound. interest, and continue the maximum [2,900,000/(100,000 × 2,205) = .01315]. The fee rates until all principal and inter- fee will be assessed and collected on est payments become current. Once all Pacific cod to the extent possible and if principal and interest payments are not, will be assessed and collected as current, NMFS will make a determina- provided for in paragraph (c)(1)(iii)(B) tion about adjusting the fee rate. of this section. (iv) Reduction loan. NMFS has pro- (B) Fees must be assessed and col- mulgated framework regulations gen- lected on Pacific cod used for bait or erally applicable to all fishing capacity discarded. Although the fee could be up reduction programs in subpart L of this to 5 percent of the ex-vessel production part. The reduction loan shall be sub- value of all post-reduction Longline ject to the provisions of § 600.1012, ex- Subsector landings, the fee will be less cept that: the subsector members’ obli- than 5 percent if NMFS projects that a gation to repay the reduction loan lesser rate can amortize the fishery’s shall be discharged by the owner of the reduction loan over the reduction Longline Subsector license regardless loan’s 30-year term. In the event that of which vessel catches fish under this the total principal and interest due exceeds 5 percent of the ex-vessel Pacific license and regardless of who processes cod revenues, a standardized additional the fish in the reduction fishery in ac- fee will be assessed. The additional fee cordance with § 600.1013. Longline Sub- shall be one cent per pound round sector license owners in the reduction weight, which is calculated based on fishery shall be obligated to collect the the latest available revenue records fee in accordance with § 600.1013. and NMFS conversion factors for pol- (v) Collection. The LLP License hold- lock, arrowtooth flounder, Greenland ers of vessels harvesting in the post-ca- turbot, skate, yellowfin sole and rock pacity reduction plan Longline Sub- sole. sector shall be responsible for self-col- (C) To verify that the fees collected lecting the repayment fees owed by the do not exceed 5 percent of the fishery LLP License holder. Fees shall be sub- revenues, the annual total of principal mitted to NMFS monthly and shall be and interest due will be compared to due no later than fifteen (15) calendar the latest available annual Longline days following the end of each calendar Subsector revenues. In the event that month. any of the components necessary to (vi) Recordkeeping and reporting. The calculate the next year’s fee are not holder of the LLP Licenses on which available, or for any other reason vessels harvesting in the post-capacity NMFS believes the calculation must be reduction plan Longline Subsector is postponed, the fee will remain at the designated shall be responsible for previous year’s amount until such a compliance with the applicable record- time that new calculations are made keeping and reporting requirements.

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(2) Agreement with Secretary. The Se- competent jurisdiction without obliga- lected Offeror shall complete and de- tion to arbitrate such action. liver to the FLCC for inclusion in the (f) Miscellaneous— (1) Termination. Reduction Plan submitted to NMFS, The Reduction Agreement may be ter- designee for the Secretary, a completed minated at any time prior to approval and fully executed Reduction Contract. of the Reduction Plan by NMFS, on be- The LLP License set forth on the Se- half of the Secretary, by written notice lected Offer shall be included as Reduc- from 50 percent of Subsector Members. tion Fishing Interests in such Reduc- (2) Choice of law/venue. The Reduction tion Contract. Agreement shall be construed and en- (d) Decisions of the Auditor and the forced in accordance with the laws of FLCC. Time was of the essence in de- the State of Washington without re- veloping and implementing a Reduc- gard to its choice of law provisions. tion Plan and, accordingly, the Offeror The parties submit to the exclusive is limited to, and bound by, the deci- personal jurisdiction of the United sions of the Auditor and the FLCC. States District Court located in Se- (1) The Auditor’s examination of sub- attle, Washington, with respect to any mitted applications, Offers, litigation arising out of or relating to Prequalification Offers and Rankings the Reduction Agreement or out of the was solely ministerial in nature. That performance of services hereunder. is, the Auditor verified whether the (3) Incorporation. All executed coun- documents submitted by Subsector terparts of the Reduction Agreement, Members were, on their face, con- Application Forms and Offers consistent with each other and the Data- stitute the agreement between the par- base, in compliance with the require- ties with respect to the subject matter ments set forth in the Reduction of the Reduction Agreement and are in- Agreement, and signed by an Author- corporated into the Reduction Agree- ized Party. The Auditor presumed the ment as if fully written. validity of all signatures on documents (4) Counterparts. The Reduction submitted. The Auditor made no sub- Agreement may be executed in mul- stantive decisions as to compliance tiple counterparts and will be effective (e.g., whether an interim LLP License as to signatories on the Effective Date. satisfies the requirements of the Act, The Reduction Agreement may be exe- or whether a discrepancy in the name cuted in duplicate originals, each of appearing on LLP Licenses and other which shall be deemed to be an original documents was material). instrument. All such counterparts and (2) [Reserved] duplicate originals together shall con- (e) Specific performance. The parties stitute the same agreement, whether to the Reduction Agreement have or not all parties execute each counter- agreed that the opportunity to develop part. and submit a capacity reduction pro- (i) The facsimile signature of any gram for the Longline Subsector under party to the Reduction Agreement the terms of the Appropriations Act is shall constitute the duly authorized, both unique and finite and that failure irrevocable execution and delivery of of the Selected Offeror to perform the the Reduction Agreement as fully as if obligations provided by the Reduction the Reduction Agreement contained Agreement will result in irreparable the original ink signatures of the party damage to the FLCC and the Subsector or parties supplying a facsimile signa- Members. Accordingly, the parties to ture. the Reduction Agreement expressly ac- (ii) [Reserved] knowledge that money damages are an (g) Amendment. All Subsector Mem- inadequate means of redress and agree bers acknowledge that the Reduction that upon the failure of the Selected Agreement, the Reduction Contract, Offeror to fulfill their obligations and the Reduction Plan may be subject under the Reduction Agreement that to amendment to conform to the re- specific performance of those obliga- quirements for approval of the Reduc- tions may be obtained by suit in equity tion Plan by NMFS on behalf of the brought by the FLCC in any court of Secretary. The Auditor shall distribute

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to each Subsector Member in elec- (1) Be consistent with the require- tronic format the amended form of the ments of section 219(e) of the FY 2005 Reduction Agreement, the Reduction Appropriations Act (Pub. L. 108–447); Contract, and the Reduction Plan, (2) Be consistent with the require- which amended documents in the form ments of section 312(b) of the Magnu- distributed by the Auditor and identi- son-Stevens Fishery Conservation and fied by the Auditor by date and Management Act (16 U.S.C. 1861(a)) ex- version, the version of each such docu- cept for the requirement that a Council ment then in effect at the time of any or Governor of a State request such a dispute arising or action taken shall be program (as set out in section 312(b)(1)) deemed binding upon the parties with and for the requirements of section respect to such dispute and/or action. 312(b)(4); (h) Warranties. The Offeror must ex- (3) Contain provisions for a fee sys- pressly warrant and represent in the tem that provides for full and timely Reduction Agreement that: repayment of the capacity reduction (1) The Offeror has had an oppor- loan by the Longline Subsector and tunity to consult with an attorney or that it provide for the assessment of other advisors with respect to the Re- such fees; duction Agreement, the Reduction (4) Not require a bidding or auction Contract, and the Act and the rami- process; fications of the ratification of the Re- (5) Result in the maximum sustained duction Plan contemplated therein; reduction in fishing capacity at the (2) The Offeror has full understanding least cost and in the minimum amount of time; and and appreciation of the ramifications of executing and delivering the Reduc- (6) Permit vessels in the Longline tion Agreement and, free from coercion Subsector to be upgraded to achieve efficiencies in fishing operations proof any kind by the FLCC or any of its vided that such upgrades do not result members, officers, agents and/or em- in the vessel exceeding the applicable ployees, executes and delivers the Re- length, tonnage, or horsepower limita- duction Agreement as the free and vol- tions set out in Federal law or regula- untary act of the Offeror; tion. (3) The execution and delivery of the (j) Referendum. The following provi- Reduction Agreement, does not and sions apply to the Reduction Plan of will not conflict with any provisions of this section to the extent that they do the governing documents of the Offer- not conflict with subpart L of this part or; including §§ 600.1009, 600.1010, 600.1013, (4) The person executing the Reduc- and 600.1014 or 16 U.S.C. 1861a; except tion Agreement has been duly author- where the referendum is successful if a ized by the Offeror to execute and de- majority of all permit holders within liver the Reduction Agreement and to the fishery vote in favor of the Reduc- undertake and perform the actions con- tion Program is accordance with 18 templated herein; and U.S.C. 1861a(d)(1)(B). (5) The Offeror has taken all actions (k)(1) Fee payment and collection sys- necessary for the Reduction Agreement tem. Upon successful completion of the to constitute a valid and binding obli- Referendum discussed above as author- gation, enforceable in accordance with ized by Public Law 108–447 and in ac- its terms. cordance with 16 U.S.C. 1861a and (i) Approval of the Reduction Plan. Ac- § 600.1012 this fee collection system es- ceptance of the Offer is at the sole dis- tablishes: cretion of NMFS on behalf of the Sec- (i) The subsector members’ obliga- retary of Commerce. To be approved by tion to repay the reduction loan, and NMFS, on behalf of the Secretary, any (ii) The loan’s principal amount, in- Reduction Plan developed and sub- terest rate, and repayment term; and mitted in accordance with this section (iii) In accordance with §§ 600.1013 and subpart M of this part must be through 600.1016, implements an indus- found by the Assistant Administrator try fee system for the reduction fish- of NMFS, to: ery.

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(2) Reduction loan amount. The reduc- Subpart N—Shark Finning tion loan’s original principal amount is $2,700,000. SOURCE: 67 FR 6200, Feb. 11, 2002, unless (3) Interest accrual from inception. In- otherwise noted. Redesignated at 69 FR 53361, terest begins accruing on the reduction Sept. 1, 2004. loan from the date which NMFS disburses such loan. § 600.1200 Purpose and scope. (4) Interest rate. The reduction loan’s The regulations in this subpart gov- interest rate shall be the applicable ern ‘‘shark finning’’ (the removal of rate which the U.S. Treasury deter- shark fins and discarding of the car- mines at the end of fiscal year in which cass), the possession of shark fins, and loan is disbursed plus 2 percent. the landing into U.S. ports of shark (5) Repayment terms. For the purpose fins without corresponding carcasses of determining fee rates, the reduction under the authority of the Magnuson- loan’s repayment term is 30 years from Stevens Act. They implement the the date NMFS disburses the loan. Shark Finning Prohibition Act of 2000. However, fee collections shall continue indefinitely until the loan is fully re- § 600.1201 Relation to other laws. paid. (a) The relation of this subpart to (6) Reduction loan repayment. The sub- other laws is set forth in §§ 600.514 and sector members shall repay the reduc- 600.705 and in paragraphs (b) and (c) of tion loan in accordance with § 600.1012. this section. Both fish buyers and fish sellers are (b) Regulations pertaining to shark considered subsector members for pur- conservation and management for cer- poses of fee collection, deposit, dis- tain shark fisheries are also set forth bursement, and accounting in accord- in this subpart and in parts 635 (for ance with § 600.1013. Federal Atlantic Ocean, Gulf of Mex- (i) Subsector members in the reduc- ico, and Caribbean shark fisheries), 648 tion fishery shall collect and pay the (for spiny dogfish fisheries), and 660 fee amount in accordance with (for fisheries off West Coast states and § 600.1105; in the western Pacific) of this chapter (ii) Subsector members in the reduc- governing those fisheries. tion fishery shall deposit and disburse, (c) Nothing in this regulation as well as keep records for and submit supercedes more restrictive state laws reports about, the applicable fees in ac- or regulations regarding shark finning cordance with § 600.1014, except the re- in state waters. quirements under paragraphs (c) and (d) A person who owns or operates a (e) of this section. All collected fee rev- vessel that has been issued an Atlantic enue a fish buyer collects to repay the Federal commercial shark limited ac- loan identified in paragraph (c) of this cess permit or a spiny dogfish permit is section shall be made to NMFS no later subject to the reporting and record- than fifteen (15) calendar days fol- keeping requirements found at parts lowing the end of each calendar month. 635 and 648 of this chapter, respec- The annual reports identified in para- tively. graph (e) of this section shall be submitted to NMFS by February 1 of each § 600.1202 Definitions. calendar year. (a) In addition to the definitions in (iii) The reduction loan is, in all the Magnuson-Stevens Act and in other respects, subject to the provi- § 600.10, the terms used in this subpart sions of §§ 600.1012 through 600.1017. have the following meanings: (l) Enforcement for failure to pay fees. Land or landing means offloading The provisions and requirements of fish, or causing fish to be offloaded, § 600.1016 (Enforcement) shall also apply from a fishing vessel, either to another to fish sellers and fish buyers subject vessel or to a shoreside location or fa- to this fishery. cility, or arriving in port, or at a dock, [77 FR 58779, Sept. 24, 2012] berth, beach, seawall, or ramp to begin EFFECTIVE DATE NOTE: At 77 FR 58779, offloading fish. Sept. 24, 2012, § 600.1108 was added, effective Shark finning means taking a shark, Oct. 24, 2012. removing a fin or fins (whether or not

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including the tail), and returning the shark carcasses on board or landed remainder of the shark to the sea. from the fishing vessel. (b) If there is any difference between (2) For purposes of this section, it is a definition in this section and in a rebuttable presumption that shark § 600.10, the definition in this section is fins possessed by a U.S. fishing vessel the operative definition for the pur- were taken and held in violation of this poses of this subpart. section if the total weight of the shark fins on board, or landed, exceeds 5 per- § 600.1203 Prohibitions. cent of the total dressed weight of (a) In addition to the prohibitions in shark carcasses on board or landed §§ 600.505 and 600.725, it is unlawful for from the fishing vessel. any person to do, or attempt to do, any [67 FR 6200, Feb. 11, 2002. Redesignated at 69 of the following: FR 53361, Sept. 1, 2004, as amended at 73 FR (1) Engage in shark finning, as pro- 40707, July 15, 2008] vided in § 600.1204(a) and (i). (2) Possess shark fins without the § 600.1204 Shark finning; possession at corresponding carcasses while on board sea and landing of shark fins. a U.S. fishing vessel, as provided in (a)(1) No person aboard a U.S. fishing § 600.1204(b) and (j). vessel shall engage in shark finning in (3) Land shark fins without the cor- waters seaward of the inner boundary responding carcasses, as provided in of the U.S. EEZ. § 600.1204(c) and (k). (2) No person aboard a foreign fishing (4) Fail to have all shark fins and vessel shall engage in shark finning in carcasses from a U.S. or foreign fishing waters shoreward of the outer bound- vessel landed at one time and weighed ary of the U.S. EEZ. at the time of the landing, as provided (b) No person aboard a U.S. fishing in § 600.1204(d). vessel shall possess on board shark fins (5) Possess, purchase, offer to sell, or harvested seaward of the inner bound- sell shark fins taken, landed, or pos- ary of the U.S. EEZ without the cor- sessed in violation of this section, as responding carcass(es), as may be de- provided in § 600.1204(e) and (l). termined by the weight of the shark (6) When requested, fail to allow an fins in accordance with § 600.1203(b)(2), authorized officer or any employee of except that sharks may be dressed at NMFS designated by a Regional Ad- sea. ministrator access to and/or inspection (c) No person aboard a U.S. or foreign or copying of any records pertaining to fishing vessel (including any cargo ves- the landing, sale, purchase, or other sel that received shark fins from a fish- disposition of shark fins and/or shark ing vessel at sea) shall land shark fins carcasses, as provided in § 600.1204(f). harvested in waters seaward of the (7) Fail to have shark fins and car- inner boundary of the U.S. EEZ with- casses recorded as specified in out corresponding shark carcasses, as § 635.30(c)(3) of this chapter. may be determined by the weight of (8) Fail to have all shark carcasses the shark fins in accordance with and fins landed and weighed at the § 600.1203(b)(1). same time if landed in an Atlantic (d) Except as provided in paragraphs coastal port, and to have all weights (g) and (h) of this section, a person who recorded on the weighout slips speci- operates a U.S. or foreign fishing vessel fied in § 635.5(a)(2) of this chapter. and who lands shark fins harvested in (9) Fail to maintain a shark in the waters seaward of the inner boundary form specified in §§ 600.1204(h) and of the U.S. EEZ shall land all fins and 635.30(c) of this chapter. corresponding carcasses from the ves- (b)(1) For purposes of this section, it sel at the same point of landing and is a rebuttable presumption that shark shall have all fins and carcasses fins landed by a U.S. or foreign fishing weighed at that time. vessel were taken, held, or landed in (e) A person may not purchase, offer violation of this section if the total to sell, or sell shark fins taken, landed, weight of the shark fins landed exceeds or possessed in violation of this sec- 5 percent of the total dressed weight of tion.

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(f) Upon request, a person who owns Subpart O—Limited Access or operates a vessel or a dealer shall Privilege Programs allow an authorized officer or any employee of NMFS designated by a Re- AUTHORITY: 16 U.S.C. 1801 et seq. gional Administrator access to, and/or inspection or copying of, any records SOURCE: 73 FR 75973, Dec. 15, 2008, unless pertaining to the landing, sale, pur- otherwise noted. chase, or other disposition of shark fins §§ 600.1300–600.1309 [Reserved] and/or shark carcasses. (g) A person who owns or operates a § 600.1310 New England and Gulf of vessel that has been issued a Federal Mexico Individual Fishing Quota Atlantic commercial shark permit and Referenda. who lands shark in an Atlantic coastal (a) Purpose and scope. This section es- port must have all fins weighed in con- tablishes procedures and guidelines for junction with the weighing of the car- referenda to be conducted on Individual casses at the vessel’s first point of Fishing Quota (IFQ) program proposals landing. Such weights must be re- developed by the New England Fishery corded on the ‘‘weighout slips’’ speci- Management Council (NEFMC) and the fied in § 635.5(a)(2) of this chapter. Gulf of Mexico Fishery Management (h) A person who owns or operates a Council (GMFMC). These procedures vessel that has been issued a Federal and guidelines also apply to IFQ pro- Atlantic commercial shark permit and gram proposals developed by NMFS for who lands shark in or from the U.S. fisheries under the jurisdiction of the EEZ in an Atlantic coastal port must NEFMC or GMFMC, except for certain comply with regulations found at provisions that only apply to a fishery § 635.30(c) of this chapter. management council. This section pro- (i) No person aboard a vessel that has vides guidance on developing voter eli- been issued a Federal Atlantic com- gibility and vote weighting, and estab- mercial shark permit shall engage in lishes general procedures to ensure shark finning. referenda are conducted in a fair and (j) No person aboard a vessel that has equitable manner. been issued a Federal Atlantic com- (b) Initiating IFQ referenda. (1) The mercial shark permit shall possess on NEFMC and the GMFMC shall not sub- board shark fins without the fins being mit, and the Secretary shall not ap- naturally attached to the cor- prove, an FMP or FMP amendment responding carcass(es), although that would create an IFQ program sharks may be dressed at sea. until the IFQ program proposal, as ul- (k) No person aboard a vessel that timately developed, has been approved by a referendum of eligible voters. has been issued a Federal Atlantic Paragraph (h) of this section provides commercial shark permit shall land criteria for determining the outcome of shark fins without the fins being natu- IFQ referenda. rally attached to the corresponding (2) To initiate a referendum on a pro- carcass(es). posed IFQ program: (l) A dealer may not purchase shark (i) The relevant Council must have fins, from an owner or operator of a held public hearings on the FMP or fishing vessel issued a Federal Atlantic FMP amendment in which the IFQ pro- commercial shark permit who lands gram is proposed; shark in an Atlantic coastal port, un- (ii) The relevant Council must have less such fins were naturally attached considered public comments on the to the corresponding carcass at the proposed IFQ program; time of landing and their combined wet (iii) The relevant Council must have weight is less than 5 percent of the selected preferred alternatives for the dressed weight of the corresponding proposed IFQ program; carcass(es). (iv) The chair of the Council with ju- [67 FR 6200, Feb. 11, 2002. Redesignated at 69 risdiction over such proposed IFQ fish- FR 53361, Sept. 1, 2004, as amended at 73 FR ery must request a referendum on the 40707, July 15, 2008; 75 FR 30524, June 1, 2010] proposed IFQ program in a letter to the

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appropriate NMFS Regional Adminis- fishery participants must meet voter trator; eligibility criteria. (v) The letter requesting initiation of (ii) Holders of multispecies permits a referendum must recommend voter in the Gulf of Mexico must have sub- eligibility criteria that are consistent stantially fished the species proposed with the applicable requirements of to be included in the IFQ program to be paragraph (c)(1) of this section and eligible to vote in a referendum on the may also include recommended criteria proposed program. for vote weighting. The letter must (iii) When developing eligibility cri- provide the rationale supporting the teria for permit holders in an IFQ pro- Council’s recommendation, as well as gram referendum, the relevant Council such additional information and anal- or Secretary must consider, but is not yses as needed, consistent with applica- limited to considering: ble law and provisions of this section. (A) The full range of entities likely If a Council recommends vote to be eligible to receive initial quota weighting criteria, the letter should allocation under the proposed IFQ pro- fully describe the rationale for and the gram; expected effects of such weighting on (B) Current and historical harvest the referendum; and participation in the fishery; and (vi) NEFMC referenda initiation letters must: recommend criteria that are (C) Other factors as may be deter- consistent with paragraph (c)(2)(iii) of mined by the Council with jurisdiction this section for NMFS to use in deter- over the fishery for which an IFQ pro- mining the eligibility of other fishery gram is proposed to be relevant to the participants to vote in the referendum; fishery and to the proposed IFQ pro- include the minimum percentage of a gram. crew member’s total income that must (2) Crew member eligibility in NEFMC have been earned during the eligibility IFQ referenda. (i) For the purposes of periods in the proposed IFQ fishery as this section, ‘‘referendum-eligible ves- discussed in paragraph (c)(2)(ii) of this sel’’ means a vessel, the permit holder section; and include criteria for ‘‘ref- or owner of which has been determined erendum eligible vessels’’ as described to be eligible to vote in the referendum in paragraph (c)(2)(i) of this section; on the basis of such vessel’s history or and other characteristics. (vii) GMFMC letters initiating (ii) To be eligible to vote in an referenda of multispecies permit hold- NEFMC IFQ referendum, crew mem- ers in the Gulf of Mexico must include bers must meet the following require- recommended criteria to be used in ments: identifying those permit holders who (A) The crew member must have have substantially fished the species to worked aboard a referendum-eligible be included in the proposed IFQ pro- vessel at sea, during the qualifying pe- gram, along with alternatives to the riod(s), while the vessel was engaged in recommendation, and supporting anal- fishing; yses. Guidelines for developing such (B) If requested, the crew member recommendations are provided at para- must produce documentary proof of graph (c)(3) of this section. employment or service as a crew mem- (3) Following a referendum that has ber and income during the qualifying failed to approve the IFQ proposal, any periods. Documents that may be re- request from a Council for a new ref- quired include, but are not limited to, erendum in the same fishery must in- signed crew contracts, records of pay- clude an explanation of the substantive ment, settlement sheets, income tax changes to the proposed IFQ program records, a signed statement from the or the changes of circumstances in the permit holder, and other documentary fishery that would warrant initiation evidence of the period of employment of an additional referendum. and the vessel upon which the crew (c) Referenda voter eligibility—(1) Per- member worked; mit holders and other fishery participants. (C) During the qualifying period(s), (i) To be eligible to vote in IFQ the crew member must have derived a referenda, permit holders and other percentage of his/her total income from

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the fishery under the proposed IFQ pro- expenditures, or other considerations. gram that is equal to or greater than A Council may also apply the same cri- the percentage determined to be sig- teria for weighting eligible referendum nificant relative to the economic value votes. and employment practices of the fish- (e) Actions by NMFS: Review of Council ery; and referendum criteria and Secretarial IFQ (D) Any additional eligibility criteria plans. (1) NMFS shall determine wheth- promulgated by the NMFS. er Council recommended referendum (iii) When developing criteria for de- criteria will provide for a fair and equi- termining whether other fishery par- table referendum and will be consistent ticipants, including crew members, with national standards and other pro- may participate in a NEFMC IFQ ref- visions of the Magnuson-Stevens Act, erendum, the Council or Secretary and other applicable legal standards. must consider, but is not limited to The Secretary’s considerations shall considering: include, but shall not be limited to: (A) The full range of entities likely (i) Whether the criteria are ration- to be eligible to receive initial quota ally connected to or further the objec- under the proposed IFQ program; tives of the proposed IFQ program; (B) A crew member’s current and his- (ii) Whether the criteria are designed torical participation in the fishery in such a way to prevent any person or aboard a referendum-eligible vessel; single entity from obtaining an exces- (C) The economic value of the pro- sive share of voting privileges; posed IFQ fishery, employment prac- (iii) Whether the criteria are reason- tices in the proposed IFQ fishery, and able relative to the availability of doc- other economic and social factors that umentary evidence and the possibility would bear on a determination of what of validating a participant’s eligibility; percentage of a crew member’s total in- and come from the fishery should be con- (iv) Whether the referendum can be sidered significant for the purposes of administered and executed in a fair and this section; equitable manner, in a reasonable (D) The availability of documentary time, and without subjecting industry proof of employment and income to members, the Council, or NMFS to ad- validate eligibility; and ministrative burdens, costs or other re- (E) Any other factors as may be de- quirements that would be considered termined by the Council to be relevant onerous. to the fishery and the proposed IFQ (2) If NMFS determines that ref- program. erendum criteria would not provide for (3) GMFMC’s substantially fished cri- a fair and equitable referendum; would terion. When developing criteria for not be consistent with national stand- identifying those multispecies permit ards and other provisions of the Mag- holders who have substantially fished nuson-Stevens Act, and other applica- the species to be included in the IFQ ble legal standards; or, in the case of a program proposal, the Council or Sec- referendum request subsequent to a retary must consider, but is not lim- failed referendum in the same fishery, ited to considering: that the Council has not substantively (i) Current and historical harvest and amended the IFQ proposal or cir- participation in the fishery; cumstances have not changed suffi- (ii) The economic value of and em- ciently to warrant initiation of a new ployment practices in the fishery; and referendum, NMFS shall inform the (iii) Any other factors determined by Council of the Agency’s decision to the Council with jurisdiction over the deny the referendum request and of the fishery for which an IFQ program is reasons for the decision. proposed to be relevant to the fishery (3) If NMFS determines that ref- and the proposed IFQ program. erendum criteria would provide for a (d) Council-recommended criteria fair and equitable referendum and under paragraph (c) of this section may would be consistent with national include, but are not limited to, levels standards and other provisions of the of participation or reliance on the fish- Magnuson-Stevens Act, and other ap- ery as represented by landings, sales, plicable legal standards; then NMFS

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shall conduct the referendum in ac- (B) Upon implementation of the ref- cordance with procedures and guide- erendum through a final rule, NMFS lines provided in paragraph (f) of this shall provide eligible voters referenda section. ballots and shall make available infor- (4) In accordance with paragraphs mation about the schedule, procedures, (c)(2) and (3) of this section, NMFS may and eligibility requirements for the initiate a referendum and promulgate referendum process and the proposed referendum criteria for any IFQ pro- IFQ program. gram proposal advanced through a Sec- (2) NMFS shall notify the public in retarial fishery management plan the region of the subject fishery of the (FMP) or FMP amendment under the referendum eligibility criteria. authority of section 304(c) of the Mag- (3) Individuals who wish to vote as nuson-Stevens Act for a New England other fishery participants in a NEFMC or Gulf of Mexico fishery. Such criteria IFQ referendum, based on criteria es- must provide for a fair and equitable tablished by the NEFMC under (c)(2), referendum and NMFS shall conduct must contact NMFS and produce all re- the referendum in accordance with pro- quired documentation and certifi- cedures and guidelines provided in cations to receive a ballot. NMFS shall paragraph (f) of this section. provide sufficient time in the ref- (f) Conducting IFQ referenda. (1) erendum process to allow for crew NMFS shall promulgate specific members to request, receive, and sub- referenda procedural requirements, mit referendum ballots. voter eligibility requirements, and any (g) Referenda ballots. (1) Ballots shall vote weighting criteria through appro- be composed such that voters will indi- priate rulemaking. cate approval or disapproval of the pre- (i) Proposed rule. A proposed rule ferred IFQ program proposal. shall seek public comment on the spe- (2) NMFS may require voters to self- cific schedule, procedures, and other certify on referenda ballots that they requirements for the referendum proc- meet voter eligibility criteria. To be ess. considered valid, ballots must be (A) For NEFMC IFQ program signed by the eligible voter. referenda, the proposed rule shall es- (3) Referenda ballots shall be num- tablish procedures for documenting or bered serially or otherwise designed to certifying that other fishery partici- guard against submission of duplicate pants, including crew members, meet ballots. the proposed voter eligibility criteria. (4) If votes are weighted, the value of (B) For GMFMC IFQ program weighted votes shall be indicated on referenda for multispecies permit hold- the ballot. The weighted vote must be ers, the proposed rule shall include cri- cast as a single unit. Its value may not teria to be used in identifying those be split. The full value must be applied permit holders who have substantially to the selection made on the ballot. fished the species that are the subject (5) NMFS shall allow at least 30 days of the proposed IFQ program. for eligible voters to receive and return (ii) Final rule. (A) If NMFS decides to their ballots and shall specify a dead- proceed with the referendum after re- line by which ballots must be received. viewing public comments, NMFS shall Ballots received after the deadline publish implementing regulations shall not be considered valid. through a final rule in the FEDERAL (h) Determining the outcome of an IFQ REGISTER as soon as practicable after referendum. (1) NMFS shall tally and the Council determines the IFQ pro- announce the results of the referendum gram proposal and supporting analyses within 90 days of the deadline by which are complete and ready for Secretarial completed ballots must be received. review. Otherwise, NMFS shall publish NMFS may declare a referendum in- a notice in the FEDERAL REGISTER to valid if the Agency can demonstrate inform the Council and the public of its the referendum was not conducted in decision not to conduct the ref- accordance with the procedures estab- erendum, as proposed, including rea- lished in the final rule implementing sons for the Agency’s decision. the referendum.

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(2) A NEFMC IFQ program ref- Chinook, or king, salmon: erendum shall be considered approved Oncorhynchus tshawytscha Coho, or silver, salmon: Oncorhynchus only if more than 2⁄3 of the votes submitted on valid ballots are in favor of kisutch Pink salmon: Oncorhynchus gorbuscha the referendum question. Sockeye salmon: Oncorhynchus nerka (3) A GMFMC IFQ program ref- Chum salmon: Oncorhynchus keta erendum shall be considered approved Steelhead: Oncorhynchus mykiss only if a majority of the votes sub- Coastal cutthroat trout: Oncorhynchus clarki mitted on valid ballots are in favor of clarki the referendum question. Eulachon or candlefish: Thaleichthys pacificus (i) Council actions. (1) If NMFS noti- Dolly varden: Salvelinus malma Sheefish or inconnu: Stenodus leucichthys fies a Council that an IFQ program pro- Atlantic sturgeon: Acipenser oxyrhynchus posal has been approved through a ref- oxyrhynchus erendum, then the Council may submit Shortnose sturgeon: Acipenser brevirostrum the associated FMP or FMP amend- Gulf sturgeon: Acipenser oxyrhynchus desotoi ment for Secretarial review and imple- White sturgeon: Acipenser transmontanus mentation. Green sturgeon: Acipenser medirostris (2) Any changes that would modify Angler means a person who is angling an IFQ program proposal that was re- (see 50 CFR 600.10) in tidal waters. viewed by referenda voters may invali- Authorized officer has the same mean- date the results of the referendum and ing as in 50 CFR 600.10. require the modified program proposal Combination license means either: to be approved through a new ref- (1) A single state fishing license that erendum before it can be submitted to permits fishing in fresh waters and the Secretary for review and imple- tidal waters at one price; or mentation. (2) A single state license that permits (3) If NMFS notifies a Council that a group of fishing and hunting activi- an IFQ referendum has failed, then the ties, including fishing in tidal waters, Council may modify its IFQ program at a price that is less than the sum of proposal and request a new referendum the cost of the individual licenses. pursuant to paragraph (b) of this sec- Commercial fishing has the same tion. meaning as in 16 U.S.C. 1802. Continental shelf fishery resources has Subpart P—Marine Recreational the same meaning as in 16 U.S.C. 1802. Fisheries of the United States Exempted state means a state that has been designated as an exempted state by NMFS pursuant to § 600.1415. SOURCE: 73 FR 79717, Dec. 30, 2008, unless For-hire fishing vessel means a vessel otherwise noted. on which passengers are carried to en- § 600.1400 Definitions. gage in angling or spear fishing, from whom a consideration is contributed as In addition to the definitions in the a condition of such carriage, whether Magnuson-Stevens Fishery Conserva- directly or indirectly flowing to the tion and Management Act (Magnuson- owner, charterer, operator, agent or Stevens Act) and in § 600.10 of this title, any other person having an interest in the terms used in this subpart have the the vessel. following meanings. For purposes of Indigenous people means persons who this subpart, if applicable, the terms are documented members of a federally used in this subpart supersede those recognized tribe or Alaskan Native used in § 600.10. Corporation or persons who reside in Anadromous species means the fol- the western Pacific who are descended lowing: from the aboriginal people indigenous American shad: Alosa sapidissima to the region who conducted commer- Blueback herring: Alosa aestivalus cial or subsistence fishing using tradi- Alewife: Alosa pseudoharengus tional fishing methods, including an- Hickory shad: Alosa mediocris Alabama shad: Alosa alabamae gling. Striped bass: Morone saxatilis Spearfishing means fishing for, at- Rainbow smelt: Osmerus mordax tempting to fish for, catching or at- Atlantic salmon: Salmo salar tempting to catch fish in tidal waters

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by any person with a spear or a (6) Is angling aboard a for-hire fish- powerhead (see 50 CFR 600.10). ing vessel that is in compliance with State has the same meaning as in 16 NMFS and state for-hire vessel permit, U.S.C. 1802. license or registration requirements; Tidal waters means waters that lie (7) Holds a commercial fishing li- below mean high water and seaward of cense or permit issued by NMFS or a the first upstream obstruction or bar- state and is lawfully fishing or in pos- rier to tidal action and that are subject session of fish taken under the terms to the ebb and flow of the astronomical and conditions of such license or per- tides under ordinary conditions. mit; [77 FR 42191, July 18, 2012] (8) Holds an HMS Angling permit under 50 CFR 635.4(c) or a MHI Non- § 600.1405 Angler registration. commercial Bottomfish permit under (a) Effective January 1, 2010, the re- 50 CFR 665.203(a)(2); quirements of this section apply to any (9) Holds a subsistence fishing license person who does any of the following: or permit issued by NMFS or a state (1) Engages in angling or spearfishing and is lawfully fishing or in possession for: of fish taken under the terms and con- (i) Fish in the EEZ; ditions of such license or permit; or (ii) Anadromous species in any tidal (10) Is angling or spearfishing for, or waters; or operating a for-hire fishing vessel that (iii) Continental Shelf fishery re- engages in fishing for, anadromous spe- sources beyond the EEZ. cies or Continental Shelf fishery re- (2) Operates a for-hire fishing vessel sources, in waters under the control of in the EEZ. a foreign nation. (3) Operates a for-hire fishing vessel (c) Any angler or spear fisher or oper- that engages in angling or spearfishing for: ator of a for-hire vessel must, on re- (i) Anadromous species in any tidal quest of an authorized officer, produce waters; or the NMFS registration number and (ii) Continental shelf fishery re- certificate or evidence that such person sources beyond the EEZ. or for-hire vessel operator is exempt (4) Possesses equipment used for an- from the registration requirement pur- gling or spearfishing and also pos- suant to § 600.1405(b)(2) through sesses: § 600.1405(b)(10). (i) Fish in the EEZ; [73 FR 79717, Dec. 30, 2008, as amended at 77 (ii) Anadromous species in any tidal FR 42191, July 18, 2012] waters; or (iii) Continental shelf fishery re- § 600.1410 Registry process. sources beyond the EEZ. (a) A person may register through (b) No person may engage in the ac- the NMFS web site at tivities listed in paragraph (a) of this section unless that person: www.nmfs.noaa.gov or by calling a toll- (1) Has registered annually with free telephone number available by NMFS in accordance with § 600.1410 of contacting NMFS or at the NMFS this part; website. (2) Holds a valid fishing license issued (b) Individuals must submit their by, or is registered by, an exempted name; address; telephone number; date state; of birth; region(s) of the country in (3) Is a resident of an exempted state, which they intend to fish in the upcom- but is not required to hold a fishing li- ing year; and additional information cense, or to be registered to fish, under necessary for the issuance or adminis- the laws of that state; tration of the registration. (4) Holds a permit issued by NMFS (c) To register a for-hire fishing ves- for for-hire fishing under 50 CFR sel, the vessel owner or operator must 622.4(a)(1), 635.4(b), 648.4(a), or submit vessel owner name, address, 660.707(a)(1); date of birth, and telephone number; (5) Is under the age of 16;

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vessel operator (if different) name, ad- include the terms and conditions of the dress, date of birth and telephone num- data-sharing program. The Memo- ber; vessel name; vessel’s state reg- randum of Agreement and state des- istration or U.S. Coast Guard docu- ignation may be limited to data-shar- mentation number; home port or prin- ing related to only anglers or only for- cipal area of operation; and additional hire fishing vessels. information necessary for the issuance (3) Following execution of a Memo- or administration of the registration. randum of Agreement, NMFS will pub- (d) NMFS will issue a registration lish a notice of the exempted state des- number and certificate to registrants. ignation in the FEDERAL REGISTER. A registration number and certificate will be valid for one year from the date § 600.1416 Requirements for exempted on which it is issued. state designation based on submis- (e) It shall be unlawful for any person sion of state license holder data. to submit false, inaccurate or mis- (a) A state must annually update and leading information in connection with submit to NMFS, in a format con- any registration request. sistent with NMFS guidelines, the (f) Fees. Effective January 1, 2011, name, address and, to the extent avail- persons registering with NMFS must able in the state’s database, telephone pay an annual fee. The annual schedule number and date of birth, of all persons for such fees will be published in the and for-hire vessel operators, and the FEDERAL REGISTER. Indigenous people name and state registration number or engaging in angling or spear fishing U.S. Coast Guard documentation num- must register, but are not required to ber of for-hire vessels that are licensed pay a fee. to fish, or are registered as fishing, in the EEZ, in the tidal waters of the § 600.1415 Procedures for designating state, or for anadromous species. The exempted states-general provisions. Memorandum of Agreement developed (a) States with an exempted state in accordance with § 600.1415(b)(2) will designation must: specify the timetable for a state to (1) Submit state angler and for-hire compile and submit complete informa- vessel license holder data to NMFS for tion telephone numbers and dates of inclusion in a national or regional reg- birth for its license holders/registrants. istry database; or The waters of the state for which such (2) Participate in regional surveys of license-holder data must be submitted recreational catch and effort and make will be specified in the Memorandum of the data from those surveys available Agreement. to NMFS. (b) A state is eligible to be designated (b) Process for getting an exempted as an exempted state even if its licens- state designation: ing program excludes anglers who are: (1) To apply for exempted state des- (1) Under 17 years of age; ignation, a state must submit: (2) Over age 59 (see § 600.1416(d)(1)); (i) A complete description of the data (3) Customers on licensed for-hire it intends to submit to NMFS; vessels; (ii) An assessment of how the data (4) Customers on state-licensed fish- conforms to the requirements of ing piers, provided that the pier license §§ 600.1416 or 600. 1417; holder provides to the state complete (iii) A description of the database in angler contact information or angler which the data exists and will be trans- effort information for users of the pier; mitted; and (5) On active military duty while on (iv) The proposed process, schedule furlough; or and frequency of submission of the (6) Disabled or a disabled Veteran as data. defined by the state. (2) If NMFS determines the sub- (7) Fishing on days designated as mitted material meets the require- ‘‘free fishing days’’ by states. ‘‘Free ments of §§ 600.1416 or 600.1417, NMFS fishing days’’ means fishing promotion will initiate negotiations with the programs by which states allow new state on a Memorandum of Agreement. anglers to fish for a specified day with- The Memorandum of Agreement must out a license or registration.

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(c) Unless the state can demonstrate anadromous recreational fishing catch that a given category of anglers is so and effort, a state may submit to small it has no significant probability NMFS a proposal that fully describes of biasing estimates of fishing effort if the state’s participation in a qualifying these anglers are not included in a rep- regional survey, and the survey’s sam- resentative sample, a state may not be ple design, data collection and avail- designated as an exempted state if its ability. licensing or registration program ex- (b) A qualifying regional survey cludes anglers in any category other must: than those listed in paragraph (b) of (1) Include all of the states within this section. each region as follows: (d) Required enhancements to ex- (i) Maine, New Hampshire, Massachu- empted state license-holder data. An setts, Rhode Island, Connecticut, New exempted state must submit the fol- York, New Jersey, Pennsylvania, Dela- lowing angler identification data by ware, Maryland, Virginia, North Caro- Jan. 1, 2012, or within two years of the lina, South Carolina, Georgia and Flor- effective date of the Memorandum of ida (Atlantic coast); Agreement, whichever is later, and (ii) Florida (Gulf of Mexico coast), thereafter in accordance with the Alabama, Mississippi, Louisiana, and Memorandum of Agreement. States Texas; that provide NMFS with notice that (iii) Puerto Rico; they are required to enact legislation (iv) U.S. Virgin Islands; or to enter into formal memoranda of (v) California, Oregon and Wash- agreement or contracts with other ington; state agencies to comply with this re- (vi) Alaska; quirement must submit the data with- (vii) Hawaii; or in three years of the effective date of (viii) American Samoa, Guam and the Memorandum of Agreement: the Commonwealth of the Northern (1) Name, address and telephone num- Mariana Islands. ber, updated annually, of excluded an- (2) Utilize angler registry data, or di- glers over age 59, unless the state can rect field counts to obtain angler ef- demonstrate that the number of an- fort, or other appropriate statistical glers excluded from the license or reg- means to obtain fishing effort; istration requirement based on having (3) Utilize angler registry data to a date of birth before June 1, 1940 is so identify individuals to be surveyed by small it has no significant probability telephone, mail or Internet if such re- of biasing estimates of fishing effort if gional survey includes a telephone sur- these anglers are not included in a rep- vey component; and resentative sample; (4) Meet NMFS survey design and (2) Name, address and telephone num- data collection standards. ber, updated annually, of holders of [73 FR 79717, Dec. 30, 2008, as amended at 77 state lifetime and multi-year licenses; FR 42192, July 18, 2012] (3) Name, address and telephone number of state combination license holders who fished in tidal waters in the PART 622—FISHERIES OF THE CAR- prior year, or who intend to fish in IBBEAN, GULF, AND SOUTH AT- tidal waters. The Memorandum of LANTIC Agreement will define the boundaries of the state’s tidal waters for this pur- Subpart A—General Provisions pose. Sec. [73 FR 79717, Dec. 30, 2008, as amended at 77 622.1 Purpose and scope. FR 42191, July 18, 2012] 622.2 Definitions and acronyms. 622.3 Relation to other laws and regula- § 600.1417 Requirements for exempted tions. state designation based on submis- 622.4 Permits and fees. sion of recreational survey data. 622.5 Recordkeeping and reporting. 622.6 Vessel and gear identification. (a) To be designated as an exempted 622.7 Prohibitions. state based on the state’s participation 622.8 At-sea observer coverage. in a regional survey of marine and 622.9 Vessel monitoring systems (VMSs).

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