99 Subpart H—General Provisions for Domestic Fisheries

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. 600.753 Notice of intent to establish a fish- Subpart M—Specific Fishery or Program ery negotiation panel. Fishing Capacity Reduction Regulations 600.754 Decision to establish a fishery nego- 600.1100 General. [Reserved] tiation panel. 600.755 Establishment of a fishery negotia- 600.1101 Inshore fee system for repayment of tion panel. the loan to harvesters of Pollock from 600.756 Conduct and operation of a fishery the directed fishing allowance allocated negotiation panel. to the inshore component under section 600.757 Operational protocols. 206(b)(1) of the AFA. 600.758 Preparation of report. 600.1102 Pacific Coast groundfish fee. 600.759 Use of report. 600.1103 Bering Sea and Aleutian Islands 600.760 Fishery Negotiation Panel lifetime. (BSAI) Crab species program. 600.1104 Bering Sea and Aleutian Islands Subpart J—Essential Fish Habitat (EFH) (BSAI) crab species fee payment and collection 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. 600.925 NMFS EFH Conservation Rec- lands (BSAI) non-pollock groundfish fish- ommendations to Federal and state agen- ery program. cies. 600.930 Council comments and recommenda- Subpart N—Shark Fin Removal, Possession, tions to Federal and state agencies. Transfer and Landing

Subpart L—Fishing Capacity Reduction 600.1200 Purpose and scope. 600.1201 Relation to other laws. Framework 600.1202 Definitions. 600.1000 Definitions. 600.1203 Prohibitions. 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 Act, and collects the general provisions designation based on submission of rec- common to all domestic fisheries gov- reational survey data. erned by this chapter. Subpart Q—Vessel Monitoring System (c) This part also governs fishing ca- Type-Approval pacity reduction programs under the Magnuson-Stevens Act. 600.1500 Definitions and acronyms. 600.1501 Vessel Monitoring System type-ap- [61 FR 32540, June 24, 1996, as amended at 63 proval process. FR 7075, Feb. 12, 1998; 65 FR 31443, May 18, 600.1502 Communications functionality. 2000] 600.1503 Position report data formats and transmission. § 600.10 Definitions. 600.1504 Latency requirement. Unless defined otherwise in other 600.1505 Messaging. parts of Chapter VI, the terms in this 600.1506 Electronic forms. 600.1507 Communications security. chapter have the following meanings: 600.1508 Field and technical services. Administrator means the Adminis- 600.1509 General. trator of NOAA (Under Secretary of 600.1510 Notification of type-approval. Commerce for Oceans and Atmosphere) 600.1511 Changes or modifications to type- or a designee. approvals. Advisory group means a Scientific and 600.1512 Type-approval revocation process. 600.1513 Type-approval revocation appeals Statistical Committee (SSC), Fishing process. Industry Advisory Committee (FIAC), 600.1514 Revocation effective date and noti- or Advisory Panel (AP) established by fication to vessel owners. a Council under the Magnuson-Stevens 600.1515 Litigation support. Act. 600.1516 Reimbursement opportunities for Advisory panel (AP) means a com- revoked Vessel Monitoring System type- mittee formed, selected, and formally approval products. designated as a Magnuson-Stevens Act Subpart R—Standardized Bycatch Section 302(g)(2) advisory panel by the Reporting Methodology Council’s Statement of organization, practices, and procedures (SOPP), or by 600.1600 Purpose and scope. a formal charge to the committee 600.1605 Definitions and word usage. made by the chair and recorded in the 600.1610 Establishing and reviewing stand- Council’s minutes, to assist it in car- ardized bycatch reporting methodologies rying out its functions. An AP may in- in fishery management plans. clude individuals who are not members AUTHORITY: 5 U.S.C. 561 and 16 U.S.C. 1801 of the Council. et 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.

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Allocated species means any species or authorized to retain in a joint venture species group allocated to a foreign na- by a permit issued under Activity Code tion under § 600.517 for catching by ves- 4 as described by § 600.501(c). sels of that Nation. Automatic reel means a reel that re- Allocation means direct and delib- mains attached to a vessel when in use erate distribution of the opportunity to from which a line and attached hook(s) participate in a fishery among identifi- are deployed. The line is payed out able, discrete user groups or individ- from and retrieved on the reel elec- uals. trically or hydraulically. Allowable chemical means a substance, Bandit gear means vertical hook and generally used to immobilize marine line gear with rods that are attached to life so it can be captured alive, that, the vessel when in use. Lines are re- when introduced into the water, does trieved by manual, electric, or hydrau- not take Gulf and South Atlantic pro- lic reels. hibited coral (as defined at 50 CFR Barrier net means a small-mesh net 622.2) and is allowed by Florida or Ha- used to capture coral reef or coastal pe- waii or the U.S. Pacific Insular Area lagic fishes. for the harvest of tropical fish. Bigeye tuna means the species Anadromous species means species of Thunnus obesus, or a part thereof. fish that spawn in fresh or estuarine Billfish means Atlantic billfish (blue waters of the United States and that marlin, white marlin, sailfish, longbill migrate to ocean waters. spearfish, or roundscale spearfish). Angling means fishing for, attempt- Bluefin tuna means the species ing to fish for, catching or attempting Thunnus thynnus, or a part thereof. to catch fish by any person (angler) Blue marlin means the species with a hook attached to a line that is Makaira nigricans, or a part thereof. hand-held or by rod and reel made for Bully net means a circular frame at- this purpose. tached at right angles to a pole and Area of custody means any vessel, supporting a conical bag of webbing. building, vehicle, live car, pound, pier or dock facility where fish might be Buoy gear means fishing gear con- found. sisting of a float and one or more lines Assistant Administrator means the As- suspended therefrom. A hook or hooks sistant Administrator for Fisheries, are on the lines at or near the end. The NOAA, or a designee. float and line(s) drift freely and are re- Atlantic tunas means bluefin, alba- trieved periodically to remove catch core, bigeye, skipjack, and yellowfin and rebait hooks. tunas found in the Atlantic Ocean. Carcass means a fish in whole condi- Atlantic Tunas Convention Act means tion or that portion of a fish that has the Atlantic Tunas Convention Act of been gilled and/or gutted and the head 1975, 16 U.S.C. 971–971h. and some or all fins have been re- Authorized officer means: moved, but that is otherwise in whole (1) Any commissioned, warrant, or condition. petty officer of the USCG; Cast net means a circular net with (2) Any special agent or fishery en- weights attached to the perimeter. forcement officer of NMFS; Catch limit means the total allowable (3) Any officer designated by the head harvest or take from a single fishing of any Federal or state agency that has trip or day, as defined in this section. entered into an agreement with the Catch, take, or harvest includes, but is Secretary and the Commandant of the not limited to, any activity that re- USCG to enforce the provisions of the sults in killing any fish or bringing any Magnuson-Stevens Act or any other live fish on board a vessel. statute administered by NOAA; or Center means one of the five NMFS (4) Any USCG personnel accom- Fisheries Science Centers. panying and acting under the direction Charter boat means a vessel less than of any person described in paragraph 100 gross tons (90.8 mt) that meets the (1) of this definition. requirements of the U.S. Coast Guard Authorized species means any species to carry six or fewer passengers for or species group that a foreign vessel is hire.

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Coast Guard Commander means one of ments for vessels in both directed and the commanding officers of the Coast joint venture activities. Guard units specified in Table 1 of Dip net means a small mesh bag, § 600.502, or a designee. sometimes attached to a handle, Codend means the terminal, closed shaped and framed in various ways. It end of a trawl net. is operated by hand or partially by me- Compensation fishing means fishing chanical power to capture the fish. conducted for the purpose of recovering Directed fishing, for the purpose of costs associated with resource surveys foreign fishing (subpart F), means any and scientific studies that support the fishing by the vessels of a foreign na- management of a fishery, or to provide tion for allocations of fish granted that incentive for participation in such Nation under § 600.517. studies. Compensation fishing may in- Director means the Director of the Of- clude fishing during or subsequent to fice of Sustainable Fisheries, 1315 East- such surveys or studies. West Highway, Silver Spring, MD 20910. Confidential statistics are those sub- Discard means to release or return mitted as a requirement of an FMP and fish to the sea, whether or not such fish that reveal the business or identity of are brought fully on board a fishing the submitter. vessel. Conservation engineering means the development and assessment of fishing Dredge means a gear consisting of a technologies and fishing techniques de- mouth frame attached to a holding bag signed to conserve target and non-tar- constructed of metal rings or mesh. get species, and may include the study Drop net means a small, usually cir- of fish behavior and the development cular net with weight around the pe- and testing of new gear technologies rimeter and a float in the center. and fishing techniques to minimize by- Essential fish habitat (EFH) means catch and any adverse effects on essen- those waters and substrate necessary tial fish habitat and promote efficient to fish for spawning, breeding, feeding, harvest of target species. Conservation or growth to maturity. For the purpose engineering may include the assess- of interpreting the definition of essen- ment of existing fishing technologies tial fish habitat: ‘‘Waters’’ include applied in novel ways. An example aquatic areas and their associated would be assessing the ability of a by- physical, chemical, and biological catch reduction device (BRD), designed properties that are used by fish and and proven in one fishery, to reduce by- may include aquatic areas historically catch in another fishery. Conservation used by fish where appropriate; ‘‘sub- engineering meeting the definition of strate’’ includes sediment, hard bot- scientific research activity is not fish- tom, structures underlying the waters, ing. and associated biological communities; Continental shelf fishery resources ‘‘necessary’’ means the habitat re- means the species listed under section quired to support a sustainable fishery 3(7) of the Magnuson-Stevens Act. and the managed species’ contribution Council means one of the eight Re- to a healthy ecosystem; and ‘‘spawn- gional Fishery Management Councils ing, breeding, feeding, or growth to ma- established by the Magnuson-Stevens turity’’ covers a species’ full life cycle. Act. Exclusive economic zone (EEZ) means Data, statistics, and information are the zone established by Presidential used interchangeably. Proclamation 5030, 3 CFR part 22, dated Dealer means the person who first re- March 10, 1983, and is that area adja- ceives fish by way of purchase, barter, cent to the United States which, except or trade. where modified to accommodate inter- Designated representative means the national boundaries, encompasses all person appointed by a foreign nation waters from the seaward boundary of and maintained within the United each of the coastal states to a line on States who is responsible for transmit- which each point is 200 nautical miles ting information to and submitting re- (370.40 km) from the baseline from ports from vessels of that Nation and which the territorial sea of the United establishing observer transfer arrange- States is measured.

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Exempted educational activity means ducted by a scientific research vessel, an activity that would otherwise be that involves: considered fishing, conducted by an (1) The catching, taking, or har- educational institution accredited by a vesting of fish; recognized national or international (2) The attempted catching, taking, accreditation body, of limited scope or harvesting of fish; and duration, that is otherwise prohib- (3) Any other activity that can rea- ited by this chapter VI, but that is au- sonably be expected to result in the thorized by the appropriate Regional catching, taking, or harvesting of fish; Administrator or Director for edu- or cational purposes, i.e., the instruction (4) Any operations at sea in support of an individual or group, and author- of, or in preparation for, any activity ized capture of only the amount of fish described in paragraphs (1), (2), or (3) of necessary to demonstrate the lesson. this definition. Exempted or experimental fishing Fishing industry advisory committee means fishing from a vessel of the (FIAC) means an advisory group formed United States that involves activities and selected by a regional fishery man- otherwise prohibited by this chapter agement council under the authority of VI, but that are authorized under an the Magnuson-Stevens Act section exempted fishing permit (EFP). The 302(g)(3)(A) and formally designated in regulations in § 600.745 refer exclusively the Council’s SOPP or by a formal to exempted fishing. References else- charge to the FIAC made by the chair where in this chapter to experimental and recorded in the Council’s minutes. fishing mean exempted fishing under A FIAC is not an ‘‘advisory panel’’ as this part. defined under this section. Fillet means to remove slices of fish Fishing vessel means any vessel, boat, flesh from the carcass by cuts made ship, or other craft that is used for, parallel to the backbone. equipped to be used for, or of a type Fish means: that is normally used for: (1) When used as a noun, means any (1) Fishing; or finfish, mollusk, crustacean, or parts thereof, and all other forms of marine (2) Aiding or assisting one or more animal and plant life other than ma- vessels at sea in the performance of rine mammals and birds. any activity relating to fishing, includ- (2) When used as a verb, means to en- ing, but not limited to, preparation, gage in ‘‘fishing,’’ as defined below. supply, storage, refrigeration, trans- Fishery means: portation, or processing. (1) One or more stocks of fish that Fish weir means a large catching ar- can be treated as a unit for purposes of rangement with a collecting chamber conservation and management and that is made of non-textile material that are identified on the basis of geo- (wood, wicker) instead of netting as in graphic, scientific, technical, rec- a pound net. reational, or economic characteristics, Foreign fishing means fishing by a for- or method of catch; or eign fishing vessel. (2) Any fishing for such stocks. Foreign fishing vessel (FFV) means any Fishery management unit (FMU) fishing vessel other than a vessel of the means a fishery or that portion of a United States, except those foreign fishery identified in an FMP relevant vessels engaged in recreational fishing, to the FMP’s management objectives. as defined in this section. The choice of an FMU depends on the Gear conflict means any incident at focus of the FMP’s objectives, and may sea involving one or more fishing ves- be organized around biological, geo- sels: graphic, economic, technical, social, or (1) In which one fishing vessel or its ecological perspectives. gear comes into contact with another Fishery resource means any fish, any vessel or the gear of another vessel; stock of fish, any species of fish, and and any habitat of fish. (2) That results in the loss of, or Fishing, or to fish means any activity, damage to, a fishing vessel, fishing other than scientific research con- gear, or catch.

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Gillnet means a panel of netting, sus- Joint venture means any operation by pended vertically in the water by floats a foreign vessel assisting fishing by along the top and weights along the U.S. fishing vessels, including catch- bottom, to entangle fish that attempt ing, scouting, processing and/or sup- to pass through it. port. (A joint venture generally entails Governing International Fishery Agree- a foreign vessel processing fish re- ment (GIFA) means an agreement be- ceived from U.S. fishing vessels and tween the United States and a foreign conducting associated support activi- nation or Nations under section 201(c) ties.) of the Magnuson-Stevens Act. Lampara net means a surround net Grants Officer means the NOAA offi- with the sections of netting made and cial authorized to sign, on behalf of the joined to create bagging. It is hauled Government, the cooperative agree- with purse rings and is generally much ment providing funds to support the smaller in size than a purse seine net. Council’s operations and functions. Land means to begin offloading fish, Greenwich mean time (GMT) means the to offload fish, or to arrive in port or at local mean time at Greenwich, Eng- a dock, berth, beach, seawall, or ramp. land. All times in this part are GMT Limited access system means a system unless otherwise specified. that limits participation in a fishery to Handgear means handline, harpoon, those satisfying certain eligibility cri- or rod and reel. teria or requirements contained in a Hand harvest means harvesting by fishery management plan or associated hand. regulation. Handline means fishing gear that is Longbill spearfish means the species set and pulled by hand and consists of Tetrapturus pfluegeri, or a part thereof. one vertical line to which may be at- Longline means a line that is de- tached leader lines with hooks. ployed horizontally and to which Harass means to unreasonably inter- gangions and hooks or pots are at- fere with an individual’s work perform- tached. Longlines can be stationary, ance, or to engage in conduct that cre- anchored, or buoyed lines that may be ates an intimidating, hostile, or offen- hauled manually, electrically, or hy- sive environment. draulically. Harpoon or harpoon gear means fish- Magnuson-Stevens Act means the Mag- ing gear consisting of a pointed dart or nuson-Stevens Fishery Conservation 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

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the fishery, as reduced by any relevant off the coasts of which the fishery is economic, social, or ecological factor; conducted. and Processing, for the purpose of foreign (3) In the case of an overfished fish- fishing (subpart F), means any oper- ery, provides for rebuilding to a level ation by an FFV to receive fish from consistent with producing the max- foreign or U.S. fishing vessels and/or imum sustainable yield in such fishery. the preparation of fish, including, but Owner, with respect to any vessel, not limited to, cleaning, cooking, can- means: ning, smoking, salting, drying, or (1) Any person who owns that vessel freezing, either on the FFV’s behalf or in whole or in part; to assist other foreign or U.S. fishing (2) Any charterer of the vessel, vessels. whether bareboat, time, or voyage; Product recovery rate (PRR) means a (3) Any person who acts in the capac- ratio expressed as a percentage of the ity of a charterer, including, but not weight of processed product divided by limited to, parties to a management the round weight of fish used to agreement, operating agreement, or produce that amount of product. any similar agreement that bestows Prohibited species, with respect to a control over the destination, function, foreign vessel, means any species of or operation of the vessel; or fish that that vessel is not specifically (4) Any agent designated as such by a allocated or authorized to retain, in- person described in paragraph (1), (2), cluding fish caught or received in ex- or (3) of this definition. cess of any allocation or authorization. Pelagic longline means a longline that Purchase means the act or activity of is suspended by floats in the water col- buying, trading, or bartering, or at- umn and that is not fixed to or in con- tempting to buy, trade, or barter. tact with the ocean bottom. Purse seine means a floated and Plan Team means a Council working weighted encircling net that is closed group selected from agencies, institu- by means of a drawstring threaded tions, and organizations having a role through rings attached to the bottom in the research and/or management of of the net. fisheries, whose primary purpose is to Recreational fishing, with respect to a assist the Council in the preparation foreign vessel, means any fishing from and/or review of FMPs, amendments, a foreign vessel not operated for profit and supporting documents for the and not operated for the purpose of sci- Council, and/or SSC and AP. entific research. It may not involve the Postmark means independently sale, barter, or trade of part or all of verifiable evidence of the date of mail- the catch (see § 600.513). ing, such as a U.S. Postal Service post- Retain on board means to fail to re- mark, or other private carrier post- turn fish to the sea after a reasonable mark, certified mail receipt, overnight opportunity to sort the catch. mail receipt, or a receipt issued upon Region means one of six NMFS Re- hand delivery to a representative of gional Offices responsible for admin- NMFS authorized to collect fishery istering the management and develop- statistics. ment of marine resources of the United Pot means trap. States in their respective geographical Powerhead means any device with an regions. explosive charge, usually attached to a Regional Administrator means the Ad- spear gun, spear, pole, or stick, that ministrator of one of the six NMFS Re- may or may not fire a projectile upon gions described in Table 1 to § 600.502, contact. or a designee. Predominately means, with respect to Regional Program Officer means the fishing in a fishery, that more fishing NMFS official designated in the terms on a stock or stocks of fish covered by and conditions of the grant award re- the FMP occurs, or would occur in the sponsible for monitoring, recom- absence of regulations, within or be- mending, and reviewing any technical yond the EEZ than occurs in the aggre- aspects of the application for Federal gate within the boundaries of all states assistance and the award.

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Rod and reel means a hand-held (in- recruitment, distribution, abundance, cluding rod holder) fishing rod with a ecology, stock structure, bycatch or manually or electrically operated reel other collateral effects of fishing, con- attached. servation engineering, and catch esti- Round means a whole fish—one that mation of fish species considered to be has not been gilled, gutted, beheaded, a component of the fishery resources or definned. within the EEZ. Scientific research ac- Roundscale spearfish means the spe- tivity does not include the collection cies Tetrapturus georgii, or a part there- and retention of fish outside the scope of. of the applicable research plan, or the Round weight means the weight of the testing of fishing gear. Data collection whole fish before processing or removal designed to capture and land quantities of any part. of fish for product development, mar- Sailfish means the species Istiophorus ket research, and/or public display are platypterus, or a part thereof. not scientific research activities. For Sale or sell means the act or activity foreign vessels, such data collection ac- of transferring property for money or tivities are considered scientific re- credit, trading, or bartering, or at- search if they are carried out in full co- tempting to so transfer, trade, or bar- operation with the United States. ter. Scientific research plan means a de- Science and Research Director (also re- tailed, written formulation, prepared ferred to as ‘‘Center Director’’) means the in advance of the research, for the ac- Director of one of the six NMFS Fish- complishment of a scientific research eries Science Centers described in project. At a minimum, a sound sci- Table 1 to § 600.502, or a designee. entific research plan should include: Scientific cruise means the period of (1) A description of the nature and time during which a scientific research objectives of the project, including the vessel is operated in furtherance of a hypothesis or hypotheses to be tested. scientific research project, beginning (2) The experimental design of the when the vessel leaves port to under- project, including a description of the take the project and ending when the methods to be used, the type and class vessel completes the project as proof any vessel(s) to be used, and a de- vided for in the applicable scientific re- scription of sampling equipment. search plan. (3) The geographical area(s) in which Scientific research activity is, for the the project is to be conducted. purposes of this part, an activity in (4) The expected date of first appear- furtherance of a scientific fishery in- ance and final departure of the re- vestigation or study that would meet search vessel(s) to be employed, and de- the definition of fishing under the Mag- ployment and removal of equipment, as nuson-Stevens Act, but for the exemp- appropriate. tion applicable to scientific research (5) The expected quantity and species activity conducted from a scientific re- of fish to be taken and their intended search vessel. Scientific research activ- disposition, and, if significant amounts ity includes, but is not limited to, sam- of a managed species or species other- pling, collecting, observing, or sur- wise restricted by size or sex are need- veying the fish or fishery resources ed, an explanation of such need. within the EEZ, at sea, on board sci- (6) The name, address, and telephone/ entific research vessels, to increase sci- telex/fax number of the sponsoring or- entific knowledge of the fishery re- ganization and its director. sources or their environment, and to (7) The name, address, and telephone/ test a hypothesis as part of a planned, telex/fax number, and curriculum vitae directed investigation or study con- of the person in charge of the project ducted according to methodologies and, where different, the person in generally accepted as appropriate for charge of the research project on board scientific research. At-sea scientific the vessel. fishery investigations address one or (8) The identity of any vessel(s) to be more topics involving taxonomy, biol- used including, but not limited to, the ogy, physiology, behavior, disease, vessel’s name, official documentation aging, growth, mortality, migration, number and IRCS, home port, and

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name, address, and telephone number other Commonwealth, territory, or of the owner and master. possession of the United States. Scientific research vessel means a ves- State employee means any employee of sel owned or chartered by, and con- the state agency responsible for devel- trolled by, a foreign government agen- oping and monitoring the state’s pro- cy, U.S. Government agency (including gram for marine and/or anadromous NOAA or institutions designated as fisheries. federally funded research and develop- Statement of Organization, Practices, ment centers), U.S. state or territorial and Procedures (SOPP) means a state- agency, university (or other edu- ment by each Council describing its or- cational institution accredited by a ganization, practices, and procedures recognized national or international as required under section 302(f)(6) of accreditation body), international the Magnuson-Stevens Act. treaty organization, or scientific insti- Stock assessment means the process of tution. In order for a domestic com- collecting and analyzing biological and mercial fishing vessel to meet this defi- statistical information to determine nition, it must be under the control of the changes in the abundance of fishery a qualifying agency or institution, and stocks in response to fishing, and, to operate in accordance with a scientific the extent possible, to predict future research plan, for the duration of the trends of stock abundance. Stock as- scientific research activity. In order sessments are based on resource sur- for a vessel that is owned or chartered veys; knowledge of the habitat require- and controlled by a foreign government ments, life history, and behavior of the to meet this definition, the vessel must species; the use of environmental indi- have scientific research as its exclusive ces to determine impacts on stocks; mission during the scientific activity and catch statistics. Stock assessments in question, and the vessel operations are used as a basis to ‘‘assess and speci- must be conducted in accordance with fy the present and probable future con- a scientific research plan. dition of a fishery’’ (as is required by Scouting means any operation by a the Magnuson-Stevens Act), and are vessel exploring (on the behalf of an summarized in the Stock Assessment FFV or U.S. fishing vessel) for the and Fishery Evaluation or similar doc- presence of fish by visual, acoustic, or ument. other means that do not involve the Stock Assessment and Fishery Evalua- catching of fish. tion (SAFE) means a document or set of 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

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state’s action or omission for purposes U.S. observer or observer means any of this definition include effects upon: person serving in the capacity of an ob- (1) The achievement of the FMP’s server employed by NMFS, either di- goals or objectives for the fishery; rectly or under contract, or certified as (2) The achievement of OY from the a supplementary observer by NMFS. fishery on a continuing basis; Vessel of the United States or U.S. ves- (3) The attainment of the national sel means: standards for fishery conservation and (1) Any vessel documented under management (as set forth in section chapter 121 of title 46, United States 301(a) of the Magnuson-Stevens Act) Code; and compliance with other applicable (2) Any vessel numbered under chap- law; or ter 123 of title 46, United States Code, and measuring less than 5 net tons; (4) The enforcement of regulations (3) Any vessel numbered under chap- implementing the FMP. ter 123 of title 46, United States Code, Support means any operation by a and used exclusively for pleasure; or vessel assisting fishing by foreign or (4) Any vessel not equipped with pro- U.S. vessels, including supplying water, pulsion machinery of any kind and fuel, provisions, fish processing equip- used exclusively for pleasure. ment, or other supplies to a fishing White Marlin means the species vessel. Kajikia albidus, or a part thereof. Swordfish means the species Xiphias Yellowfin tuna means the species gladius, or a part thereof. Thunnus albacares, or a part thereof. Tangle net dredge means dredge gear consisting of weights and flimsy net- [61 FR 32540, June 24, 1996, as amended at 62 FR 14646, Mar. 27, 1997; 62 FR 66551, Dec. 19, ting that hangs loosely in order to im- 1997; 63 FR 7073, 7075, Feb. 12, 1998; 64 FR 4036, mediately entangle fish. Jan. 27, 1999; 64 FR 29133, May 28, 1999; 64 FR Total length (TL) means the straight- 67516, Dec. 2, 1999; 67 FR 2375, Jan. 17, 2002; 67 line distance from the tip of the snout FR 64312, Oct. 18, 2002; 69 FR 30240, May 27, to the tip of the tail (caudal fin) while 2004; 73 FR 67810, Nov. 17, 2008; 74 FR 42792, the fish is lying on its side, normally Aug. 25, 2009; 75 FR 59149, Sept. 27, 2010; 75 FR extended. 57701, Sept. 22, 2010] Trammel net means a net consisting of § 600.15 Other acronyms. two or more panels of netting, suspended vertically in the water column (a) Fishery management terms. (1) by a common float line and a common ABC—acceptable biological catch (2) ATCA–Atlantic Tunas Convention weight line. One panel of netting has a Act larger mesh size than the other(s) in (3) BFT (Atlantic bluefin tuna) means order to entrap fish in a pocket. the subspecies of bluefin tuna, Thunnus means offloading and Transship thynnus thynnus, or a part thereof, that onloading or otherwise transferring occurs in the Atlantic Ocean. fish or fish products and/or trans- (4) BSD means the ICCAT bluefin porting fish or products made from tuna statistical document. fish. (5) CCC–Council coordination com- Trap means a portable, enclosed de- mittee vice with one or more gates or en- (6) DAH—estimated domestic annual trances and one or more lines attached harvest to surface floats. Also called a pot. (7) DAP—estimated domestic annual Trawl means a cone or funnel-shaped processing net that is towed through the water, (8) EIS—environmental impact state- and can include a pair trawl that is ment towed simultaneously by two boats. (9) EY—equilibrium yield Trip means the time period that be- (10) FIAC–Fishing industry advisory gins when a fishing vessel departs from committee a dock, berth, beach, seawall, ramp, or (11) FMP—fishery management plan port to carry out fishing operations (12) ICCAT means the International and that terminates with a return to a Commission for the Conservation of dock, berth, beach, seawall, ramp, or Atlantic Tunas. port. (13) JVP—joint venture processing

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(14) MSY—maximum sustainable 41°18′16.249″ N. lat. and 71°54′28.477″ W. yield long. and proceeds south 37°22′32.75″ (15) PMP—preliminary FMP East to the point of intersection with (16) TAC—total allowable catch the outward boundary of the EEZ as (17) TALFF—total allowable level of specified in the Magnuson-Stevens Act. foreign fishing (b) Mid-Atlantic and South Atlantic (b) Legislation. (1) APA—Administra- Councils. The boundary begins at the tive Procedure Act seaward boundary between the States (2) CZMA—Coastal Zone Management of Virginia and North Carolina Act (36°33′01.0″ N. lat), and proceeds due (3) ESA—Endangered Species Act east to the point of intersection with (4) FACA—Federal Advisory Com- the outward boundary of the EEZ as mittee Act specified in the Magnuson-Stevens Act. (5) FOIA—Freedom of Information (c) South Atlantic and Gulf of Mexico Act Councils. The boundary coincides with (6) FLSA—Fair Labor Standards Act the line of demarcation between the (7) MMPA—Marine Mammal Protec- Atlantic Ocean and the Gulf of Mexico, tion Act which begins at the intersection of the (8) MPRSA—Marine Protection, Re- outer boundary of the EEZ, as specified search, and Sanctuaries Act in the Magnuson-Stevens Act, and (9) NEPA—National Environmental 83°00′ W. long., proceeds northward Policy Act along that meridian to 24°35′ N. lat., (10) PA—Privacy Act (near the Dry Tortugas Islands), thence (11) PRA—Paperwork Reduction Act eastward along that parallel, through (12) RFA—Regulatory Flexibility Act Rebecca Shoal and the Quicksand (c) Federal agencies. (1) CEQ—Council Shoal, to the Marquesas Keys, and then on Environmental Quality through the Florida Keys to the main- (2) DOC—Department of Commerce land at the eastern end of Florida Bay, (3) DOI—Department of the Interior the line so running that the narrow wa- (4) DOS—Department of State ters within the Dry Tortugas Islands, (5) EPA—Environmental Protection the Marquesas Keys and the Florida Agency Keys, and between the Florida Keys (6) FWS—Fish and Wildlife Service and the mainland, are within the Gulf (7) GSA—General Services Adminis- of Mexico. tration (8) NMFS—National Marine Fisheries [61 FR 32540, June 24, 1996, as amended at 63 Service FR 7075, Feb. 12, 1998; 75 FR 59149, Sept. 27, (9) NOAA—National Oceanic and At- 2010] mospheric Administration § 600.110 Intercouncil fisheries. (10) OMB—Office of Management and Budget If any fishery extends beyond the (11) OPM—Office of Personnel Man- geographical area of authority of any agement one Council, the Secretary may— (12) SBA—Small Business Adminis- (a) Designate a single Council to pre- tration pare the FMP for such fishery and any (13) USCG—United States Coast amendments to such FMP, in consulta- Guard tion with the other Councils concerned; or [61 FR 32540, June 24, 1996, as amended at 63 (b) Require that the FMP and any FR 7073, Feb. 12, 1998; 64 FR 29134, May 28, amendments be prepared jointly by all 1999; 75 FR 59149, Sept. 27, 2010] the Councils concerned. (1) A jointly prepared FMP or amend- Subpart B—Regional Fishery ment must be adopted by a majority of Management Councils the voting members, present and voting, of each participating Council. Dif- § 600.105 Intercouncil boundaries. ferent conservation and management (a) New England and Mid-Atlantic measures may be developed for specific Councils. The boundary begins at the geographic areas, but the FMP should intersection point of Connecticut, address the entire geographic range of Rhode Island, and New York at the stock(s).

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(2) In the case of joint FMP or § 600.117 Council coordination com- amendment preparation, one Council mittee (CCC). will be designated as the ‘‘administra- (a) The Councils may establish a tive lead.’’ The ‘‘administrative lead’’ Council coordination committee (CCC) Council is responsible for the prepara- consisting of the chairs, vice chairs, tion of the FMP or any amendments and executive directors of each of the and other required documents for sub- eight Councils or other Council mem- mission to the Secretary. bers or staff, in order to discuss issues (3) None of the Councils involved in of relevance to all Councils. joint preparation may withdraw with- (b) The CCC is not subject to the re- out Secretarial approval. If Councils quirements of the Federal Advisory cannot agree on approach or manage- Committee Act (5 U.S.C. App. 2). Proce- ment measures within a reasonable pe- dures for announcing and conducting riod of time, the Secretary may des- open and closed meetings of the CCC ignate a single Council to prepare the shall be in accordance with § 600.135. FMP or may issue the FMP under Sec- retarial authority. [75 FR 59150, Sept. 27, 2010]

§ 600.115 Statement of organization, § 600.120 Employment practices. practices, and procedures (SOPP). (a) Council staff positions must be (a) Councils are required to publish filled solely on the basis of merit, fit- and make available to the public a ness for duty, competence, and quali- SOPP in accordance with such uniform fications. Employment actions must be standards as are prescribed by the Sec- free from discrimination based on race, retary (section 302(f)(6)) of the Magnu- religion, color, national origin, sex, son-Stevens Act. The purpose of the age, disability, reprisal, sexual orienta- SOPP is to inform the public how the tion, status as a parent, or on any addi- Council operates within the framework tional bases protected by applicable of the Secretary’s uniform standards. Federal, state, or local law. (b) Amendments to current SOPPs (b) The annual pay rates for Council must be consistent with the guidelines staff positions shall be consistent with in this section, subpart C of this part, the pay rates established for General the terms and conditions of the cooper- Schedule Federal employees as set ative agreement (the funding agree- forth in 5 U.S.C. 5332, and the Alter- ment between the Council and NOAA native Personnel Management System that establishes Council funding and for the U.S. Department of Commerce mandates specific requirements regard- (62 FR 67434). The Councils have the ing the use of those funds), the statu- discretion to adjust pay rates and pay tory requirements of the Magnuson- increases based on cost of living Stevens Act, and other applicable law. (COLA) differentials in their geo- Upon approval of a Council’s SOPP graphic locations. COLA adjustments amendment by the Secretary, a notice in pay rates and pay increases may be of availability must be published in the provided for staff members whose post FEDERAL REGISTER that includes an of duty is located in Alaska, Hawaii, Internet address from which the Guam, the U.S. Virgin Islands, the amended SOPP may be read and Northern Mariana Islands, and Puerto downloaded and a mailing address to Rico. which the public may write to request (1) No pay adjustment based on geo- copies. graphic location shall exceed the COLA (c) Councils may deviate, where law- and locality pay adjustments available ful, from the guidelines with appro- to Federal employees in the same geo- priate supporting rationale, and Secre- graphic area. tarial approval of each amendment to a (2) [Reserved] SOPP would constitute approval of any (c) Salary increases funded in lieu of such deviations for that particular life and medical/dental policies are not Council. permitted. [61 FR 32540, June 24, 1996, as amended at 63 (d) Unused sick leave may be accu- FR 7075, Feb. 12, 1998; 75 FR 59149, Sept. 27, mulated without limit, or up to a max- 2010] imum number of days and contribution

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per day, as specified by the Council in terms and conditions of the coopera- its SOPP. Distributions of accumulated tive agreement. funds for unused sick leave may be (b) Councils may not independently made to the employee upon his or her enter into agreements, including retirement, or to his or her estate upon grants, contracts, or cooperative agree- his or her death, as established by the ments, whereby they will receive funds Council in its SOPP. for services rendered. All such agree- (e) Each Council may pay for unused ments must be approved and entered annual leave upon separation, retire- into by NOAA on behalf of the Coun- ment, or death of an employee. cils. (f) One or more accounts shall be (c) Councils are not authorized to ac- maintained to pay for unused sick or cept gifts or contributions directly. All annual leave as authorized under para- such donations must be directed to the graphs (d) and (e) of this section, and NMFS Regional Administrator in ac- will be funded from the Council’s an- cordance with applicable Department nual operating allowances. Councils of Commerce regulations. have the option to deposit funds into [66 FR 57887, Nov. 19, 2001, as amended at 75 these account(s) at the end of the budg- FR 59150, Sept. 27, 2010] et period if unobligated balances remain. Interest earned on these ac- § 600.130 Protection of confidentiality count(s) will be maintained in the ac- of statistics. count(s), along with the principal, for Each Council must establish appro- the purpose of payment of unused an- priate procedures for ensuring the con- nual and sick leave only. These ac- fidentiality of the statistics that may count(s), including interest, may be be submitted to it by Federal or state carried over from year to year. Budg- authorities and may be voluntarily eting for accrued leave will be identi- submitted to it by private persons, in- fied in the ‘‘Other’’ object class cat- cluding, but not limited to (also see egories section of the SF–424A. § 600.405): (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 ac- collection, evaluation, and peer review counting. 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 (b) Each SSC shall provide its Coun- Non-Profit and Commercial Organiza- cil ongoing scientific advice for fishery tions), 2 CFR part 230 (Cost Principles management decisions, including rec- for Non-Profit Organizations), 15 CFR ommendations for acceptable biologi- part 14 (Audit Requirements for Insti- cal catch, preventing overfishing, max- tutions of Higher Education and Other imum sustainable yield, and achieving Non-Profit Organizations), and the rebuilding targets, and reports on

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stock status and health, bycatch, habi- NMFS headquarters office at least 23 tat status, social and economic im- calendar days before the first day of pacts of management measures, and the regular meeting. Councils must en- sustainability of fishing practices. sure that all public meetings are acces- (c) Members appointed by the Coun- sible to persons with disabilities, and cils to the SSCs shall be Federal em- that the public can make timely re- ployees, State employees, academi- quests for language interpreters or cians, or independent experts and shall other auxiliary aids at public meetings. have strong scientific or technical cre- (b) Emergency meetings. Drafts of dentials and experience. emergency public notices must be (d) An SSC shall hold its meetings in transmitted to the NMFS headquarters conjunction with the meetings of the Council, to the extent practicable. office at least 5 working days prior to the first day of the emergency meeting. [75 FR 59150, Sept. 27, 2010] Although notices of and agendas for emergency meetings are not required § 600.134 Stipends. to be published in the FEDERAL REG- Stipends are available, subject to the ISTER, notices of emergency meetings availability of appropriations, to mem- must be promptly announced through bers of committees formally designated any means that will result in wide pub- as SSCs under Sec. 301(g)(1)(a) or APs licity in the major fishing ports of the under Sec. 302(g)(2) of the Magnuson- region. E-mail notification and website Stevens Act who are not employed by postings alone are not sufficient. the Federal Government or a State marine fisheries agency. For the purposes (c) Closed meetings. After proper noti- of this section, a state marine fisheries fication by any means that will result agency includes any state or tribal in wide publicity in the major fishing agency that has conservation, manage- ports within the region and, having in- ment, or enforcement responsibility for cluded in the notification the time and any marine fishery resource. place of the meeting and the reason for closing any meeting or portion thereof [75 FR 59150, Sept. 27, 2010] to the public, a Council, CCC, SSC, AP, § 600.135 Meeting procedures. FIAC, or other committees: (1) Must close any meeting, or por- (a) Regular meetings. Public notice of tion thereof, that concerns information a regular meeting, including the meeting agenda, of each Council, CCC, SSC, bearing a national security classifica- AP, FIAC, or other committees estab- tion. lished under Magnuson-Stevens Act, (2) May close any meeting, or portion Sec. 302(g), must be published in the thereof, that concerns matters or infor- FEDERAL REGISTER at least 14 calendar mation pertaining to national security, days prior to the meeting date. Appro- employment matters, or briefings on priate notice by any means that will litigation in which the Council is inter- result in wide publicity in the major ested. fishing ports of the region (and in other (3) May close any meeting, or portion major fishing ports having a direct in- thereof, that concerns internal admin- terest in the affected fishery) must be istrative matters other than employ- given. E-mail notification and website ment. Examples of other internal ad- postings alone are not sufficient. The ministrative matters include can- published agenda of a regular meeting didates for appointment to AP, SSC, may not be modified to include addi- and other subsidiary bodies and public tional matters for Council action with- decorum or medical conditions of mem- out public notice given at least 14 cal- bers of a Council or its subsidiary bod- endar days prior to the meeting date, ies. In deciding whether to close a por- unless such modification is necessary tion of a meeting to discuss internal to address an emergency under section administrative matters, the Council, 305(c) of the Magnuson-Stevens Act, in which case public notice shall be given CCC, SSC, AP, FIAC, or other commit- immediately. Drafts of all regular pub- tees should consider not only the pri- lic meeting notices must be received by vacy interests of individuals whose

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conduct or qualifications may be dis- § 600.140 Procedure for proposed regu- cussed, but also the interest of the pub- lations. lic in being informed of Council oper- (a) Each Council must establish a ations and actions. written procedure for proposed regula- (d) Without the notice required by tions consistent with section 303(c) of paragraph (c) of this section, a Council, the Magnuson-Stevens Act. The proce- CCC, SSC, AP, FIAC, or other commit- dure must describe how the Council tees may briefly close a portion of a deems proposed regulations necessary meeting to discuss employment or or appropriate for the purposes of im- other internal administrative matters. plementing a fishery management plan The closed portion of a meeting that is or a plan amendment, or making modi- closed without notice may not exceed fications to regulations implementing two hours. a fishery management plan or plan (e) Before closing a meeting or por- amendment. In addition, the procedure tion thereof, the Council, CCC, SSC, must describe how the Council submits AP, FIAC, or other committees should proposed regulations to the Secretary. consult with the NOAA Office of Gen- (b) The Councils must include the eral Counsel to ensure that the matters procedure for proposed regulations in to be discussed fall within the excep- its SOPP, see § 600.115, or other written tions to the requirement to hold public documentation that is available to the meetings described in paragraph (c) of public. this section. (f) Actions that affect the public, al- [75 FR 59150, Sept. 27, 2010] though based on discussions in closed meetings, must be taken in public. For § 600.150 Disposition of records. example, appointments to an AP must (a) Council records must be handled be made in the public part of the meet- in accordance with NOAA records man- ing; however, a decision to take dis- agement office procedures. All records ciplinary action against a Council em- and documents created or received by ployee need not be announced to the Council employees while in active duty public. status belong to the Federal Govern- (g) A majority of the voting members ment. When employees leave the Coun- of any Council constitute a quorum for cil, they may not take the original or Council meetings, but one or more such file copies of records with them. members designated by the Council (b) Each Council is required to main- may hold hearings. tain documents generally available to (h) Decisions of any Council are by the public on its Internet site. Docu- majority vote of the voting members ments for posting must include: fishery present and voting (except for a vote to management plans and their amend- propose removal of a Council member, ments for the fisheries for which the see 50 CFR 600.230). Voting by proxy is Council is responsible, drafts of fishery permitted only pursuant to 50 CFR management plans and plan amend- 600.205 (b). An abstention does not af- ments under consideration, analysis of fect the unanimity of a vote. actions the Council has under review, (i) Voting members of the Council minutes or official reports of past who disagree with the majority on any meetings of the Council and its com- issue to be submitted to the Secretary, mittees, materials provided by the including principal state officials rais- Council staff to Council members in ing federalism issues, may submit a preparation for meetings, and other written statement of their reasons for Council documents of interest to the dissent. If any Council member elects public. For documents too large to to file such a statement, it should be maintain on the Web site, not available submitted to the Secretary at the same electronically, or seldom requested, time the majority report is submitted. the Council must provide copies of the documents for viewing at the Council [66 FR 57887, Nov. 19, 2001, as amended at 75 office during regular business hours or FR 59150, Sept. 27, 2010]

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may provide the documents through Act, must be a resident of the state and the mail. be knowledgeable and experienced, by reason of his or her occupational or [66 FR 57887, Nov. 19, 2001, as amended at 75 FR 59151, Sept. 27, 2010] other experience, scientific expertise, or training, in the fishery resources of § 600.155 Freedom of Information Act the geographic area of concern to the (FOIA) requests. Council. (a) FOIA requests received by a Coun- (c) New or revised appointments by cil should be coordinated promptly state Governors of principal state offi- with the appropriate NMFS Regional cials and new or revised designations Office. The Region will forward the re- by principal state officials of their des- quest to the NOAA FOIA Officer to se- ignees(s) must be delivered in writing cure a FOIA number and log the re- to the appropriate NMFS Regional Ad- quest into FOIAonline. The Region will ministrator and the Council chair at also obtain clearance from the NOAA least 48 hours before the individual General Counsel’s Office concerning may vote on any issue before the Coun- initial determination for denial of re- cil. A designee may not name another quested information. designee. Written appointment of the (b) FOIA request processing will be principal state official must indicate controlled and documented in the Re- his or her employment status, how the gion. The requests should be forwarded official is employed by the state fish- to the NOAA FOIA Officer who will eries agency, and whether the official’s enter the request into FOIAonline. The full salary is paid by the state. Written request will be assigned an official designation(s) by the principal state of- FOIA number and due date. In the ficial must indicate how the designee is event the Region determines that the knowledgeable and experienced in fish- requested information is exempt from ery resources of the geographic area of disclosure, in full or in part, under the concern to the Council, the County in FOIA, the denial letter prepared for the which the designee resides, and wheth- Assistant Administrator’s signature, er the designee’s salary is paid by the along with the ‘‘Foreseeable Harm’’ state. Memo and list of documents to be with- [66 FR 57888, Nov. 19, 2001] held, must be cleared through the NMFS FOIA Liaison. Upon completion, § 600.207 Pacific Fishery Management a copy of the signed letter transmit- Council Tribal Indian representa- ting the information to the requester tive and alternate. should be posted to FOIAonline by (a) The tribal Indian representative NMFS. to the Pacific Fishery Management [80 FR 57738, Sept. 25, 2015] Council may designate an alternate during the period of the representative’s term. The designee must be Subpart C—Council Membership knowledgeable concerning tribal § 600.205 Principal state officials and rights, tribal law, and the fishery re- their designees. sources of the geographical area concerned. (a) Only a full-time state employee of (b) New or revised designations of an the state agency responsible for marine alternate by the tribal Indian rep- and/or anadromous fisheries shall be resentative must be delivered in writ- appointed by a constituent state Gov- ing to the appropriate NMFS Regional ernor as the principal state official for Administrator and the Council chair at purposes of section 302(b) of the Magnu- least 48 hours before the designee may son-Stevens Act. vote on any issue before the Council. In (b) A principal state official may that written document, the tribal In- name his/her designee(s) to act on his/ dian representative must indicate how her behalf at Council meetings. Indi- the designee meets the knowledge re- viduals designated to serve as des- quirements under paragraph (a) of this ignees of a principal state official on a section. Council, pursuant to section 302(b)(1)(A) of the Magnuson-Stevens [75 FR 59151, Sept. 27, 2010]

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§ 600.210 Terms of Council members. agement Council (Pacific Council). To (a) Voting members (other than prin- fill that seat, the Secretary solicits cipal state officials, the Regional Ad- written nominations from the heads of ministrators, or their designees) are governments of those Indian Tribes appointed for a term of 3 years and, ex- with federally recognized fishing rights cept as discussed in paragraphs (b) and from the States of California, Oregon, (c) of this section, may be reappointed. Washington, or Idaho. The list of nomi- A voting member’s Council service of nees must contain a total of at least 18 months or more during a term of of- three individuals who are knowledge- fice will be counted as service for the able and experienced regarding the entire 3-year term. fishery resources under the authority (b) The anniversary date for meas- of the Pacific Council. The Secretary uring terms of membership is August will appoint one tribal Indian rep- 11. The Secretary may designate a resentative from this list to the Pacific term of appointment shorter than 3 Council for a term of 3 years and rotate years, if necessary, to provide for bal- the appointment among the tribes. anced expiration of terms of office. (iii) At-large seats are regional. Members may not serve more than three consecutive terms. When the term of an at-large member (c) A member who has completed is expiring or when that seat becomes three consecutive terms will be eligible vacant before the expiration of a term, for appointment to another term one the governors of all constituent states full year after completion of the third of that Council must each submit the consecutive term. names of at least three qualified individuals to fill the seat. [61 FR 32540, June 24, 1996, as amended at 63 FR 7073, Feb. 12, 1998; 75 FR 59151, Sept. 27, (b) Responsibilities of State Governors. 2010] (1) Council members are selected by the Secretary from lists of nominees § 600.215 Council nomination and ap- submitted by Governors of the con- pointment procedures. stituent states, pursuant to section (a) General. (1) Each year, the 3-year 302(b)(2)(C) of the Magnuson-Stevens terms for approximately one-third of Act. For each applicable vacancy, a the appointed members of the Councils Governor must submit the names of at expire. The Secretary of Commerce least three nominees who meet the (Secretary) will appoint or new mem- qualification requirements of the Mag- bers or will reappoint seated members nuson-Stevens Act. A Governor must to another term to fill the seats being provide a statement explaining how vacated. each of his/her nominees meet the qual- (2) There are two categories of seats to which voting members are ap- ification requirements, and must also pointed: ‘‘Obligatory’’ and ‘‘At-large.’’ provide appropriate documentation to (i) Obligatory seats are state specific. the Secretary that each nomination Each constituent state is entitled to was made in consultation with com- one seat on the Council on which it is mercial and recreational fishing inter- a member, except that the State of ests of that state and that each nomi- Alaska is entitled to five seats and the nee is knowledgeable and experienced State of Washington is entitled to two by reason of his or her occupational or seats on the North Pacific Fishery other experience, scientific expertise, Management Council. When the term or training in one or more of the fol- of a state’s obligatory member is expir- lowing ways related to the fishery re- ing or when that seat becomes vacant sources of the geographical area of con- before the expiration of its term, the cern to the Council: governor of that state must submit the (i) Commercial fishing or the proc- names of at least three qualified indi- essing or marketing of fish, fish prod- viduals to fill that Council seat. ucts, or fishing equipment; (ii) The Magnuson-Stevens Act also (ii) Fishing for pleasure, relaxation, provides for appointment, by the Sec- retary, of one treaty Indian tribal rep- or consumption, or experience in any resentative to the Pacific Fishery Man- business supporting fishing;

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(iii) Leadership in a state, regional, (5) When the terms of both an obliga- or national organization whose mem- tory member and an at-large member bers participate in a fishery in the expire concurrently, the Governor of Council’s area of authority; the state holding the expiring obliga- (iv) The management and conserva- tory seat may indicate that the nomi- tion of natural resources, including re- nees who were not selected for appoint- lated interactions with industry, gov- ment to the obligatory seat may be ernment bodies, academic institutions, considered for appointment to an at- and public agencies. This includes ex- large seat, provided that the resulting perience serving as a member of a total number of nominees submitted by Council, Advisory Panel, Scientific and that governor for the expiring at-large Statistical Committee, or Fishing In- seat is no fewer than three different dustry Advisory Committee; nominees. (v) Representing consumers of fish or (c) Nominees to the Gulf of Mexico fish products through participation in Fishery Management Council. (1) The local, state, or national organizations, Governors of States submitting nomi- or performing other activities specifi- nees to the Secretary for appointment cally related to the education or pro- to the Gulf of Mexico Fishery Manage- tection of consumers of marine re- ment Council shall include: sources; or (i) At least one nominee each from (vi) Teaching, journalism, writing, the commercial, recreational, and consulting, practicing law, or research- charter fishing sectors, except that an ing matters related to fisheries, fishery individual who owns or operates a fish management, and marine resource con- farm outside the United States shall servation. not be considered to be a representa- (2) To assist in identifying qualifica- tive of the commercial or recreational tions, each nominee must furnish to sector; and the appropriate governor’s office a cur- (ii) At least one other individual who rent resume, or equivalent, describing is knowledgeable regarding the con- 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. who would meet the requirements of (4) If, at any time during a term, a this section that were not met for ap- member changes residency to another pointment to the Council; and state that is not a constituent state of (ii) Add the name of any qualified in- that Council, or a member appointed to dividual submitted by the public who an obligatory seat changes residency to meets the requirements of this section any other state, the member may no that were not met to the list of names longer vote and must resign from the submitted by the Governor. Council. For purposes of this para- (3) The requirements of this paragraph, a state resident is an individual graph (c) shall expire at the end of fis- who maintains his/her principal resi- cal year 2012, meaning through Sep- dence within that constituent state tember 30, 2012. and who, if applicable, pays income (d) Responsibilities of eligible tribal In- taxes to that state and/or to another dian governments. The tribal Indian rep- appropriate jurisdiction within that resentative on the Pacific Council will state. be selected by the Secretary from a list

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of no fewer than three individuals sub- fied by the Assistant Administrator by mitted by the tribal Indian govern- March 15. ments with federally recognized fishing (ii) Nomination packages that are rights from California, Oregon, Wash- not substantially complete by March 15 ington, and Idaho, pursuant to section may be returned to the nominating 302(b)(5) of the Magnuson-Stevens Act. Governor. At-large members will be ap- To assist in assessing the qualifica- pointed from among the nominations tions of each nominee, each head of an submitted by the governors who com- appropriate tribal Indian government plied with the nomination require- must furnish to the Assistant Adminis- ments. trator a current resume, or equivalent, (f) Responsibilities of the Secretary. (1) describing the nominee’s qualifica- The Secretary must, to the extent tions, with emphasis on knowledge and practicable, ensure a fair and balanced experience related to the fishery re- apportionment, on a rotating or other sources affected by recommendations basis, of the active participants (or of the Pacific Council. Prior service on their representatives) in the commer- the Pacific Council in a different ca- cial and recreational fisheries in the pacity will not disqualify nominees Council’s area of authority. Further, proposed by tribal Indian governments. the Secretary must take action to en- (e) Nomination deadlines. Nomination sure, to the extent practicable, that packages (governors’ letters and com- those persons dependent for their live- pleted nomination kits) must be for- lihood upon the fisheries in the Coun- warded by express mail under a single cil’s area of authority are fairly rep- mailing to arrive at the address speci- resented as voting members on the fied by the Assistant Administrator by Councils. March 15. For appointments outside (2) The Secretary will review each the normal cycle, the Secretary will list submitted by a governor or the provide a deadline for receipt of nomi- tribal Indian governments to ascertain nations to the affected Council and whether the individuals on the list are 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 qualified nominees submitted by the that contain at least three qualified governor of the state. In filling expir- nominees for each vacant seat. A nomi- ing at-large seats, the Secretary will nation letter and a nomination kit for select an appointee(s) for an at-large each qualified nominee must be for- seat(s) from the list of all qualified warded by express mail under a single candidates submitted. The Secretary mailing to arrive at the address speci- will consider only complete slates of

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nominees submitted by the governors ica by carrying out the business of the of the Council’s constituent states. Council for the greatest overall benefit When an appointed member vacates of the Nation. I recognize my responsi- his/her seat prior to the expiration of bility to serve as a knowledgeable and his/her term, the Secretary will fill the experienced trustee of the Nation’s ma- vacancy for the remainder of the term rine fisheries resources, being careful by selecting from complete nomination to balance competing private or re- letters and kits that are timely and gional interests, and always aware and contain the required number of can- protective of the public interest in didates. those resources. I commit myself to up- (ii) For the tribal Indian seat, the hold the provisions, standards, and re- Secretary will solicit nominations of quirements of the Magnuson-Stevens individuals for the list referred to in Fishery Conservation and Management paragraph (c) of this section only from Act and other applicable law, and shall those Indian tribes with federally rec- conduct myself at all times according ognized fishing rights from California, to the rules of conduct prescribed by Oregon, Washington, or Idaho. The Sec- the Secretary of Commerce. This oath retary will consult with the Bureau of Indian Affairs, Department of the Inte- is given freely and without mental res- rior, to determine which Indian tribes ervation or purpose of evasion.’’ may submit nominations. Any vacancy [75 FR 59152, Sept. 27, 2010] occurring prior to the expiration of any term shall be filled in the same manner § 600.225 Rules of conduct. as described in paragraphs (d)(1) and (2) (a) Council members, as Federal of- of this section, except that the Sec- fice holders, and Council employees are retary may use the list referred to in subject to most Federal criminal stat- paragraph (b)(1) of this section from which the vacating member was cho- utes covering bribery, conflict-of-inter- sen. The Secretary shall rotate the ap- est, disclosure of confidential informa- pointment among the tribes, taking tion, and lobbying with appropriated into consideration: funds. (A) The qualifications of the individ- (b) The Councils are responsible for uals on the list referred to in para- maintaining high standards of ethical graph (c) of this section. conduct among themselves, their (B) The various rights of the Indian staffs, and their advisory groups. In ad- tribes involved, and judicial cases that dition to abiding by the applicable Fed- set out the manner in which these eral conflict of interest statutes, both rights are to be exercised. members and employees of the Coun- (C) The geographic area in which the cils must comply with the following tribe of the representative is located. standards of conduct: (D) The limitation that no tribal In- (1) No employee of a Council may use dian representative shall serve more his or her official authority or influ- than three consecutive terms in the In- ence derived from his or her position dian tribal seat. with the Council for the purpose of [64 FR 4600, Jan. 29, 1999, as amended at 75 interfering with or affecting the result FR 59151, Sept. 27, 2010] of an election to or a nomination for any national, state, county, or munic- § 600.220 Oath of office. ipal elective office. As trustees of the nation’s fishery re- (2) Council members, employees, and sources, all voting members must take contractors must comply with the Fed- an oath specified by the Secretary as eral Cost Principles Applicable to Re- follows: ‘‘I, [name of the person taking gional Fishery Management Council oath], as a duly appointed member of a Grants and Cooperative Agreements, Regional Fishery Management Council especially with regard to lobbying, and established under the Magnuson-Ste- other restrictions with regard to lob- vens Fishery Conservation and Man- bying as specified in § 600.227 of this agement Act, hereby promise to con- part. serve and manage the living marine re- (3) No employee of a Council may be sources of the United States of Amer- deprived of employment, position,

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work, compensation, or benefit pro- terest is broader than the one defined vided for or made possible by the Mag- in § 600.235(a).) nuson-Stevens Act on account of any (ii) No Council member may partici- political activity or lack of such activ- pate personally and substantially as a ity in support of or in opposition to member through decision, approval, any candidate or any political party in disapproval, recommendation, the ren- any national, state, county, or munic- dering of advice, investigation, or oth- ipal election, or on account of his or erwise, in a particular matter pri- her political affiliation. marily of individual concern, such as a (4) No Council member or employee contract, in which he or she has a fi- may pay, offer, promise, solicit, or re- nancial interest, even if the interest ceive from any person, firm, or cor- has been disclosed in accordance with poration a contribution of money or § 600.235. anything of value in consideration of [61 FR 32540, June 24, 1996, as amended at 63 either support or the use of influence FR 7075, Feb. 12, 1998; 63 FR 64185, Nov. 19, or the promise of support or influence 1998; 75 FR 59152, Sept. 27, 2010] in obtaining for any person any ap- pointive office, place, or employment § 600.227 Lobbying. under the Council. (a) Council members, employees and (5) No employee of a Council may contractors must comply with the re- have a direct or indirect financial in- quirements of 31 U.S.C. 1352 and De- terest that conflicts with the fair and partment of Commerce implementing impartial conduct of his or her Council regulations published at 15 CFR part duties. 28, ‘‘New Restrictions on Lobbying.’’ (6) No Council member, employee of a These provisions generally prohibit the Council, or member of a Council advi- use of Federal funds for lobbying the sory group may use or allow the use, Executive or Legislative Branches of 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 affects the accuracy of the information preserved from improper or deleterious contained in any disclosure form pre- operation or use. viously filed. The recipient must sub- (9)(i) Except as provided in § 600.235(h) mit the Forms SF-LLL, including or in 18 U.S.C. 208, no Council member those received from subrecipients, con- may participate personally and sub- tractors, and subcontractors, to the stantially as a member through deci- Grants Officer. sion, approval, disapproval, rec- (b) Council members, employees, and ommendation, the rendering of advice, contractors must comply with the Fed- investigation, or otherwise, in a par- eral Cost Principles Applicable to Re- ticular matter in which the member, gional Fishery Management Council the member’s spouse, minor child, gen- Grants and Cooperative Agreements eral partner, organization in which the summarized as follows: member is serving as officer, director, (1) Title 2 CFR part 230 - Cost Prin- trustee, general partner, or employee, ciples for Nonprofit Organizations or any person or organization with (OMB CircularA–122) is applicable to whom the member is negotiating or the Federal assistance awards issued to has any arrangement concerning pro- the Councils. spective employment, has a financial (2) The purpose of the cost principles interest. (Note that this financial in- at 2 CFR part 230 is to define what

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costs can be paid on Federal awards (1) Nominated by the Governor of a issued to non-profit organizations. The state or appointed by the Secretary of regulation establishes both general Commerce to serve as a voting member principles and detailed items of costs. of a Council in accordance with section (3) Under 2 CFR part 230, costs for 302(b)(2) of the Magnuson-Stevens Act; certain lobbying activities are unal- or lowable as charges to Federal awards. (2) A representative of an Indian These activities would include any at- tribe appointed to the Pacific Council tempts to influence: by the Secretary of Commerce under (i) The introduction of Federal or section 302(b)(5) of the Magnuson-Ste- state legislation; vens Act who is not subject to disclo- (ii) The enactment or modification of sure and recusal requirements under any pending legislation by preparing, the laws of an Indian tribal govern- distributing, or using publicity or prop- ment. aganda, or by urging members of the (3) A member of an SSC shall be general public to contribute to or to treated as an affected individual for participate in any demonstration, the purposes of paragraphs (b)(1), (b)(5) march, rally, fundraising drive, lob- through (b)(7), and (i) of this section. bying campaign, or letter writing or Council decision means approval of a telephone campaign. fishery management plan (FMP) or (4) Generally, costs associated with FMP amendment (including any pro- providing a technical and factual pres- posed regulations); request for amend- entation directly related to the per- ment to regulations implementing an formance of a grant, through hearing FMP; finding that an emergency exists testimony, statements, or letters to involving any fishery (including rec- 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 reduce the cost or to avoid material clude a vote by a committee of a Coun- impairment of the organization’s au- cil. thority to perform the grant are also Designated official means an attorney allowable. designated by the NOAA General Coun- sel. [75 FR 59152, Sept. 27, 2010] Financial Interest Form means NOAA Form 88–195, ‘‘STATEMENT OF FI- § 600.230 Removal. NANCIAL INTERESTS For Use By The Secretary may remove for cause Voting Members of, and Nominees to, any Secretarially appointed member of the Regional Fishery Management a Council in accordance with section Councils, and Members of the Sci- 302(b)(6) of the Magnuson-Stevens Act, entific and Statistical Committee wherein the Council concerned first (SSC)’’ or such other form as the Sec- recommends removal of that member retary may prescribe. by not less than two-thirds of the vot- Financial interest in harvesting, proc- ing members. A recommendation of a essing, lobbying, advocacy, or marketing Council to remove a member must be (1) includes: made in writing to the Secretary and (i) Stock, equity, or other ownership accompanied by a statement of the rea- interests in, or employment with, any sons upon which the recommendation company, business, fishing vessel, or is based. other entity or employment with any [61 FR 32540, June 24, 1996, as amended at 63 entity that has any percentage owner- FR 7073, Feb. 12, 1998] ship in or by another entity engaging in any harvesting, processing, lob- § 600.235 Financial disclosure. bying, advocacy, or marketing activity (a) Definitions. For purposes of in any fishery under the jurisdiction of § 600.235: the Council concerned; Affected individual means an indi- (ii) Stock, equity, or other ownership vidual who is— interests in, or employment with, any

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

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(5) An individual being considered for of the affected individual and other appointment to an SSC must file the participants will be determined with Financial Interest Form with the Re- reference to the most recent fishing gional Administrator for the geo- year for which information is avail- graphic area concerned within 45 days able. However, for fisheries in which prior to appointment. A member of the IFQs are assigned, the percentage of SSC must file an update of his or her IFQs assigned to the affected indi- statement with the Regional Adminis- vidual will be the determining factor. trator for the geographic area con- (3) ‘‘Expected and substantially dis- cerned within 30 days of the time any proportionate benefit’’ means a quan- such financial interest is acquired or tifiable positive or negative impact substantially changed by the SSC with regard to a matter likely to affect member or the SSC member’s spouse, a fishery or sector of the fishery in minor child, partner, or any organiza- which the affected individual has a sig- tion (other than the Council) in which nificant interest, as indicated by: that individual is serving as an officer, (i) A greater than 10-percent interest director, trustee, partner, or employee; in the total harvest of the fishery or and must update his or her form annu- sector of the fishery in question; ally and file that update with the Re- (ii) A greater than 10-percent interest gional Administrator by February 1 of in the marketing or processing of the each year. total harvest of the fishery or sector of (6) An individual who serves as an the fishery in question; or SSC member to more than one Council (iii) Full or partial ownership of shall file Financial Interest Forms more than 10 percent of the vessels with each Regional Administrator for using the same gear type within the the geographic areas concerned. fishery or sector of the fishery in ques- (7) The Regional Administrator shall tion. maintain on file the Financial Interest (4) A member of an SSC is not subject Forms of all SSC members for at least to the restrictions on voting under this five years after the expiration of that section. individual’s term on the SSC. Such (d) Voluntary recusal. An affected in- Forms are not subject to sections dividual who believes that a Council 302(j)(5)(B) and (C) of the Magnuson- decision would have a significant and Stevens Act. predictable effect on that individual’s (c) Restrictions on voting. (1) No af- financial interest disclosed under para- fected individual may vote on any graph (b) of this section may, at any Council decision that would have a sig- time before a vote is taken, announce nificant and predictable effect on a fi- to the Council an intent not to vote on nancial interest disclosed in his/her re- the decision and identify the financial port filed under paragraph (b) of this interest that would be affected. section. (e) Participation in deliberations. Not- (2) As used in this section, a Council withstanding paragraph (c) of this sec- decision will be considered to have a tion, an affected individual who is ‘‘significant and predictable effect on a recused from voting under this section financial interest’’ if there is a close may participate in Council and com- causal link between the decision and mittee deliberations relating to the de- an expected and substantially dis- cision, after notifying the Council of proportionate benefit to the financial the voting recusal and identifying the interest in harvesting, processing, lob- financial interest that would be af- bying, advocacy, or marketing of any fected. affected individual or the affected indi- (f) Requests for determination. (1) At vidual’s spouse, minor child, partner, the request of an affected individual, or any organization (other than the 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

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financial disclosure form and any other fishery, and why the designated offi- reliable and probative information pro- cial’s determination should be re- vided in writing. All information con- versed. sidered will be made part of the public (3) If the request for review is from a record for the decision. The affected in- Council member other than the af- dividual may request a determination fected individual whose vote is at issue, by notifying the designated official— the requester must provide a copy of (i) Within a reasonable time before the request to the affected individual the Council meeting at which the at the same time it is submitted to the Council decision will be made; or NOAA General Counsel. The affected (ii) During a Council meeting before individual may submit a response to a Council vote on the decision. the NOAA General Counsel within 10 (2) The designated official may ini- days from the date of his/her receipt of tiate a determination on the basis of— the request for review. (i) His or her knowledge of the fish- (4) The NOAA General Counsel must ery and the financial interests dis- complete the review and issue a deci- closed by an affected individual; or sion within 30 days from the date of re- (ii) Written and signed information ceipt of the request for review. The received within a reasonable time be- NOAA General Counsel will limit the fore a Council meeting or, if the issue review to the record before the des- could not have been anticipated before ignated official at the time of the de- the meeting, during a Council meeting termination, the request, and any re- before a Council vote on the decision. sponse. (3) At the beginning of each Council (h) The provisions of 18 U.S.C. 208 re- meeting, or during a Council meeting garding conflicts of interest do not 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. (2) A request must include a full [63 FR 64185, Nov. 19, 1998, as amended at 75 FR 59152, Sept. 27, 2010] statement in support of the review, including a concise statement as to why EFFECTIVE DATE NOTE: At 85 FR 56182, the Council’s decision did or did not Sept. 11, 2020, § 600.235 was amended in para- have a significantly disproportionate graph (a), by adding the definitions for ‘‘Close causal link,’’ ‘‘Expected and substan- benefit to the financial interest of the tially disproportionate benefit,’’ and ‘‘Sig- affected individual relative to the fi- nificant financial interest;’’, by redesig- nancial interests of other participants nating paragraphs (b)(5) through (b)(7) and in the same gear type or sector of the (c)(4) as paragraphs (b)(6) through (b)(8) and

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(c)(7), revising the section heading, the new (i) Initially determine whether the action paragraph (b)(8), and paragraphs (c)(3), (f) in- before the Council is a Council decision, and troductory text, (f)(1), paragraphs (g)(2) and whether the affected individual has any fi- (h), and by adding new paragraphs (b)(5), nancial interest in the fishery or sector of (c)(4), (5) and (6) and paragraph (f)(6), effec- the fishery affected by the action. tive Oct. 13, 2020. For the convenience of the (ii) If the designated official determines user, the added and revised text is set forth that the action is not a Council decision or as follows: that the affected individual does not have any financial interest in the fishery or sector § 600.235 Financial disclosure and recusal. of the fishery affected by the action, the des- (a) * * * ignated official’s inquiry ends and the des- Close causal link means that a Council deci- ignated official will determine that a voting sion would reasonably be expected to di- recusal is not required under 50 CFR 600.235. rectly impact or affect the financial inter- (iii) However, if the designated official de- ests of an affected individual. termines that the action is a Council decision and that the affected individual has a financial interest in the fishery or sector of * * * * * the fishery affected by the Council decision, Expected and substantially disproportionate a voting recusal is required under 50 CFR benefit means a positive or negative impact 600.235 if there is: with regard to a Council decision that is (A) An expected and substantially dis- likely to affect a fishery or sector of a fish- proportionate benefit to the affected individ- ery in which the affected individual has a ual’s financial interest (see paragraph (c)(5) of this section), and significant financial interest. (B) A close causal link (see paragraph (c)(4) of this section) between the Council decision * * * * * and the expected and substantially disproportionate benefit to the affected individ- Significant financial interest means: ual’s financial interest. (1) A greater than 10-percent interest in (4) A close causal link for Council decisions the total harvest of the fishery or sector of that either require or do not require imple- the fishery affected by the Council decision; menting regulations is determined as fol- (2) A greater than 10-percent interest in lows: the marketing or processing of the total har- (i) For all Council decisions that require vest of the fishery or sector of the fishery af- implementing regulations and that affect a fected by the Council decision; or fishery or sector of a fishery in which an af- (3) Full or partial ownership of more than fected individual has a financial interest, a 10 percent of the vessels using the same gear close causal link exists unless: type within the fishery or sector of the fish- (A) The chain of causation between the ery affected by the Council decision. Council decision and the affected individual’s financial interest is attenuated or is * * * * * contingent on the occurrence of events that are speculative or that are independent of (b) * * * and unrelated to the Council decision; or (5) The Regional Administrator must re- (B) There is no real, as opposed to specula- tain the Financial Interest Form for a Coun- tive, possibility that the Council decision cil member for 20 years from the date the will affect the affected individual’s financial form is signed by the Council member or in interest. accordance with the current NOAA records (ii) For Council decisions that do not re- schedule. quire implementing regulations, a close causal link exists if there is a real, as op- * * * * * posed to speculative, possibility that the Council decision will affect the affected indi- (8) The Regional Administrator must re- vidual’s financial interest. tain the Financial Interest Forms of all SSC (5) A designated official will determine members for at least five years after the ex- that an expected and substantially dis- piration of that individual’s term on the proportionate benefit exists if an affected in- SSC. Such forms are not subject to sections dividual has a significant financial interest 302(j)(5)(B) and (C) of the Magnuson-Stevens (see paragraph (c)(6) of this section) in the Act. fishery or sector of the fishery that is likely (c) * * * to be positively or negatively affected by the (3) In making a determination under para- Council decision. The magnitude of the posi- graph (f) of this section as to whether a tive or negative impact is not determinative Council decision will have a significant and of whether there is an expected and substan- predictable effect on an affected individual’s tially disproportionate benefit. The deter- financial interests, the designated official mining factor is the affected individual’s sig- will: nificant financial interest in the fishery or

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sector of the fishery affected by the Council pany, and the directly owned company’s decision. ownership in the indirectly owned company. (6) When calculating significant financial (C) For attributions concerning parent interest, the designated official will rely on ownership (companies that own some per- certain information. centage of an affected individual’s company (i) The information to be used is as follows: or employer) the designated official will at- (A) The designated official will use the in- tribute to an affected individual all har- formation included in the Financial Interest vesting, processing, and marketing activity Form and any other reliable and probative information provided in writing. of, and all vessels owned by, a company that (B) The designated official may contact an owns fifty percent or more of a company affected individual to better understand the that is owned by the affected individual or reported financial interest or any informa- that employs the affected individual. The tion provided in writing. designated official will not attribute to an (C) The designated official will presume affected individual the harvesting, proc- that the information reported on the Finan- essing, or marketing activity of, or any ves- cial Interest Form is true and correct and sels owned by, a company that owns less the designated official is not responsible for than fifty percent of a company that is determining the veracity of the reported in- owned by the affected individual or that em- formation when preparing a determination ploys the affected individual. under paragraph (f) of this section. (D) For attributions concerning employ- (D) If an affected individual does not pro- ment or service with associations or organi- vide information concerning the specific per- zations, an affected individual may be em- centage of ownership of a financial interest reported on his or her Financial Interest ployed by or serve, either compensated or Form, the designated official will attribute unpaid, as an officer, director, board member all harvesting, processing, or marketing ac- or trustee of an association or organization. tivity of, and vessels owned by, the financial The designated official will not attribute to interest to the affected individual. the affected individual the vessels owned by, (ii) The designated official will apply the or the harvesting, processing, or marketing following principles when calculating an af- activity conducted by, the members of that fected individual’s financial interests rel- association or organization if such organiza- ative to the significant financial interest tion or association, as an entity separate thresholds for the fishery or sector of the from its members, does not own any vessels fishery affected by the action. For purposes and is not directly engaged in harvesting, of this paragraph, use of the term ‘‘com- processing or marketing. However, if such pany’’ includes any business, vessel, or other organization or association receives from entity. NMFS an allocation of harvesting or proc- (A) For attributions concerning direct essing privileges, owns vessels, or is directly ownership (companies owned by or that em- engaged in harvesting, processing or mar- ploy an affected individual) the designated official will attribute to an affected indi- keting, the designated official will attribute vidual all harvesting, processing, and mar- to the affected individual the vessels owned keting activity of, and all vessels owned by, by, and all harvesting, processing, and mar- a company when the affected individual owns keting activity of, that association or orga- 100 percent of that company. If an affected nization. individual owns less than 100 percent of a (E) For the financial interests of a spouse, company, the designated official will at- partner or minor child, the designated offi- tribute to the affected individual the har- cial will consider the following factors for vesting, processing, and marketing activity ownership and employment. of, and vessels owned by, the company com- (1) For the financial interests of a spouse, mensurate with the affected individual’s per- partner or minor child related to ownership, centage of ownership. The designated official the designated official will attribute to an will attribute to an affected individual all affected individual all harvesting, proc- harvesting, processing, and marketing activ- essing, and marketing activity of, and all ity of, and all vessels owned by, a company vessels owned by, a company when the af- that employs the affected individual. fected individual’s spouse, partner or minor (B) For attributions concerning indirect child owns 100 percent of that company. If an ownership (companies owned by an affected individual’s company or employer) the des- affected individual’s spouse, partner or ignated official will attribute to the affected minor child owns less than 100 percent of a individual the harvesting, processing, and company, the designated official will at- marketing activity of, and vessels owned by, tribute to the affected individual the har- a company that is owned by that affected in- vesting, processing, and marketing activity dividual’s company or employer commensu- of, and vessels owned by, the company com- rate with the affected individual’s percent- mensurate with the spouse’s, partner’s or age ownership in the directly owned com- minor child’s percentage of ownership.

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(2) For the financial interests of a spouse, should clearly identify the Council(s) to partner or minor child related to employ- which the procedure applies. ment, the designated official will not at- (C) A description of the process for identi- tribute to an affected individual the har- fying the fishery or sector of the fishery af- vesting, processing, or marketing activity of, fected by the action before the Council. or any vessels owned by, a company that em- (D) A description of the process for pre- ploys the affected individual’s spouse, part- paring and issuing a recusal determination ner or minor child when the spouse’s, part- relative to the timing of a Council decision. ner’s or minor child’s compensation are not (E) A description of the process by which influenced by, or fluctuate with, the finan- the Council, Council members, and the pub- cial performance of the company. The des- lic will be made aware of recusal determina- ignated official will attribute to an affected tions. individual all harvesting, processing, and (F) A description of the process for identi- marketing activity of, and all vessels owned fying the designated official(s) who will pre- by, a company that employs the Council pare recusal determinations and attend member’s spouse, partner or minor child Council meetings. when the spouse’s, partner’s or minor child’s (iii) A Regional Recusal Determination compensation are influenced by, or fluctuate Procedure Handbook may include additional with, the financial performance of the com- material related to the region’s process and pany. procedure for recusal determinations not specifically identified in paragraph (f)(6)(ii) * * * * * of this section. A Regional Recusal Deter- mination Procedure Handbook may be re- (f) Process and procedure for determination. vised at any time upon agreement by the (1) At the request of an affected individual, NMFS Regional Office and NOAA Office of and as provided under paragraphs (c)(3)–(6) of General Counsel. this section, the designated official shall de- (g) * * * termine for the record whether a Council de- (2) A Council member may request a review cision would have a significant and predict- of any aspect of the recusal determination, able effect on that individual’s financial in- including but not limited to, whether the ac- terest. Unless subject to confidentiality re- tion is a Council decision, the description of quirements, all information considered will the fishery or sector of the fishery affected be made part of the public record for the de- by the Council action, the calculation of an cision. The affected individual may request a affected individual’s financial interests or determination by notifying the designated the finding of a significant financial inter- official— est, and the existence of a close causal link. (i) Within a reasonable time before the A request for review must include a full Council meeting at which the Council deci- statement in support of the review, including sion will be made; or (ii) During a Council meeting before a a concise statement as to why the Council Council vote on the decision. member believes that the recusal determination is in error and why the designated official’s determination should be reversed. * * * * * (6) Regional Recusal Determination Proce- * * * * * dure Handbooks shall be developed for reach NMFS Region. (h) The provisions of 18 U.S.C. 208 regard- (i) Each NMFS Regional Office, in conjunc- ing conflicts of interest do not apply to an tion with NOAA Office of General Counsel, affected individual who is a voting member will publish and make available to the public of a Council appointed by the Secretary, as its Regional Recusal Determination Proce- described under section 302(j)(1)(A)(ii) of the dure Handbook, which explains the process Magnuson-Stevens Act, and who is in com- and procedure typically followed in pre- pliance with the requirements of this section paring and issuing recusal determinations. for filing a Financial Interest Form. The pro- (ii) A Regional Recusal Determination visions of 18 U.S.C. 208 do not apply to a Procedure Handbook must include: member of an SSC, unless that individual is (A) A statement that the Regional Recusal an officer or employee of the United States Determination Procedure Handbook is in- or is otherwise covered by the requirements tended as guidance to describe the recusal of 18 U.S.C. 208. determination process and procedure typically followed within the region. * * * * * (B) Identification of the Council(s) to which the Regional Recusal Determination § 600.240 Security assurances. Procedure Handbook applies. If the Regional Recusal Determination Procedure Handbook (a) DOC Office of Security will issue applies to multiple Councils, any procedure security assurances to Council mem- that applies to a subset of those Councils bers following completion of favorable

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background investigations. A Council that a work day is lost to the member. member’s appointment is conditional ‘‘Homework’’ time in preparation for until such time as the background informal Council meetings is not com- vestigation has been favorably adju- pensable. dicated. The Secretary will revoke the (b) Non-government Council mem- member’s appointment if that member bers receive compensation for: receives an unfavorable background in- (1) Days spent in actual attendance vestigation. In instances in which at a meeting of the Council or jointly Council members may need to discuss, with another Council. at closed meetings, materials classified (2) Travel on the day preceding or fol- for national security purposes, the lowing a scheduled meeting that pre- agency or individual (e.g., Department cluded the member from conducting of State, U.S. Coast Guard) providing his normal business on the day in ques- such classified information will be re- tion. sponsible for ensuring that Council (3) Meetings of standing committees members and other attendees have the of the Council if approved in advance appropriate security clearances. by the Chair. (b) Each nominee to a Council is re- (4) Individual member meeting with quired to complete a Certification of scientific and technical advisors, when Status form (‘‘form’’). All nominees approved in advance by the Chair and a must certify, pursuant to the Foreign substantial portion of any day is spent Agents Registration Act of 1938, wheth- at the meeting. er they serve as an agent of a foreign (5) Conducting or attending hearings, principal. Each nominee must certify, when authorized in advance by the date, sign, and return the form with his Chair. or her completed nomination kit. (6) Other meetings involving Council Nominees will not be considered for ap- business when approved in advance by pointment to a Council if they have the Chair. 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

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January 12, 2007, is considered to have costs and benefits, and integrate the met the training requirement of this diversity of public and private intersection. ests. If objectives are in conflict, prior- ities should be established among [75 FR 59154, Sept. 27, 2010] them. (2) To reflect the changing needs of Subpart D—National Standards the fishery over time, Councils should reassess the FMP’s management objec- § 600.305 General. tives on a regular basis. (a) Purpose. (1) This subpart estab- (3) How objectives are defined is im- lishes guidelines, based on the national portant to the management process. standards, to assist in the development Objectives should address the problems and review of FMPs, amendments, and of a particular fishery. The objectives regulations prepared by the Councils should be clearly stated, practicably and the Secretary. attainable, framed in terms of defin- (2) In developing FMPs, the Councils able events and measurable benefits, have the initial authority to ascertain and based upon a comprehensive rather factual circumstances, to establish than a fragmentary approach to the management objectives, and to propose problems addressed. An FMP should management measures that will make a clear distinction between ob- achieve the objectives. The Secretary jectives and the management measures will determine whether the proposed chosen to achieve them. The objectives management objectives and measures of each FMP provide the context with- are consistent with the national stand- in which the Secretary will judge the ards, other provisions of the Magnuson- consistency of an FMP’s conservation Stevens Act (MSA), and other applica- and management measures with the ble law. The Secretary has an obliga- national standards. tion under section 301(b) of the MSA to (c) Stocks that require conservation and inform the Councils of the Secretary’s management. (1) Magnuson-Stevens Act interpretation of the national stand- section 302(h)(1) requires a Council to ards so that they will have an under- prepare an FMP for each fishery under standing of the basis on which FMPs its authority that requires (or in other will be reviewed. words, is in need of) conservation and (3) The national standards are statu- management. 16 U.S.C. 1852(h)(1). Not tory principles that must be followed every fishery requires Federal manage- in any FMP. The guidelines summarize ment. Any stocks that are predomi- Secretarial interpretations that have nately caught in Federal waters and been, and will be, applied under these are overfished or subject to over- principles. The guidelines are intended fishing, or likely to become overfished as aids to decision-making; FMPs for- or subject to overfishing, are consid- mulated according to the guidelines ered to require conservation and man- will have a better chance for expedi- agement. Beyond such stocks, Councils tious Secretarial review, approval, and may determine that additional stocks implementation. FMPs that are not require ‘‘conservation and manage- formulated according to the guidelines ment.’’ (See Magnuson-Stevens Act may not be approved by the Secretary definition at 16 U.S.C. 1802(5)). Based on if the FMP or FMP amendment is in- this definition of conservation and consistent with the MSA or other ap- management, and other relevant provi- plicable law (16 U.S.C. 1854(a)(3)). sions of the Magnuson-Stevens Act, a (b) Fishery management objectives. (1) Council should consider the following Each FMP, whether prepared by a non-exhaustive list of factors when de- Council or by the Secretary, should ciding whether additional stocks re- identify what the FMP is designed to quire conservation and management: accomplish (i.e., the management ob- (i) The stock is an important compo- jectives to be attained in regulating nent of the marine environment. the fishery under consideration). In es- (ii) The stock is caught by the fish- tablishing objectives, Councils balance ery. biological constraints with human (iii) Whether an FMP can improve or needs, reconcile present and future maintain the condition of the stock.

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(iv) The stock is a target of a fishery. (4) When considering removing a (v) The stock is important to com- stock from, or continuing to include a mercial, recreational, or subsistence stock in, an FMP, Councils should pre- users. pare a thorough analysis of factors in (vi) The fishery is important to the paragraphs (c)(1)(i) through (x) of this Nation or to the regional economy. section, and any additional consider- (vii) The need to resolve competing ations that may be relevant to the par- interests and conflicts among user ticular stock. As mentioned in para- groups and whether an FMP can fur- graph (c)(3) of this section, if the ther that resolution. amount and/or type of catch that oc- (viii) The economic condition of a curs in Federal waters is a significant fishery and whether an FMP can contributing factor to the stock’s sta- produce more efficient utilization. tus, such information would weigh (ix) The needs of a developing fish- heavily in favor of continuing to in- ery, and whether an FMP can foster or- clude a stock in an FMP. Councils derly growth. should consider weighting the factors (x) The extent to which the fishery is as follows. Factors in paragraphs already adequately managed by states, (c)(1)(i) through (iii) of this section by state/Federal programs, or by Fed- should be considered first, as they ad- eral regulations pursuant to other dress maintaining a fishery resource FMPs or international commissions, or and the marine environment. See 16 by industry self-regulation, consistent U.S.C. 1802(5)(A). These factors weigh with the requirements of the Magnu- in favor of continuing to include a son-Stevens Act and other applicable stock in an FMP. Councils should next law. consider factors in paragraphs (c)(1)(iv) (2) In evaluating factors in para- through (ix) of this section, which set graphs (c)(1)(i) through (x) of this section, a Council should consider the spe- forth key economic, social, and other cific circumstances of a fishery, based reasons contained within the MSA for on the best scientific information an FMP action. See 16 U.S.C. 1802(5)(B). available, to determine whether there Finally, a Council should consider the are biological, economic, social and/or factor in paragraph (c)(1)(x) of this sec- operational concerns that can and tion before deciding to remove a stock should be addressed by Federal man- from, or continue to include a stock in, agement. an FMP. In many circumstances, ade- (3) When considering adding a stock quate management of a fishery by to an FMP, no single factor is disposi- states, state/Federal programs, or an- tive or required. One or more of the other Federal FMP would weigh in above factors, and any additional con- favor of removing a stock from an siderations that may be relevant to the FMP. See e.g., 16 U.S.C. 1851(a)(7) and particular stock, may provide the basis 1856(a)(3). for determining that a stock requires (5) Councils may choose to identify conservation and management. Based stocks within their FMPs as ecosystem on the factor in paragraph (c)(1)(iii) of component (EC) species (see this section, if the amount and/or type § § 600.305(d)(13) and 600.310(d)(1)) if a of catch that occurs in Federal waters Council determines that the stocks do is a significant contributing factor to not require conservation and manage- the stock’s status, such information ment based on the considerations and would weigh heavily in favor of adding factors in paragraph (c)(1) of this sec- a stock to an FMP. However, Councils tion. EC species may be identified at should consider the factor in paragraph the species or stock level, and may be (c)(1)(x) of this section before deciding grouped into complexes. Consistent to include a stock in an FMP. In many with National Standard 9, MSA section circumstances, adequate management 303(b)(12), and other applicable MSA of a fishery by states, state/Federal sections, management measures can be programs, or another Federal FMP adopted in order to, for example, col- would weigh heavily against a Federal lect data on the EC species, minimize FMP action. See, e.g., 16 U.S.C. bycatch or bycatch mortality of EC 1851(a)(7) and 1856(a)(3). species, protect the associated role of

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EC species in the ecosystem, and/or to the type of discussion and examination address other ecosystem issues. an FMP should contain to demonstrate (6) A stock or stock complex may be compliance with the standard in ques- identified in more than one FMP. In tion. this situation, the relevant Councils (10) Council includes the Secretary, as should choose which FMP will be the applicable, when preparing FMPs or primary FMP in which reference points amendments under section 304(c) and for the stock or stock complex will be (g) of the Magnuson-Stevens Act. established. In other FMPs, the stock (11) Target stocks are stocks or stock or stock complex may be identified as complexes that fishers seek to catch ‘‘other managed stocks’’ and manage- for sale or personal use, including such ment measures that are consistent fish that are discarded for economic or with the objectives of the primary regulatory reasons as defined under FMP can be established. Magnuson-Stevens Act section 3(9) and (7) Councils should periodically re- 3(38). view their FMPs and the best scientific (12) Non-target species and non-target information available and determine if stocks are fish caught incidentally dur- the stocks are appropriately identified. ing the pursuit of target stocks in a As appropriate, stocks should be re- fishery. Non-target stocks may require classified within an FMP, added to or conservation and management and, if removed from an existing FMP, or so, must be included in a FMP and be added to a new FMP, through an FMP identified at the stock or stock com- amendment that documents the ration- plex level. If non-target species are not ale for the decision. in need of conservation and manage- (d) Word usage within the National ment, they may be identified in an Standard Guidelines. The word usage re- FMP as ecosystem component species. fers to all regulations in this subpart. (13) Ecosystem Component Species (see (1) Must is used, instead of ‘‘shall’’, to §§ 600.305(c)(5) and 600.310(d)(1)) are denote an obligation to act; it is used stocks that a Council or the Secretary primarily when referring to require- has determined do not require con- ments of the Magnuson-Stevens Act, servation and management, but desire the logical extension thereof, or of to list in an FMP in order to achieve other applicable law. ecosystem management objectives. (2) Shall is used only when quoting (e) Relationship of National Standard 1 statutory language directly, to avoid to other national standards—General. Na- confusion with the future tense. tional Standard 1 addresses preventing (3) Should is used to indicate that an overfishing and achieving optimum action or consideration is strongly rec- yield. See 16 U.S.C. 1851(a)(1) and 50 ommended to fulfill the Secretary’s in- CFR 600.310. National Standards 2 terpretation of the Magnuson-Stevens through 10 provide further require- Act, and is a factor reviewers will look ments for conservation and manage- for in evaluating a statement of orga- ment measures in FMPs. See 16 U.S.C. nization, practices, and procedures 1851(a)(2) through (10) and 50 CFR (SOPP) or an FMP. 600.315 through 600.355. Below is a de- (4) May is used in a permissive sense. scription of how some of the other Na- (5) Will is used descriptively, as dis- tional Standards intersect with Na- tinguished from denoting an obligation tional Standard 1. to act or the future tense. (1) National Standard 2 (see § 600.315). (6) Could is used when giving exam- Management measures and reference ples, in a hypothetical, permissive points to implement NS1 must be based sense. on the best scientific information (7) Can is used to mean ‘‘is able to,’’ available. When data are insufficient to as distinguished from ‘‘may.’’ estimate reference points directly, (8) Examples are given by way of illus- Councils should develop reasonable tration and further explanation. They proxies to the extent possible (also see are not inclusive lists; they do not § 600.310(e)(1)(v)(B)). In cases where sci- limit options. entific data are severely limited, effort (9) Analysis, as a paragraph heading, should also be directed to identifying signals more detailed guidance as to and gathering the needed data. SSCs

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should advise their Councils regarding (ii) Specifying status determination the best scientific information avail- criteria (SDC) so that overfishing and able for fishery management decisions. overfished determinations can be made (2) National Standard 3 (see § 600.320). for stocks and stock complexes in an Reference points should generally be FMP; specified in terms of the level of stock (iii) Preventing overfishing and aggregation for which the best sci- achieving OY, incorporation of scientific information is available (also entific and management uncertainty in see § 600.310(e)(1)(ii) and (iii)). control rules, and adaptive manage- (3) National Standard 6 (see § 600.335). ment using annual catch limits (ACL) Councils must build into the reference and measures to ensure accountability points and control rules appropriate (i.e., accountability measures (AMs)); consideration of risk, taking into ac- and count uncertainties in estimating har- (iv) Rebuilding stocks and stock vest, stock conditions, life history pa- rameters, or the effects of environ- complexes. mental factors. (2) Overview of Magnuson-Stevens Act (4) National Standard 8 (see § 600.345). concepts and provisions related to NS1— National Standard 8 addresses eco- (i) MSY. The Magnuson-Stevens Act es- nomic and social considerations and tablishes MSY as the basis for fishery minimizing to the extent practicable management and requires that: The adverse economic impacts on fishing fishing mortality rate must not jeop- communities within the context of pre- ardize the capacity of a stock or stock venting overfishing and rebuilding complex to produce MSY; the abun- overfished stocks as required under Na- dance of an overfished stock or stock tional Standard 1 and other MSA provi- complex must be rebuilt to a level that sions. Calculation of OY as reduced is capable of producing MSY; and OY from maximum sustainable yield must not exceed MSY. (MSY) also includes consideration of (ii) OY. The determination of OY is a economic and social factors, but the decisional mechanism for resolving the combination of management measures Magnuson-Stevens Act’s conservation chosen to achieve the OY must prin- and management objectives, achieving cipally be designed to prevent over- an FMP’s objectives, and balancing the fishing and rebuild overfished stocks. various interests that comprise the (5) National Standard 9 (see § 600.350). greatest overall benefits to the Nation. Evaluation of stock status with respect OY is based on MSY as reduced under to reference points must take into ac- paragraphs (e)(3)(iii)(A) and (B) of this count mortality caused by bycatch. In section. The most important limitation addition, the estimation of catch on the specification of OY is that the should include the mortality of fish that are discarded. choice of OY and the conservation and management measures proposed to [81 FR 71893, Oct. 18, 2016] achieve it must prevent overfishing. (iii) ACLs and AMs. Any FMP shall § 600.310 National Standard 1—Opti- establish a mechanism for specifying mum Yield. ACLs in the FMP (including a (a) Standard 1. Conservation and multiyear plan), implementing regula- management measures shall prevent tions, or annual specifications, at a overfishing while achieving, on a con- level such that overfishing does not tinuing basis, the optimum yield (OY) occur in the fishery, including meas- from each fishery for the U.S. fishing ures to ensure accountability (Magnu- industry. son-Stevens Act section 303(a)(15)). (b) General. (1) The guidelines set (iv) Reference points. SDC, MSY, OY, forth in this section describe fishery management approaches to meet the acceptable biological catch (ABC), and objectives of National Standard 1 ACL, which are described further in (NS1), and include guidance on: paragraphs (e) and (f) of this section, (i) Specifying maximum sustainable are collectively referred to as ‘‘ref- yield (MSY) and OY; erence points.’’

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(v) Scientific advice. The Magnuson- of the fishery. These guidelines de- Stevens Act has requirements regard- scribe how the Councils could address ing scientific and statistical commit- uncertainty such that there is a low tees (SSC) of the Regional Fishery risk that limits are exceeded as de- Management Councils, including but scribed in paragraphs (f)(2) and (g)(4) of not limited to, the following provisions this section. (paragraphs (b)(2)(v)(A) through (D) of (4) Vulnerability. A stock’s vulner- this section). See the National Stand- ability to fishing pressure is a com- ard 2 guidelines for further guidance on bination of its productivity, which de- SSCs and the peer review process pends upon its life history characteris- (§ 600.315). tics, and its susceptibility to the fish- (A) Each Regional Fishery Manage- ery. Productivity refers to the capacity ment Council shall establish an SSC as of the stock to produce MSY and to re- described in section 302(g)(1)(A) of the cover if the population is depleted, and Magnuson-Stevens Act. susceptibility is the potential for the (B) Each SSC shall provide its Re- stock to be impacted by the fishery, gional Fishery Management Council which includes direct captures, as well recommendations for ABC as well as as indirect impacts of the fishery (e.g., other scientific advice, as described in loss of habitat quality). Magnuson-Stevens Act section (c) Summary of items to include in 302(g)(1)(B). FMPs related to NS1. This section pro- (C) The Secretary and each Regional vides a summary of items that Coun- Fishery Management Council may es- cils must include in their FMPs and tablish a peer review process for that FMP amendments in order to address Council for scientific information used ACL, AM, and other aspects of the NS1 to advise the Council about the con- guidelines. Councils must describe fish- servation and management of a fishery eries data for the stocks and stock (see Magnuson-Stevens Act section complexes in their FMPs, or associated 302(g)(1)(E)). If a peer review process is public documents such as Stock As- established, it should investigate the sessment and Fishery Evaluation technical merits of stock assessments (SAFE) Reports. For all stocks and and other scientific information to be stock complexes that require conserva- used by the SSC or agency or inter- tion and management (see § 600.305(c)), national scientists, as appropriate. For the Councils must evaluate and de- Regional Fishery Management Coun- scribe the following items in their cils, the peer review process is not a FMPs and amend the FMPs, if nec- substitute for the SSC and both the essary, to align their management ob- SSC and peer review process should jectives to end or prevent overfishing work in conjunction with each other. and to achieve OY: For the Secretary, which does not have (1) MSY and SDC (see paragraphs an SSC, the peer review process should (e)(1) and (2) of this section). provide the scientific information nec- (2) OY at the stock, stock complex, essary. or fishery level and provide the OY (D) Each Council shall develop ACLs specification analysis (see paragraph for each of its managed fisheries that (e)(3) of this section). may not exceed the ‘‘fishing level rec- (3) ABC control rule (see paragraph ommendations’’ of its SSC or peer re- (f)(2) of this section). view process (Magnuson-Stevens Act (4) Mechanisms for specifying ACLs section 302(h)(6)). The SSC rec- (see paragraph (f)(4) of this section). ommendation that is the most relevant (5) AMs (see paragraph (g) of this sec- to ACLs is ABC, as both ACL and ABC tion). are levels of annual catch. (6) Stocks and stock complexes that (3) Approach for setting limits and ac- have statutory exceptions from ACLs countability measures, including targets, and AMs (see paragraph (h)(1) of this for consistency with NS1. When speci- section) or which fall under limited cir- fying limits and accountability meas- cumstances which require different ap- ures, Councils must take an approach proaches to meet the Magnuson-Ste- that considers uncertainty in scientific vens Act requirements (see paragraph information and management control (h)(2) of this section).

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(d) Stocks and stock complexes— whole), or one or more indicator stocks (1) Introduction. As described in (each of which has SDC and manage- § 600.305(c), Councils should identify in ment objectives) with an ACL for the their FMPs the stocks that require complex as a whole (this situation conservation and management. Such might be applicable to some salmon stocks must have ACLs, other ref- species). Councils should review the erence points, and accountability available quantitative or qualitative measures. Other stocks that are identi- information (e.g., catch trends, changes fied in an FMP (i.e., EC species or in vulnerability, fish health indices, stocks that the fishery interacts with etc.) of stocks within a complex on a but are managed primarily under an- regular basis to determine if they are other FMP, see § 600.305(c)(5) through being sustainably managed. (6)) do not require ACLs, other reference points, or accountability meas- (C) If an indicator stock is used to ures. evaluate the status of a complex, it (2) Stock complex. Stocks that require should be representative of the typical conservation and management can be vulnerability of stocks within the com- grouped into stock complexes. A plex. If the stocks within a stock com- ‘‘stock complex’’ is a tool to manage a plex have a wide range of vulnerability, group of stocks within a FMP. they should be reorganized into dif- (i) At the time a stock complex is es- ferent stock complexes that have simi- tablished, the FMP should provide, to lar vulnerabilities; otherwise the indi- the extent practicable, a full and ex- cator stock should be chosen to rep- plicit description of the proportional resent the more vulnerable stocks composition of each stock in the stock within the complex. In instances where complex. Stocks may be grouped into an indicator stock is less vulnerable complexes for various reasons, includ- than other members of the complex, ing where stocks in a multispecies fish- management measures should be more ery cannot be targeted independent of conservative so that the more vulner- one another; where there is insufficient able members of the complex are not at data to measure a stock’s status rel- risk from the fishery. ative to SDC; or when it is not feasible (D) More than one indicator stock for fishermen to distinguish individual can be selected to provide more infor- stocks among their catch. Where prac- mation about the status of the com- ticable, the group of stocks should plex. have a similar geographic distribution, life history characteristics, and (E) When indicator stocks are used, vulnerabilities to fishing pressure such the stock complex’s MSY could be list- that the impact of management ac- ed as ‘‘unknown,’’ while noting that tions on the stocks is similar. The vul- the complex is managed on the basis of nerability of individual stocks should one or more indicator stocks that do be considered when determining if a have known stock-specific MSYs, or particular stock complex should be es- suitable proxies, as described in para- tablished or reorganized, or if a par- graph (e)(1)(v) of this section. ticular stock should be included in a (e) Features of MSY, SDC, and OY— (1) complex. MSY. Each FMP must include an esti- (ii) Indicator stocks. (A) An indicator mate of MSY for the stocks and stock stock is a stock with measurable and complexes that require conservation objective SDC that can be used to help and management. MSY may also be manage and evaluate more poorly specified for the fishery as a whole. known stocks that are in a stock com- (i) Definitions. (A) MSY is the largest plex. long-term average catch or yield that (B) Where practicable, stock com- can be taken from a stock or stock plexes should include one or more indi- complex under prevailing ecological, cator stocks (each of which has SDC environmental conditions and fishery and ACLs). Otherwise, stock complexes may be comprised of: Several stocks technological characteristics (e.g., gear without an indicator stock (with SDC selectivity), and the distribution of and an ACL for the complex as a catch among fleets.

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(B) MSY fishing mortality rate (Fmsy) is considered when setting OY below the fishing mortality rate that, if ap- MSY. plied over the long term, would result (D) As MSY values are estimates or in MSY. are based on proxies, they will have (C) MSY stock size (Bmsy) means the some level of uncertainty associated long-term average size of the stock or with them. The degree of uncertainty stock complex, measured in terms of in the estimates should be identified, spawning biomass or other appropriate when practicable, through the stock measure of the stock’s reproductive po- assessment process and peer review (see tential that would be achieved by fish- § 600.335), and should be taken into ac- ing at Fmsy. count when specifying the ABC Control (ii) MSY for stocks. MSY should be es- rule (see paragraph (f)(2) of this sec- timated for each stock based on the tion). best scientific information available (2) Status determination criteria—(i) (see § 600.315). Definitions. (A) Status determination cri- (iii) MSY for stock complexes. When teria (SDC) mean the measurable and stock complexes are used, MSY should objective factors, MFMT, OFL, and be estimated for one or more indicator MSST, or their proxies, that are used stocks or for the complex as a whole to determine if overfishing has oc- (see paragraph (d)(2)(ii)). curred, or if the stock or stock complex (iv) Methods of estimating MSY for an is overfished. Magnuson-Stevens Act aggregate group of stocks. Estimating (section 3(34)) defines both ‘‘over- MSY for an aggregate group of stocks fishing’’ and ‘‘overfished’’ to mean a (including stock complexes and the rate or level of fishing mortality that fishery as a whole) can be done using jeopardizes the capacity of a fishery to models that account for multi-species produce the MSY on a continuing interactions, composite properties for a basis. To avoid confusion, this section group of similar species, biomass (en- clarifies that ‘‘overfished’’ relates to ergy) flow and production patterns, or biomass of a stock or stock complex, other relevant factors (see paragraph and ‘‘overfishing’’ pertains to a rate or (e)(3)(iv)(C) of this section). level of removal of fish from a stock or (v) Specifying MSY. (A) Because MSY stock complex. is a long-term average, it need not be (B) Overfishing occurs whenever a estimated annually, but it must be stock or stock complex is subjected to based on the best scientific informa- a level of fishing mortality or total tion available (see § 600.315), and should catch that jeopardizes the capacity of a be re-estimated as required by changes stock or stock complex to produce in long-term environmental or ecologi- MSY on a continuing basis. cal conditions, fishery technological (C) Maximum fishing mortality thresh- characteristics, or new scientific infor- old (MFMT) means the level of fishing mation. mortality (i.e. F), on an annual basis, (B) When data are insufficient to es- above which overfishing is occurring. timate MSY directly, Councils should The MFMT or reasonable proxy may be adopt other measures of reproductive expressed either as a single number (a potential that can serve as reasonable fishing mortality rate or F value), or proxies for MSY, Fmsy, and Bmsy. as a function of spawning biomass or (C) The MSY for a stock or stock other measure of reproductive poten- complex is influenced by its inter- tial. actions with other stocks in its eco- (D) Overfishing limit (OFL) means the system and these interactions may annual amount of catch that cor- shift as multiple stocks in an eco- responds to the estimate of MFMT ap- system are fished. Ecological and envi- plied to a stock or stock complex’s ronmental information should be taken abundance and is expressed in terms of into account, to the extent practicable, numbers or weight of fish. when assessing stocks and specifying (E) Overfished. A stock or stock com- MSY. Ecological and environmental in- plex is considered ‘‘overfished’’ when formation that is not directly ac- its biomass has declined below MSST. counted for in the specification of MSY (F) Minimum stock size threshold can be among the ecological factors (MSST) means the level of biomass

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below which the capacity of the stock domestically managed stock or stock or stock complex to produce MSY on a complex. continuing basis has been jeopardized. (A) SDC to Determine Overfishing Sta- (G) Approaching an overfished condi- tus. Each FMP must specify a method tion. A stock or stock complex is ap- used to determine the overfishing sta- proaching an overfished condition tus for each stock or stock complex. when it is projected that there is more For domestically-managed stocks or than a 50 percent chance that the bio- stock complexes, one of the following mass of the stock or stock complex will methods (described in (e)(2)(ii)(A)(1) decline below the MSST within two and (2) of this section) should be speci- years. fied. If the necessary data to use one of (ii) Specification of SDC and over- the methods described in either sub- fishing and overfished determinations. paragraph (e)(2)(ii)(A)(1) or (2) is not Each FMP must describe how objective available, a Council may use an alter- and measurable SDCs will be specified, nate type of overfishing SDC as de- as described in paragraphs (e)(2)(ii)(A) scribed in paragraph (e)(2)(ii). and (B) of this section. To be measur- (1) Fishing Mortality Rate Exceeds able and objective, SDC must be ex- MFMT. Exceeding the MFMT for a pe- pressed in a way that enables the Coun- riod of 1 year constitutes overfishing. cil to monitor the status of each stock (2) Catch Exceeds the OFL. Exceeding or stock complex in the FMP. Applying the annual OFL for 1 year constitutes the SDC set forth in the FMP, the Sec- overfishing. retary determines if overfishing is occurring and whether the stock or stock (3) Multi-Year Approach to Determine complex is overfished (Magnuson-Ste- Overfishing Status. Subparagraphs vens Act section 304(e)). SDCs are often (e)(2)(ii)(A) (1) and (2) establish meth- based on fishing rates or biomass levels ods to determine overfishing status associated with MSY or MSY based based on a period of 1 year. As stated in proxies. When data are not available to paragraph (e)(2)(ii)(A), a Council should specify SDCs based on MSY or MSY specify, within the FMP, which of proxies, alternative types of SDCs that these methods will be used to deter- promote sustainability of the stock or mine overfishing status. However, in stock complex can be used. For exam- certain circumstances, a Council may ple, SDC could be based on recent aver- utilize a multi-year approach to deter- age catch, fish densities derived from mine overfishing status based on a pe- visual census surveys, length/weight riod of no more than 3 years. The Coun- frequencies, or other methods. In speci- cil should identify in its FMP or FMP fying SDC, a Council must provide an amendment, circumstances when the analysis of how the SDC were chosen multi-year approach is appropriate and and how they relate to reproductive po- will be used. Such circumstances may tential of stocks of fish within the fish- include situations where there is high ery. If alternative types of SDCs are uncertainty in the estimate of F in the used, the Council should explain how most recent year, cases where stock the approach will promote sustain- abundance fluctuations are high and ability of the stock or stock complex assessments are not timely enough to on a long term basis. A Council should forecast such changes, or other cir- consider a process that allows SDCs to cumstances where the most recent be quickly updated to reflect the best catch or F data does not reflect the scientific information available. In the overall status of the stock. The multi- case of internationally-managed year approach to determine overfishing stocks, the Council may decide to use status may not be used to specify fu- the SDCs defined by the relevant inter- ture annual catch limits at levels that national body. In this instance, the do not prevent overfishing. SDCs should allow the Council to mon- (B) SDC to determine overfished status. itor the status of a stock or stock com- The MSST or reasonable proxy must be plex, recognizing that the SDCs may expressed in terms of spawning biomass not be defined in such a way that a or other measure of reproductive po- Council could monitor the MFMT, tential. MSST should be between 1⁄2 OFL, or MSST as would be done with a Bmsy and Bmsy, and could be informed by 42

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the life history of the stock, the nat- (A) Is based on the best scientific in- ural fluctuations in biomass associated formation available; with fishing at MFMT over the long- (B) Contains the elements described term, the requirements of internation- in paragraph (e)(2)(ii) of this section; ally-managed stocks, or other consid- (C) Provides a basis for objective erations. measurement of the status of the stock (C) Where practicable, all sources of or stock complex against the criteria; mortality including that resulting and from bycatch, scientific research (D) Is operationally feasible. catch, and all fishing activities should (3) Optimum yield. For stocks that re- be accounted for in the evaluation of quire conservation and management, stock status with respect to reference OY may be established at the stock, points. stock complex, or fishery level. (iii) Relationship of SDC to environ- (i) Definitions— (A) Optimum yield mental and habitat change. Some short- (OY). Magnuson-Stevens Act section term environmental changes can alter the size of a stock or stock complex (3)(33) defines ‘‘optimum,’’ with respect without affecting its long-term repro- to the yield from a fishery, as the ductive potential. Long-term environ- amount of fish that will provide the mental changes may affect both the greatest overall benefit to the Nation, short-term size of the stock or stock particularly with respect to food pro- complex and the long-term reproduc- duction and recreational opportunities tive potential of the stock or stock and taking into account the protection complex. of marine ecosystems; that is pre- (A) If environmental changes cause a scribed on the basis of the MSY from stock or stock complex to fall below its the fishery, as reduced by any relevant MSST without affecting its long-term economic, social, or ecological factor; reproductive potential, fishing mor- and, in the case of an overfished fish- tality must be constrained sufficiently ery, that provides for rebuilding to a to allow rebuilding within an accept- level consistent with producing the able time frame (see also paragraph MSY in such fishery. (j)(3)(i) of this section). SDC should not (B) In NS1, use of the phrase be respecified. ‘‘achieving, on a continuing basis, the (B) If environmental, ecosystem, or OY from each fishery’’ means: pro- habitat changes affect the long-term ducing, from each stock, stock com- reproductive potential of the stock or plex, or fishery, an amount of catch stock complex, one or more compo- that is, on average, equal to the Coun- nents of the SDC must be respecified. cil’s specified OY; prevents overfishing; Once SDC have been respecified, fish- maintains the long term average bio- ing mortality may or may not have to mass near or above Bmsy; and rebuilds be reduced, depending on the status of overfished stocks and stock complexes the stock or stock complex with re- consistent with timing and other respect to the new criteria. quirements of section 304(e)(4) of the (C) If manmade environmental Magnuson-Stevens Act and paragraph changes are partially responsible for a (j) of this section. stock or stock complex’s biomass being (ii) General. OY is a long-term aver- below MSST, in addition to controlling age amount of desired yield from a fishing mortality, Councils should rec- stock, stock complex, or fishery. An ommend restoration of habitat and FMP must contain conservation and other ameliorative programs, to the ex- management measures, including ACLs tent possible (see also the guidelines and AMs, to achieve OY on a con- issued pursuant to section 305(b) of the tinuing basis, and provisions for infor- Magnuson-Stevens Act for Council ac- mation collection that are designed to tions concerning essential fish habi- determine the degree to which OY is tat). achieved. These measures should allow (iv) Secretarial approval of SDC. Secre- for practical and effective implementa- tarial approval or disapproval of pro- tion and enforcement of the manage- posed SDC will be based on consider- ment regime. If these measures cannot ation of whether the proposal: meet the dual requirements of NS1

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(preventing overfishing while achiev- ance regimes, hydrological processes, ing, on a continuing basis, OY), Coun- nutrient cycles), maintaining produc- cils should either modify the measures tive habitat, maintaining the evolu- or reexamine their OY specifications to tionary potential of species and eco- ensure that the dual NS1 requirements systems, and accommodating human can be met. use. (iii) Assessing OY. An FMP must con- (B) Economic, Ecological, and Social tain an assessment and specification of Factors. Councils should consider the OY (MSA section 303(a)(3)). The assess- management objectives of their FMPs ment should include: a summary of in- and their management framework to formation utilized in making such determine the relevant social, eco- specification; an explanation of how nomic, and ecological factors used to the OY specification will produce the determine OY. There will be inherent greatest benefits to the nation and pre- trade-offs when determining the objec- vent overfishing and rebuild overfished tives of the fishery. The following is a stocks; and a consideration of the eco- non-exhaustive list of potential consid- nomic, social, and ecological factors erations for social, economic, and eco- relevant to the management of a par- logical factors. ticular stock, stock complex, or fish- (1) Social factors. Examples are enjoy- ery. Consistent with Magnuson-Stevens ment gained from recreational fishing, Act section 302(h)(5), the assessment avoidance of gear conflicts and result- and specification of OY should be re- ing disputes, preservation of a way of viewed on a continuing basis, so that it life for fishermen and their families, is responsive to changing cir- and dependence of local communities cumstances in the fishery. on a fishery (e.g., involvement in fish- (A) Determining the greatest benefit to eries and ability to adapt to change). the Nation. In determining the greatest Consideration may be given to fishery- benefit to the Nation, the values that related indicators (e.g., number of fish- should be weighed and receive serious ery permits, number of commercial attention when considering the eco- fishing vessels, number of party and nomic, social, or ecological factors charter trips, landings, ex-vessel reve- used in reducing MSY, or its proxy, to nues etc.) and non-fishery related indi- obtain OY are: cators (e.g., unemployment rates, per- (1) The benefits of food production cent of population below the poverty derived from providing seafood to con- level, population density, etc.), and sumers; maintaining an economically preference for a particular type of fish- viable fishery together with its attend- ery (e.g., size of the fishing fleet, type ant contributions to the national, re- of vessels in the fleet, permissible gear gional, and local economies; and uti- types). Other factors that may be con- lizing the capacity of the Nation’s fish- sidered include the effects that past ery resources to meet nutritional harvest levels have had on fishing com- needs. munities, the cultural place of subsist- (2) The benefits of recreational op- ence fishing, obligations under tribal portunities reflect the quality of both treaties, proportions of affected minor- the recreational fishing experience and ity and low-income groups, and world- non-consumptive fishery uses such as wide nutritional needs. ecotourism, fish watching, and rec- (2) Economic factors. Examples are reational diving. Benefits also include prudent consideration of the risk of the contribution of recreational fishing overharvesting when a stock’s size or to the national, regional, and local reproductive potential is uncertain (see economies and food supplies. § 600.335(c)(2)(i)), satisfaction of con- (3) The benefits of protection af- sumer and recreational needs, and en- forded to marine ecosystems are those couragement of domestic and export resulting from maintaining viable pop- markets for U.S. harvested fish. Other ulations (including those of factors that may be considered include: unexploited species), maintaining ade- The value of fisheries, the level of cap- quate forage for all components of the italization, the decrease in cost per ecosystem, maintaining evolutionary unit of catch afforded by an increase in and ecological processes (e.g., disturb- stock size, the attendant increase in

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catch per unit of effort, alternate em- stocks complexes within the fishery. ployment opportunities, and economic Aggregate level MSY estimates could contribution to fishing communities, be used as a basis for specifying OY for coastal areas, affected states, and the the fishery (see paragraph (e)(1)(iv) of nation. this section). When aggregate level (3) Ecological factors. Examples in- MSY is estimated, single stock MSY clude impacts on EC species, forage estimates can also be used to inform fish stocks, other fisheries, predator- single stock management. For exam- prey or competitive interactions, ma- ple, OY could be specified for a fishery, rine mammals, threatened or endan- while other reference points are speci- gered species, and birds. Species inter- fied for individual stocks in order to actions that have not been explicitly prevent overfishing on each stock with- taken into account when calculating in the fishery. MSY should be considered as relevant (D) For internationally-managed factors for setting OY below MSY. In stocks, fishing levels that are agreed addition, consideration should be given upon by the U.S. at the international to managing forage stocks for higher level are considered to be consistent biomass than Bmsy to enhance and pro- with OY requirements under the MSA tect the marine ecosystem. Also impor- and these guidelines. tant are ecological or environmental (v) OY and foreign fishing. Section conditions that stress marine orga- 201(d) of the Magnuson-Stevens Act nisms or their habitat, such as natural provides that fishing by foreign nations and manmade changes in wetlands or is limited to that portion of the OY nursery grounds, and effects of pollut- that will not be harvested by vessels of ants on habitat and stocks. the United States. The FMP must in- (iv) Specifying OY. If the estimates of clude an assessment to address the fol- MFMT and current biomass are known lowing, as required by section 303(a)(4) with a high level of certainty and man- of the Magnuson-Stevens Act: agement controls can accurately limit (A) The OY specification is the basis catch, then OY could be set very close for establishing any total allowable to MSY, assuming no other reductions level of foreign fishing (TALFF). are necessary for social, economic, or (B) Part of the OY may be held as a ecological factors. To the degree that reserve to allow for domestic annual such MSY estimates and management harvest (DAH). If an OY reserve is es- controls are lacking or unavailable, OY tablished, an adequate mechanism should be set farther from MSY. should be included in the FMP to per- (A) The OY can be expressed in terms mit timely release of the reserve to do- of numbers or weight of fish, and either mestic or foreign fishermen, if nec- as a single value or a range. When it is essary. not possible to specify OY quan- (C) DAH. Councils and/or the Sec- titatively, OY may be described quali- retary must consider the capacity of, tatively. and the extent to which, U.S. vessels (B) The determination of OY is based will harvest the OY on an annual basis. on MSY, directly or through proxy. Estimating the amount that U.S. fish- However, even where sufficient sci- ing vessels will actually harvest is re- entific data as to the biological charac- quired to determine the surplus. teristics of the stock do not exist, or (D) Domestic annual processing (DAP). where the period of exploitation or in- Each FMP must assess the capacity of vestigation has not been long enough U.S. processors. It must also assess the for adequate understanding of stock amount of DAP, which is the sum of dynamics, or where frequent large- two estimates: The estimated amount scale fluctuations in stock size dimin- of U.S. harvest that domestic proc- ish the meaningfulness of the MSY essors will process, which may be based concept, OY must still be established on historical performance or on sur- based on the best scientific informa- veys of the expressed intention of man- tion available. ufacturers to process, supported by evi- (C) An OY established at a fishery dence of contracts, plant expansion, or level may not exceed the sum of the other relevant information; and the es- MSY values for each of the stocks or timated amount of fish that will be

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harvested by domestic vessels, but not due to the choice of assessment model; processed (e.g., marketed as fresh longer-term uncertainties due to po- whole fish, used for private consump- tential ecosystem and environmental tion, or used for bait). effects; or other factors. (E) Joint venture processing (JVP). (2) ABC control rule.— (i) For stocks When DAH exceeds DAP, the surplus is and stock complexes required to have available for JVP. an ABC, each Council must establish (f) Acceptable biological catch and an- an ABC control rule that accounts for nual catch limits—(1) Definitions.— (i) scientific uncertainty in the OFL and Catch is the total quantity of fish, for the Council’s risk policy, and that measured in weight or numbers of fish, is based on a comprehensive analysis taken in commercial, recreational, that shows how the control rule pre- subsistence, tribal, and other fisheries. vents overfishing. The Council’s risk Catch includes fish that are retained policy could be based on an acceptable for any purpose, as well as mortality of probability (at least 50 percent) that fish that are discarded. (ii) Acceptable biological catch (ABC) is catch equal to the stock’s ABC will not a level of a stock or stock complex’s result in overfishing, but other appro- annual catch, which is based on an priate methods can be used. When de- ABC control rule that accounts for the termining the risk policy, Councils scientific uncertainty in the estimate could consider the economic, social, of OFL, any other scientific uncer- and ecological trade-offs between being tainty, and the Council’s risk policy. more or less risk averse. The Council’s (iii) Annual catch limit (ACL) is a choice of a risk policy cannot result in limit on the total annual catch of a an ABC that exceeds the OFL. The stock or stock complex, which cannot process of establishing an ABC control exceed the ABC, that serves as the rule may involve science advisors or basis for invoking AMs. An ACL may the peer review process established be divided into sector-ACLs (see para- under Magnuson-Stevens Act section graph (f)(4) of this section). 302(g)(1)(E). (iv) Control rule is a policy for estab- (ii) The ABC control rule must ar- lishing a limit or target catch level ticulate how ABC will be set compared that is based on the best scientific in- to the OFL based on the scientific formation available and is established knowledge about the stock or stock by the Council in consultation with its complex and taking into account sci- SSC. entific uncertainty (see paragraph (v) Management uncertainty refers to (f)(1)(vi) of this section). The ABC con- uncertainty in the ability of managers trol rule should consider reducing fish- to constrain catch so that the ACL is ing mortality as stock size declines not exceeded, and the uncertainty in below Bmsy and as scientific uncer- quantifying the true catch amounts tainty increases, and may establish a (i.e., estimation errors). The sources of stock abundance level below which management uncertainty could in- fishing would not be allowed. When sci- clude: Late catch reporting; entific uncertainty cannot be directly misreporting; underreporting of catches; lack of sufficient inseason calculated, such as when proxies are management, including inseason clo- used, then a proxy for the uncertainty sure authority; or other factors. should be established based on the best (vi) Scientific uncertainty refers to un- scientific information, including com- certainty in the information about a parison to other stocks. The control stock and its reference points. Sources rule may be used in a tiered approach of scientific uncertainty could include: to address different levels of scientific Uncertainty in stock assessment re- uncertainty. Councils can develop ABC sults; uncertainty in the estimates of control rules that allow for changes in MFMT, MSST, the biomass of the catch limits to be phased-in over time stock, and OFL; time lags in updating or to account for the carry-over of assessments; the degree of retrospec- some of the unused portion of the ACL tive revision of assessment results; un- from one year to the next. The Council certainty in projections; uncertainties must articulate within its FMP when

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the phase-in and/or carry-over provi- (3) Specification of ABC. ABC may not sions of the control rule can and can- exceed OFL (see paragraph (e)(2)(i)(D) not be used and how each provision of this section). Councils and their SSC prevents overfishing, based on a com- should develop a process by which the prehensive analysis. SSC can access the best scientific in- (A) Phase-in ABC control rules. Large formation available when imple- changes in catch limits due to new sci- menting the ABC control rule (i.e., entific information about the status of specifying the ABC). The SSC must the stock can have negative short-term recommend the ABC to the Council. An effects on a fishing industry. To help SSC may recommend an ABC that dif- stabilize catch levels as stock assess- fers from the result of the ABC control ments are updated, a Council may rule calculation, based on factors such choose to develop a control rule that as data uncertainty, recruitment varia- phases in changes to ABC over a period bility, declining trends in population of time, not to exceed 3 years, as long variables, and other factors, but must as overfishing is prevented each year provide an explanation for the devi- (i.e., the phased-in catch level cannot ation. For Secretarial FMPs or amend- exceed the OFL in any year). In addi- ments, agency scientists or a peer review process would provide the sci- tion, the Councils should evaluate the entific advice to establish ABC. For appropriateness of phase-in provisions internationally-assessed stocks, an for stocks that are overfished and/or ABC as defined in these guidelines is rebuilding, as the overriding goal for not required if stocks fall under the such stocks is to rebuild them in as international exception (see paragraph short a time as possible. (h)(1)(ii) of this section). While the (B) Carry-over ABC control rules. An ABC is allowed to equal OFL, NMFS ABC control rule may include provi- expects that in most cases ABC will be sions for the carry-over of some of the reduced from OFL to reduce the prob- unused portion of an ACL (i.e., an ACL ability that overfishing might occur. underage) from one year to increase (i) Expression of ABC. ABC should be the ABC for the next year, based on the expressed in terms of catch, but may be increased stock abundance resulting expressed in terms of landings as long from the fishery harvesting less than as estimates of bycatch and any other the full ACL. The resulting ABC rec- fishing mortality not accounted for in ommended by the SSC must prevent the landings are incorporated into the overfishing and must consider sci- determination of ABC. entific uncertainty consistent with the (ii) ABC for overfished stocks. For Council’s risk policy. Carry-over provi- overfished stocks and stock complexes, sions could also allow an ACL to be ad- a rebuilding ABC must be set to reflect justed upwards as long as the revised the annual catch that is consistent ACL does not exceed the specified ABC. with the schedule of fishing mortality When considering whether to use a rates (i.e., Frebuild) in the rebuilding carry-over provision, Councils should plan. consider the likely reason for the ACL (4) Setting the annual catch limit— (i) underage. ACL underages that result General. ACL cannot exceed the ABC from management uncertainty (e.g., and may be set annually or on a premature fishery closure) may be ap- multiyear plan basis. ACLs in coordi- propriate circumstances for consid- nation with AMs must prevent over- ering a carry-over provision. ACL fishing (see MSA section 303(a)(15)). If underages that occur as a result of an Annual Catch Target (ACT), or poor or unknown stock status may not functional equivalent, is not used, be appropriate to consider in a carry- management uncertainty should be ac- over provision. In addition, the Coun- counted for in the ACL. If a Council cils should evaluate the appropriate- recommends an ACL which equals ness of carry-over provisions for stocks ABC, and the ABC is equal to OFL, the that are overfished and/or rebuilding, Secretary may presume that the pro- as the overriding goal for such stocks posal would not prevent overfishing, in is to rebuild them in as short a time as the absence of sufficient analysis and possible. justification for the approach. A

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‘‘multiyear plan’’ as referenced in sec- cluding AMs for state or territorial and tion 303(a)(15) of the Magnuson-Stevens Federal waters), to prevent overfishing Act is a plan that establishes harvest of shared stocks and ensure their sus- specifications or harvest guidelines for tainability. each year of a time period greater than (iv) Relationship between OY and the 1 year. A multiyear plan must include ACL framework. The dual goals of NS1 a mechanism for specifying ACLs for are to prevent overfishing and achieve each year with appropriate AMs to pre- OY on a continuing basis. The ABC is vent overfishing and maintain an ap- an upper limit on catch that prevents propriate rate of rebuilding if the stock overfishing within an established or stock complex is in a rebuilding framework of risk and other consider- plan. A multiyear plan must provide ations. As described in paragraph (e)(3) that, if an ACL is exceeded for a year, of this section, ecological, economic, then AMs are implemented for the next and social factors, as well as values as- year consistent with paragraph (g)(3) of sociated with determining the greatest this section. benefit to the Nation, are important (ii) Sector-ACLs. A Council may, but considerations in specifying OY. These is not required to, divide an ACL into types of considerations can also be con- sector-ACLs. If sector-ACLs are used, sidered in the ACL framework. For ex- sector-AMs should also be specified. ample, an ACL (or ACT) could be set ‘‘Sector,’’ for purposes of this section, lower than the ABC to account for eco- means a distinct user group to which logical, economic, and social factors separate management strategies and (e.g., needs of forage fish, promoting separate catch quotas apply. Examples stability, addressing market condi- of sectors include the commercial sections, etc.). Additionally, economic, so- tor, recreational sector, or various gear cial, or ecological trade-offs could be groups within a fishery. If the manage- evaluated when determining the risk ment measures for different sectors dif- policy for an ABC control rule (see fer in the degree of management uncer- paragraph (f)(2) of this section). While tainty, then sector-ACLs may be nec- OY is a long-term average amount of essary so that appropriate AMs can be desired yield, there is, for each year, an developed for each sector. If a Council amount of fish that is consistent with chooses to use sector-ACLs, the sum of achieving the long-term OY. A Council sector-ACLs must not exceed the stock can choose to express OY on an annual or stock complex level ACL. The sys- basis, in which case the FMP or FMP tem of ACLs and AMs designed must be amendment should indicate that the effective in protecting the stock or OY is an ‘‘annual OY.’’ An annual OY stock complex as a whole. Even if sec- cannot exceed the ACL. tor-ACLs and sector-AMs are estab- (g) Accountability measures (AMs)—(1) lished, additional AMs at the stock or Introduction. AMs are management con- stock complex level may be necessary. trols to prevent ACLs, including sec- (iii) ACLs for State-Federal Fisheries. tor-ACLs, from being exceeded, and to For stocks or stock complexes that correct or mitigate overages of the have harvest in state or territorial wa- ACL if they occur. AMs should address ters, FMPs and FMP amendments and minimize both the frequency and should include an ACL for the overall magnitude of overages and correct the stock that may be further divided. For problems that caused the overage in as example, the overall ACL could be di- short a time as possible. NMFS identi- vided into a Federal-ACL and state- fies two categories of AMs, inseason ACL. However, NMFS recognizes that AMs and AMs for when the ACL is ex- Federal management is limited to the ceeded. The FMP should identify what portion of the fishery under Federal sources of data will be used to imple- authority. See 16 U.S.C. 1856. When ment AMs (e.g., inseason data, annual stocks are co-managed by Federal, catch compared to the ACL, or multi- state, tribal, and/or territorial fishery year averaging approach). managers, the goal should be to de- (2) Inseason AMs. Whenever possible, velop collaborative conservation and FMPs should include inseason moni- management strategies, and scientific toring and management measures to capacity to support such strategies (in- prevent catch from exceeding ACLs.

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Inseason AMs could include, but are justment, is needed to mitigate the ef- not limited to: An annual catch target fects of the overage. (see paragraph (g)(4) of this section); (4) Annual Catch Target (ACT) and closure of a fishery; closure of specific ACT control rule. ACTs, or the func- areas; changes in gear; changes in trip tional equivalent, are recommended in size or bag limits; reductions in effort; the system of AMs so that ACL is not or other appropriate management con- exceeded. An ACT is an amount of an- trols for the fishery. If final data or nual catch of a stock or stock complex data components of catch are delayed, that is the management target of the Councils should make appropriate use fishery, and accounts for management of preliminary data, such as landed uncertainty in controlling the catch at catch, in implementing inseason AMs. or below the ACL. ACT control rules FMPs should contain inseason closure can be used to articulate how manage- authority giving NMFS the ability to ment uncertainty is accounted for in close fisheries if it determines, based setting the ACT. ACT control rules can on data that it deems sufficiently reli- be developed by the Council, in coordi- able, that an ACL has been exceeded or nation with the SSC, to help the Coun- is projected to be reached, and that clo- cil account for management uncer- sure of the fishery is necessary to pre- tainty. vent overfishing. For fisheries without (5) AMs based on multi-year average inseason management control to pre- data. Some fisheries have highly vari- vent the ACL from being exceeded, able annual catches and lack reliable AMs should utilize ACTs that are set inseason or annual data on which to below ACLs so that catches do not ex- base AMs. If there are insufficient data ceed the ACL. upon which to compare catch to ACL, (3) AMs for when the ACL is exceeded. AMs could be based on comparisons of On an annual basis, the Council must average catch to average ACL over a determine as soon as possible after the three-year moving average period or, if fishing year if an ACL was exceeded. If supported by analysis, some other ap- an ACL was exceeded, AMs must be im- propriate multi-year period. Councils plemented as soon as possible to cor- should explain why basing AMs on a rect the operational issue that caused multi-year period is appropriate. Eval- the ACL overage, as well as any bio- uation of the moving average catch to logical consequences to the stock or the average ACL must be conducted stock complex resulting from the over- annually, and if the average catch ex- age when it is known. These AMs could ceeds the average ACL, appropriate include, among other things, modifica- AMs should be implemented consistent tions of inseason AMs, the use or modi- with paragraph (g)(3) of this section. fication of ACTs, or overage adjust- (6) AMs for State-Federal Fisheries. For ments. The type of AM chosen by a stocks or stock complexes that have Council will likely vary depending on harvest in state or territorial waters, the sector of the fishery, status of the FMPs and FMP amendments must, at a stock, the degree of the overage, re- minimum, have AMs for the portion of cruitment patterns of the stock, or the fishery under Federal authority. other pertinent information. If an ACL Such AMs could include closing the is set equal to zero and the AM for the EEZ when the Federal portion of the fishery is a closure that prohibits fish- ACL is reached, or the overall stock’s ing for a stock, additional AMs are not ACL is reached, or other measures. required if only small amounts of catch (7) Performance Standard. If catch ex- (including bycatch) occur, and the ceeds the ACL for a given stock or catch is unlikely to result in over- stock complex more than once in the fishing. For stocks and stock com- last four years, the system of ACLs and plexes in rebuilding plans, the AMs AMs should be reevaluated, and modi- should include overage adjustments fied if necessary, to improve its per- that reduce the ACLs in the next fish- formance and effectiveness. If AMs are ing year by the full amount of the based on multi-year average data, the overage, unless the best scientific in- performance standard is based on a formation available shows that a re- comparison of the average catch to the duced overage adjustment, or no ad- average ACL. A Council could choose a

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higher performance standard (e.g., a conservation and management of En- stock’s catch should not exceed its dangered Species Act listed species, ACL more often than once every five or harvests from aquaculture operations, six years) for a stock that is particu- stocks with unusual life history char- larly vulnerable to the effects of over- acteristics (e.g., Pacific salmon, where fishing, if the vulnerability of the the spawning potential for a stock is stock has not already been accounted spread over a multi-year period), and for in the ABC control rule. stocks for which data are not available (h) Establishing ACL mechanisms and either to set reference points based on AMs in FMPs. FMPs or FMP amend- MSY or MSY proxies, or to manage to ments must establish ACL mechanisms reference points based on MSY or MSY and AMs for all stocks and stock com- proxies. In these circumstances, Coun- plexes that require conservation and cils may propose alternative ap- management (see § 600.305(c)), unless proaches for satisfying requirements of paragraph (h)(1) of this section is appli- the Magnuson-Stevens Act other than cable. These mechanisms should de- those set forth in these guidelines. scribe the annual or multiyear process Councils must document their ration- by which ACLs, AMs, and other reference points such as OFL and ABC ale for any alternative approaches in will be established. an FMP or FMP amendment, which (1) Exceptions from ACL and AM re- will be reviewed for consistency with quirements—(i) Life cycle. Section the Magnuson-Stevens 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 have a life cycle of approximately SAFE reports as appropriate, Councils 1 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’’ (Pub. L. 109–479 collection methods used for all stocks 104(b)(2)). This exception applies to a and stock complexes in their FMPs, in- stock for which the average age of cluding: spawners in the population is approxi- (1) Sources of fishing mortality (both mately 1 year or less. While exempt landed and discarded), including com- from the ACL and AM requirements, mercial and recreational catch and by- FMPs or FMP amendments for these catch in other fisheries; stocks must have SDC, MSY, OY, ABC, (2) Description of the data collection and an ABC control rule. and estimation methods used to quan- (ii) International fishery agreements. tify total catch mortality in each fish- Section 303(a)(15) of the Magnuson-Ste- ery, including information on the man- vens Act applies ‘‘unless otherwise pro- agement tools used (e.g., logbooks, ves- vided for under an international agree- sel monitoring systems, observer pro- ment in which the United States par- grams, landings reports, fish tickets, ticipates’’ (Pub. L. 109–479 104(b)(1)). processor reports, dealer reports, rec- This exception applies to stocks or reational angler surveys, or other stock complexes subject to management under an international agree- methods); the frequency with which ment, which is defined as ‘‘any bilat- data are collected and updated; and the eral or multilateral treaty, convention, scope of sampling coverage for each or agreement which relates to fishing fishery; and and to which the United States is a (3) Description of the methods used party’’ (see Magnuson-Stevens Act sec- to compile catch data from various tion 3(24)). These stocks would still catch data collection methods and how need to have SDC, MSY, and OY. those data are used to determine the (2) Flexibility in application of NS1 relationship between total catch at a guidelines. There are limited cir- given point in time and the ACL for cumstances that may not fit the stand- stocks and stock complexes that re- ard approaches to specification of ref- quire conservation and management. erence points and management meas- (j) Council actions to address over- ures set forth in these guidelines. fishing and rebuilding for stocks and These include, among other things, stock complexes—

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(1) Notification. The Secretary will the U.S. participates, and interaction immediately notify in writing a Re- of the stock within the marine eco- gional Fishery Management Council system. In addition, the time period whenever the Secretary determines shall not exceed 10 years, except where that: biology of the stock, other environ- (i) Overfishing is occurring; mental conditions, or management (ii) A stock or stock complex is over- measures under an international agree- fished; ment to which the U.S. participates, (iii) A stock or stock complex is ap- dictate otherwise. SSCs (or agency sci- proaching an overfished condition; or entists or peer review processes in the (iv) Existing remedial action taken case of Secretarial actions) shall pro- for the purpose of ending previously vide recommendations for achieving re- identified overfishing or rebuilding a building targets (see Magnuson-Stevens previously identified overfished stock Act section 302(g)(1)(B)). The above fac- or stock complex has not resulted in tors enter into the specification of adequate progress (see MSA section Ttarget as follows: 304(e)). (A) The minimum time for rebuilding a (2) Timing of actions—(i) If a stock or stock (Tmin). Tmin means the amount of stock complex is undergoing overfishing. time the stock or stock complex is ex- Upon notification that a stock or stock pected to take to rebuild to its MSY complex is undergoing overfishing, a biomass level in the absence of any Council should immediately begin fishing mortality. In this context, the working with its SSC (or agency sci- term ‘‘expected’’ means to have at entists or peer review processes in the least a 50 percent probability of attain- case of Secretarially-managed fishing the Bmsy, where such probabilities eries) to ensure that the ABC is set ap- can be calculated. The starting year for propriately to end overfishing. Coun- the Tmin calculation should be the first cils should evaluate the cause of over- year that the rebuilding plan is ex- fishing, address the issue that caused pected to be implemented. overfishing, and reevaluate their ACLs (B) The maximum time for rebuilding a and AMs to make sure they are ade- stock or stock complex to its Bmsy (Tmax). quate. (1) If Tmin for the stock or stock com- (ii) If a stock or stock complex is over- plex is 10 years or less, then Tmax is 10 fished or approaching an overfished con- years. dition. Upon notification that a stock (2) If Tmin for the stock or stock com- or stock complex is overfished or ap- plex exceeds 10 years, then one of the proaching an overfished condition, a following methods can be used to deter- Council must prepare and implement mine Tmax: an FMP, FMP amendment, or proposed (i) Tmin plus the length of time associ- regulations within two years of notifi- ated with one generation time for that cation, consistent with the require- stock or stock complex. ‘‘Generation ments of section 304(e)(3) of the Magnu- time’’ is the average length of time be- son-Stevens Act. Council actions tween when an individual is born and should be submitted to NMFS within 15 the birth of its offspring, months of notification to ensure suffi- (ii) The amount of time the stock or cient time for the Secretary to imple- stock complex is expected to take to ment the measures, if approved. rebuild to Bmsy if fished at 75 percent of (3) Overfished fishery.—(i) Where a MFMT, or stock or stock complex is overfished, a (iii) Tmin multiplied by two. Council must specify a time period for (3) In situations where Tmin exceeds 10 rebuilding the stock or stock complex years, Tmax establishes a maximum based on factors specified in Magnuson- time for rebuilding that is linked to Stevens Act section 304(e)(4). This tar- the biology of the stock. When select- get time for rebuilding (Ttarget) shall be ing a method for determining Tmax, a as short as possible, taking into ac- Council, in consultation with its SSC, count: The status and biology of any should consider the relevant biological overfished stock, the needs of fishing data and scientific uncertainty of that communities, recommendations by data, and must provide a rationale for international organizations in which its decision based on the best scientific

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information available. One of the this provision, the Secretary will no- methods listed in subparagraphs tify the appropriate Council and rec- (j)(3)(i)(B)(2)(ii) and (iii) may be appro- ommend further conservation and man- priate, for example, if given data avail- agement measures, and the Council ability and the life history characteris- must develop and implement a new or tics of the stock, there is high uncer- revised rebuilding plan within two tainty in the estimate of generation years (see MSA sections 304(e)(3) and time, or if generation time does not ac- (e)(7)(B)). For Secretarially-managed curately reflect the productivity of the fisheries, the Secretary would take im- stock. mediate action necessary to achieve (C) Target time to rebuilding a stock or adequate progress toward rebuilding stock complex (Ttarget). Ttarget is the speci- and ending overfishing. fied time period for rebuilding a stock (v) While a stock or stock complex is that is considered to be as short a time rebuilding, revising rebuilding time- as possible, taking into account the frames (i.e., Ttarget and Tmax) or Frebuild is factors described in paragraph (j)(3)(i) not necessary, unless the Secretary of this section. Ttarget shall not exceed finds that adequate progress is not Tmax, and the fishing mortality associ- being made. ated with achieving Ttarget is referred to (vi) If a stock or stock complex has as Frebuild. not rebuilt by Tmax, then the fishing (ii) Council action addressing an mortality rate should be maintained at overfished fishery must allocate both its current Frebuild or 75 percent of the overfishing restrictions and recovery MFMT, whichever is less, until the benefits fairly and equitably among stock or stock complex is rebuilt or the sectors of the fishery. fishing mortality rate is changed as a (iii) For fisheries managed under an result of the Secretary finding that international agreement, Council ac- adequate progress is not being made. tion addressing an overfished fishery (4) Emergency actions and interim must reflect traditional participation measures. If a Council is developing a in the fishery, relative to other na- rebuilding plan or revising an existing tions, by fishermen of the United rebuilding plan due to a lack of ade- States. quate progress (see MSA section (iv) Adequate Progress. The Secretary 304(e)(7)), the Secretary may, in re- shall review rebuilding plans at routine sponse to a Council request, implement intervals that may not exceed two interim measures that reduce, but do years to determine whether the plans not necessarily end, overfishing (see have resulted in adequate progress to- MSA section 304(e)(6)) if all of the fol- ward ending overfishing and rebuilding lowing criteria are met: affected fish stocks (MSA section (i) The interim measures are needed 304(e)(7)). Such reviews could include to address an unanticipated and signifi- the review of recent stock assessments, cantly changed understanding of the comparisons of catches to the ACL, or status of the stock or stock complex; other appropriate performance meas- (ii) Ending overfishing immediately ures. The Secretary may find that ade- is expected to result in severe social quate progress is not being made if and/or economic impacts to a fishery; Frebuild or the ACL associated with and Frebuild is exceeded, and AMs are not cor- (iii) The interim measures will en- recting the operational issue that sure that the stock or stock complex caused the overage, nor addressing any will increase its current biomass biological consequences to the stock or through the duration of the interim stock complex resulting from the over- measures. age when it is known (see paragraph (5) Discontinuing a rebuilding plan (g)(3) of this section). A lack of ade- based on new scientific information. A quate progress may also be found when Council may discontinue a rebuilding the rebuilding expectations of a stock plan for a stock or stock complex be- or stock complex are significantly fore it reaches Bmsy if the Secretary de- changed due to new and unexpected in- termines that the stock was not over- formation about the status of the fished in the year that the overfished stock. If a determination is made under determination (see MSA section

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304(e)(3)) was based on and has never mates of a nation’s landings or catch been overfished in any subsequent year (including bycatch) in a given fishery, including the current year. and estimates of a nation’s mortality (k) International overfishing. If the contributions in a given fishery. Infor- Secretary determines that a fishery is mation used to determine relative im- overfished or approaching a condition pact must be based upon the best avail- of being overfished due to excessive able scientific information. international fishing pressure, and for (l) Exceptions to requirements to pre- which there are no management meas- vent overfishing. Exceptions to the re- ures (or no effective measures) to end quirement to prevent overfishing could overfishing under an international apply under certain limited cir- agreement to which the United States cumstances. Harvesting one stock at is a party, then the Secretary and/or its optimum level may result in over- the appropriate Council shall take cer- fishing of another stock when the two tain actions as provided under Magnu- stocks tend to be caught together (This son-Stevens Act section 304(i). The Sec- can occur when the two stocks are part retary, in cooperation with the Sec- of the same fishery or if one is bycatch retary of State, must immediately in the other’s fishery). Before a Council take appropriate action at the inter- may decide to allow this type of over- national level to end the overfishing. fishing, an analysis must be performed In addition, within one year after the and the analysis must contain a jus- determination, the Secretary and/or tification in terms of overall benefits, appropriate Council shall: including a comparison of benefits (1) Develop recommendations for do- under alternative management meas- mestic regulations to address the rel- ures, and an analysis of the risk of any ative impact of the U.S. fishing vessels stock or stock complex falling below on the stock. Council recommendations its MSST. The Council may decide to should be submitted to the Secretary. allow this type of overfishing if the (2) Develop and submit recommenda- fishery is not overfished and the anal- tions to the Secretary of State, and to ysis demonstrates that all of the fol- the Congress, for international actions lowing conditions are satisfied: that will end overfishing in the fishery (1) Such action will result in long- and rebuild the affected stocks, taking term net benefits to the Nation; into account the relative impact of (2) Mitigating measures have been vessels of other nations and vessels of considered and it has been dem- the United States on the relevant onstrated that a similar level of long- stock. Councils should, in consultation term net benefits cannot be achieved with the Secretary, develop rec- by modifying fleet behavior, gear selec- ommendations that take into consider- tion/configuration, or other technical ation relevant provisions of the Magnu- characteristics in a manner such that son-Stevens Act and NS1 guidelines, in- no overfishing would occur; and cluding section 304(e) of the Magnuson- (3) The resulting rate of fishing mor- Stevens Act and paragraph (j)(3)(iii) of tality will not cause any stock or stock this section, and other applicable laws. complex to fall below its MSST more For highly migratory species in the Pa- than 50 percent of the time in the long cific, recommendations from the West- term, although it is recognized that ern Pacific, North Pacific, or Pacific persistent overfishing is expected to Councils must be developed and sub- cause the affected stock to fall below mitted consistent with Magnuson-Ste- its Bmsy more than 50 percent of the vens Reauthorization Act section time in the long term. 503(f), as appropriate. (3) Considerations for assessing ‘‘rel- [81 FR 71895, Oct. 18, 2016] ative impact.’’ ‘‘Relative impact’’ under paragraphs (k)(1) and (2) of this section § 600.315 National Standard 2—Sci- may include consideration of factors entific Information. that include, but are not limited to: (a) Standard 2. Conservation and Domestic and international manage- management measures shall be based ment measures already in place, man- upon the best scientific information agement history of a given nation, esti- available.

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(1) Fishery conservation and manage- troversy. Emergent science is rel- ment require high quality and timely atively new knowledge that is still biological, ecological, environmental, evolving and being verified, therefore, economic, and sociological scientific may potentially be uncertain and con- information to effectively conserve and troversial. Emergent science should be manage living marine resources. Suc- considered more thoroughly, and sci- cessful fishery management depends, in entists should be attentive to effective part, on the thorough analysis of this communication of emerging science. information, and the extent to which (5) Science is a dynamic process, and the information is applied for: new scientific findings constantly ad- (i) Evaluating the potential impact vance the state of knowledge. Best sci- that conservation and management entific information is, therefore, not measures will have on living marine re- static and ideally entails developing sources, essential fish habitat (EFH), and following a research plan with the marine ecosystems, fisheries partici- following elements: Clear statement of pants, fishing communities, and the objectives; conceptual model that pro- nation; and vides the framework for interpreting (ii) Identifying areas where addi- results, making predictions, or testing tional management measures are need- hypotheses; study design with an ex- ed. plicit and standardized method of col- (2) Scientific information that is lecting data; documentation of meth- used to inform decision making should ods, results, and conclusions; peer re- include an evaluation of its uncer- view, as appropriate; and communica- tainty and identify gaps in the infor- tion of findings. mation. Management decisions should (6) Criteria to consider when evalu- recognize the biological (e.g., over- ating best scientific information are fishing), ecological, sociological, and relevance, inclusiveness, objectivity, economic (e.g., loss of fishery benefits) transparency and openness, timeliness, risks associated with the sources of un- verification and validation, and peer certainty and gaps in the scientific in- review, as appropriate. formation. (3) Information-limited fisheries, (i) Relevance. Scientific information commonly referred to as ‘‘data-poor’’ should be pertinent to the current fisheries, may require use of simpler questions or issues under consideration assessment methods and greater use of and should be representative of the proxies for quantities that cannot be fishery being managed. In addition to directly estimated, as compared to the information collected directly data-rich fisheries. about the fishery being managed, rel- (4) Scientific information includes, evant information may be available but is not limited to, factual input, about the same species in other areas, data, models, analyses, technical infor- or about related species. For example, mation, or scientific assessments. Sci- use of proxies may be necessary in entific information includes data com- data-poor situations. Analysis of re- piled directly from surveys or sampling lated stocks or species may be a useful programs, and models that are mathe- tool for inferring the likely traits of matical representations of reality con- stocks for which stock-specific data structed with primary data. The com- are unavailable or are not sufficient to plexity of the model should not be the produce reliable estimates. Also, if defining characteristic of its value; the management measures similar to those data requirements and assumptions as- being considered have been introduced sociated with a model should be com- in other regions and resulted in par- mensurate with the resolution and ac- ticular behavioral responses from par- curacy of the available primary data. ticipants or business decisions from in- Scientific information includes estab- dustry, such social and economic infor- lished and emergent scientific informa- mation may be relevant. tion. Established science is scientific (ii) Inclusiveness. Three aspects of in- knowledge derived and verified through clusiveness should be considered when a standard scientific process that tends developing and evaluating best sci- to be agreed upon often without con- entific information:

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(A) The relevant range of scientific no results to help inform a manage- disciplines should be consulted to en- ment decision. Sufficient time should compass the scope of potential impacts be allotted to audit and analyze re- of the management decision. cently acquired information to ensure (B) Alternative scientific points of its reliability. Data collection methods view should be acknowledged and ad- are expected to be subjected to appro- dressed openly when there is a diver- priate review before providing data sity of scientific thought. used to inform management decisions. (C) Relevant local and traditional (A) For information that needs to be knowledge (e.g., fishermen’s empirical updated on a regular basis, the tem- knowledge about the behavior and dis- poral gap between information collec- tribution of fish stocks) should be ob- tion and management implementation tained, where appropriate, and consid- should be as short as possible, subject ered when evaluating the BSIA. to regulatory constraints, and such (iii) Objectivity. Scientific informa- timing concerns should be explicitly tion should be accurate, with a known considered when developing conserva- degree of precision, without address- tion and management measures. Late able bias, and presented in an accurate, submission of scientific information to clear, complete, and balanced manner. the Council process should be avoided Scientific processes should be free of if the information has circumvented undue nonscientific influences and con- the review process. Data collection is a siderations. continuous process, therefore analysis (iv) Transparency and openness. (A) of scientific information should specify The Magnuson-Stevens Act provides a clear time point beyond which new broad public and stakeholder access to information would not be considered in the fishery conservation and manage- that analysis and would be reserved for ment process, including access to the use in subsequent analytical updates. scientific information upon which the (B) Historical information should be process and management measures are evaluated for its relevance to inform based. Public comment should be solic- the current situation. For example, ited at appropriate times during the re- some species’ life history characteris- view of scientific information. Commu- tics might not change over time. Other nication with the public should be historical data (e.g., abundance, envi- structured to foster understanding of ronmental, catch statistics, market the scientific process. and trade trends) provide time-series (B) Scientific information products information on changes in fish popu- should describe data collection meth- lations, fishery participation, and fish- ods, report sources of uncertainty or ing effort that may inform current statistical error, and acknowledge management decisions. other data limitations. Such products (vi) Verification and validation. Meth- should explain any decisions to exclude ods used to produce scientific informa- data from analysis. Scientific products tion should be verified and validated to should identify major assumptions and the extent possible. uncertainties of analytical models. Fi- (A) Verification means that the data nally, such products should openly ac- and procedures used to produce the sci- knowledge gaps in scientific informa- entific information are documented in tion. sufficient detail to allow reproduction (v) Timeliness. Mandatory manage- of the analysis by others with an ac- ment actions should not be delayed due ceptable degree of precision. External to limitations in the scientific infor- reviewers of scientific information re- mation or the promise of future data quire this level of documentation to collection or analysis. In some cases, conduct a thorough review. due to time constraints, results of im- (B) Validation refers to the testing of portant studies or monitoring pro- analytical methods to ensure that they grams may be considered for use before perform as intended. Validation should they are fully complete. Uncertainties include whether the analytical method and risks that arise from an incom- has been programmed correctly in the plete study should be acknowledged, computer software, the accuracy and but interim results may be better than precision of the estimates is adequate,

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and the estimates are robust to model work in conjunction with the SSC (see assumptions. Models should be tested § 600.310(b)(2)(v)(C)). This section pro- using simulated data from a population vides guidance and standards that with known properties to evaluate how should be followed in order to establish well the models estimate those charac- a peer review process per Magnuson- teristics and to correct for known bias Stevens Act section 302(g)(1)(E). to achieve accuracy. The concept of (1) The objective or scope of the peer validation using simulation testing review, the nature of the scientific in- should be used, to the extent possible, formation to be reviewed, and timing to evaluate how well a management of the review should be considered strategy meets management objec- when selecting the type of peer review tives. to be used. The process established by (vii) Peer review. Peer review is a the Secretary and Council should focus process used to ensure that the quality on providing review for information and credibility of scientific informa- that has not yet undergone rigorous tion and scientific methods meet the peer review, but that must be peer re- standards of the scientific and tech- viewed in order to provide reliable, nical community. Peer review helps en- high quality scientific advice for fish- sure objectivity, reliability, and integ- ery conservation and management. Du- rity of scientific information. The peer plication of previously conducted peer review process is an organized method review should be avoided. that uses peer scientists with appro- (i) Form of process. The peer review priate and relevant expertise to evalu- process may include or consist of exist- ate scientific information. The sci- ing Council committees or panels if entific information that supports con- they meet the standards identified servation and management measures herein. The Secretary and Council have considered by the Secretary or a Coun- discretion to determine the appro- cil should be peer reviewed, as appropriate peer review process for a specific priate. Factors to consider when deter- information product. A peer review can mining whether to conduct a peer re- take many forms, including individual view and if so, the appropriate level of letter or written reviews and panel re- review, include the novelty and com- views. plexity of the scientific information to (ii) Timing. The peer review should, to be reviewed, the level of previous re- the extent practicable, be conducted view and the importance of the infor- early in the process of producing sci- mation to be reviewed to the decision entific information or a work product, making process. Routine updates based so peer review reports are available for on previously reviewed methods re- the SSC to consider in its evaluation of quire less review than novel methods scientific information for its Council or data. If formal peer review is not and the Secretary. The timing will de- practicable due to time or resource pend in part on the scope of the review. constraints, the development and anal- For instance, the peer review of a new ysis of scientific information used in or or novel method or model should be in support of fishery management ac- conducted before there is an invest- tions should be as transparent as pos- ment of time and resources in imple- sible, in accordance with paragraph menting the model and interpreting (a)(6)(iv) of this section. Other applica- the results. The results of this type of ble guidance on peer review can be peer review may contribute to im- found in the Office of Management and provements in the model or assess- Budget Final Information Quality Bul- ment. letin for Peer Review. (iii) Scope of work. The scope of work (b) Peer review process. The Secretary or charge (sometimes called the terms and each Council may establish a peer of reference) of any peer review should review process for that Council for sci- be determined in advance of the selec- entific information used to advise tion of reviewers. The scope of work about the conservation and manage- contains the objectives of the peer re- ment of the fishery. 16 U.S.C. view, evaluation of the various stages 1852(g)(1)(E). A peer review process is of the science, and specific rec- not a substitute for an SSC and should ommendations for improvement of the

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science. The scope of work should be of interest is any financial or other in- carefully designed, with specific tech- terest which conflicts with the service nical questions to guide the peer re- of the individual on a review panel be- view process; it should ask peer review- cause it: could significantly impair the ers to ensure that scientific uncertain- reviewer’s objectivity, or could create ties are clearly identified and charac- an unfair competitive advantage for a terized, it should allow peer reviewers person or organization. the opportunity to offer a broad eval- (B) No individual can be appointed to uation of the overall scientific or tech- a review panel if that individual has a nical product under review, as well as conflict of interest that is relevant to to make recommendations regarding the functions to be performed. For re- areas of missing information, future reviews requiring highly specialized ex- search, data collection, and improve- pertise, the limited availability of ments in methodologies, and it must qualified reviewers might result in an not change during the course of the exception when a conflict of interest is peer review. The scope of work may not unavoidable; in this situation, the con- request reviewers to provide advice on flict must be promptly and publicly policy or regulatory issues (e.g., disclosed. Conflicts of interest include, amount of precaution used in decision- but are not limited to, the personal fi- making) which are within the purview nancial interests and investments, em- of the Secretary and the Councils, or to ployer affiliations, and consulting ar- make formal fishing level rec- rangements, grants, or contracts of the ommendations which are within the individual and of others with whom the purview of the SSC. individual has substantial common fi- (2) Peer reviewer selection. The selec- nancial interests, if these interests are tion of participants in a peer review relevant to the functions to be per- should be based on expertise, independ- formed. ence, and a balance of viewpoints, and (iii) Independence. Peer reviewers be free of conflicts of interest. must not have contributed or partici- (i) Expertise and balance. Peer review- pated in the development of the work ers must be selected based on scientific product or scientific information under expertise and experience relevant to review. For peer review of products of the disciplines of subject matter to be higher novelty or controversy, a great- reviewed. The group of reviewers that er degree of independence is necessary constitute the peer review should re- to ensure credibility of the peer review flect a balance in perspectives, to the process. Peer reviewer responsibilities extent practicable, and should have should rotate across the available pool sufficiently broad and diverse expertise of qualified reviewers or among the to represent the range of relevant sci- members on a standing peer review entific and technical perspectives to panel to prevent a peer reviewer from complete the objectives of the peer re- repeatedly reviewing the same sci- view. entific information, recognizing that, (ii) Conflict of interest. Peer reviewers in some cases, repeated service by the who are federal employees must com- same reviewer may be needed because ply with all applicable federal ethics of limited availability of specialized requirements. Potential reviewers who expertise. are not federal employees must be (3) Transparency. A transparent proc- screened for conflicts of interest in ac- ess is one that ensures that back- cordance with the NOAA Policy on ground documents and reports from Conflicts of Interest for Peer Review peer review are publicly available, sub- Subject to OMB’s Peer Review Bulletin ject to Magnuson-Stevens Act con- or other applicable rules or guidelines. fidentiality requirements, and allows (A) Under the NOAA policy, peer re- the public full and open access to peer viewers must not have any conflicts of review panel meetings. The evaluation interest with the scientific informa- and review of scientific information by tion, subject matter, or work product the Councils, SSCs or advisory panels under review, or any aspect of the must be conducted in accordance with statement of work for the peer review. meeting procedures at § 600.135. Con- For purposes of this section, a conflict sistent with that section, public notice

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of peer review panel meetings should the Council’s advisory body by allow- be announced in the FEDERAL REGISTER ing that member to make a more in- with a minimum of 14 days and with an formed evaluation of the scientific in- aim of 21 days before the review to formation. Participation of an SSC allow public comments during meet- member in a peer review should not im- ings. Background documents should be pair the ability of that member to ful- available for public review in a timely fill his or her responsibilities to the manner prior to meetings. Peer review SSC. reports describing the scope and objec- (3) If an SSC as a body conducts a tives of the review, findings in accord- peer review established under Magnu- ance with each objective, and conclu- son-Stevens Act section 302(g)(1)(E) or sions should be publicly available. individual members of an SSC partici- Names and organizational affiliations pate in such a peer review, the SSC of reviewers also should be publicly members must meet the peer reviewer available. selection criteria as described in para- (4) Publication of the peer review proc- graph (b)(2) of this section. In addition, ess. The Secretary will announce the the financial disclosure requirements establishment of a peer review process under § 600.235, Financial Disclosure for under Magnuson-Stevens Act section Councils and Council committees, 302(g)(1)(E) in the FEDERAL REGISTER apply. When the SSC as a body is con- along with a brief description of the ducting a peer review, it should strive process. In addition, detailed informa- for consensus and must meet the trans- tion on such processes will be made parency guidelines under paragraphs publicly available on the Council’s Web (a)(6)(iv) and (b)(3) of this section. If site, and updated as necessary. consensus cannot be reached, minority (c) SSC scientific evaluation and advice viewpoints should be recorded. to the Council. Each scientific and statistical committee shall provide its (4) The SSC’s evaluation of a peer re- Council ongoing scientific advice for view conducted by a body other than fishery management decisions, includ- the SSC should consider the extent and ing recommendations for acceptable bi- quality of peer review that has already ological catch, preventing overfishing, taken place. For Councils with exten- maximum sustainable yield, achieving sive and detailed peer review processes rebuilding targets, and reports on (e.g., a process established pursuant to stock status and health, bycatch, habi- Magnuson-Stevens Act section tat status, social and economic im- 302(g)(1)(E)), the evaluation by the SSC pacts of management measures, and of the peer reviewed information sustainability of fishing practices. 16 should not repeat the previously con- U.S.C. 1852(g)(1)(B). ducted and detailed technical peer re- (1) SSC scientific advice and rec- view. However, SSCs must maintain ommendations to its Council are based their role as advisors to the Council on scientific information that the SSC about scientific information that determines to meet the guidelines for comes from a peer review process. best scientific information available as Therefore, the peer review of scientific described in paragraph (a) of this sec- information used to advise the Council, tion. SSCs may conduct peer reviews or including a peer review process estab- evaluate peer reviews to provide clear lished by the Secretary and the Council scientific advice to the Council. Such under Magnuson-Stevens Act section scientific advice should attempt to re- 302(g)(1)(E), should be conducted early solve conflicting scientific informa- in the scientific evaluation process in tion, so that the Council will not need order to provide the SSC with reason- to engage in debate on technical mer- able opportunity to consider the peer its. Debate and evaluation of scientific review report and make recommenda- information is the role of the SSC. tions to the Council as required under (2) An SSC member may participate Magnuson-Stevens Act section in a peer review when such participa- 302(g)(1)(B). tion is beneficial to the peer review due (5) If an SSC disagrees with the find- to the expertise and institutional mem- ings or conclusions of a peer review, in ory of that member, or beneficial to whole or in part, the SSC must prepare

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a report outlining the areas of dis- is available to inform management de- agreement, and the rationale and infor- cisions such as status determination mation used by the SSC for making its criteria (SDC), overfishing level (OFL), determination. This report must be optimum yield, or ABC values made publicly available. (§ 600.310(c)). The SAFE report and any (6) Annual catch limits (ACLs) devel- comments or reports from the SSC oped by a Council may not exceed its must be available to the Secretary and SSC’s fishing level recommendations. Council for making management deci- 16 U.S.C. 1852(h)(6). Per the National sions for each FMP to ensure that the Standard 1 Guidelines, the SSC fishing best scientific information available is level recommendation that is most rel- being used. The Secretary or Councils evant to ACLs is acceptable biological may utilize any combination of per- catch (ABC), as both ACL and ABC are sonnel from Council, State, Federal, levels of annual catch (see university, or other sources to acquire § 600.310(b)(2)(v)(D)). The SSC is ex- and analyze data and produce the pected to take scientific uncertainty SAFE report. into account when making its ABC rec- (2) The SAFE report provides infor- ommendation (§ 600.310(f)(4)). The ABC mation to the Councils and the Sec- recommendation may be based upon retary for determining annual catch input and recommendations from the limits (§ 600.310(f)(5)) for each stock in peer review process. Any such peer re- the fishery; documenting significant view related to such recommendations trends or changes in the resource, ma- should be conducted early in the proc- rine ecosystems, and fishery over time; ess as described in paragraph (c)(4) of implementing required EFH provisions this section. The SSC should resolve (§ 600.815(a)(10)); and assessing the rel- differences between its recommenda- ative success of existing relevant state tions and any relevant peer review rec- and Federal fishery management pro- ommendations per paragraph (c)(5) of grams. The SAFE report should con- this section. tain an explanation of information (d) SAFE Report. The term SAFE gaps and highlight needs for future sci- (Stock Assessment and Fishery Eval- entific work. Information on bycatch uation) report, as used in this section, and safety for each fishery should also refers to a public document or a set of be summarized. In addition, the SAFE related public documents, that pro- report may be used to update or expand vides the Secretary and the Councils previous environmental and regulatory with a summary of scientific informa- impact documents and ecosystem de- tion concerning the most recent bio- scriptions. logical condition of stocks, stock com- (3) Each SAFE report should contain plexes, and marine ecosystems in the the following scientific information fishery management unit (FMU), essen- when it exists: tial fish habitat (EFH), and the social (i) Information on which to base and economic condition of the rec- catch specifications and status deter- reational and commercial fishing inter- minations, including the most recent ests, fishing communities, and the fish stock assessment documents and asso- processing industries. Each SAFE re- ciated peer review reports, and rec- port must be scientifically based with ommendations and reports from the appropriate citations of data sources Council’s SSC. and information. Each SAFE report (A) A description of the SDC (e.g., summarizes, on a periodic basis, the maximum fishing mortality rate best scientific information available threshold and minimum stock size concerning the past, present, and pos- threshold for each stock or stock com- sible future condition of the stocks, plex in the fishery) (§ 600.310(e)(2)). EFH, marine ecosystems, and fisheries (B) Information on OFL and ABC, being managed under Federal regula- preventing overfishing, and achieving tion. rebuilding targets. Documentation of (1) The Secretary has the responsi- the data collection, estimation meth- bility to ensure that SAFE reports are ods, and consideration of uncertainty prepared and updated or supplemented in formulating catch specification rec- as necessary whenever new information ommendations should be included

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(§ 600.310(f)(2)). The best scientific infor- report and index must be made avail- mation available to determine whether able by the Council or NMFS on a read- overfishing is occurring with respect to ily accessible Web site. any stock or stock complex, whether (e) FMP development. (1) FMPs must any stock or stock complex is over- take into account the best scientific fished, whether the rate or level of fish- information available at the time of ing mortality applied to any stock or preparation. Between the initial draft- stock complex is approaching the max- ing of an FMP and its submission for imum fishing mortality threshold, and final review, new information often be- whether the size of any stock or stock comes available. This new information complex is approaching the minimum should be incorporated into the final stock size threshold; and FMP where practicable; but it is un- (C) The best scientific information necessary to start the FMP process available in support of management over again, unless the information in- measures necessary to rebuild an over- dicates that drastic changes have oc- fished stock or stock complex (if any) curred in the fishery that might re- in the fishery to a level consistent with quire revision of the management ob- producing the MSY in that fishery. jectives or measures. (ii) Information on sources of fishing (2) The fact that scientific informa- mortality (both landed and discarded), tion concerning a fishery is incomplete including commercial and recreational does not prevent the preparation and catch and bycatch in other fisheries implementation of an FMP (see related and a description of data collection and §§ 600.320(d)(2) and 600.340(b)). estimation methods used to quantify (3) An FMP must specify whatever total catch mortality, as required by information fishermen and processors the National Standard 1 Guidelines will be required or requested to submit (§ 600.310(i)). to the Secretary. Information about (iii) Information on bycatch of non- harvest within state waters, as well as target species for each fishery. in the EEZ, may be collected if it is (iv) Information on EFH to be included in accordance with the EFH pro- needed for proper implementation of visions (§ 600.815(a)(10)) . the FMP and cannot be obtained other- (v) Pertinent economic, social, com- wise. Scientific information collections munity, and ecological information for for stocks managed cooperatively by assessing the success and impacts of Federal and State governments should management measures or the achieve- be coordinated with the appropriate ment of objectives of each FMP. state jurisdictions, to the extent prac- (4) Transparency in the fishery man- ticable, to ensure harvest information agement process is enhanced by com- is available for the management of plementing the SAFE report with the stocks that utilize habitats in state documentation of previous manage- and federal managed waters. The FMP ment actions taken by the Council or should explain the practical utility of Secretary including a summary of the the information specified in moni- previous ACLs, ACTs, and account- toring the fishery, in facilitating ability measures (AMs), and assess- inseason management decisions, and in ment of management uncertainty. judging the performance of the man- (5) To facilitate the use of the infor- agement regime; it should also con- mation in the SAFE report, and its sider the effort, cost, or social impact availability to the Council, NMFS, and of obtaining it. the public: (4) An FMP should identify scientific (i) The SAFE report should contain, information needed from other sources or be supplemented by, a summary of to improve understanding and manage- the information and an index or table ment of the resource, marine eco- of contents to the components of the system, the fishery, and fishing com- report. Sources of information in the munities. SAFE report should be referenced, un- (5) The information submitted by less the information is proprietary. various data suppliers should be com- (ii) The SAFE report or compilation parable and compatible, to the max- of documents that comprise the SAFE imum extent possible.

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(6) FMPs should be amended on a within the management unit, if the timely basis, as new information indi- FMP justifies the differences. A man- cates the necessity for change in objec- agement unit may contain stocks of tives or management measures con- fish for which there is not enough in- sistent with the conditions described in formation available to specify MSY paragraph (d) of this section (SAFE re- and OY or their proxies. ports). Paragraphs (e)(1) through (5) of (e) Analysis. An FMP should include this section apply equally to FMPs and discussion of the following: FMP amendments. (1) The range and distribution of the [78 FR 43086, July 19, 2013] stocks, as well as the patterns of fishing effort and harvest. § 600.320 National Standard 3—Man- agement Units. (2) Alternative management units and reasons for selecting a particular (a) Standard 3. To the extent prac- one. A less-than-comprehensive man- ticable, an individual stock of fish agement unit may be justified if, for shall be managed as a unit throughout example, complementary management its range, and interrelated stocks of fish shall be managed as a unit or in exists or is planned for a separate geo- close coordination. graphic area or for a distinct use of the (b) General. The purpose of this stocks, or if the unmanaged portion of standard is to induce a comprehensive the resource is immaterial to proper approach to fishery management. The management. geographic scope of the fishery, for (3) Management activities and habi- planning purposes, should cover the en- tat programs of adjacent states and tire range of the stocks(s) of fish, and their effects on the FMP’s objectives not be overly constrained by political and management measures. Where boundaries. state action is necessary to implement (c) Unity of management. Cooperation measures within state waters to and understanding among entities con- achieve FMP objectives, the FMP cerned with the fishery (e.g., Councils, should identify what state action is states, Federal Government, inter- necessary, discuss the consequences of national commissions, foreign nations) state inaction or contrary action, and are vital to effective management. make appropriate recommendations. Where management of a fishery in- The FMP should also discuss the im- volves multiple jurisdictions, coordination among the several entities should pact that Federal regulations will have be sought in the development of an on state management activities. FMP. Where a range overlaps Council (4) Management activities of other areas, one FMP to cover the entire countries having an impact on the fish- range is preferred. ery, and how the FMP’s management (d) Management unit. The term measures are designed to take into ac- ‘‘management unit’’ means a fishery or count these impacts. International that portion of a fishery identified in boundaries may be dealt with in sev- an FMP as relevant to the FMP’s man- eral ways. For example: agement objectives. (i) By limiting the management (1) Basis. The choice of a manage- unit’s scope to that portion of the ment unit depends on the focus of the stock found in U.S. waters; FMP’s objectives, and may be orga- (ii) By estimating MSY for the entire nized around biological, geographic, stock and then basing the determina- economic, technical, social, or ecologi- tion of OY for the U.S. fishery on the cal perspectives. portion of the stock within U.S. wa- (2) Conservation and management meas- ters; or ures. FMPs should include conservation and management measures for that (iii) By referring to treaties or coop- part of the management unit within erative agreements. U.S. waters, although the Secretary [81 FR 71903, Oct. 18, 2016] can ordinarily implement them only within the EEZ. The measures need not be identical for each geographic area

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§ 600.325 National Standard 4—Alloca- ment) has incidental allocative effects, tions. but only those measures that result in (a) Standard 4. Conservation and direct distributions of fishing privi- management measures shall not dis- leges will be judged against the alloca- criminate between residents of dif- tion requirements of Standard 4. Adop- ferent states. If it becomes necessary tion of an FMP that merely perpet- to allocate or assign fishing privileges uates existing fishing practices may re- among various U.S. fishermen, such al- sult in an allocation, if those practices location shall be: directly distribute the opportunity to (1) Fair and equitable to all such fish- participate in the fishery. Allocations ermen. of fishing privileges include, for exam- (2) Reasonably calculated to promote ple, per-vessel catch limits, quotas by conservation. vessel class and gear type, different (3) Carried out in such manner that quotas or fishing seasons for rec- no particular individual, corporation, reational and commercial fishermen, or other entity acquires an excessive assignment of ocean areas to different share of such privileges. gear users, and limitation of permits to (b) Discrimination among residents of a certain number of vessels or fisher- different states. An FMP may not dif- men. ferentiate among U.S. citizens, nation- (2) Analysis of allocations. Each FMP als, resident aliens, or corporations on should contain a description and anal- the basis of their state of residence. An ysis of the allocations existing in the FMP may not incorporate or rely on a fishery and of those made in the FMP. state statute or regulation that dis- The effects of eliminating an existing criminates against residents of another allocation system should be examined. state. Conservation and management Allocation schemes considered, but re- measures that have different effects on jected by the Council, should be in- persons in various geographic locations cluded in the discussion. The analysis are permissible if they satisfy the should relate the recommended alloca- other guidelines under Standard 4. Ex- tions to the FMP’s objectives and OY amples of these precepts are: specification, and discuss the factors (1) An FMP that restricted fishing in listed in paragraph (c)(3) of this sec- the EEZ to those holding a permit from tion. state X would violate Standard 4 if (3) Factors in making allocations. An state X issued permits only to its own allocation of fishing privileges must be citizens. fair and equitable, must be reasonably (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 motive for making a particular alloca- in achieving the OY, and if the meas- tion should be justified in terms of the ures conform with paragraphs (c)(3)(i) objectives of the FMP; otherwise, the through (c)(3)(iii) of this section. disadvantaged user groups or individ- (1) Definition. An ‘‘allocation’’ or uals would suffer without cause. For ‘‘assignment’’ of fishing privileges is a instance, an FMP objective to preserve direct and deliberate distribution of the economic status quo cannot be the opportunity to participate in a achieved by excluding a group of long- fishery among identifiable, discrete time participants in the fishery. On the user groups or individuals. Any man- other hand, there is a rational connec- agement measure (or lack of manage- tion between an objective of harvesting

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shrimp at their maximum size and munities, efficiency of various types of closing a nursery area to trawling. gear used in the fishery, transferability (B) An allocation of fishing privileges of effort to and impact on other fish- may impose a hardship on one group if eries, opportunity for new participants it is outweighed by the total benefits to enter the fishery, and enhancement received by another group or groups. of opportunities for recreational fish- An allocation need not preserve the ing. status quo in the fishery to qualify as ‘‘fair and equitable,’’ if a restructuring [61 FR 32540, June 24, 1996, as amended at 63 of fishing privileges would maximize FR 24234, May 1, 1998] overall benefits. The Council should make an initial estimate of the rel- § 600.330 National Standard 5—Effi- ative benefits and hardships imposed ciency. by the allocation, and compare its con- (a) Standard 5. Conservation and sequences with those of alternative al- management measures shall, where location schemes, including the status practicable, consider efficiency in the quo. Where relevant, judicial guidance utilization of fishery resources; except and government policy concerning the that no such measure shall have eco- rights of treaty Indians and aboriginal nomic allocation as its sole purpose. Americans must be considered in deter- (b) Efficiency in the utilization of re- mining whether an allocation is fair sources—(1) General. The term ‘‘utiliza- and equitable. tion’’ encompasses harvesting, proc- (ii) Promotion of conservation. Numer- essing, marketing, and non-consump- ous methods of allocating fishing privi- tive uses of the resource, since manage- leges are considered ‘‘conservation and ment decisions affect all sectors of the management’’ measures under section industry. In considering efficient utili- 303 of the Magnuson-Stevens Act. An allocation scheme may promote con- zation of fishery resources, this stand- servation by encouraging a rational, ard highlights one way that a fishery more easily managed use of the re- can contribute to the Nation’s benefit source. Or, it may promote conserva- with the least cost to society: Given a tion (in the sense of wise use) by opti- set of objectives for the fishery, an mizing the yield in terms of size, value, FMP should contain management market mix, price, or economic or so- measures that result in as efficient a cial benefit of the product. To the ex- fishery as is practicable or desirable. tent that rebuilding plans or other con- (2) Efficiency. In theory, an efficient servation and management measures fishery would harvest the OY with the that reduce the overall harvest in a minimum use of economic inputs such fishery are necessary, any harvest re- as labor, capital, interest, and fuel. Ef- strictions or recovery benefits must be ficiency in terms of aggregate costs allocated fairly and equitably among then becomes a conservation objective, the commercial, recreational, and where ‘‘conservation’’ constitutes wise charter fishing sectors of the fishery. use of all resources involved in the (iii) Avoidance of excessive shares. An fishery, not just fish stocks. allocation scheme must be designed to (i) In an FMP, management measures deter any person or other entity from may be proposed that allocate fish acquiring an excessive share of fishing among different groups of individuals privileges, and to avoid creating condi- or establish a system of property tions fostering inordinate control, by buyers or sellers, that would not other- rights. Alternative measures examined wise exist. in searching for an efficient outcome (iv) Other factors. In designing an al- will result in different distributions of location scheme, a Council should con- gains and burdens among identifiable sider other factors relevant to the user groups. An FMP should dem- FMP’s objectives. Examples are eco- onstrate that management measures nomic and social consequences of the aimed at efficiency do not simply re- scheme, food production, consumer in- distribute gains and burdens without terest, dependence on the fishery by an increase in efficiency. present participants and coastal com-

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(ii) Management regimes that allow a Stevens Act, except for fees allowed fishery to operate at the lowest pos- under section 304(d)(2). sible cost (e.g., fishing effort, adminis- (2) Factors to consider. The Magnuson- tration, and enforcement) for a par- Stevens Act ties the use of limited ac- ticular level of catch and initial stock cess to the achievement of OY. An size are considered efficient. Restric- FMP that proposes a limited access tive measures that unnecessarily raise system must consider the factors listed any of those costs move the regime to- in section 303(b)(6) of the Magnuson- ward inefficiency. Unless the use of in- Stevens Act and in § 600.325(c)(3). In ad- efficient techniques or the creation of dition, it should consider the criteria redundant fishing capacity contributes for qualifying for a permit, the nature to the attainment of other social or bi- of the interest created, whether to ological objectives, an FMP may not make the permit transferable, and the contain management measures that Magnuson-Stevens Act’s limitations on impede the use of cost-effective tech- returning economic rent to the public niques of harvesting, processing, or under section 304(d). The FMP should marketing, and should avoid creating also discuss the costs of achieving an strong incentives for excessive invest- appropriate distribution of fishing ment in private sector fishing capital privileges. and labor. (d) Analysis. An FMP should discuss (c) Limited access. A ‘‘system for lim- the extent to which overcapitalization, iting access,’’ which is an optional congestion, economic waste, and ineffi- measure under section 303(b) of the cient techniques in the fishery reduce Magnuson-Stevens Act, is a type of allocation of fishing privileges that may the net benefits derived from the man- be considered to contribute to eco- agement unit and prevent the attain- nomic efficiency or conservation. For ment and appropriate allocation of OY. example, limited access may be used to It should also explain, in terms of the combat overfishing, overcrowding, or FMP’s objectives, any restriction overcapitalization in a fishery to placed on the use of efficient tech- achieve OY. In an unutilized or under- niques of harvesting, processing, or utilized fishery, it may be used to re- marketing. If, during FMP develop- duce the chance that these conditions ment, the Council considered imposing will adversely affect the fishery in the a limited-entry system, the FMP future, or to provide adequate eco- should analyze the Council’s decision nomic return to pioneers in a new fish- to recommend or reject limited access ery. In some cases, limited entry is a as a technique to achieve efficient uti- useful ingredient of a conservation lization of the resources of the fishing scheme, because it facilitates applica- industry. tion and enforcement of other manage- (e) Economic allocation. This standard ment measures. prohibits only those measures that dis- (1) Definition. Limited access (or lim- tribute fishery resources among fisher- ited entry) is a management technique men on the basis of economic factors that attempts to limit units of effort in alone, and that have economic alloca- a fishery, usually for the purpose of re- tion as their only purpose. Where con- ducing economic waste, improving net servation and management measures economic return to the fishermen, or are recommended that would change capturing economic rent for the benefit the economic structure of the industry of the taxpayer or the consumer. Com- or the economic conditions under mon forms of limited access are licens- which the industry operates, the need ing of vessels, gear, or fishermen to re- for such measures must be justified in duce the number of units of effort, and light of the biological, ecological, and dividing the total allowable catch into social objectives of the FMP, as well as fishermen’s quotas (a stock-certificate the economic objectives. system). Two forms (i.e., Federal fees for licenses or permits in excess of ad- [61 FR 32540, June 24, 1996, as amended at 63 ministrative costs, and taxation) are FR 7075, Feb. 12, 1998; 63 FR 24234, May 1, not permitted under the Magnuson- 1998]

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§ 600.335 National Standard 6—Vari- (i) Reduce OY. Lack of scientific ations and Contingencies. knowledge about the condition of a (a) Standard 6. Conservation and stock(s) could be reason to reduce OY. management measures shall take into (ii) Establish a reserve. Creation of a account and allow for variations reserve may compensate for uncertain- among, and contingencies in, fisheries, ties in estimating domestic harvest, fishery resources, and catches. stock conditions, or environmental fac- (b) Conservation and management. tors. Each fishery exhibits unique uncertain- (iii) Adjust management techniques. In ties. The phrase ‘‘conservation and the absence of adequate data to predict management’’ implies the wise use of the effect of a new regime, and to avoid fishery resources through a manage- creating unwanted variations, a Coun- ment regime that includes some pro- cil could guard against producing dras- tection against these uncertainties. tic changes in fishing patterns, alloca- The particular regime chosen must be tions, or practices. flexible enough to allow timely re- (iv) Highlight habitat conditions. FMPs sponse to resource, industry, and other may address the impact of pollution national and regional needs. Continual and the effects of wetland and estua- data acquisition and analysis will help rine degradation on the stocks of fish; the development of management meas- identify causes of pollution and habitat ures to compensate for variations and degradation and the authorities having to reduce the need for substantial buff- jurisdiction to regulate or influence ers. Flexibility in the management re- such activities; propose recommenda- gime and the regulatory process will tions that the Secretary will convey to aid in responding to contingencies. those authorities to alleviate such (c) Variations. (1) In fishery manage- problems; and state the views of the ment terms, variations arise from bio- Council on unresolved or anticipated logical, social, and economic occur- issues. rences, as well as from fishing prac- (d) Contingencies. Unpredictable tices. Biological uncertainties and lack events—such as unexpected resource of knowledge can hamper attempts to surges or failures, fishing effort greater estimate stock size and strength, stock than anticipated, disruptive gear con- location in time and space, environ- flicts, climatic conditions, or environmental/habitat changes, and ecological mental catastrophes—are best handled interactions. Economic uncertainty by establishing a flexible management may involve changes in foreign or do- regime that contains a range of man- mestic market conditions, changes in agement options through which it is operating costs, drifts toward overcapi- possible to act quickly without amend- talization, and economic perturbations ing the FMP or even its regulations. caused by changed fishing patterns. (1) The FMP should describe the Changes in fishing practices, such as management options and their con- the introduction of new gear, rapid in- sequences in the necessary detail to creases or decreases in harvest effort, guide the Secretary in responding to new fishing strategies, and the effects changed circumstances, so that the of new management techniques, may Council preserves its role as policy-set- also create uncertainties. Social ter for the fishery. The description changes could involve increases or de- should enable the public to understand creases in recreational fishing, or the what may happen under the flexible re- movement of people into or out of fish- gime, and to comment on the options. ing activities due to such factors as age (2) FMPs should include criteria for or educational opportunities. the selection of management measures, (2) Every effort should be made to de- directions for their application, and velop FMPs that discuss and take into mechanisms for timely adjustment of account these vicissitudes. To the ex- management measures comprising the tent practicable, FMPs should provide regime. For example, an FMP could in- a suitable buffer in favor of conserva- clude criteria that allow the Secretary tion. Allowances for uncertainties to open and close seasons, close fishing should be factored into the various ele- grounds, or make other adjustments in ments of an FMP. Examples are: management measures.

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(3) Amendment of a flexible FMP tor to another, or from the government would be necessary when cir- to the private sector. Redistribution of cumstances in the fishery change sub- costs through regulations is likely to stantially, or when a Council adopts a generate controversy. A discussion of different management philosophy and these and any other burdens placed on objectives. the public through FMP regulations should be a part of the FMP’s sup- § 600.340 National Standard 7—Costs porting analyses. and Benefits. (2) Gains. The relative distribution of (a) Standard 7. Conservation and gains may change as a result of insti- management measures shall, where tuting different sets of alternatives, as practicable, minimize costs and avoid may the specific type of gain. The anal- unnecessary duplication. ysis of benefits should focus on the spe- (b) 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 [81 FR 71904, Oct. 18, 2016] suggest a preferred alternative. (c) Analysis. The supporting analyses § 600.345 National Standard 8—Com- for FMPs should demonstrate that the munities. benefits of fishery regulation are real (a) Standard 8. Conservation and and substantial relative to the added management measures shall, con- research, administrative, and enforce- sistent with the conservation requirement costs, as well as costs to the in- ments of the Magnuson-Stevens Act dustry of compliance. In determining (including the prevention of over- the benefits and costs of management fishing and rebuilding of overfished measures, each management strategy stocks), take into account the impor- considered and its impacts on different tance of fishery resources to fishing user groups in the fishery should be communities by utilizing economic and evaluated. This requirement need not social data that are based upon the produce an elaborate, formalistic cost/ best scientific information available in benefit analysis. Rather, an evaluation order to: of effects and costs, especially of dif- (1) Provide for the sustained partici- ferences among workable alternatives, pation of such communities; and including the status quo, is adequate. (2) To the extent practicable, mini- If quantitative estimates are not pos- mize adverse economic impacts on such sible, qualitative estimates will suffice. communities. (1) Burdens. Management measures (b) General. (1) This standard requires should be designed to give fishermen that an FMP take into account the im- the greatest possible freedom of action portance of fishery resources to fishing in conducting business and pursuing communities. This consideration, how- recreational opportunities that are ever, is within the context of the con- consistent with ensuring wise use of servation requirements of the Magnu- the resources and reducing conflict in son-Stevens Act. Deliberations regard- the fishery. The type and level of bur- ing the importance of fishery resources den placed on user groups by the regu- to affected fishing communities, there- lations need to be identified. Such an fore, must not compromise the achieve- examination should include, for exam- ment of conservation requirements and ple: Capital outlays; operating and goals of the FMP. Where the preferred maintenance costs; reporting costs; ad- alternative negatively affects the sus- ministrative, enforcement, and infor- tained participation of fishing commu- mation costs; and prices to consumers. nities, the FMP should discuss the ra- Management measures may shift costs tionale for selecting this alternative from one level of government to an- over another with a lesser impact on other, from one part of the private sec- fishing communities. All other things

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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 al- fected fishing communities and then ternative. assess their differing levels of depend- (2) This standard does not constitute ence on and engagement in the fishery a basis for allocating resources to a being regulated. The analysis should specific fishing community nor for pro- also specify how that assessment was viding preferential treatment based on made. The best available data on the residence in a fishing community. history, extent, and type of participa- (3) The term ‘‘fishing community’’ tion of these fishing communities in means a community that is substan- the fishery should be incorporated into tially dependent on or substantially the social and economic information engaged in the harvest or processing of presented in the FMP. The analysis fishery resources to meet social and does not have to contain an exhaustive economic needs, and includes fishing listing of all communities that might vessel owners, operators, and crew, and fit the definition; a judgment can be fish processors that are based in such made as to which are primarily af- communities. A fishing community is a fected. The analysis should discuss social or economic group whose mem- each alternative’s likely effect on the bers reside in a specific location and 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. men and processing plant workers, (5) A discussion of social and eco- thereby adversely affecting their fami- nomic impacts should identify those lies and communities. Similarly, a alternatives that would minimize ad- management measure that results in verse impacts on these fishing commu- the allocation of fishery resources nities within the constraints of con- among competing sectors of a fishery servation and management goals of the may benefit some communities at the FMP, other national standards, and expense of others. other applicable law. (2) An appropriate vehicle for the analyses under this standard is the [63 FR 24234, May 1, 1998, as amended at 73 fishery impact statement required by FR 67810, Nov. 17, 2008] section 303(a)(9) of the Magnuson-Ste- vens Act. Qualitative and quantitative § 600.350 National Standard 9—By- catch. data may be used, including information provided by fishermen, dealers, (a) Standard 9. Conservation and processors, and fisheries organizations management measures shall, to the ex- and associations. In cases where data tent practicable: are severely limited, effort should be (1) Minimize bycatch; and

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(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 management program. A catch-and-re- mortality in each fishery for purposes lease fishery management program is of this standard and of section one in which the retention of a par- 303(a)(11) and (12) of the Magnuson-Ste- ticular species is prohibited. In such a vens Act. Bycatch should be cat- program, those fish released alive egorized to focus on management re- would not be considered bycatch. sponses necessary to minimize bycatch (iii) Fish harvested in a commercial and bycatch mortality to the extent fishery managed by the Secretary practicable. When appropriate, man- under Magnuson-Stevens Act sec. 304(g) agement measures, such as at-sea mon- or the Atlantic Tunas Convention Act itoring programs, should be developed of 1975 (16 U.S.C. 971d) or highly migra- to meet these information needs. tory species harvested in a commercial (2) For each management measure, as- fishery managed by a Council under sess the effects on the amount and type of the Magnuson-Stevens Act or the West- bycatch and bycatch mortality in the fish- ern and Central Pacific Fisheries Con- ery. Most conservation and manage- vention Implementation Act, that are ment measures can affect the amounts not regulatory discards and that are of bycatch or bycatch mortality in a

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

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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 about vessel maintenance and loading with no flexibility for weather, often and about the capabilities of the vessel called ‘‘derby’’ fisheries, can create se- and crew to operate safely in a variety rious safety problems. To participate of weather and sea conditions. This na- fully in such a fishery, fishermen may tional standard does not replace the fish in bad weather and overload their judgment or relieve the responsibility vessel with catch and/or gear. Where of the vessel master related to vessel these conditions exist, FMPs should at- safety. The Councils, the USCG, and tempt to mitigate these effects and NMFS, through the consultation proc- avoid them in new management re- ess of paragraph (d) of this section, will gimes, as discussed in paragraph (e) of review all FMPs, amendments, and reg- this section. ulations during their development to (d) Consultation. During preparation ensure they recognize any impact on of any FMP, FMP amendment, or regu- the safety of human life at sea and lation that might affect safety of minimize or mitigate that impact human life at sea, the Council should where practicable. consult with the USCG and the fishing (c) Safety considerations. The fol- industry as to the nature and extent of lowing is a non-inclusive list of safety any adverse impacts. This consultation considerations that should be consid- may be done through a Council advi- ered in evaluating management meas- sory panel, committee, or other review ures under national standard 10. of the FMP, FMP amendment, or regu- (1) Operating environment. Where and lations. Mitigation, to the extent prac- when a fishing vessel operates is partly ticable, and other safety considerations a function of the general climate and identified in paragraph (c) of this sec- weather patterns of an area. Typically, tion should be included in the FMP. larger vessels can fish farther offshore (e) Mitigation measures. There are and in more adverse weather condi- many ways in which an FMP may tions than smaller vessels. An FMP avoid or provide alternative measures should try to avoid creating situations to reduce potential impacts on safety that result in vessels going out farther, of human life at sea. The following is a fishing longer, or fishing in weather worse than they generally would have list of some factors that could be con- in the absence of management meas- sidered when management measures ures. Where these conditions are un- are developed: avoidable, management measures (1) Setting seasons to avoid haz- should mitigate these effects, con- ardous weather. sistent with the overall management (2) Providing for seasonal or trip goals of the fishery. flexibility to account for bad weather (2) Gear and vessel loading require- (weather days). ments. A fishing vessel operates in a (3) Allowing for pre- and post-season very dynamic environment that can be ‘‘soak time’’ to deploy and pick up an extremely dangerous place to work. fixed gear, so as to avoid overloading Moving heavy gear in a seaway creates vessels with fixed gear.

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(4) Tailoring gear requirements to nance 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 [63 FR 24236, May 1, 1998] to grant a request for access to confidential data, the following informa- Subpart E—Confidentiality of tion will be taken into consideration (also see § 600.130): Statistics (1) The specific types of data re- § 600.405 Types of statistics covered. quired. (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 sub- ing gear used, catch by species in num- mitted as a requirement of an FMP and bers of fish or weight thereof, areas in that reveal the identity of the sub- which fishing occurred, time of fishing, mitter will only be accessible to the number of hauls, and the estimated following: processing capacity of, and the actual (1) Personnel within NMFS respon- processing capacity utilized by, U.S. sible for the collection, processing, and fish processors. storage of the statistics. [61 FR 32540, June 24, 1996, as amended at 63 (2) Federal employees who are re- FR 7075, Feb. 12, 1998] sponsible for FMP development, monitoring, and enforcement. § 600.410 Collection and maintenance (3) Personnel within NMFS per- of statistics. forming research that requires con- (a) General. (1) All statistics required fidential statistics. to be submitted to the Secretary are (4) Other NOAA personnel on a de- provided to the Assistant Adminis- monstrable need-to-know basis. trator. (5) NOAA/NMFS contractors or (2) After receipt, the Assistant Ad- grantees who require access to con- ministrator will remove all identifying fidential statistics to perform func- particulars from the statistics if doing tions authorized by a Federal contract so is consistent with the needs of or grant. NMFS and good scientific practice. (c) State personnel. Upon written re- (3) Appropriate safeguards as speci- quest, confidential statistics will only fied by NOAA Directives, or other be accessible if: NOAA or NMFS internal procedures, (1) State employees demonstrate a apply to the collection and mainte- need for confidential statistics for use

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in fishery conservation and manage- the identity of submitters of statistics ment. required by an FMP. The control sys- (2) The state has entered into a writ- tem: ten agreement between the Assistant (1) Identifies those persons who have Administrator and the head of the access to the statistics. state’s agency that manages marine (2) Contains procedures to limit ac- and/or anadromous fisheries. The cess to confidential data to authorized agreement shall contain a finding by users. the Assistant Administrator that the (3) Provides for safeguarding the state has confidentiality protection au- data. thority comparable to the Magnuson- (b) This system requires that all per- Stevens Act and that the state will ex- sons who have authorized access to the ercise this authority to limit subse- data be informed of the confidentiality quent access and use of the data to of the data. These persons are required fishery management and monitoring to sign a statement that they: purposes. (1) Have been informed that the data (d) Councils. Upon written request by are confidential. the Council Executive Director, access (2) Have reviewed and are familiar to confidential data will be granted to: with the procedures to protect con- (1) Council employees who are re- fidential statistics. sponsible for FMP development and monitoring. § 600.425 Release of statistics. (2) A Council for use by the Council (a) The Assistant Administrator will for conservation and management pur- not release to the public any statistics poses, with the approval of the Assist- required to be submitted under an FMP ant Administrator. In addition to the in a form that would identify the sub- information described in paragraph (a) mitter, except as required by law. of this section, the Assistant Adminis- (b) All requests from the public for trator will consider the following in de- statistics submitted in response to a ciding whether to grant access: requirement of an FMP will be proc- (i) The possibility that Council mem- essed consistent with the NOAA FOIA bers might gain personal or competi- regulations (15 CFR part 903), NAO 205– tive advantage from access to the data. 14, Department of Commerce Adminis- (ii) The possibility that the suppliers trative Orders 205–12 and 205–14 and 15 of the data would be placed at a com- CFR part 4. petitive disadvantage by public disclo- (c) NOAA does not release or allow sure of the data at Council meetings or access to confidential information in hearings. its possession to members of Council (3) A contractor of the Council for advisory groups, except as provided by use in such analysis or studies nec- law. essary for conservation and management purposes, with approval of the Subpart F—Foreign Fishing Assistant Administrator and execution of an agreement with NMFS as de- § 600.501 Vessel permits. scribed by NOAA Administrative Order (a) General. (1) Each FFV fishing (NAO) 216–100. under the Magnuson-Stevens Act must (e) Prohibitions. Persons having ac- have on board a permit issued under cess to these data are prohibited from this section, unless it is engaged only unauthorized use or disclosure and are in recreational fishing. subject to the provisions of 18 U.S.C. (2) Permits issued under this section 1905, 16 U.S.C. 1857, and NOAA/NMFS do not authorize FFV’s or persons to internal procedures, including NAO harass, capture, or kill marine mam- 216–100. mals. No marine mammals may be [61 FR 32540, June 24, 1996, as amended at 63 taken in the course of fishing unless FR 7075, Feb. 12, 1998] that vessel has on board a currently valid Authorization Certificate under § 600.420 Control system. the MMPA. Regulations governing the (a) The Assistant Administrator taking of marine mammals incidental maintains a control system to protect to commercial fishing operations are

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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 regulations of this subpart and by the fishing vessels and U.S. fish processing conditions and restrictions attached to vessels and any foreign fishing vessels the permit (see paragraphs (e)(1)(v) and authorized under any activity code (l) of this section). The Assistant Ad- under paragraph (c) of this subpart. ministrator may issue a permit, as ap- (10) Activity Code 10. Transshipping at propriate, for one or more of the activ- sea for the purpose of transporting fish ity codes listed. Only vessels of nations or fish products from a point within having a GIFA with the United States the EEZ or, with the concurrence of a may be issued permits for activity state, within the boundaries of that codes 1 through 9. A GIFA is not re- state, to a point outside the United quired for a vessel to be issued a permit States. for activity code 10. The activity codes (d) Application. (1) Applications for are described as follows: FFV permits authorizing activity (1) Activity Code 1. Catching, scout- codes 1 through 9 must be submitted by ing, processing, transshipping, and sup- an official representative of a foreign porting foreign vessels. Activity is lim- nation to the DOS. Applications for ited to fish harvested or to be har- permits authorizing activity codes 1 vested by foreign vessels in the EEZ. through 9 are available from, and (2) Activity Code 2. Processing, scout- should be submitted to, DOS, OES/ ing, transshipping, and supporting for- OMC, Washington, DC 20520. Applica- eign vessels. Activity is limited to fish tions for FFV permits authorizing ac- harvested or to be harvested by foreign tivity code 10 may be submitted by any vessels in the EEZ. person to the Assistant Administrator. (3) Activity Code 3. Transshipping, Applications for permits authorizing scouting, and supporting foreign ves- activity code 10 are available from sels. Activity is limited to fish har- NMFS, Attn: Office of International vested or to be harvested by foreign Affairs, 1315 East West Highway, Silver vessels in the EEZ. Spring, Maryland 20910. All applicants (4) Activity Code 4. Processing, scout- should allow 90 days for review and ing, transshipping, and supporting U.S. comment by the public, involved gov- vessels delivering fish to foreign ves- ernmental agencies, and appropriate sels. Activity is limited to the receipt Councils and for processing before the of unprocessed fish harvested or to be anticipated date to begin fishing. The harvested by U.S. vessels. permit application fee must be paid at (5) Activity Code 5. Transshipping, the time of application according to scouting, and supporting foreign ves- § 600.518.

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(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 of receiving permits, as required by agent and a designated representative section 204(b)(7) of the Magnuson-Ste- are not maintained in the United vens Act, and any ‘‘additional restric- States; if a civil penalty or criminal tions’’ attached to the permit for the fine imposed under the Magnuson-Ste- conservation and management of fish- vens Act has become overdue; or as ery resources or for the prevention of otherwise specified in the Magnuson- significant impairment of the national Stevens Act. defense or security interests. (j) Fees. Permit application fees are (2) The DOS will provide permits for described in § 600.518. activity codes 1 through 9 to the offi- (k) Change in application information. cial representative of the applicant for- The applicant must report, in writing, eign nation. The Assistant Adminis- any change in the information supplied trator will provide permits for activity under paragraph (d) of this section to code 10 directly to the applicant. the Assistant Administrator within 15 (3) An approved permit will contain— calendar days after the date of the (i) The name and IRCS of the FFV change. Failure to report a change in and its permit number. the ownership from that described in

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the current application within the sistant Administrator will include with specified time frame voids the permit, the final additional restrictions to the and all penalties involved will accrue Nation, a response to comments sub- to the previous owner. mitted. (l) Permit amendments. (1) The Assist- (6) Additional restrictions may be ant Administrator may amend a per- modified by following the procedures of mit by adding ‘‘additional restrictions’’ paragraphs (l)(2) through (l)(5) of this for the conservation and management section. of fishery resources covered by the per- [61 FR 32540, June 24, 1996, as amended at 63 mit, or for the national defense or se- FR 7075, Feb. 12, 1998; 64 FR 39019, July 21, curity if the Assistant Administrator 1999; 76 FR 59305, Sept. 26, 2011] determines that such interests would be significantly impaired without such § 600.502 Vessel reports. restrictions. Compliance with the (a) The operator of each FFV must added additional restrictions is a con- report the FFV’s activities to the dition of the permit. Violations of USCG and NMFS as specified in this added additional restrictions will be section. treated as violations of this subpart. (b) All reports required by this sec- (2) The Assistant Administrator may tion must be in English and in the for- make proposed additional restrictions mats specified in the permit additions effective immediately, if necessary, to and restrictions. Reports must be de- prevent substantial harm to a fishery livered via private or commercial com- resource of the United States, to allow munications facilities, facsimile, or for the continuation of ongoing fishing other electronic means acceptable to operations, or to allow for fishing to NMFS and the USCG, directly to the begin at the normal time for opening of appropriate NMFS Region or Center the fishery. and USCG commander. Weekly reports (3) The Assistant Administrator will must also be delivered directly to the send proposed additional restrictions appropriate NMFS Region or Center to each Nation whose vessels are af- (see tables 1 and 2 of this section). (The fected (via the Secretary of State), to required reports may be delivered to the appropriate Councils, and to the the closest USCG communication sta- Commandant of the Coast Guard. tion as indicated in table 3 of this sec- NMFS will, at the same time, publish a tion or other USCG communication document of any significant proposed station only if adequate private or additional restrictions in the FEDERAL commercial communications facilities REGISTER. The document will include a have not been successfully contacted.) summary of the reasons underlying the Radio reports must be made via radio- proposal, and the reasons that any pro- telegraphy, Telex, or facsimile where posed additional restrictions are made available. For the purposes of this sec- effective immediately. tion, a message is considered ‘‘trans- (4) The Nation whose vessels are in- mitted’’ when its receipt is acknowl- volved, the owners of the affected ves- edged by a communications facility sels, their representatives, the agencies and considered ‘‘delivered’’ upon its respecified in paragraph (l)(3) of this sec- ceipt by the offices of the appropriate tion, and the public may submit writ- USCG commander, NMFS Regional Of- ten comments on the proposed addi- fice, or NMFS Center identified in tional restrictions within 30 days after table 2 of this section. Reports required publication in the FEDERAL REGISTER. by this section may be submitted by (5) The Assistant Administrator will the vessel’s designated representative; make a final decision regarding the however, the operator of the FFV is re- proposed additional restrictions as sponsible for the correct and timely fil- soon as practicable after the end of the ing of all required reports. comment period. The Assistant Admin- (c) Activity reports. The operator of istrator will provide the final addi- each FFV must report the FFV’s move- tional restrictions to the Nation whose ments and activities before or upon the vessels are affected (via the Secretary event, as specified in this paragraph of State) according to the procedures of (c). Appropriate forms, instructions, paragraph (e) of this section. The As- codes, and examples are contained in

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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 the present fishing area and delivered delivered within 24 hours of its trans- within 24 hours of its transmittal. mittal. The movement of raw fish from (3) ‘‘RETURN’’. Each operator must a permitted foreign catching vessel or, specify the date, time, position, and under an Activity Code 4, from a U.S. area the FFV will ‘‘RETURN’’ to the fishing vessel to the reporting proc- EEZ following a temporary departure, essing vessel and the return of nets or and the species (by species code), prod- codends is not considered a transfer. uct (by product code), and quantity of (7) ‘‘OFFLOADED’’. Each operator all fish and fish products (by product must specify the date, time, position, weight to the nearest hundredth of a and area the FFV ‘‘OFFLOADED’’ fish metric ton) on board that were re- or fisheries products TO another FFV ceived in a joint venture in internal or a U.S. vessel in a transfer, the other waters (action code ‘‘RETURN’’). The FFV’s or U.S. vessel’s name, IRCS, message must be transmitted before re- Permit Activity Code under which the turning to the EEZ and delivered with- transfer was made, species (by species in 24 hours of its transmittal. code) and quantity of fish and fisheries (4) ‘‘SHIFT’’. Each operator must re- products (by product code and by prod- port each SHIFT in fishing area (as de- uct weight, to the nearest hundredth of scribed for each fishery) by specifying a metric ton) offloaded (action code the date, time, and position the FFV ‘‘OFFLOADED TO’’). The message

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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. (e) The notices required by this sec- vessel’s name, IRCS, Permit Activity tion may be provided for individual or Code under which the receipt was groups of FFV’s (on a vessel-by-vessel made, species (by species code) and basis) by authorized persons. An FFV quantity of fish and fisheries products operator may retransmit reports on (by product code and by product the behalf of another FFV, if author- weight, to the nearest hundredth of a ized by that FFV’s operator. This does metric ton) received (action code ‘‘RE- not relieve the individual vessel oper- CEIVED FROM’’). The message must ator of the responsibility of filing re- be transmitted within 12 hours after quired reports. In these cases, the mes- the transfer is completed and delivered sage format should be modified so that within 24 hours of its transmittal and each line of text under ‘‘VESREP’’ is a before the vessel ceases fishing in the separate vessel report. EEZ. (f) Weekly reports. (1) The operator of (9) ‘‘CEASE’’. Each operator must each FFV in the EEZ must submit ap- specify the date, time, position, and propriate weekly reports through the area the FFV will ‘‘CEASE’’ fishing in Nation’s designated representative. order to leave the EEZ (action code The report must arrive at the address ‘‘CEASE’’). The message must be deliv- and time specified in paragraph (g) of ered at least 24 hours before the FFV’s this section. The reports may be sent departure. by facsimile or Telex, but a completed (10) ‘‘CHANGE’’. Each operator must copy of the report form must be mailed report any ‘‘CHANGE’’ TO the FFV’s or hand delivered to confirm the Telex. operations if the position or time of an Appropriate forms, instructions, codes, event specified in an activity report and examples are contained in the con- will vary more than 5 nautical miles ditions and restrictions of the FFV’s (9.26 km) or 4 hours from that pre- permit. Designated representatives viously reported, by sending a revised may include more than one vessel re- message inserting the word ‘‘CHANGE’’ port in a facsimile or Telex message, if in front of the previous report, repeat- the information is submitted on a ves- ing the name, IRCS, date, and time of sel-by-vessel basis. Requests for correc- the previous report, adding the word tions to previous reports must be sub- ‘‘TO’’ and the complete revised text of mitted through the Nation’s designated the new report (action code ‘‘CHANGE representative and mailed or hand-de- TO’’). Changes to reports specifying an livered, together with a written expla- early beginning of fishing by an FFV or nation of the reasons for the errors. other changes to reports contained in The appropriate Regional Adminis- paragraphs (c)(1) through (c)(9) of this trator or Science and Research Direc- section must be transmitted and deliv- tor may accept or reject any correction ered as if the ‘‘CHANGE’’ report were and initiate any appropriate civil pen- the original message. alty actions. (11) ‘‘CANCEL’’. Each operator want- (2) Weekly catch report (CATREP). The ing to ‘‘CANCEL’’ a previous report operator of each FFV must submit a may do so by sending a revised mes- weekly catch report stating any catch sage, and inserting the word ‘‘CAN- (Activity Code 1) in round weight of CEL’’ in front of the previous report’s each species or species group allocated vessel name, IRCS, date, time and ac- to that Nation by area and days fished tion code canceled (action code ‘‘CAN- in each area for the weekly period Sun- CEL’’). The message must be trans- day through Saturday, GMT, as modi- mitted and delivered prior to the date fied by the fishery in which the FFV is

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

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.

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TABLE 1 TO § 600.502—ADDRESSES—Continued

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

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- 1845 Wasp Blvd., Bldg. 176, Honolulu, eries Service, NOAA, 1845 Wasp lulu, HI 96850. HI 96818. Blvd., Bldg. 176, Honolulu, HI 96818.

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. 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

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[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; 79 FR 64111, Oct. 28, 2014]

§ 600.503 Vessel and gear identifica- attached gear and are not required to tion. be marked. (a) Vessel identification. (1) The oper- (2) The operator of each FFV must ator of each FFV assigned an IRCS ensure that deployed longlines, strings must display that call sign amidships of traps or pots, and gillnets are on both the port and starboard sides of marked at the surface at each terminal the deckhouse or hull, so that it is visi- end with: (see paragraphs (c)(1)(i) ble from an enforcement vessel, and on through (c)(1)(iii) of this section). an appropriate weather deck so it is (3) Additional requirements may be visible from the air. specified for the fishery in which the (2) The operator of each FFV not as- vessel is engaged. signed an IRCS, such as a small trawler (4) Unmarked or incorrectly identi- associated with a mothership or one of fied fishing gear may be considered a pair of trawlers, must display the abandoned and may be disposed of in IRCS of the associated vessel, followed accordance with applicable Federal by a numerical suffix. (For example, regulations by any authorized officer. JCZM–1, JCZM–2, etc., would be dis- (d) Maintenance. The operator of each played on small trawlers not assigned FFV must— an IRCS operating with a mothership (1) Keep the vessel and gear identi- whose IRCS is JCZM; JANP–1 would be fication clearly legible and in good re- displayed by a pair trawler not as- pair. signed an IRCS operating with a trawl- (2) Ensure that nothing on the FFV er whose IRCS is JANP.) obstructs the view of the markings (3) The vessel identification must be from an enforcement vessel or aircraft. in a color in contrast to the back- (3) Ensure that the proper naviga- ground and must be permanently af- tional lights and shapes are displayed fixed to the FFV in block Roman al- for the FFV’s activity and are properly phabet letters and Arabic numerals at functioning. least 1 m in height for FFV’s over 20 m in length, and at least 0.5 m in height § 600.504 Facilitation of enforcement. for all other FFV’s. (b) Navigational lights and shapes. (a) General. (1) The owner, operator, Each FFV must display the lights and or any person aboard any FFV subject shapes prescribed by the International to this subpart must immediately com- Regulations for Preventing Collisions ply with instructions and signals at Sea, 1972 (TIAS 8587, and 1981 amend- issued by an authorized officer to stop ment TIAS 10672), for the activity in the FFV; to move the FFV to a speci- which the FFV is engaged (as described fied location; and to facilitate safe at 33 CFR part 81). boarding and inspection of the vessel, (c) Gear identification. (1) The oper- its gear, equipment, records, and fish ator of each FFV must ensure that all and fish products on board for purposes deployed fishing gear that is not phys- of enforcing the Magnuson-Stevens Act ically and continuously attached to an and this subpart. FFV: (2) The operator of each FFV must (i) Is clearly marked at the surface provide vessel position or other infor- with a buoy displaying the vessel iden- mation when requested by an author- tification of the FFV (see paragraph (a) ized officer within the time specified in of this section) to which the gear be- the request. longs. (b) Communications equipment. (1) (ii) Has attached a light visible for 2 Each FFV must be equipped with a nautical miles (3.70 km) at night in VHF-FM radiotelephone station lo- good visibility. cated so that it may be operated from (iii) Has a radio buoy. the wheelhouse. Each operator must Trawl codends passed from one vessel maintain a continuous listening watch to another are considered continuously on channel 16 (156.8 mHz).

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(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 (2) Failure of an FFV’s operator to in which the FFV is operating. Each stop the vessel when directed to do so operator must monitor and be ready to by an authorized officer using VHF-FM communicate via 2182 kHz (SSB) radio- radiotelephone (channel 16), 2182 kHz telephone each day from 0800 GMT to (SSB) radiotelephone (where required), 0830 GMT and 2000 to 2030 GMT, and in message block from an aircraft, flash- preparation for boarding. ing light signal, flaghoist, or loudhailer (3) FFV’s that are not equipped with constitutes a violation of this subpart. processing facilities and that deliver (3) The operator of or any person all catches to a foreign processing ves- aboard an FFV who does not under- sel are exempt from the requirements stand a signal from an enforcement of paragraph (b)(2) of this section. unit and who is unable to obtain clari- (4) FFV’s with no IRCS that do not fication by radiotelephone or other catch fish and are used as auxiliary means must consider the signal to be a vessels to handle codends, nets, equip- command to stop the FFV instantly. ment, or passengers for a processing (d) Boarding. The operator of an FFV vessel are exempt from the require- signaled for boarding must— ments of paragraphs (b)(1) and (b)(2) of 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 ments of this section to certain FFV’s boarding by the authorized officer and or types of FFV’s operating in a fish- the boarding party or an observer. ery, provided they are adequate for the (3) Provide the authorized officer, communications needs of the fishery. boarding party, or observer a safe pilot (c) Communications procedures. (1) ladder. The operator must ensure the Upon being approached by a USCG ves- pilot ladder is securely attached to the sel or aircraft, or other vessel or air- FFV and meets the construction re- craft with an authorized officer aboard, quirements of Regulation 17, Chapter V the operator of any FFV subject to this of the International Convention for the subpart must be alert for communica- Safety of Life at Sea (SOLAS), 1974 tions conveying enforcement instruc- (TIAS 9700 and 1978 Protocol, TIAS tions. The enforcement unit may com- 10009), or a substantially equivalent na- municate by channel 16 VHF-FM radio- tional standard approved by letter telephone, 2182 kHz (SSB) radio- from the Assistant Administrator, with telephone, message block from an air- agreement with the USCG. Safe pilot craft, flashing light or flag signals ladder standards are summarized from the International Code of Signals, below: hand signal, placard, loudhailer, or (i) The ladder must be of a single other appropriate means. The following length of not more than 9 m (30 ft), ca- signals, extracted from the Inter- pable of reaching the water from the national Code of Signals, are among point of access to the FFV, accounting those that may be used. for all conditions of loading and trim of (i) ‘‘AA, AA, AA, etc.’’, which is the the FFV and for an adverse list of 15°. call for an unknown station. The sig- Whenever the distance from sea level naled vessel should respond by identi- to the point of access to the ship is fying itself or by illuminating the ves- more than 9 m (30 ft), access must be sel identification required by § 600.505. by means of an accommodation ladder (ii) ‘‘RY-CY’’, meaning ‘‘You should or other safe and convenient means. proceed at slow speed, a boat is coming (ii) The steps of the pilot ladder must to you’’. be—

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(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 pertaining to the fishing activities of the millimeters (12 inches) nor more than vessel, including but not limited to, 380 mm (15 inches) apart and secured in production records, fishing logs, navi- such a manner that they will remain gation logs, transfer records, product horizontal. receipts, cargo stowage plans or (iii) No pilot ladder may have more records, draft or displacement calcula- than two replacement steps that are tions, customs documents or records, secured in position by a method dif- and an accurate hold plan reflecting ferent from that used in the original the current structure of the vessel’s construction of the ladder. storage and factory spaces. (iv) The side ropes of the ladder must (f) Product storage. The operator of consist of two uncovered manila ropes each permitted FFV storing fish or fish not less than 60 mm (2.25 inches) in cir- products in a storage space must en- cumference on each side (or synthetic sure that all non-fish product items are ropes of equivalent size and equivalent neither stowed beneath nor covered by or greater strength). Each rope must be fish products, unless required to main- continuous, with no joints below the tain the stability and safety of the ves- top step. sel. These items include, but are not (v) Battens made of hardwood, or limited to, portable conveyors, exhaust other material of equivalent prop- fans, ladders, nets, fuel bladders, extra erties, in one piece and not less than bin boards, or other movable non-prod- 1.80 m (5 ft 10 inches) long must be pro- uct items. These items may be in the vided at such intervals as will prevent space when necessary for safety of the the pilot ladder from twisting. The vessel or crew or for storage of the lowest batten must be on the fifth step product. Lumber, bin boards, or other from the bottom of the ladder and the dunnage may be used for shoring or interval between any batten and the bracing of product to ensure safety of next must not exceed nine steps. crew and to prevent shifting of cargo (vi) Where passage onto or off the within the space. ship is by means of a bulwark ladder, [61 FR 32540, June 24, 1996, as amended at 63 two handhold stanchions must be fitted FR 7075, Feb. 12, 1998] at the point of boarding or leaving the FFV not less than 0.70 m (2 ft 3 inches) § 600.505 Prohibitions. nor more than 0.80 m (2 ft 7 inches) (a) It is unlawful for any person to do apart, not less than 40 mm (2.5 inches) any of the following: in diameter, and must extend not less (1) Ship, transport, offer for sale, sell, than 1.20 m (3 ft 11 inches) above the purchase, import, export, or have cus- top of the bulwark. tody, control, or possession of any fish (4) When necessary to facilitate the taken or retained in violation of the boarding or when requested by an au- Magnuson-Stevens Act, the applicable thorized officer or observer, provide a GIFA, this subpart, or any permit manrope, safety line, and illumination issued under this subpart; for the ladder; and (2) Refuse to allow an authorized offi- (5) Take such other actions as nec- cer to board an FFV for purposes of essary to ensure the safety of the au- conducting any search or inspection in thorized officer and the boarding party connection with the enforcement of the

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Magnuson-Stevens Act, the applicable (14) Assault, resist, oppose, impede, GIFA, this subpart, or any other per- intimidate, or interfere with an ob- mit issued under this subpart; server placed aboard an FFV under this (3) Assault, resist, oppose, impede, in- subpart; timidate, or interfere with any author- (15) Interfere with or bias the sam- ized officer in the conduct of any in- pling procedure employed by an ob- spection or search described in para- server, including sorting or discarding graph (a)(2) of this section; any catch prior to sampling, unless the (4) Resist a lawful arrest for any act observer has stated that sampling will prohibited by the Magnuson-Stevens not occur; or tamper with, destroy, or Act, the applicable GIFA, this subpart, discard an observer’s collected sam- or any permit issued under this sub- ples, equipment, records, photographic part; film, papers, or effects without the ex- (5) Interfere with, delay, or prevent press consent of the observer; by any means the apprehension or ar- (16) Prohibit or bar by command, im- rest of another person with the knowl- pediment, threat, coercion, or refusal edge that such other person has com- of reasonable assistance, an observer mitted any act prohibited by the Mag- from collecting samples, conducting nuson-Stevens Act, the applicable product recovery rate determinations, GIFA, this subpart, or any permit making observations, or otherwise per- issued under this subpart; forming the observer’s duties; (6) Interfere with, obstruct, delay, op- (17) Harass or sexually harass an au- pose, impede, intimidate, or prevent by thorized officer or observer; any means any boarding, investigation (18) Fail to provide the required as- or search, wherever conducted, in the sistance to an observer as described at process of enforcing the Magnuson-Ste- § 600.506 (c) and (e); vens Act, the applicable GIFA, this (19) Fail to identify, falsely identify, subpart, or any permit issued under fail to properly maintain, or obscure this subpart; the identification of the FFV or its (7) Engage in any fishing activity for gear as required by this subpart; which the FFV does not have a permit (20) Falsify or fail to make, keep, as required under § 600.501; maintain, or submit any record or re- (8) Engage in any fishing activity port required by this subpart; within the EEZ without a U.S. observer (21) Fail to return to the sea or fail aboard the FFV, unless the require- to otherwise treat prohibited species as ment has been waived by the Assistant required by this subpart; Administrator or appropriate Regional (22) Fail to report or falsely report Administrator; any gear conflict; (9) Retain or attempt to retain, di- (23) Fail to report or falsely report rectly or indirectly, any U.S. harvested any loss, jettisoning, or abandonment fish, unless the FFV has a permit for of fishing gear or other article into the Activity Codes 4, 6, or 10; EEZ that might interfere with fishing, (10) Use any fishing vessel to engage obstruct fishing gear or vessels, or in fishing after the revocation, or dur- cause damage to any fishery resource ing the period of suspension, of an ap- or marine mammals; plicable permit issued under this sub- (24) Continue Activity Codes 1 part; through 4 after those activity codes (11) Violate any provision of the ap- have been canceled under § 600.511; plicable GIFA; (25) Fail to maintain health and safe- (12) Falsely or incorrectly complete ty standards set forth in § 600.506(d); (including by omission) a permit appli- (26) Violate any provisions of regula- cation or permit form as specified in tions for specific fisheries of this sub- § 600.501 (d) and (k); part; (13) Fail to report to the Assistant (27) On a scientific research vessel, Administrator within 15 days any engage in fishing other than rec- change in the information contained in reational fishing authorized by applica- the permit application for a FFV, as ble state, territorial, or Federal regula- specified in § 600.501(k); tions;

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(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 permit issued under § 600.501, and the (2) If an arrival date of an FFV will Governor of that state has indicated vary more than 5 days from the date concurrence to allow fishing consisting listed in the quarterly schedule, the ap- solely of transporting fish or fish prod- propriate Regional Administrator or ucts from a point within the bound- Science and Research Director must be aries of that state to a point outside notified at least 10 days in advance of the United States; or the rescheduled date of arrival. If the (2) Within the EEZ, or for any anad- notice required by this paragraph (b)(2) romous species or continental shelf is not given, the FFV may not engage fishery resources beyond the EEZ, un- in fishing until an observer is available less the fishing is authorized by, and and has been placed aboard the vessel conducted in accordance with, a valid or the requirement has been waived by permit issued under § 600.501. the appropriate Regional Adminis- trator or Science and Research Direc- [61 FR 32540, June 24, 1996, as amended at 63 tor. FR 7075, Feb. 12, 1998; 64 FR 39020, July 21, 1999] (c) Assistance to observers. To assist the observer in the accomplishment of § 600.506 Observers. his or her assigned duties, the owner (a) General. To carry out such sci- and operator of an FFV to which an ob- entific, compliance monitoring, and server is assigned must— other functions as may be necessary or (1) Provide, at no cost to the observer appropriate to carry out the purposes or the United States, accommodations of the Magnuson-Stevens Act, the ap- for the observer aboard the FFV that propriate Regional Administrator or are equivalent to those provided to the Science and Research Director (see officers of that vessel. table 2 to § 600.502) may assign U.S. ob- (2) Cause the FFV to proceed to such servers to FFV’s. Except as provided places and at such times as may be des- for in section 201(h)(2) of the Magnu- ignated by the appropriate Regional son-Stevens Act, no FFV may conduct Administrator or Science and Research fishing operations within the EEZ un- Director for the purpose of embarking less a U.S. observer is aboard. and debarking the observer. (b) Effort plan. To ensure the avail- (3) Allow the observer to use the ability of an observer as required by FFV’s communications equipment and this section, the owners and operators personnel upon demand for the trans- of FFV’s wanting to fish within the mission and receipt of messages. EEZ will submit to the appropriate Re- (4) Allow the observer access to and gional Administrator or Science and use of the FFV’s navigation equipment

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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 records required by these regulations (8) At least one Emergency Position upon demand. Indicating Radio Beacon (EPIRB), ap- (8) Notify the observer at least 15 proved by the USCG for offshore com- minutes before fish are brought on mercial use, stowed in a location so as board or fish or fish products are trans- to make it readily available in the ferred from the FFV to allow sampling event of an emergency. the catch or observing the transfer, un- (9) At least six hand-held, rocket-pro- less the observer specifically requests pelled, parachute, red-flare distress sig- not to be notified. nals, and three orange-smoke distress (9) Provide all other reasonable as- signals stowed in the pilothouse or sistance to enable the observer to carry navigation bridge in portable water- out his or her duties. tight containers. (d) Health and safety standards. All (10) All lights, shapes, whistles, foreign fishing vessels to which an ob- foghorns, fog bells and gongs required server is deployed must maintain, at by and maintained in accordance with all times that the vessel is in the EEZ, the International Regulations for Pre- the following: venting Collisions at Sea. (1) At least one working radar. (11) Clean and sanitary conditions in (2) Functioning navigation lights as all living spaces, food service and prep- required by international law. aration areas and work spaces aboard (3) A watch on the bridge by appro- the vessel. priately trained and experienced per- (e) Observer transfers. (1) The operator sonnel while the vessel is underway. of the FFV must ensure that transfers (4) Lifeboats and/or inflatable life of observers at sea via small boat or rafts with a total carrying capacity raft are carried out during daylight equal to or greater than the number of hours as weather and sea conditions people aboard the vessel. Lifeboats and allow, and with the agreement of the inflatable life rafts must be maintained in good working order and be readily observer involved. The FFV operator available. must provide the observer 3 hours ad- (5) Life jackets equal or greater in vance notice of at-sea transfers, so that number to the total number of persons the observer may collect personal be- aboard the vessel. Life jackets must be longings, equipment, and scientific stowed in readily accessible and plain- samples. ly marked positions throughout the (2) The FFV’s involved must provide vessel, and maintained in a state of a safe pilot ladder and conduct the good repair. transfer according to the procedures of (6) At least one ring life buoy for § 600.504(d) to ensure the safety of the each 25 ft (7.6 m) of vessel length, during the transfer. equipped with automatic water lights. (3) An experienced crew member Ring life buoys must have an outside must assist the observer in the small diameter of not more than 32 inches boat or raft in which the transfer is (81.3 cm) nor less than 30 inches (76.2 made.

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(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 costs of supplementary observer cov- cost of travel, transportation, and per erage. Payment must be made to the diem from the supplementary observ- contractor supplying supplementary er’s post of duty to the point of embar- observer coverage either by letter of kation to the foreign fishing vessel, credit or certified check drawn on a and then from the point of disembarka- federally chartered bank in U.S. dol- tion to the post of duty from where the lars, or other financial institution ac- trip began. For the purposes of these ceptable to the contractor. The letter regulations, the appropriate Regional of credit used to pay supplementary ob- Administrator or Science and Research server fees to contractors must be sep- Director will designate posts of duty arate and distinct from the letter of for supplementary observers. credit required by § 600.518(b)(2). Billing (iv) The costs of travel, transpor- schedules will be specified by the terms tation, and per diem associated with of the contract between NOAA and the the debriefing following deployment of contractors. Billings for supplementary a supplementary observer by NMFS of- observer coverage will be approved by ficials. the appropriate Regional Adminis- (v) The administrative and overhead trator or Science and Research Direc- costs incurred by the contractor and, if tor and then transmitted to the owners appropriate, a reasonable profit. and operators of foreign fishing vessels (3) NMFS costs. The owners and opera- by the appropriate designated rep- tors of foreign fishing vessels must also resentative. Each country will have pay to NMFS as part of the surcharge only one designated representative to required by section 201(i)(4) of the Mag- receive observer bills for all vessels of nuson-Stevens Act, the following costs: that country, except as provided for by (i) The costs of certifying applicants the Assistant Administrator. All bills for the position of supplementary ob- must be paid within 10 working days of server.

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(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. or kept on deposit to defray the costs Documentation of U.S. citizenship or of future supplementary observer cov- nationality, and education or experi- erage. Refunds will be made within 60 ence will be provided from personal days after final costs are determined qualification statements on file with and approved by NMFS. NMFS contractors who provide supple- (i) Supplementary observer contrac- mentary observer services, and will not tors—(1) Contractor eligibility. Supple- require the submission of additional in- mentary observers will be obtained by formation to NMFS. NMFS from persons or firms having es- (2) Training. Prior to deployment to tablished contracts to provide NMFS foreign fishing vessels, certified supple- with observers. In the event no such mentary observers must also meet the contract is in place, NMFS will use es- following conditions: tablished, competitive contracting pro- (i) Each certified supplementary ob- cedures to select persons or firms to server must satisfactorily complete a provide supplementary observers. The course of training approved by the ap- services supplied by the supplementary propriate Regional Administrator or observer contractors will be as de- Science and Research Director as scribed within the contract and as equivalent to that received by persons specified below. used as observers by NMFS as either (2) Supplementary observer contrac- Federal personnel or contract employ- tors must submit for the approval of ees. The course of training may vary the Assistant Administrator the fol- according to the foreign fishery in lowing: which the supplementary observer is to (i) A copy of any contract, including be deployed. all attachments, amendments, and en- (ii) Each certified supplementary ob- closures thereto, between the con- server must agree in writing to abide tractor and the owners and operators by standards of conduct as set forth in

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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- trator may be based on the following: after the end of the permit period, (i) Boarding inspection reports by au- whether or not such records are on thorized officers of the USCG or NMFS, board the vessel. or other credible information, that in- (4) The owner and operator of each dicate a supplementary observer has FFV must provide to the Assistant Ad- failed to abide by the established ministrator, in the form and at the standards of conduct; or times prescribed, any other informa- (ii) An analysis by NMFS of the data tion requested that the Assistant Ad- collected by a supplementary observer ministrator determines is necessary to indicating improper or incorrect data fulfill the fishery conservation, man- collection or recording. The failure to agement and enforcement purposes of properly collect or record data is suffi- the Magnuson-Stevens Act. cient to justify decertification of sup- (b) Communications log. The owner plementary observers; no intent to de- and operator of each FFV must record fraud need be demonstrated. in a separate communications log, at (3) The Assistant Administrator will the time of transmittal, the time and notify the supplementary observer, in content of each notification made writing, of the Assistant Administra- under § 600.504. tor’s intent to suspend or revoke cer- (c) Transfer log. Except for the trans- tification, and the reasons therefor, fer of unsorted, unprocessed fish via and provide the supplementary ob- codend from a catching vessel to a server a reasonable opportunity to reprocessing vessel (Activity Code 2 or 4), spond. If the Assistant Administrator the owner and operator of each FFV determines that there are disputed must record, in a separate transfer log, questions of material fact, then the As- each transfer or receipt of any fish or sistant Administrator may in this re- fishery product, including quantities spect appoint an examiner to make an transferred or offloaded outside the informal fact-finding inquiry and pre- EEZ. The operator must record in the pare a report and recommendations. log within 12 hours of the completion of the transfer: [61 FR 32540, June 24, 1996, as amended at 63 FR 7074, 7075, Feb. 12, 1998; 64 FR 39020, July (1) The time and date (GMT) and lo- 21, 1999] cation (in geographic coordinates) the transfer began and was completed. § 600.507 Recordkeeping. (2) The product weight, by species (a) General. The owner and operator and product (use species and product of each FFV must maintain timely and codes), of all fish transferred, to the accurate records required by this sec- nearest 0.01 mt. tion as modified by the regulations for (3) The name, IRCS, and permit num- the fishery in which the FFV is en- ber of both the FFV offloading the fish gaged. and the FFV receiving the fish.

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(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’’. dated fishing log as described in para- (ii) The catch of each allocated spe- graphs (f) and (g) of this section. cies or species group to at least the (e) Daily fishing log—contents. The nearest 0.1 mt round weight. daily fishing log must contain the fol- (iii) The prohibited species catch to lowing information, as modified by at least the nearest 0.1 mt round paragraph (d)(2) of this section and the weight or by number, as required by regulations for the fishery in which the the regulations for the fishery in which FFV is engaged, and be completed ac- the FFV is engaged. cording to the format and instructions (iv) The species code of each marine provided with the permit or other for- mammal caught and its condition when mat authorized under paragraph (i) of released. this section. (4) ‘‘SECTION TWO-CATCH’’ must (1) ‘‘SECTION ONE-EFFORT’’ must contain, on a daily basis— contain on a daily basis— (i) The species codes for all allocated (i) A consecutive page number, begin- or prohibited species or species groups ning with the first day the vessel start- caught. ed fishing operations within the EEZ (ii) For each allocated species—the and continuing throughout the log. amount, to at least the nearest 0.1 mt, (ii) The date (based on GMT). and the daily disposition, either proc- (iii) The FFV’s name. essed for human consumption, used for (iv) The FFV’s IRCS. fishmeal, or discarded; the daily catch (v) The FFV’s U.S. permit number. by fishing area; the daily catch for all (vi) The FFV’s noon (1200 GMT) posi- fishing areas; and the cumulative total tion in geographic coordinates. catch. (vii) The master or operator’s signa- (iii) For the total catch of allocated ture or title. species—the amount to at least the

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

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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 was taken. The date of catch is the day FFV is engaged. Catching operations and time (GMT) the gear is hauled. may be conducted as specified by the (2) Entries for total daily and cumu- regulations of the fishery in which the lative catch or receipt weights (disposi- FFV is engaged and as modified by the tion ‘‘C’’ or ‘‘M’’) must be based on the FFV’s permit. most accurate method available to the (b) Scouting. Each FFV authorized for vessel, either scale round weights or Activity Codes 1 through 6 may scout factory weights converted to round for fish. Scouting may be conducted weights. Entries for daily and cumu- only in the fisheries area authorized by lative weights of discarded or returned the scouting vessel’s permit and under fish (disposition ‘‘D’’ or ‘‘R’’) must be such other circumstances as may be based on the most accurate method designated in this subpart or the per- available to the vessel, either actual mit. count, scale round weight, or estimated (c) Processing. Each FFV with Activ- deck weights. Entries for product ity Code 1 or 2 may process fish. Proc- weights must be based on the number essing may only be conducted when- of production units (pans, boxes, ever and wherever catching operations blocks, trays, cans, or bags) and the av- for FFV’s of that Nation are permitted, erage weight of the production unit, whenever and wherever joint venture with reasonable allowances for water operations are authorized by an FFV’s added. Allowances for water added can- permit under Activity Code 4, and not exceed 5 percent of the unit weight. under such other circumstances as may Product weights cannot be based on be designated in this subpart or the the commercial or arbitrary wholesale permit. weight of the product, but must be (d) Support. Each FFV with Activity based on the total actual weight of the Codes 1, 2, 3, 5, or 8 may support other

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permitted FFV’s. Each FFV with Ac- transship in accordance with this sub- tivity Codes 4 or 6 may support U.S. part and the vessel’s permit. vessels. Support operations may be [61 FR 32540, June 24, 1996, as amended at 62 conducted only in the fisheries areas FR 27183, May 19, 1997; 62 FR 34397, June 26, authorized by the supporting vessel’s 1997; 64 FR 39020, July 21, 1999] permit, and under such other circumstances as may be designated in § 600.509 Prohibited species. this subpart or the permit. (a) The owner or operator of each (e) Joint ventures. Each FFV with Ac- FFV must minimize its catch or re- tivity Code 4 in addition to Activity ceipt of prohibited species. Codes 1 or 2 may also conduct oper- (b) After allowing for sampling by an ations with U.S. fishing vessels. These observer (if any), the owner or operator joint venture operations with U.S. fish- of each FFV must sort its catch of fish ing vessels may be conducted through- received as soon as possible and return out the EEZ, and under such other cir- all prohibited species and species parts cumstances as may be designated in to the sea immediately with a min- these regulations or the permit. FFV’s imum of injury, regardless of condi- with activity code 4 may continue option, unless a different procedure is erations assisting U.S. fishing vessels, specified by the regulations for the despite closures under § 600.511(a). fishery in which the FFV is engaged. (f) Internal waters. For FFV’s author- All prohibited species must be recorded ized under section 306(c) of the Magnu- in the daily fishing log and other fish- son-Stevens Act: ing logs as specified by the regulations (1) Each FFV may engage in fish for the fishery in which the FFV is en- processing and support of U.S. fishing gaged. vessels within the internal waters of (c) All species of fish that an FFV that state in compliance with terms has not been specifically allocated or and conditions set by the authorizing authorized under this subpart to re- Governor. tain, including fish caught or received (2) The owner or operator of each in excess of any allocation or author- FFV must submit weekly reports on ization, are prohibited species. the amount of fish received from ves- (d) It is a rebuttable presumption sels of the United States and the loca- that any prohibited species or species tion(s) where such fish were harvested. part found on board an FFV was caught (i) Reports must include: and retained in violation of this section. (A) Vessel identification information for the FFV. § 600.510 Gear avoidance and disposal. (B) Date of each receipt of fish. (a) Vessel and gear avoidance. (1) (C) Amount of fish received, by spe- FFV’s arriving on fishing grounds cies. where fishing vessels are already fish- (D) Location(s) from which the fish ing or have set their gear for that pur- received were harvested and the name pose must ascertain the position and and official number of the vessel of the extent of gear already placed in the sea United States that harvested the fish. and must not place themselves or their (ii) Owners or operators of FFV’s fishing gear so as to interfere with or processing fish in internal waters obstruct fishing operations already in under the provisions of this paragraph progress. Vessels using mobile gear (f) must request, from the Regional Ad- must avoid fixed fishing gear. ministrator, the requirements regard- (2) The operator of each FFV must ing timing and submission of the re- maintain on its bridge a current plot of ports, at least 15 days prior to the first broadcast fixed-gear locations for the receipt of fish from a vessel of the area in which it is fishing, as required United States. The Regional Adminis- by the regulations for the fishery in trator shall stipulate the timing and which the FFV is engaged. submission requirements in writing. (b) Gear conflicts. The operator of (g) Transshipping. Each FFV with Ac- each FFV that is involved in a conflict tivity Code 1, 2, 3, 4, 5, 6, 7, 8, or 10 may or that retrieves the gear of another

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vessel must immediately notify the ap- (4) The letter of credit required in propriate USCG commander identified § 600.518(b)(2) is not established and in tables 1 and 2 to § 600.502 and request maintained. disposal instructions. Each report must (b) Activity Code 4 is automatically include: canceled when— (1) The name of the reporting vessel. (1) The OY for a species with a JVP (2) A description of the incident and amount is reached; articles retrieved, including the (2) The JVP amount for a species or amount, type of gear, condition, and species group is reached; or identification markings. (3) The letter of credit required in (3) The location of the incident. § 600.518(b)(2) is not established and (4) The date and time of the incident. maintained. (c) Disposal of fishing gear and other (c) Notification. (1) The Regional Ad- articles. (1) The operator of an FFV in ministrator is authorized to close a the EEZ may not dump overboard, jet- fishery on behalf of NMFS. The Re- tison or otherwise discard any article gional Administrator will notify each or substance that may interfere with FFV’s designated representative of clo- other fishing vessels or gear, or that sures. may catch fish or cause damage to any (2) If possible, notice will be given 48 marine resource, including marine hours before the closure. However, each mammals and birds, except in cases of Nation and the owners and operators of emergency involving the safety of the all FFV’s of that Nation are respon- ship or crew, or as specifically author- sible for ending fishing operations ized by communication from the appro- when an allocation is reached. priate USCG commander or other au- (d) Catch reconciliation. Vessel activ- thorized officer. These articles and sub- ity reports, U.S. surveillance observa- stances include, but are not limited to, tions, observer reports, and foreign fishing gear, net scraps, bale straps, catch and effort reports will be used to plastic bags, oil drums, petroleum con- make the determination listed in para- tainers, oil, toxic chemicals or any graphs (a) and (b) of this section. If manmade items retrieved in an FFV’s NMFS estimates of catch or other val- gear. ues made during the season differ from (2) The operator of an FFV may not those reported by the foreign fleets, ef- abandon fishing gear in the EEZ. forts may be initiated by the des- (3) If these articles or substances are ignated representative of each Nation encountered, or in the event of acci- to resolve such differences with NMFS. dental or emergency placement into If, however, differences still persist the EEZ, the vessel operator must im- after such efforts have been made, mediately report the incident to the NMFS estimates will be the basis for appropriate USCG Commander indi- decisions and will prevail. cated in tables 1 and 2 to § 600.502, and (e) Duration. Any closure under this give the information required in para- section will remain in effect until an graph (b) of this section. applicable new or increased allocation or JVP becomes available or the letter § 600.511 Fishery closure procedures. of credit required by § 600.518(b)(2) is re- (a) Activity Codes 1 and 2 for a fish- established. ery are automatically canceled in the [61 FR 32540, June 24, 1996, as amended at 63 following cases, unless otherwise speci- FR 7075, Feb. 12, 1998] fied by regulations specific to a fishery, when— § 600.512 Scientific research. (1) The OY for any allocated species (a) Scientific research activity. Persons or species group has been reached in planning to conduct scientific research that fishery; activities on board a scientific research (2) The TALFF or catch allowance vessel in the EEZ that may be confused for any allocated species or species with fishing are encouraged to submit group has been reached in that fishery; to the appropriate Regional Adminis- (3) The foreign nation’s allocation for trator or Director, 60 days or as soon as any allocated species or species group practicable prior to its start, a sci- has been reached; or entific research plan for each scientific

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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, the Regional Administrator, Director, search Director. or designee shall consider: the merits [61 FR 32540, June 24, 1996, as amended at 63 of the individual proposal and the in- FR 7075, Feb. 12, 1998; 74 FR 42793, Aug. 25, stitution(s) involved; whether the pro- 2009] posed activity meets the definition of scientific research activity; and wheth- § 600.513 Recreational fishing. er the vessel meets all the require- (a) Foreign vessels conducting rec- ments for a scientific research vessel. reational fishing must comply only Foreign vessels that qualify as sci- with this section, and §§ 600.10, entific research vessels and which are 600.504(a)(1), and 600.505 (as applicable). engaged in a scientific research activ- Such vessels may conduct recreational ity may only engage in compensation fishing within the EEZ and within the fishing during the scientific research boundaries of a state. Any fish caught cruise and in accordance with the ap- may not be sold, bartered, or traded. plicable scientific research plan. The (b) The owners or operator and any Regional Administrator or Director other person aboard any foreign vessel may also make recommendations to re- conducting recreational fishing must vise the research plan to ensure the ac- comply with any Federal laws or regu- tivity will be considered to be a sci- lations applicable to the domestic fish- entific research activity. The Regional ery while in the EEZ, and any state Administrator or Director may des- laws or regulations applicable while in ignate a Science and Research Direc- state waters. tor, or the Assistant Regional Adminis- trator for Sustainable Fisheries, to re- § 600.514 Relation to other laws. ceive scientific research plans and issue Letters of Acknowledgment. In (a) Persons affected by these regula- order to facilitate identification of the tions should be aware that other Fed- activity as scientific research, persons eral and state statutes may apply to conducting scientific research activi- their activities. ties are advised to carry a copy of the (b) Fishing vessel operators must ex- scientific research plan and the Letter ercise due care in the conduct of fish- of Acknowledgment on board the sci- ing activities near submarine cables. entific research vessel and to make it Damage to submarine cables resulting available for inspection upon the re- from intentional acts or from the fail- quest of any authorized officer. It is ure to exercise due care in the conduct

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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 scouting or processing activities), it Secretary of State officially notifies must have all of its fishing gear stowed each foreign nation of its allocation. at all times while it is in the EEZ. If The burden of ascertaining and accu- such a vessel has a permit authoriza- rately transmitting current allocations tion to engage in catching, taking or and status of harvest of an applicable harvesting activities, but such author- allocation to fishing vessels is upon the ization is limited to a specific area foreign nation and the owner or oper- within the EEZ, and/or to a specific pe- ator of the FFV. riod of time, the vessel must have all of its fishing gear stowed while it is in § 600.518 Fee schedule for foreign fish- the EEZ, except when it is in the spe- ing. cific area authorized, and/or during the (a) Permit application fees. Each vessel specific period of time authorized. permit application submitted under [61 FR 32540, June 24, 1996, as amended at 63 § 600.501 must be accompanied by a fee. FR 7075, Feb. 12, 1998] The amount of the fee will be determined in accordance with the proce- § 600.516 Total allowable level of for- dures for determining administrative eign fishing (TALFF). costs of each special product or service (a) The TALFF, if any, with respect contained in the NOAA Finance Hand- to any fishery subject to the exclusive book, which is available upon request fishery management authority of the from the Office of International Affairs United States, is that portion of the (see address at § 600.501(d)(1)). The fee is OY of such fishery, which cannot or specified with the application form. At will not be harvested by vessels of the the time the application is submitted, United States. Allocations of TALFF a check for the fees, drawn on a U.S.

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bank, payable to the order of ‘‘Depart- charges. No fishing will be allowed ment of Commerce, NOAA,’’ must be until the L/C is established, and au- sent to the Assistant Administrator. thorized written notice of its issuance The permit fee payment must be ac- is provided to the Assistant Adminis- companied by a list of the vessels for trator. which the payment is made. In the case (3) Assessment of poundage fees. of applications for permits authorizing Poundage fees will be assessed quar- activity code 10, the permit application terly for the actual catch during Janu- fee will be waived if the applicant pro- ary through March, April through vides satisfactory documentary proof June, July through September, and Oc- to the Assistant Administrator that tober through December. The appro- the foreign nation under which the ves- priate Regional Administrator will rec- sel is registered does not collect a fee oncile catch figures with each country from a vessel of the United States en- following the procedures of § 600.511(d). gaged in similar activities in the wa- When the catch figures are agreed ters of such foreign nation. The docu- upon, NOAA will present a bill for col- mentation presented (e.g., copy of for- lection as the documentary demand for eign fishing regulations applicable to payment to the confirming bank. If, vessels of the United States) must after 45 days from the end of the quar- clearly exempt vessels of the United ter, catches have not been reconciled, States from such a fee. the estimate of the Regional Adminis- (b) Poundage fees—(1) Rates. If a Na- trator will stand and a bill will be tion chooses to accept an allocation, issued for that amount. If necessary, poundage fees must be paid at the rate the catch figures may be refined by the specified in the following table. Regional Administrator during the next 60 days, and any modifications TABLE—SPECIES AND POUNDAGE FEES will be reflected in the next quarter’s [Dollars per metric ton] bill. Species Pound- (c) Observer fees. The Assistant Ad- age fees ministrator will notify the owners or Northwest Atlantic Ocean fisheries: operators of FFV’s of the estimated an- 1. Butterfish ...... 277.96 nual costs of placing observers aboard 2. Herring, Atlantic ...... 25.75 their vessels. The owners or operators 3. Herring, River ...... 49.59 4. Mackerel, Atlantic ...... 64.76 of any such vessel must provide for re- 5. Other finfish ...... 45.48 payment of those costs by including 6. Squid, Illex ...... 97.56 one-fourth of the estimated annual ob- 7. Squid, Loligo ...... 321.68 server fee as determined by the Assist- (2) Method of payment of poundage fees ant Administrator in a L/C as pre- and observer fees. (i) If a Nation chooses scribed in § 600.518(b)(2). During the fis- to accept an allocation, a revolving let- cal year, payment will be withdrawn ter of credit (L/C) must be established from the L/C as required to cover an- and maintained to cover the poundage ticipated observer coverage for the up- fees for at least 25 percent of the pre- coming fishery. The Assistant Admin- vious year’s total allocation at the rate istrator will reconcile any differences in paragraph (b)(1) of this section, or as between the estimated cost and actual determined by the Assistant Adminis- costs of observer coverage within 90 trator, plus the observer fees required days after the end of the fiscal year. by paragraph (c) of this section. The L/ (d) Financial assurances. (1) A foreign C must— nation, or the owners and operators of (A) Be irrevocable. certain vessels of that foreign nation, (B) Be with a bank subscribing to ICC may be required by the Assistant Ad- Pub. 290. ministrator to provide financial assur- (C) Designate ‘‘Department of Com- ances. Such assurances may be re- merce, NOAA’’ as beneficiary; quired if— (D) Allow partial withdrawals. (i) Civil and criminal penalties as- (E) Be confirmed by a U.S. bank. sessed against fishing vessels of the Na- (ii) The customer must pay all com- tion have not effectively deterred vio- missions, transmission, and service lations;

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(ii) Vessels of that Nation have en- (iv) Any notice of restriction shall gaged in fishing in the EEZ without operate as a condition imposed on the proper authorization to conduct such permit issued to the foreign vessels in- activities; volved in the fishery. (iii) The Nation’s vessel owners have (3) TALFF. The TALFFs for the fish- refused to answer administrative 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 (b) Authorized fishery—(1) Allocations. flounder, weakfish, white hake, win- Foreign vessels may engage in fishing dowpane flounder, winter flounder, only in accordance with applicable na- witch flounder, Continental Shelf fish- tional allocations. ery resources, and other invertebrates (2) Time and area restrictions. (i) Fish- (except nonallocated squids). ing, including processing, scouting, and (5) Closures. The taking of any species support of foreign or U.S. vessels, is for which a Nation has an allocation is prohibited south of 35°00′ N. lat., and permitted, provided that: north and east of a line beginning at (i) The vessels of the foreign nation the shore at 44°22′ N. lat., 67°52′ W. long. have not caught the allocation of that and intersecting the boundary of the Nation for any species or species group EEZ at 44°11′12″ N. lat., 67°16′46″ W. (e.g., ‘‘other finfish’’). When vessels of long. a foreign nation have caught an appli- (ii) The Regional Administrator will cable allocation of any species, all fur- consult with the Council prior to giv- ther fishing other than scouting, proc- ing notice of any area or time restric- essing, or support by vessels of that tion. NMFS will also consult with the Nation must cease, even if other allo- USCG if the restriction is proposed to cations have not been reached. There- reduce gear conflicts. If NMFS deter- fore, it is essential that foreign nations mines after such consultation that the plan their fishing strategy to ensure restriction appears to be appropriate, that the reaching of an allocation for NMFS will publish the proposed re- one species does not result in the pre- striction in the FEDERAL REGISTER, to- mature closing of a Nation’s fishery for gether with a summary of the informa- other allocated species. tion on which the restriction is based. (ii) The fishery has not been closed Following a 30-day comment period, for other reasons under § 600.511. NMFS will publish a final action. (6) Allocation utilization. Foreign fish- (iii) The Regional Administrator may ing vessels may elect to retain or dis- rescind any restriction if he/she deter- card allocated species; however, the mines that the basis for the restriction computation of allocation utilization no longer exists. and fee refunds will be based on the

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total quantity of that species that was fishing areas are that portion of the caught. Prohibited species must always EEZ shown inside the boundaries of the be returned to the sea as required ‘‘three digit statistical areas’’ de- under § 600.509. scribed in Figure 1 to this section. (c) Fishing areas. For the purposes of the Northwest Atlantic Ocean fishery,

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

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§ 600.525 Applicability of subpart F to to take hail-in and hail-out reports Canadian Albacore Fishing Vessels from U.S. and Canadian vessel opera- off the West Coast. tors. Fishing by vessels of Canada under Treaty means the 1981 Treaty Be- the 1981 Treaty Between the Govern- tween the Government of the United ment of the United States of America States of America and the Government and the Government of Canada on Pa- of Canada on Pacific Coast Albacore cific Coast Albacore Tuna Vessels and Tuna Vessels and Port Privileges as Port Privileges is regulated only under amended in 2002. this section and § 600.530 of this subpart (c) Vessel list. A Canadian vessel is F, and is exempt from any other re- not eligible to fish for albacore in U.S. quirements of this subpart F. Regula- waters under the Treaty as amended in tions governing fishing by U.S. vessels 2002 unless the vessel is on the list pro- in waters under the fisheries jurisdic- vided to NMFS by the Government of tion of the Canada more than 12 nau- Canada of vessels authorized by Canada tical miles from the baseline from to fish under the Treaty as amended in which the territorial sea is measured 2002. are found at §§ 300.170–300.176 of chapter II of this title. (d) Vessel identification. A Canadian vessel fishing under the Treaty as [69 FR 31535, June 4, 2004] amended in 2002 must clearly display its Canadian vessel registration num- § 600.530 Pacific albacore fishery. ber followed by the letter C in the same (a) Purpose and scope. This section height and size as the numerals, con- regulates fishing by Canadian vessels sistent with Canadian vessel marking under the 1981 Treaty Between the requirements. Government of the United States of (e) Hail-in reports. The operator of a America and the Government of Can- Canadian Vessel eligible to fish for al- ada on Pacific Coast Albacore Tuna bacore in U.S. waters under the Treaty Vessels and Port Privileges as amended as amended in 2002 must file a hail-in in 2002. Notwithstanding any other pro- report with the Reporting Office at vision of this subpart F, fishing vessels of Canada may be authorized to fish in least 24 hours prior to beginning any waters under the fisheries jurisdiction such fishing. of the United States more than 12 nau- (f) Hail-out Reports. The operator of a tical miles from the baseline from Canadian vessel that has been fishing which the territorial sea is measured in in U.S. waters under the Treaty as accordance with the Treaty and this amended in 2002 must file a hail-out re- section, pursuant to Public Law 108–219 port with the Reporting Office at least (118 Stat. 616; 16 U.S.C. 1821 note). 24 hours prior to exiting from U.S. wa- (b) Definitions. In addition to the defi- ters. nitions in the Magnuson-Stevens Fish- (g) Prohibitions. It is prohibited for ery Conservation and Management Act the operator of a Canadian vessel to en- and § 600.10, the terms used in this sub- gage in fishing in U.S. waters if the part have the following meanings: vessel: Fishing under the Treaty as amended in (1) Is not on the vessel list in para- 2002 means to engage in fishing for al- graph (c) of this section; bacore tuna in waters under the fish- (2) Has not filed a hail-in report to eries jurisdiction of the United States advise of an intent to fish under the seaward of 12 nautical miles from the Treaty as amended in 2002 prior to en- baseline from which the territorial sea gaging in such fishing; or is measured. Regional Administrator means the Re- (3) Is not clearly marked in accord- gional Administrator, Southwest Re- ance with paragraph (d) of this section. gion, NMFS, 501 W. Ocean Boulevard, [69 FR 31535, June 4, 2004] Suite 4200, Long Beach, CA 90802–4213, or a designee. Reporting Office means the office designated by the Regional Administrator

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Subpart G—Preemption of State eral conservation and management Authority Under Section 306(b) measures of the fishery. [61 FR 32540, June 24, 1996, as amended at 63 § 600.605 General policy. FR 7075, Feb. 12, 1998] It is the policy of the Secretary that § 600.615 Commencement of pro- preemption proceedings will be con- ceedings. ducted expeditiously. The administrative law judge and counsel or other rep- (a) Notice of proposed preemption. (1) If resentative for each party are encour- a proceeding under this part is deemed aged to make every effort at each stage necessary, the Administrator must of the proceedings to avoid delay. issue a notice of proposed preemption to the Attorney General of the State or § 600.610 Factual findings for Federal States concerned. The notice will con- preemption. tain: (i) A recital of the legal authority (a) The two factual findings for Fed- and jurisdiction for instituting the pro- eral preemption of state management ceeding. authority over a fishery are: (ii) A concise statement of the (1) The fishing in a fishery that is § 600.610 factual findings for Federal covered by an FMP implemented under preemption upon which the notice is the Magnuson-Stevens Act is engaged based. in predominately within the EEZ and (iii) The time, place, and date of the beyond such zone. hearing. (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

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part 904, subpart C (or as subsequently exist, the Secretary will notify, in amended), apply to the proceeding writing, the Attorney General of the after its commencement by service of state and the appropriate Council(s) of notice (pursuant to § 600.615) and prior that determination. The Secretary will to the Secretary’s decision (§ 600.625), also direct the Administrator to issue a except that the following sections will notice withdrawing any regulations not apply: proposed under § 600.615(d). (1) 15 CFR 904.201 (Definitions); (2) 15 CFR 904.206(a)(1) (Duties and § 600.630 Application for reinstatement powers of Judge); and of state authority. (3) 15 CFR 904.272 (Administrative re- (a) Application or notice. (1) At any view of decision). time after the promulgation of regula- (b) Additional duties and powers of tions under § 600.625(b)(1) to regulate a judge—(1) Time periods. The administra- fishery within a state’s boundaries, the tive law judge is authorized to modify affected state may apply to the Sec- all time periods pertaining to the retary for reinstatement of state au- course of the hearing (under §§ 600.615 thority. The Secretary may also serve and 600.620) to expedite the pro- upon such state a notice of intent to ceedings, upon application and appro- terminate such Federal regulation. A priate showing of need or emergency state’s application must include a clear circumstances by a party. and concise statement of: (2) Intervention. Intervention by per- (i) The action taken by the State to sons not parties is not allowed. correct the action or omission found to have substantially and adversely af- § 600.625 Secretary’s decision. fected 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

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decision to the Secretary. If the Sec- buoy or buoys intended to mark the po- retary, upon consideration of the sition of a cable when being laid or state’s application or any response to when out of order or broken. the notice published under (d) Marine mammals. Regulations gov- § 600.630(a)(2), the hearing record, the erning exemption permits and the rec- recommended decision, and any other ordkeeping and reporting of the inci- relevant materials finds that the rea- dental take of marine mammals are set sons for regulation of the fishery with- forth in part 229 of this title. in the boundaries of the state no longer (e) Halibut fishing. Fishing for halibut prevail, the Secretary will promptly is governed by regulations of the Inter- terminate such regulation and publish national Pacific Halibut Commission in the FEDERAL REGISTER any regu- set forth at part 300 of this title. latory amendments necessary to ac- (f) Marine sanctuaries. Regulations complish that end. governing fishing activities inside the boundaries of national marine sanc- Subpart H—General Provisions for tuaries are set forth in 15 CFR part 922. Domestic Fisheries (g) High seas fishing activities. Regula- tions governing permits and require- § 600.705 Relation to other laws. ments for fishing activities on the high seas are set forth in 50 CFR part 300, (a) General. Persons affected by these regulations should be aware that other subparts A and R. Any vessel operating Federal and state statutes and regula- on the high seas must obtain a permit tions may apply to their activities. issued pursuant to the High Seas Fish- Vessel operators may wish to refer to ing Compliance Act. USCG regulations found in the Code of [61 FR 32540, June 24, 1996, as amended at 80 Federal Regulations title 33—Naviga- FR 62500, Oct. 16, 2015; 81 FR 51138, Aug. 3, tion and Navigable Waters and 46— 2016; 85 FR 15392, Mar. 18, 2020] Shipping; 15 CFR part 904, subpart D— Permit Sanctions and Denials; and § 600.710 Permits. title 43—Public Lands (in regard to ma- Regulations pertaining to permits re- rine sanctuaries). quired for certain fisheries are set (b) State responsibilities. Certain re- forth in the parts of this chapter gov- sponsibilities relating to data collec- erning those fisheries. tion and enforcement may be performed by authorized state personnel § 600.715 Recordkeeping and report- under a state/Federal agreement for ing. data collection and a tripartite agree- Regulations pertaining to records ment among the state, the USCG, and and reports required for certain fish- the Secretary for enforcement. eries are set forth in the parts of this (c) Submarine cables. Fishing vessel chapter governing those fisheries. operators must exercise due care in the conduct of fishing activities near sub- § 600.720 Vessel and gear identifica- marine cables. Damage to the sub- tion. marine cables resulting from inten- Regulations pertaining to special tional acts or from the failure to exer- vessel and gear markings required for cise due care in the conduct of fishing certain fisheries are set forth in the operations subjects the fishing vessel parts of this chapter governing those operator to the criminal penalties pre- fisheries. scribed by the Submarine Cable Act (47 U.S.C. 21) which implements the Inter- § 600.725 General prohibitions. national Convention for the Protection It is unlawful for any person to do of Submarine Cables. Fishing vessel op- any of the following: erators also should be aware that the (a) Possess, have custody or control Submarine Cable Act prohibits fishing of, ship, transport, offer for sale, sell, operations at a distance of less than 1 purchase, land, import, export or re-ex- nautical mile (1.85 km) from a vessel port, any fish or parts thereof taken or engaged in laying or repairing a sub- retained in violation of the Magnuson- marine cable; or at a distance of less Stevens Act or any other statute ad- than 0.25 nautical mile (0.46 km) from a ministered by NOAA or any regulation

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or permit issued thereunder, or import, export, or transfer of any fish, or at- export, transport, sell, receive, acquire, tempts to do any of the above. or purchase in interstate or foreign (j) Interfere with, obstruct, delay, or commerce any fish taken, possessed, prevent by any means an investigation, transported, or sold in violation of any search, seizure, or disposition of seized foreign law or regulation, or any treaty property in connection with enforce- or in contravention of a binding con- ment of the Magnuson-Stevens Act or servation measure adopted by an inter- any other statute administered by national agreement or organization to NOAA. which the United States is a party. (k) Fish in violation of the terms or (b) Transfer or attempt to transfer, conditions of any permit or authoriza- directly or indirectly, any U.S.-har- tion issued under the Magnuson-Ste- vested fish to any foreign fishing ves- vens Act or any other statute adminis- sel, while such vessel is in the EEZ, un- tered by NOAA. less the foreign fishing vessel has been (l) Fail to report catches as required issued a permit under section 204 of the while fishing pursuant to an exempted Magnuson-Stevens Act, which author- fishing permit. izes the receipt by such vessel of U.S.- (m) On a scientific research vessel, harvested fish. engage in fishing other than rec- (c) Fail to comply immediately with reational fishing authorized by applica- enforcement and boarding procedures ble state or Federal regulations. specified in § 600.730. (n) Trade, barter, or sell; or attempt (d) Refuse to allow an authorized offi- to trade, barter, or sell fish possessed cer to board a fishing vessel or to enter or retained while fishing pursuant to areas of custody for purposes of con- an authorization for an exempted edu- ducting any search, inspection, or sei- cational activity. zure in connection with the enforce- (o) Harass or sexually harass an au- ment of the Magnuson-Stevens Act or thorized officer or an observer. any other statute administered by (p) Fail to show proof of passing the NOAA. USCG Commercial Fishing Vessel Safe- (e) Dispose of fish or parts thereof or ty Examination or the alternate NMFS other matter in any manner, after any safety equipment examination, or fail communication or signal from an au- to maintain the vessel safety condi- thorized officer, or after the approach tions necessary to pass the examina- by an authorized officer or an enforce- tion, when required by NMFS pursuant ment vessel or aircraft. to § 600.746. (f) Assault, resist, oppose, impede, in- (q) Fail to display a Commercial timidate, threaten, or interfere with Fishing Vessel Safety Examination any authorized officer in the conduct of decal or a valid certificate of compli- any search, inspection, or seizure in ance or inspection pursuant to § 600.746. connection with enforcement of the (r) Fail to provide to an observer, a Magnuson-Stevens Act or any other NMFS employee, or a designated ob- statute administered by NOAA. server provider information that has (g) Interfere with, delay, or prevent been requested pursuant to § 600.746, or by any means, the apprehension of an- fail to allow an observer, a NMFS em- other person, knowing that such person ployee, or a designated observer pro- has committed any act prohibited by vider to inspect any item described at the Magnuson-Stevens Act or any § 600.746. other statute administered by NOAA. (s) Fish without an observer when the (h) Resist a lawful arrest for any act vessel is required to carry an observer. prohibited under the Magnuson-Ste- (t) Assault, oppose, impede, intimi- vens Act or any other statute adminis- date, or interfere with a NMFS-ap- tered by NOAA. proved observer. (i) Make any false statement, oral or (u)(1) Prohibit or bar by command, written, to an authorized officer con- impediment, threat, coercion, inter- cerning the taking, catching, har- ference, or refusal of reasonable assist- vesting, landing, purchase, sale, offer ance, an observer from conducting his of sale, possession, transport, import, or her duties as an observer; or

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(2) Tamper with or destroy samples ing in fishing or employing fishing gear or equipment. when such fishing gear is prohibited or (v) The use of any gear or participa- restricted by regulation under an FMP tion in a fishery not on the following or other applicable law. However, after list of authorized fisheries and gear is December 1, 1999, an individual fisher- prohibited after December 1, 1999. A man may notify the appropriate Coun- fish, regardless whether targeted, may cil, or the Director, in the case of At- be retained only if it is taken within a lantic highly migratory species, of the listed fishery, is taken with a gear au- intent to use a gear or participate in a thorized for that fishery, and is taken fishery not already on the list. Ninety in conformance with all other applica- days after such notification, the indi- ble regulations. Listed gear can only be used in a manner that is consistent vidual may use the gear or participate with existing laws and regulations. The in that fishery unless regulatory action list of fisheries and authorized gear is taken to prohibit the use of the gear does not, in any way, alter or supersede or participate in the fishery (e.g., any definitions or regulations con- through emergency or interim regula- tained elsewhere in this chapter. A per- tions). The list of authorized fisheries son or vessel is prohibited from engag- and gear is as follows:

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.

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Fishery Authorized gear types

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. 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.

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Fishery Authorized gear types

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. 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.

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Fishery Authorized gear types

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. 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.

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Fishery Authorized gear types

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. 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. [Reserved]. 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.

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Fishery Authorized gear types

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). 25. Atlantic Migratory Group Cobia (Non-FMP): A. Commercial Fishery...... A. Longline, handline, rod and reel, bandit gear, spear. B. Recreational Fishery ...... B. Bandit gear, rod and reel, handline, spear.

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. 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. 21. Offshore aquaculture (FMP) ...... Cages, net pens

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):

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Fishery Authorized gear types

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. Pacific Coast Salmon Fisheries (FMP): A. Commercial ...... A. Hook and line. B. Recreational ...... B. Hook and line. 2. Pacific Coast Groundfish Fisheries (FMP): A. Commercial ...... A. Trawl, hook and line, pot/trap, demersal seine, set net, spear, and hand collection. B. Recreational ...... B. Hook and line, spear. 3. Coastal Pelagic Species Fisheries (FMP): A. Commercial ...... A. Purse seine, lampara net, brail net, dip net, cast net, hook and line. B. Recreational ...... B. Hook and line, spear, pot/trap, dip net, cast net, hand harvest, rake, harpoon, bow and arrow. 4. Highly Migratory Species Fisheries (FMP): A. Commercial ...... A. Hook and line, gillnet, harpoon, purse seine. B. Recreational ...... B. Hook and line, spear, harpoon, bow and arrow. 5. Pacific Halibut Fisheries (Non-FMP): A. Commercial ...... A. Hook and line. B. Recreational ...... B. Hook and line, spear. 6. Dungeness Crab Fisheries (Non-FMP): A. Commercial ...... A. Pot/trap. B. Recreational North of 46°15′ N. lat ...... B. Pot/trap, dip net, hand harvest. C. Recreational South of 46°15′ N. lat. and North of 42° N. lat .. C. Pot/trap, hook and line, dip net, hand harvest, rake, crab loop. D. Recreational South of 42° N. lat ...... D. Pot/trap, hand harvest, hoop net, crab loop. 7. Crab Fisheries for Species other than Dungeness crab (Non-FMP): A. Commercial Pot/Trap Fisheries South of 46°15′ N. lat ...... A. Pot/trap. B. Recreational North of 46°15′ N. lat ...... B. Pot/trap, dip net, hand harvest. C. Recreational South of 46°15′ N. lat. and North of 42° N. lat .. C. Pot/trap, hook and line, dip net, hand harvest, rake, crab loop. D. Recreational South of 42° N. lat ...... D. Pot/trap, hand harvest, hoop net, crab loop. 8. Shrimp and Prawn Fisheries (Non-FMP): A. Commercial spot prawn ...... A. Pot/trap. B. Commercial pink shrimp North of 46°15′ N. lat ...... B. Trawl. C. Commercial pink shrimp South of 46°15′ N. lat ...... C. Pot/trap, trawl. D. Commercial coonstripe shrimp South of 46°15′ N. lat ...... D. Pot/trap. E. Commercial ridgeback prawn South of 42° N. lat ...... E. Trawl. F. Recreational North of 46°15′ N. lat ...... F. Pot/trap, dip net, hand harvest. G. Recreational South of 46°15′ N. lat. and North of 42° N. lat G. Pot/trap, hook and line, dip net, hand harvest, rake. H. Recreational South of 42° N. lat ...... H. Pot/trap, hand harvest, dip net. 9. Hagfish Commercial Fisheries (Non-FMP) ...... Pot/trap. 10. Squid, all spp. except market squid or not otherwise prohibited, and Octopus Fisheries (Non-FMP): A. Commercial ...... A. Hook and line, pot/trap, dip net, seine, trawl, set net, spear, hand harvest. B. Recreational Squid North of 42° N. lat ...... B. Hook and line, cast net, dip net, hand harvest. C. Recreational Octopus North of 42° N. lat ...... C. Hook and line, pot/trap, dip net, hand harvest. D. Recreational South of 42° N. lat ...... D. Hook and line, dip net, hand harvest. 11. White Sturgeon Fisheries (Non-FMP): A. Commercial South of 46°15′ N. lat. and North of 42° N. lat ... A. Trawl, pot/trap, hook and line, seine, dip net, spear. B. Recreational North of 42° N. lat ...... B. Hook and line. C. Recreational South of 42° N. lat ...... C. Hook and line, spear.

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Fishery Authorized gear types

12. Sea Cucumber Fishery (Non-FMP): A. Commercial hand harvest fishery South of 46°15′ N. lat ...... A. Hand harvest. B. Commercial trawl South of 42° N. lat ...... B. Trawl. 13. Minor Finfish Commercial Fisheries South of 46°15′ N. lat. and North Trawl, pot/trap, hook and line, seine, dipnet, spear. of 42° N. lat. for: Salmon shark, Pacific pomfret, slender sole, wolf-eel, eelpout species, Pacific sandfish, skilfish, and walleye pollock Fish- eries (Non-FMP). 14. Weathervane Scallop Commercial Fishery South of 46°15′ N. lat. Trawl. and North of 42° N. lat. (Non-FMP). 15. California Halibut, White Seabass Commercial Fisheries South of 42° N. lat. (Non-FMP): A. California halibut trawl ...... A. Trawl. B. California halibut and white seabass set net ...... B. Gillnet, trammel net. C. California halibut hook and line ...... C. Hook and line. D. White seabass hook and line ...... D. Hook and line. 16. California Barracuda, White Seabass, and Yellowtail Drift-Net Com- Gillnet. mercial Fishery South of 42° N. lat. (Non-FMP). 17. Pacific Bonito Commercial Net Fishery South of 42° N. lat. (Non- Purse seine. FMP). 18. Lobster Commercial Pot and Trap Fishery South of 42° N. lat. (Non- Pot/trap. FMP). 19. Finfish and Invertebrate Fisheries Not Listed Above and Not Other- wise Prohibited (Non-FMP): A. Commercial South of 46°15′ N. lat ...... A. Hook and line, pot/trap, spear. B. Recreational ...... B. Hook and line, spear, pot/trap, dip net, cast net, hand harvest, rake, harpoon, bow and arrow.

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, pot. 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.

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):

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Fishery Authorized gear types

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

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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 and the wind, sea, and visibility condi- for the protection of observers includ- tions allow, a loudhailer may be used ing compliance with all U.S. Coast instead of the radio. Hand signals, plac- Guard and other applicable rules, regu- ards, high frequency radiotelephone, or lations, or statutes applicable to the voice may be employed by an author- vessel and which pertain to safe oper- ized officer, and message blocks may be ation of the vessel. dropped from an aircraft. [61 FR 32540, June 24, 1996] (3) If other communications are not practicable, visual signals may be EDITORIAL NOTE: For FEDERAL REGISTER ci- transmitted by flashing light directed tations affecting § 600.725, see the List of CFR at the vessel signaled. USCG units will Sections Affected, which appears in the Finding Aids section of the printed volume normally use the flashing light signal and at www.govinfo.gov. ‘‘L’’ as the signal to stop. In the Inter- national Code of Signals, ‘‘L’’ (.–..) § 600.730 Facilitation of enforcement. means ‘‘you should stop your vessel in- (a) General. The operator of, or any stantly.’’ (Period (.) means a short other person aboard, any fishing vessel flash of light; dash (–) means a long subject to parts 622 through 699 of this flash of light.) chapter must immediately comply (4) Failure of a vessel’s operator with instructions and signals issued by promptly to stop the vessel when dian authorized officer to stop the vessel rected to do so by an authorized officer and with instructions to facilitate safe using loudhailer, radiotelephone, flash- boarding and inspection of the vessel, ing light signal, or other means con- its gear, equipment, fishing record stitutes prima facie evidence of the of- (where applicable), and catch for pur- fense of refusal to permit an authorized poses of enforcing the Magnuson-Ste- officer to board. vens Act or any other statute adminis- (5) The operator of a vessel who does tered by NOAA and this chapter. not understand a signal from an en- (1) For the purposes of this section forcement unit and who is unable to ‘‘freeboard’’ means the working dis- obtain clarification by loudhailer or tance between the top rail of the gun- radiotelephone must consider the sig- wale of a vessel and the water’s sur- nal to be a command to stop the vessel face. Where cut-outs are provided in instantly. the bulwarks for the purpose of board- (c) Boarding. The operator of a vessel ing personnel, freeboard means the dis- directed to stop must: tance between the threshold of the bul- (1) Guard Channel 16, VHF-FM, if so wark cut-out and the water’s surface. equipped. (2) For the purposes of this section, (2) Stop immediately and lay to or ‘‘pilot ladder’’ means a flexible ladder maneuver in such a way as to allow the constructed and approved to meet the authorized officer and his/her party to U.S. Coast Guard standards for pilot come aboard. ladders at 46 CFR subpart 163.003 enti- (3) Except for fishing vessels with a tled Pilot Ladder. freeboard of 4 feet (1.25 m) or less, pro- (b) Communications. (1) Upon being vide, when requested by an authorized approached by a USCG vessel or air- officer or observer personnel, a pilot craft, or other vessel or aircraft with ladder capable of being used for the an authorized officer aboard, the oper- purpose of enabling personnel to em- ator of a fishing vessel must be alert bark and disembark the vessel safely. for communications conveying enforce- The pilot ladder must be maintained in ment instructions. good condition and kept clean. (2) VHF-FM radiotelephone is the (4) When necessary to facilitate the preferred method for communicating boarding or when requested by an au- between vessels. If the size of the vessel thorized officer or observer, provide a

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manrope or safety line, and illumina- § 600.740 Enforcement policy. tion for the pilot ladder. (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: (d) Signals. The following signals, ex- (1) Issuance of a citation (a type of tracted from the International Code of warning), usually at the scene of the Signals, may be sent by flashing light offense (see 15 CFR part 904, subpart E). by an enforcement unit when condi- (2) Assessment by the Administrator tions do not allow communications by of a civil money penalty. loudhailer or radiotelephone. Knowl- (3) For certain violations, judicial edge of these signals by vessel opera- forfeiture action against the vessel and tors is not required. However, knowl- its catch. edge of these signals and appropriate (4) Criminal prosecution of the owner action by a vessel operator may pre- or operator for some offenses. It shall clude the necessity of sending the sig- be the policy of NMFS to enforce vigor- nal ‘‘L’’ and the necessity for the ves- ously and equitably the provisions of sel to stop instantly. (Period (.) means the Magnuson-Stevens Act by utilizing a short flash of light; dash (-) means a that form or combination of authorized long flash of light.) remedies best suited in a particular (1) ‘‘AA’’ repeated (.-.-) is the call to case to this end. an unknown station. The operator of the signaled vessel should respond by (b) Processing a case under one reme- identifying the vessel by radio- dial form usually means that other telephone or by illuminating the ves- remedies are inappropriate in that sel’s identification. case. However, further investigation or (2) ‘‘RY-CY’’ (.-. -.— -.-. -.—) means later review may indicate the case to ‘‘you should proceed at slow speed, a be either more or less serious than ini- boat is coming to you.’’ This signal is tially considered, or may otherwise re- normally employed when conditions veal that the penalty first pursued is allow an enforcement boarding without inadequate to serve the purposes of the the necessity of the vessel being Magnuson-Stevens Act. Under such cir- boarded coming to a complete stop, or, cumstances, the Agency may pursue in some cases, without retrieval of fish- other remedies either in lieu of or in ing gear which may be in the water. addition to the action originally taken. (3) ‘‘SQ3’’ (... —.- ...—) means ‘‘you Forfeiture of the illegal catch does not should stop or heave to; I am going to fall within this general rule and is con- board you.’’ sidered in most cases as only the ini- [61 FR 32540, June 24, 1996, as amended at 61 tial step in remedying a violation by FR 37225, July 17, 1996; 63 FR 7075, Feb. 12, removing the ill-gotten gains of the of- 1998; 73 FR 67809, Nov. 17, 2008; 81 FR 88998, fense. Dec. 9, 2016] (c) If a fishing vessel for which a permit has been issued under the Magnu- § 600.735 Penalties. son-Stevens Act is used in the commis- Any person committing, or fishing sion of an offense prohibited by section vessel used in the commission of a vio- 307 of the Magnuson-Stevens Act, lation of the Magnuson-Stevens Act or NOAA may impose permit sanctions, any other statute administered by whether or not civil or criminal action NOAA and/or any regulation issued has been undertaken against the vessel under the Magnuson-Stevens Act, is or its owner or operator. In some cases, subject to the civil and criminal pen- the Magnuson-Stevens Act requires alty provisions and civil forfeiture pro- permit sanctions following the assess- visions of the Magnuson-Stevens Act, ment of a civil penalty or the imposi- to this section, to 15 CFR part 904 tion of a criminal fine. In sum, the (Civil Procedures), and to other appli- Magnuson-Stevens Act treats sanctions cable law. against the fishing vessel permit to be [61 FR 32540, June 24, 1996, as amended at 63 the carrying out of a purpose separate FR 7075, Feb. 12, 1998] from that accomplished by civil and

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criminal penalties against the vessel or ignate a Science and Research Direc- its owner or operator. tor, or the Assistant Regional Adminis- [61 FR 32540, June 24, 1996, as amended at 63 trator for Sustainable Fisheries, to re- FR 7075, Feb. 12, 1998] ceive scientific research plans and issue Letters of Acknowledgment. In § 600.745 Scientific research activity, order to facilitate identification of the exempted fishing, and exempted activity as scientific research, persons educational activity. conducting scientific research activi- (a) Scientific research activity. Nothing ties are advised to carry a copy of the in this part is intended to inhibit or scientific research plan and the Letter prevent any scientific research activity of Acknowledgment on board the sci- conducted by a scientific research ves- entific research vessel and to make it sel. Persons planning to conduct sci- available for inspection upon the re- entific research activities on board a quest of any authorized officer. It is scientific research vessel in the EEZ or recommended that for any scientific on the high seas are encouraged to sub- research activity, any fish, or parts mit to the appropriate Regional Ad- thereof, retained pursuant to such ac- ministrator or Director, 60 days or as tivity be accompanied, during any ex- soon as practicable prior to its start, a vessel activities, by a copy of the Let- scientific research plan for each sci- ter of Acknowledgment. Activity con- entific activity. The Regional Adminis- ducted in accordance with a scientific trator or Director will acknowledge no- research plan acknowledged by such a tification of scientific research activ- Letter of Acknowledgment is presumed ity by issuing to the operator or mas- to be scientific research activity. An ter of that vessel, or to the sponsoring authorized officer may overcome this institution, a Letter of Acknowledg- presumption by showing that an activ- ment. This Letter of Acknowledgment is separate and distinct from any per- ity does not fit the definition of sci- mit or consultation required by the entific research activity or is outside MMPA, the ESA, or any other applica- the scope of the scientific research ble law. The Regional Administrator or plan. Director will include text in the Letter (b) Exempted fishing—(1) General. A of Acknowledgment informing the ap- NMFS Regional Administrator or Di- plicant that such a permit may be re- rector may authorize, for limited test- quired and should be obtained from the ing, public display, data collection, ex- agency prior to embarking on the ac- ploratory fishing, compensation fish- tivity. If the Regional Administrator ing, conservation engineering, health or Director, after review of a research and safety surveys, environmental plan, determines that it does not con- cleanup, and/or hazard removal pur- stitute scientific research but rather poses, the target or incidental harvest fishing, the Regional Administrator or of species managed under an FMP or Director will inform the applicant as fishery regulations that would other- soon as practicable and in writing. In wise be prohibited. Exempted fishing making this determination, the Re- may not be conducted unless author- gional Administrator, Director, or des- ized by an EFP issued by a Regional ignee shall consider: the merits of the Administrator or Director in accord- individual proposal and the institu- ance with the criteria and procedures tion(s) involved; whether the proposed specified in this section. Compensation activity meets the definition of sci- fishing must be conducted under an entific research activity; and whether EFP if the activity would otherwise be the vessel meets all the requirements prohibited by applicable regulations for a scientific research vessel. The Re- unless the activity is specifically au- gional Administrator or Director may thorized under an FMP or a scientific also make recommendations to revise research permit. Conservation engi- the research plan to ensure the activ- neering that does not meet the defini- ity will be considered to be scientific tion of scientific research activity, but research activity or recommend the ap- does meet the definition of fishing plicant request an EFP. The Regional must be conducted under an EFP if the Administrator or Director may des- activity would otherwise be prohibited

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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 fishing procedures. An EFP exempts a impacts on the environment, including vessel only from those regulations impacts on fisheries, marine mammals, specified in the EFP. All other applica- threatened or endangered species, and ble regulations remain in effect. The EFH. Regional Administrator or Director (vi) For each vessel covered by the may charge a fee to recover the admin- EFP, the approximate time(s) and istrative expenses of issuing an EFP. place(s) fishing will take place, and the The amount of the fee will be cal- type, size, and amount of gear to be culated, at least annually, in accord- used. ance with procedures of the NOAA (vii) The signature of the applicant. Handbook for determining administra- (viii) The Regional Administrator or tive costs of each special product or Director, as appropriate, may request service; the fee may not exceed such from an applicant additional informa- costs. Persons may contact the appro- tion necessary to make the determina- priate Regional Administrator or Di- tions required under this section. An rector to determine the applicable fee. incomplete application or an applica- (2) Application. An applicant for an tion for which the appropriate fee has EFP shall submit a completed applica- not been paid will not be considered tion package to the appropriate Re- until corrected in writing and the fee gional Administrator or Director, as paid. An applicant for an EFP need not soon as practicable and at least 60 days be the owner or operator of the ves- before the desired effective date of the sel(s) for which the EFP is requested. EFP. Submission of an EFP applica- (3) Issuance. (i) The Regional Admin- tion less than 60 days before the de- istrator or Director, as appropriate, sired effective date of the EFP may re- will review each application and will sult in a delayed effective date because make a preliminary determination of review requirements. The applica- whether the application contains all of tion package must include payment of the required information and con- any required fee as specified by para- stitutes an activity appropriate for fur- graph (b)(1) of this section, and a writ- ther consideration. If the Regional Ad- ten application that includes, but is ministrator or Director finds that any not limited to, the following informa- application does not warrant further tion: consideration, both the applicant and (i) The date of the application. the affected Council(s) will be notified (ii) The applicant’s name, mailing ad- in writing of the reasons for the deci- dress, and telephone number. sion. If the Regional Administrator or (iii) A statement of the purposes and Director determines that any applica- goals of the exempted fishery for which tion warrants further consideration, an EFP is needed, including justifica- notification of receipt of the application for issuance of the EFP. tion will be published in the FEDERAL (iv) For each vessel to be covered by REGISTER with a brief description of the EFP, as soon as the information is the proposal. Interested persons will be available and before operations begin given a 15- to 45-day opportunity to under the EFP: comment on the notice of receipt of the (A) A copy of the USCG documenta- EFP application. In addition, com- tion, state license, or registration of ments may be requested during public each vessel, or the information con- testimony at a Council meeting. If the tained on the appropriate document. Council intends to take comments on (B) The current name, address, and EFP applications at a Council meeting, telephone number of the owner and it must include a statement to this ef- master, if not included on the docu- fect in the Council meeting notice and ment provided for the vessel. meeting agenda. Multiple applications (v) The species (target and inci- for EFPs may be published in the same dental) expected to be harvested under FEDERAL REGISTER document and may

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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 ing activity. The Regional Adminis- fish, marine mammal, threatened or trator or Director will also forward endangered species, or EFH; or copies of the application to the Coun- (C) Issuance of the EFP would have cil(s), the U.S. Coast Guard, and the economic allocation as its sole purpose appropriate fishery management agen- (other than compensation fishing); or cies of affected states, accompanied by (D) Activities to be conducted under the following information: the EFP would be inconsistent with (A) The effect of the proposed EFP on the intent of this section, the manage- the target and incidental species, in- ment objectives of the FMP, or other cluding the effect on any TAC. applicable law; or (B) A citation of the regulation or (E) The applicant has failed to dem- regulations that, without the EFP, onstrate a valid justification for the would prohibit the proposed activity. permit; or (C) Biological information relevant (F) The activity proposed under the to the proposal, including appropriate EFP could create a significant enforcement problem. statements of environmental impacts, (iv) The decision of a Regional Ad- including impacts on fisheries, marine ministrator or Director to grant or mammals, threatened or endangered deny an EFP is the final action of species, and EFH. NMFS. If the permit, as granted, is sig- (ii) If the application is complete and nificantly different from the original warrants additional consultation, the application, or is denied, NMFS may Regional Administrator or Director publish notification in the FEDERAL may consult with the appropriate REGISTER describing the exempted fish- Council(s) concerning the permit appli- ing to be conducted under the EFP or cation during the period in which com- the reasons for denial. ments have been requested. The Coun- (v) The Regional Administrator or cil(s) or the Regional Administrator or Director should attach, as applicable, Director shall notify the applicant in terms and conditions to the EFP, con- advance of any public meeting at which sistent with the purpose of the exempt- the application will be considered, and ed fishing and as otherwise necessary offer the applicant the opportunity to for the conservation and management appear in support of the application. of the fishery resources and the marine (iii) As soon as practicable after re- environment, including, but not lim- ceiving a complete application, includ- ited to: ing all required analyses and consulta- (A) The maximum amount of each tions (e.g., NEPA, EFH, ESA and regulated species that can be harvested MMPA), and having received responses and landed during the term of the EFP, from the public, the agencies identified including trip limitations, where ap- in paragraph (b)(3)(i) of this section, propriate. and/or after the consultation, if any, (B) The number, size(s), name(s), and described in paragraph (b)(3)(ii) of this identification number(s) of the ves- section, the Regional Administrator or sel(s) authorized to conduct fishing ac- Director shall issue the EFP or notify tivities under the EFP. the applicant in writing of the decision (C) A citation of the regulations from to deny the EFP and the reasons for which the vessel is exempted. the denial. Grounds for denial of an (D) The time(s) and place(s) where EFP include, but are not limited to, exempted fishing may be conducted. the following: (E) The type, size, and amount of (A) The applicant has failed to dis- gear that may be used by each vessel close material information required, or operated under the EFP. has made false statements as to any (F) Whether observers, a vessel moni- material fact, in connection with his or toring system, or other electronic her application; or equipment must be carried on board

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vessels operating under the EFP, and panied, during any ex-vessel activities, any necessary conditions, such as by a copy of the EFP. predeployment notification require- (8) Inspection. Any EFP issued under ments. this section must be carried on board (G) Data reporting requirements nec- the vessel(s) for which it was issued. essary to document the activities, in- The EFP must be presented for inspec- cluding catches and incidental catches, tion upon request of any authorized of- and to determine compliance with the ficer. terms and conditions of the EFP and (9) Sanctions. Failure of a permittee established time frames and formats to comply with the terms and condi- for submission of the data to NMFS. tions of an EFP may be grounds for (H) Other conditions as may be nec- revocation, suspension, or modification essary to assure compliance with the of the EFP with respect to all persons purposes of the EFP, consistent with and vessels conducting activities under the objectives of the FMP and other the EFP. Any action taken to revoke, applicable law. suspend, or modify an EFP for enforce- (I) Provisions for public release of ment purposes will be governed by 15 data obtained under the EFP that are CFR part 904, subpart D. consistent with NOAA confidentiality (c) Reports. (1) NMFS requests that of statistics procedures at set out in persons conducting scientific research subpart E. An applicant may be re- activities from scientific research ves- quired to waive the right to confiden- sels submit a copy of any report or tiality of information gathered while other publication created as a result of conducting exempted fishing as a con- the activity, including the amount, dition of an EFP. composition, and disposition of their (4) Acknowledging permit conditions. catch, to the appropriate Science and Upon receipt of an EFP, the permit Research Director and Regional Ad- holder must date and sign the permit, ministrator or Director. and retain the permit on board the vessel(s). The permit is not valid until (2) Upon completion of the activities signed by the permit holder. In signing of the EFP, or periodically as required the permit, the permit holder: by the terms and conditions of the (i) Agrees to abide by all terms and EFP, persons fishing under an EFP conditions set forth in the permit, and must submit a report of their catches all restrictions and relevant regula- and any other information required, to tions; and the appropriate Regional Adminis- (ii) Acknowledges that the authority trator or Director, in the manner and to conduct certain activities specified within the time frame specified in the in the permit is conditional and subject EFP, but no later than 6 months after to authorization and revocation by the concluding the exempted fishing activ- Regional Administrator or Director. ity. Persons conducting EFP activities (5) Duration. Unless otherwise speci- are also requested to submit a copy of fied in the EFP or a superseding notice any publication prepared as a result of or regulation, an EFP is valid for no the EFP activity. longer than 1 year. EFPs may be re- (d) Exempted educational activities—(1) newed following the application proce- General. A NMFS Regional Adminis- dures in this section. trator or Director may authorize, for (6) Alteration. Any permit that has educational purposes, the target or in- been altered, erased, or mutilated is incidental harvest of species managed valid. under an FMP or fishery regulations (7) Inspection. Any EFP issued under that would otherwise be prohibited. this section must be carried on board The trade, barter or sale of fish taken the vessel(s) for which it was issued. under this authorization is prohibited. The EFP must be presented for inspec- The decision of a Regional Adminis- tion upon request of any authorized of- trator or Director to grant or deny an ficer. Any fish, or parts thereof, re- exempted educational activity author- tained pursuant to an EFP issued ization is the final action of NMFS. Ex- under this paragraph must be accom- empted educational activities may not

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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 (2) Application. An applicant for an make a determination whether the ap- exempted educational activity author- plication contains all of the required ization shall submit to the appropriate information, is consistent with the Regional Administrator or Director, at goals, objectives, and requirements of least 15 days before the desired effec- the FMP or regulations and other ap- tive date of the authorization, a writ- plicable law, and constitutes a valid exten application that includes, but is empted educational activity. The ap- not limited to, the following informa- plicant will be notified in writing of tion: the decision within 5 working days of (i) The date of the application. receipt of the application. (ii) The applicant’s name, mailing ad- (ii) The Regional Administrator or dress, and telephone number. Director should attach, as applicable, (iii) A brief statement of the purposes terms and conditions to the authoriza- and goals of the exempted educational tion, consistent with the purpose of the activity for which authorization is re- exempted educational activity and as quested, including a general descrip- otherwise necessary for the conservation of the arrangements for disposition and management of the fishery re- tion of all species collected. sources and the marine environment, (iv) Evidence that the sponsoring in- including, but not limited to: stitution is a valid educational institu- (A) The maximum amount of each tion, such as accreditation by a recog- regulated species that may be har- nized national or international accredi- vested. tation body. (B) A citation of the regulations from (v) The scope and duration of the ac- which the vessel is being exempted. tivity. (C) The time(s) and place(s) where (vi) For each vessel to be covered by the exempted educational activity may the authorization: be conducted. (A) A copy of the U.S. Coast Guard (D) The type, size, and amount of documentation, state license, or reg- gear that may be used by each vessel istration of the vessel, or the informa- operated under the authorization. tion contained on the appropriate doc- (E) Data reporting requirements nec- ument. essary to document the activities and (B) The current name, address, and to determine compliance with the telephone number of the owner and terms and conditions of the exempted master, if not included on the docu- educational activity. ment provided for the vessel. (F) Such other conditions as may be (vii) The species and amounts ex- necessary to assure compliance with pected to be caught during the exempt- the purposes of the authorization, con- ed educational activity, and any antici- sistent with the objectives of the FMP pated impacts on the environment, in- or regulations. cluding impacts on fisheries, marine (G) Provisions for public release of mammals, threatened or endangered data obtained under the authorization, species, and EFH. consistent with NOAA confidentiality (viii) For each vessel covered by the of statistics procedures in subpart E. authorization, the approximate time(s) An applicant may be required to waive and place(s) fishing will take place, and the right to confidentiality of informa- the type, size, and amount of gear to be tion gathered while conducting ex- used. empted educational activities as a con- (ix) The signature of the applicant. dition of the authorization. (x) The Regional Administrator or (iii) The authorization will specify Director may request from an appli- the scope of the authorized activity cant additional information necessary and will include, at a minimum, the to make the determinations required duration, vessel(s), persons, species,

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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 educational activity is effective for no Tuna Act of 1988 (16 U.S.C. 973 et seq.), longer than 1 year, unless revoked, sus- or any other U.S. law. pended, or modified. Authorizations (b) Observer safety. An observer will may be renewed following the applica- not be deployed on, or stay aboard, a tion procedures in this section. vessel that is inadequate for observer (5) Alteration. Any authorization that deployment as described in paragraph has been altered, erased, or mutilated (c) of this section. is invalid. (c) Vessel inadequate for observer de- (6) Transfer. Authorizations issued ployment. A vessel is inadequate for ob- under this paragraph (d) are not trans- server deployment if it: ferable or assignable. (7) Inspection. Any authorization (1) Does not comply with the applica- issued under this paragraph (d) must be ble regulations regarding observer ac- carried on board the vessel(s) for which commodations (see 50 CFR parts 229, it was issued, or be in the possession of 285, 300, 600, 622, 635, 648, 660, and 679), at least one of the persons identified in or the authorization, who must be present (2) Has not passed a USCG Commer- while the exempted educational activ- cial Fishing Vessel Safety Examina- ity is being conducted. The authorization, or for vessels less than 26 ft (8 m) tion must be presented for inspection in length, has not passed an alternate upon request of any authorized officer. safety equipment examination, as de- Activities that meet the definition of scribed in paragraph (g) of this section. ‘‘fishing,’’ despite an educational pur- (d) Display or show proof. A vessel pose, are fishing. An authorization may that has passed a USCG Commercial allow covered fishing activities; how- Fishing Vessel Safety Examination ever, fishing activities conducted out- must display or show proof of a valid side the scope of an authorization for USCG Commercial Fishing Vessel Safe- exempted educational activities are il- ty Examination decal that certifies legal. Any fish, or parts thereof, re- compliance with regulations found in tained pursuant to an authorization 33 CFR Chapter 1 and 46 CFR Chapter 1, issued under this paragraph must be and which was issued within the last 2 accompanied, during any ex-vessel ac- years or at a time interval consistent tivities, by a copy of the authorization. with current USCG regulations or pol- (e) Observers. NMFS-sanctioned ob- icy. servers or biological technicians con- (1) In situations of mitigating cir- ducting activities within NMFS-ap- cumstances, which may prevent a ves- proved sea sampling and/or observer sel from displaying a valid safety decal protocols are exempt from the require- (broken window, etc.), NMFS, the ob- ment to obtain an EFP. For purposes server, or NMFS’ designated observer of this section, NMFS-sanctioned ob- provider may accept the following as- servers or biological technicians in- sociated documentation as proof of the clude NMFS employees, NMFS observ- missing safety decal described in para- ers, observers who are employees of graph (d) of this section: NMFS-contracted observer providers, (i) A certificate of compliance issued and observers who are employees of pursuant to 46 CFR 28.710; NMFS-permitted observer providers. (ii) A certificate of inspection pursu- [61 FR 32540, June 24, 1996, as amended at 63 ant to 46 U.S.C. 3311; or FR 7075, Feb. 12, 1998; 74 FR 42794, Aug. 25, (iii) For vessels not required to ob- 2009; 80 FR 62500, Oct. 16, 2015] tain the documents identified in (d)(1)(i) and (d)(1)(ii) of this section, a § 600.746 Observers. dockside examination report form indi- (a) Applicability. This section applies cating the decal number and date and to any fishing vessel required to carry place of issue.

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(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 tion, in a manner and according to a requirements of this section when the timeframe as directed by NMFS. A ves- vessel owner or operator is notified sel owner or operator must also allow orally or in writing by an observer, a an observer, a NMFS employee, or a NMFS employee, or a designated ob- designated observer provider to vis- server provider, that his or her vessel ually examine any such item. has been selected to carry an observer. (f) Vessel safety check. Prior to the The requirements of this section con- initial deployment, the vessel owner or tinue to apply through the time of the operator or the owner or operator’s observer’s boarding, at all times the designee must accompany the observer observer is aboard, and at the time the in a walk through the vessel’s major observer disembarks from the vessel at spaces to ensure that no obviously haz- the end of the observed trip. ardous conditions exist. This action (i) Effect of inadequate status. A vessel may be a part of the vessel safety ori- that would otherwise be required to entation to be provided by the vessel to carry an observer, but is inadequate for the observer as required by 46 CFR the purposes of carrying an observer, 28.270. The vessel owner or operator or as described in paragraph (c) of this the owner or operator’s designee must section, and for allowing operation of also accompany the observer in check- normal observer functions, is prohib- ing the following major items as re- ited from fishing without observer cov- quired by applicable USCG regulations: erage. (1) Personal flotation devices/ immer- sion suits; [63 FR 27217, May 18, 1998, as amended at 67 (2) Ring buoys; FR 64312, Oct. 18, 2002; 72 FR 61818, Nov. 1, (3) Distress signals; 2007] (4) Fire extinguishing equipment; (5) Emergency position indicating § 600.747 Guidelines and procedures radio beacon (EPIRB), when required, for determining new fisheries and gear. shall be registered to the vessel at its documented homeport; (a) General. Section 305(a) of the Mag- (6) Survival craft, when required, nuson-Stevens Act requires the Sec- with sufficient capacity to accommo- retary to prepare a list of all fisheries date the total number of persons, in- under the authority of each Council, or cluding the observer(s), that will em- the Director in the case of Atlantic bark on the voyage; and highly migratory species, and all gear (7) Other fishery-area and vessel spe- used in such fisheries. This section con- cific items required by the USCG. tains guidelines in paragraph (b) for de- (g) Alternate safety equipment examina- termining when fishing gear or a fish- tion. If a vessel is under 26 ft (8 m) in ery is sufficiently different from those length, and in a remote location, and listed in § 600.725(v) as to require notifi- NMFS has determined that the USCG cation of a Council or the Director in cannot provide a USCG Commercial order to use the gear or participate in Fishing Vessel Safety Examination due the unlisted fishery. This section also to unavailability of inspectors or to contains procedures in paragraph (c) unavailability of transportation to or for notification of a Council or the Di- from an inspection station, the vessel rector of potentially new fisheries or will be adequate for observer deploy- gear, and for amending the list of fish- ment if it passes an alternate safety eries and gear. equipment examination conducted by a (b) Guidelines. The following guidance NMFS certified observer, observer pro- establishes the basis for determining vider, or a NMFS observer program em- when fishing gear or a fishery is suffi- ployee, using a checklist of USCG safe- ciently different from those listed to

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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. § 600.725(v) and to the existing gear defi- (ii) The notification must include: nitions in § 600.10. (A) Name, address, and telephone (2) If the gear in question falls within number of the person submitting the the bounds of a definition in § 600.10 for notification. an allowable gear type within that (B) Description of the gear. fishery, as listed under § 600.725(v), then (C) The fishery or fisheries in which the gear is not considered different, is the gear is or will be used. considered allowable gear, and does not (D) A diagram and/or photograph of require notification of the Council or the gear, as well as any specifications Secretary 90 days before it can be used and dimensions necessary to define the in that fishery. gear. (3) If, for any reason, the gear is not (E) The season(s) in which the gear consistent with a gear definition for a will be fished. listed fishery as described in paragraph (F) The area(s) in which the gear will (b)(2) of this section, the gear is consid- be fished. ered different and requires Council or Secretarial notification as described in (G) The anticipated bycatch species paragraph (c) of this section 90 days be- associated with the gear, including pro- fore it can be used in that fishery. tected species, such as marine mam- (4) If a fishery falls within the bounds mals, sea turtles, sea birds, or species of the list of authorized fisheries and listed as endangered or threatened gear in § 600.725(v) under the Council’s under the ESA. or Secretary’s authority, then the fish- (H) How the gear will be deployed and ery is not considered different, is con- fished, including the portions of the sidered an allowable fishery and does marine environment where the gear not require notification of the Council will be deployed (surface, midwater, or Director before that fishery can and bottom). occur. (iii) Failure to submit complete and (5) If a fishery is not already listed in accurate information will result in a the list of authorized fisheries and gear delay in beginning the 90-day notifica- in § 600.725(v), then the fishery is con- tion period. The 90-day notification pe- sidered different and requires notifica- riod will not begin until the information as described in paragraph (c) of tion received is determined to be accu- this section 90 days before it can occur. rate and complete. (c) Procedures. If a gear or fishery (3) Action upon receipt of notification— does not appear on the list in (i) Species other than Atlantic Highly Mi- § 600.725(v), or if the gear is different gratory Species. (A) Upon signing a re- from that defined in § 600.10, the proc- turn receipt of the notification by cer- ess for notification, and consideration tified mail regarding an unlisted fish- by a Council or the Director, is as fol- ery or gear, a Council must imme- lows: diately begin consideration of the noti- (1) Notification. After July 26, 1999, no fication and send a copy of the notifi- person or vessel may employ fishing cation to the appropriate Regional Ad- gear or engage in a fishery not included ministrator. on the list of approved gear types in (B) If the Council finds that the use § 600.725(v) without notifying the appro- of an unlisted gear or participation in priate Council or the Director at least a new fishery would not compromise 90 days before the intended use of that the effectiveness of conservation and gear. management efforts, it shall: (2) Notification procedures. (i) A signed (1) Recommend to the RA that the return receipt for the notice serves as list be amended;

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(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 mental to conservation and manage- the applicant of the negative deter- ment efforts, it will recommend to the mination with the reasons therefor. RA that the authorized list of fisheries (4) Final determination and publication and gear not be amended, that a proof a final rule. Following public composed rule not be published, give rea- ment, NMFS will approve or disapprove sons for its recommendation of a dis- the amendment to the list of gear and approval, and may request NMFS to fisheries. publish emergency or interim regula- (i) If approved, NMFS will publish a tions, and begin preparation of an FMP final rule in the FEDERAL REGISTER and or amendment to an FMP, if appro- notify the applicant and the Council, if priate. appropriate, of the final approval. (D) After considering information in (ii) If disapproved, NMFS will with- the notification and Council’s rec- draw the proposed rule, notify the ap- ommendation, NMFS will decide plicant and the Council, if appropriate, whether to publish a proposed rule. If of the disapproval; publish emergency information on the new gear or fishery or interim regulations, if necessary, to being considered indicates it is likely prohibit or restrict the use of gear or that it will compromise conservation the participation in a fishery; and ei- and management efforts under the ther notify the Council of the need to Magnuson-Stevens Act, and no addi- amend an FMP or prepare an amend- tional new information is likely to be ment to an FMP in the case of Atlantic gained from a public comment period, highly migratory species. then a proposed rule will not be pub- [64 FR 4043, Jan. 27, 1999] lished and NMFS will notify the appropriate Council. In such an instance, NMFS will publish emergency or in- Subpart I—Fishery Negotiation terim regulations to prohibit or re- Panels strict use of the gear or participation in the fishery. If NMFS determines SOURCE: 62 FR 23669, May 1, 1997, unless that the proposed amendment is not otherwise noted. likely to compromise conservation and management efforts under the Magnu- § 600.750 Definitions. son-Stevens Act, NMFS will publish a Consensus means unanimous concur- proposed rule in the FEDERAL REGISTER rence among the members on a Fishery with a request for public comment. Negotiation Panel established under (ii) Atlantic Highly Migratory Species. this rule, unless such Panel: (A) Upon signing a return receipt of the (1) Agrees to define such term to notification by certified mail regarding mean a general but not unanimous con- an unlisted fishery or gear for Atlantic currence; or highly migratory species (HMS), NMFS (2) agrees upon another specified defi- will immediately begin consideration nition. of the notification. Fishery negotiation panel (FNP) means (B) Based on information in the noti- an advisory committee established by fication and submitted by the Council, one or more Councils or the Secretary NMFS will make a determination in accordance with these regulations to whether the use of an unlisted gear or assist in the development of fishery participation in an unlisted HMS fish- conservation and management meas- ery will compromise the effectiveness ures. of conservation and management ef- Interest means, with respect to an forts under the Magnuson-Stevens Act. issue or matter, multiple parties that

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have a similar point of view or that are § 600.752 Use of conveners and likely to be affected in a similar man- facilitators. ner. (a) Purposes of conveners. A Council or Report means a document submitted NMFS may use the services of a by an FNP in accordance with the Mag- trained convener to assist the Council nuson-Stevens Act. or NMFS in: (1) Conducting discussions [62 FR 23669, May 1, 1997, as amended at 63 to identify the issues of concern, and to FR 7075, Feb. 12, 1998] ascertain whether the establishment of an FNP regarding such matter is fea- § 600.751 Determination of need for a sible and appropriate. fishery negotiation panel. (2) Identifying persons who will be A Council or NMFS may establish an significantly affected by the issues pre- FNP to assist in the development of sented in paragraph (a)(1) of this sec- specific fishery conservation and man- tion. agement measures. In determining (b) Duties of conveners. The convener whether to establish an FNP, NMFS or shall report findings under paragraph the Council, as appropriate, shall con- (a)(2) of this section and shall make sider whether: recommendations to the Council or (a) There is a need for specific fishery NMFS. Upon request of the Council or conservation and management meas- NMFS, the convener shall ascertain ures. the names of persons who are willing and qualified to represent interests (b) There are a limited number of that will be significantly affected by identifiable interests that will be sig- the potential conservation and man- nificantly affected by the conservation agement measures relevant to the and management measure. issues to be negotiated. The report and (c) There is a reasonable likelihood any recommendations of the convener that an FNP can be convened with a shall be made available to the public balanced representation of persons upon request. who: (c) Selection of facilitator. Notwith- (1) Can adequately represent the in- standing section 10(e) of the Federal terests identified under paragraph (b) Advisory Committee Act (FACA), a of this section. Council or NMFS may nominate a per- (2) Are willing to negotiate in good son trained in facilitation either from faith to reach a consensus on a report the Federal Government or from out- regarding the issues presented. side the Federal Government to serve (d) There is a reasonable likelihood as an impartial, neutral facilitator for that an FNP will reach a consensus on the negotiations of the FNP, subject to a report regarding the issues presented the approval of the FNP, by consensus. within 1 year from date of establish- The facilitator may be the same person ment of the FNP. as the convener used under paragraph (e) The use of an FNP will not unrea- (a) of this section. If the FNP does not sonably delay Council or NMFS fishery approve the nominee of the Council or management plan development or rule- NMFS for facilitator, the FNP shall making procedures. submit a substitute nomination. If an (f) The costs of establishment and op- FNP does not approve any nominee of eration of an FNP are reasonable when the Council or NMFS for facilitator, compared to fishery management plan the FNP shall select, by consensus, a development or rulemaking procedures person to serve as facilitator. A person that do not use FNP procedures. designated to represent the Council or (g) The Council or NMFS has ade- NMFS in substantive issues may not quate resources and is willing to com- serve as facilitator or otherwise chair mit such resources, including technical the FNP. assistance, to an FNP. (d) Roles and duties of facilitator. A (h) The use of an FNP is in the public facilitator shall: interest. (1) Chair the meetings of the FNP in an impartial manner.

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(2) Impartially assist the members of represent such interests. Each applica- the FNP in conducting discussions and tion or nomination shall include: negotiations. (1) The name of the applicant or (3) Manage the keeping of minutes nominee and a description of the inter- and records as required under section ests such person shall represent. 10(b) and (c) of FACA. (2) Evidence that the applicant or nominee is authorized to represent par- § 600.753 Notice of intent to establish a ties related to the interests the person fishery negotiation panel. proposes to represent. (a) Publication of notice. If, after con- (3) A written commitment that the sidering the report of a convener or applicant or nominee shall actively conducting its own assessment, a Coun- participate in good faith in the devel- cil or NMFS decides to establish an opment of the conservation and man- FNP, NMFS shall publish in the FED- agement measure under consideration. ERAL REGISTER and, as appropriate, in (4) The reasons that the persons spec- trade or other specialized publications, ified in the document under paragraph a document that shall include: (a)(4) of this section do not adequately (1) An announcement that the Coun- represent the interests of the person cil or NMFS intends to establish an submitting the application or nomina- FNP to negotiate and develop a report tion. concerning specific conservation and (c) Public comment. The Council or management measures. NMFS shall provide at least 30 calendar days for the submission of com- (2) A description of the subject and ments and applications under this sec- scope of the conservation and manage- tion. ment measure, and the issues to be considered. § 600.754 Decision to establish a fish- (3) A list of the interests that are ery negotiation panel. likely to be significantly affected by (a) Determination to establish an FNP. the conservation and management If, after considering comments and ap- measure. plications submitted under § 600.753, the (4) A list of the persons proposed to Council or NMFS determines that an represent such interests and the person FNP can adequately represent the in- or persons proposed to represent the terests that will be significantly af- Council or NMFS. fected and that it is feasible and appro- (5) A proposed agenda and schedule priate in the particular case, the Coun- for completing the work of the FNP. cil or NMFS may establish an FNP. (6) A description of administrative (b) Determination not to establish FNP. support for the FNP to be provided by If, after considering such comments the Council or NMFS, including tech- and applications, the Council or NMFS nical assistance. decides not to establish an FNP, the (7) A solicitation for comments on Council or NMFS shall promptly pub- the proposal to establish the FNP, and lish notification of such decision and the proposed membership of the FNP. the reasons therefor in the FEDERAL (8) An explanation of how a person REGISTER and, as appropriate, in trade may apply or nominate another person or other specialized publications, a for membership on the FNP, as pro- copy of which shall be sent to any per- vided under paragraph (b) of this sec- son who applied for, or nominated an- tion. other person for membership on the (b) Nomination of members and public FNP to represent such interests with comment. Persons who may be signifi- respect to the issues of concern. cantly affected by the development of conservation and management measure § 600.755 Establishment of a fishery and who believe that their interests negotiation panel. will not be adequately represented by (a) General authority. (1) A Council any person specified in a document may establish an FNP to assist in the under paragraph (a)(4) of this section development of specific conservation may apply for, or nominate another and management measures for a fish- person for, membership on the FNP to ery under its authority.

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(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 304(g), regarding highly migratory spe- employ or enter into contracts for the cies; or services of an individual or organiza- (iii) Any fishery with the approval of tion to serve as a convener or the appropriate Council. facilitator for an FNP established (b) Federal Advisory Committee Act under § 600.755, or may use the services (FACA) In establishing and admin- of a government employee to act as a istering such an FNP, the Council or convener or a facilitator for such an NMFS shall comply with the FACA FNP. with respect to such FNP. (b) Councils. For an FNP proposed (c) Balance. Each potentially affected and established by one or more Coun- organization or individual does not cils approved expenses shall be paid out necessarily have to have its own rep- of the Council’s operating budget. resentative, but each interest must be (c) Expenses of FNP members. Members adequately represented. The intent is of an FNP shall be responsible for their to have a group that as a whole reflects own expenses of participation in such a proper balance and mix of interests. an FNP, except that NMFS or the Representatives must agree, in writing, Council may, in accordance with sec- to negotiate in good faith. tion 7(d) of FACA, pay for a member’s (d) Membership. The Council or NMFS reasonable travel and per diem ex- shall limit membership on an FNP to penses, and a reasonable rate of com- no more than 25 members, unless the pensation, if: Council or NMFS determines that a (1) Such member certifies a lack of greater number of members is nec- adequate financial resources to partici- essary for the functioning of the FNP pate in the FNP. or to achieve balanced membership. (2) The Council or NMFS determines Each FNP shall include at least one that such member’s participation in person representing the Council in ad- the FNP is necessary to assure an ade- dition to at least one person rep- quate representation of the member’s resenting NMFS. interest. § 600.756 Conduct and operation of a (d) Administrative support. The Coun- fishery negotiation panel. cil or NMFS shall provide appropriate (a) Roles and duties of an FNP. Each administrative support to an FNP in- FNP shall consider the issue proposed cluding technical assistance. by the Council or NMFS for consider- § 600.758 Preparation of report. ation and shall attempt to reach a consensus concerning a report to assist in (a) At the conclusion of the negotia- the development of a conservation and tions, an FNP may submit a report. management measure with respect to Such report shall specify: such matter and any other matter the (1) All the areas where consensus was FNP determines is relevant to the de- reached by the FNP, including, if ap- velopment of a conservation and man- propriate, proposed conservation and agement measure. An FNP may adopt management measures. procedures for the operation of the (2) Any other information submitted FNP. by members of the FNP. (b) Roles and duties of representative of (b) Upon receipt of the report, the the council or NMFS. The person or per- Council or NMFS shall publish such re- sons representing the Council or NMFS port in the FEDERAL REGISTER for pub- on an FNP shall participate in the de- lic comment.

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§ 600.759 Use of report. States, as defined in 33 CFR 328.3, and A Council or NMFS may, at its dis- in the exclusive economic zone, as de- cretion, use all or a part of a report fined in § 600.10. Councils may describe, prepared in accordance with § 600.758 in identify, and protect habitats of man- the development of conservation and aged species beyond the exclusive eco- management measures. Neither a nomic zone; however, such habitat may Council nor NMFS, whichever is appro- not be considered EFH for the purposes priate, is required to use such report. of sections 303(a)(7) and 305(b) of the Magnuson-Stevens Act. Activities that § 600.760 Fishery Negotiation Panel may adversely affect such habitat can lifetime. be addressed through any process con- (a) An FNP shall terminate upon ei- ducted in accordance with inter- ther: national agreements between the (1) Submission of a report prepared in United States and the foreign nation(s) accordance with § 600.758; or undertaking or authorizing the action. (2) Submission of a written statement from the FNP to the Council or § 600.810 Definitions and word usage. NMFS that no consensus can be (a) Definitions. In addition to the defi- reached. nitions in the Magnuson-Stevens Act (b) In no event shall an FNP exist for and § 600.10, the terms in this subpart longer than 1 year from the date of es- have the following meanings: tablishment unless granted an exten- Adverse effect means any impact that sion. Upon written request by the FNP reduces quality and/or quantity of to the Council or NMFS, and written EFH. Adverse effects may include di- authorization from the Council or rect or indirect physical, chemical, or NMFS (whichever is appropriate), the biological alterations of the waters or Secretary may authorize an extension substrate and loss of, or injury to, for a period not to exceed 6 months. No benthic organisms, prey species and more than one extension may be grant- their habitat, and other ecosystem ed per FNP. components, if such modifications reduce the quality and/or quantity of Subpart J—Essential Fish Habitat EFH. Adverse effects to EFH may re- (EFH) sult from actions occurring within EFH or outside of EFH and may include site-specific or habitat-wide im- SOURCE: 67 FR 2376, Jan. 17, 2002, unless otherwise noted. pacts, including individual, cumulative, or synergistic consequences of § 600.805 Purpose and scope. actions. (a) Purpose. This subpart provides Council includes the Secretary, as ap- guidelines for Councils and the Sec- plicable, when preparing FMPs or retary to use in adding the required amendments under sections 304(c) and EFH provisions to an FMP, i.e., de- (g) of the Magnuson-Stevens Act. scription and identification of EFH, ad- Ecosystem means communities of or- verse effects on EFH (including mini- ganisms interacting with one another mizing, to the extent practicable, ad- and with the chemical and physical verse effects from fishing), and actions factors making up their environment. to conserve and enhance EFH. Habitat areas of particular concern (b) Scope—(1) Species covered. An EFH means those areas of EFH identified provision in an FMP must include all pursuant to § 600.815(a)(8). fish species in the fishery management Healthy ecosystem means an eco- unit (FMU). An FMP may describe, system where ecological productive ca- identify, and protect the habitat of spe- pacity is maintained, diversity of the cies not in an FMU; however, such flora and fauna is preserved, and the habitat may not be considered EFH for ecosystem retains the ability to regu- the purposes of sections 303(a)(7) and late itself. Such an ecosystem should 305(b) of the Magnuson-Stevens Act. be similar to comparable, undisturbed (2) Geographic. EFH may be described ecosystems with regard to standing and identified in waters of the United crop, productivity, nutrient dynamics,

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trophic structure, species richness, sta- growth, survival, and productivity of bility, resilience, contamination levels, the managed species. The information and the frequency of diseased orga- should be supported with citations. nisms. (B) Councils should obtain informa- Overfished means any stock or stock tion to describe and identify EFH from complex, the status of which is re- the best available sources, including ported as overfished by the Secretary peer-reviewed literature, unpublished pursuant to section 304(e)(1) of the scientific reports, data files of govern- Magnuson-Stevens Act. ment resource agencies, fisheries land- (b) Word usage. The terms ‘‘must’’, ing reports, and other sources of infor- ‘‘shall’’, ‘‘should’’, ‘‘may’’, ‘‘may not’’, mation. Councils should consider dif- ‘‘will’’, ‘‘could’’, and ‘‘can’’ are used in ferent types of information according the same manner as in § 600.305(c). to its scientific rigor. FMPs should identify species-specific habitat data § 600.815 Contents of Fishery Manage- gaps and deficits in data quality (in- ment Plans. cluding considerations of scale and res- (a) Mandatory contents—(1) Description olution; relevance; and potential biases and identification of EFH—(i) Overview. in collection and interpretation). FMPs FMPs must describe and identify EFH must demonstrate that the best sci- in text that clearly states the habitats entific information available was used or habitat types determined to be EFH in the description and identification of for each life stage of the managed spe- EFH, consistent with national stand- cies. FMPs should explain the physical, ard 2. biological, and chemical characteris- (iii) Analysis of habitat information. tics of EFH and, if known, how these (A) The following approach should be characteristics influence the use of used to organize the information nec- EFH by the species/life stage. FMPs essary to describe and identify EFH. must identify the specific geographic (1) Level 1: Distribution data are avail- location or extent of habitats described able for some or all portions of the geo- as EFH. FMPs must include maps of graphic range of the species. At this the geographic locations of EFH or the level, only distribution data are avail- geographic boundaries within which able to describe the geographic range EFH for each species and life stage is of a species (or life stage). Distribution found. data may be derived from systematic (ii) Habitat information by life stage. presence/absence sampling and/or may (A) Councils need basic information to include information on species and life understand the usage of various habi- stages collected opportunistically. In tats by each managed species. Perti- the event that distribution data are nent information includes the geo- available only for portions of the geographic range and habitat require- graphic area occupied by a particular ments by life stage, the distribution life stage of a species, habitat use can and characteristics of those habitats, be inferred on the basis of distributions and current and historic stock size as among habitats where the species has it affects occurrence in available habi- been found and on information about tats. FMPs should summarize the life its habitat requirements and behavior. history information necessary to un- Habitat use may also be inferred, if ap- derstand each species’ relationship to, propriate, based on information on a or dependence on, its various habitats, similar species or another life stage. using text, tables, and figures, as ap- (2) Level 2: Habitat-related densities of propriate. FMPs should document pat- the species are available. At this level, terns of temporal and spatial variation quantitative data (i.e., density or relin the distribution of each major life ative abundance) are available for the stage (defined by developmental and habitats occupied by a species or life functional shifts) to aid in under- stage. Because the efficiency of sam- standing habitat needs. FMPs should pling methods is often affected by habi- summarize (e.g., in tables) all available tat characteristics, strict quality as- information on environmental and surance criteria should be used to en- habitat variables that control or limit sure that density estimates are com- distribution, abundance, reproduction, parable among methods and habitats.

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Density data should reflect habitat uti- information, if available, should be lization, and the degree that a habitat used to identify EFH as the habitats is utilized is assumed to be indicative supporting the highest relative abun- of habitat value. When assessing habi- dance; growth, reproduction, or sur- tat value on the basis of fish densities vival rates; and/or production rates in this manner, temporal changes in within the geographic range of a spe- habitat availability and utilization cies. FMPs should explain the analyses should be considered. conducted to distinguish EFH from all (3) Level 3: Growth, reproduction, or habitats potentially used by a species. survival rates within habitats are avail- (B) FMPs must describe EFH in text, able. At this level, data are available including reference to the geographic on habitat-related growth, reproduc- location or extent of EFH using bound- tion, and/or survival by life stage. The aries such as longitude and latitude, habitats contributing the most to pro- isotherms, isobaths, political bound- ductivity should be those that support aries, and major landmarks. If there the highest growth, reproduction, and are differences between the descrip- survival of the species (or life stage). tions of EFH in text, maps, and tables, (4) Level 4: Production rates by habitat the textual description is ultimately are available. At this level, data are determinative of the limits of EFH. available that directly relate the pro- Text and tables should explain perti- duction rates of a species or life stage nent physical, chemical, and biological to habitat type, quantity, quality, and characteristics of EFH for the managed location. Essential habitats are those species and explain any variability in necessary to maintain fish production habitat usage patterns, but the bound- consistent with a sustainable fishery aries of EFH should be static. and the managed species’ contribution (C) If a species is overfished and habi- to a healthy ecosystem. tat loss or degradation may be contrib- (B) Councils should strive to describe uting to the species being identified as habitat based on the highest level of overfished, all habitats currently used detail (i.e., Level 4). If there is no infor- by the species may be considered essen- mation on a given species or life stage, tial in addition to certain historic and habitat usage cannot be inferred habitats that are necessary to support from other means, such as information rebuilding the fishery and for which on a similar species or another life restoration is technologically and eco- stage, EFH should not be designated. nomically feasible. Once the fishery is (iv) EFH determination. (A) Councils no longer considered overfished, the should analyze available ecological, en- EFH identification should be reviewed vironmental, and fisheries information and amended, if appropriate. and data relevant to the managed spe- (D) Areas described as EFH will nor- cies, the habitat requirements by life mally be greater than or equal to stage, and the species’ distribution and aquatic areas that have been identified habitat usage to describe and identify as ‘‘critical habitat’’ for any managed EFH. The information described in species listed as threatened or endan- paragraphs (a)(1)(ii) and (iii) of this gered under the Endangered Species section will allow Councils to assess Act. the relative value of habitats. Councils (E) Ecological relationships among should interpret this information in a species and between the species and risk-averse fashion to ensure adequate their habitat require, where possible, areas are identified as EFH for man- that an ecosystem approach be used in aged species. Level 1 information, if determining the EFH of a managed spe- available, should be used to identify cies. EFH must be designated for each the geographic range of the species at managed species, but, where appro- each life stage. If only Level 1 informa- priate, may be designated for assem- tion is available, distribution data blages of species or life stages that should be evaluated (e.g., using a fre- have similar habitat needs and require- quency of occurrence or other appro- ments. If grouping species or using spe- priate analysis) to identify EFH as cies assemblages for the purpose of des- those habitat areas most commonly ignating EFH, FMPs must include a used by the species. Level 2 through 4 justification and scientific rationale.

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The extent of the EFH should be based regulated under the FMP or other Fed- on the judgment of the Secretary and eral FMPs. This evaluation should con- the appropriate Council(s) regarding sider the effects of each fishing activ- the quantity and quality of habitat ity on each type of habitat found with- that are necessary to maintain a sus- in EFH. FMPs must describe each fish- tainable fishery and the managed spe- ing activity, review and discuss all cies’ contribution to a healthy eco- available relevant information (such as system. information regarding the intensity, (F) If degraded or inaccessible aquat- extent, and frequency of any adverse ic habitat has contributed to reduced effect on EFH; the type of habitat yields of a species or assemblage and if, within EFH that may be affected ad- in the judgment of the Secretary and versely; and the habitat functions that the appropriate Council(s), the de- may be disturbed), and provide conclu- graded conditions can be reversed sions regarding whether and how each through such actions as improved fish fishing activity adversely affects EFH. passage techniques (for stream or river The evaluation should also consider blockages), improved water quality the cumulative effects of multiple fish- measures (removal of contaminants or ing activities on EFH. The evaluation increasing flows), and similar measures should list any past management ac- that are technologically and economi- tions that minimize potential adverse cally feasible, EFH should include effects on EFH and describe the bene- those habitats that would be necessary fits of those actions to EFH. The eval- to the species to obtain increased uation should give special attention to yields. adverse effects on habitat areas of par- (v) EFH mapping requirements. (A) ticular concern and should identify for FMPs must include maps that display, possible designation as habitat areas of within the constraints of available in- particular concern any EFH that is formation, the geographic locations of particularly vulnerable to fishing ac- EFH or the geographic boundaries tivities. Additionally, the evaluation within which EFH for each species and should consider the establishment of life stage is found. Maps should iden- research closure areas or other meas- tify the different types of habitat des- ures to evaluate the impacts of fishing ignated as EFH to the extent possible. activities on EFH. In completing this Maps should explicitly distinguish EFH evaluation, Councils should use the from non-EFH areas. Councils should best scientific information available, confer with NMFS regarding mapping as well as other appropriate informa- standards to ensure that maps from tion sources. Councils should consider different Councils can be combined and different types of information accord- shared efficiently and effectively. Ulti- ing to its scientific rigor. mately, data used for mapping should (ii) Minimizing adverse effects. Each be incorporated into a geographic in- FMP must minimize to the extent formation system (GIS) to facilitate practicable adverse effects from fishing analysis and presentation. on EFH, including EFH designated (B) Where the present distribution or under other Federal FMPs. Councils stock size of a species or life stage is must act to prevent, mitigate, or mini- different from the historical distribu- mize any adverse effects from fishing, tion or stock size, then maps of histor- to the extent practicable, if there is ical habitat boundaries should be in- evidence that a fishing activity ad- cluded in the FMP, if known. versely affects EFH in a manner that is (C) FMPs should include maps of any more than minimal and not temporary habitat areas of particular concern in nature, based on the evaluation con- identified under paragraph (a)(8) of this ducted pursuant to paragraph (a)(2)(i) section. of this section and/or the cumulative (2) Fishing activities that may adversely impacts analysis conducted pursuant affect EFH—(i) Evaluation. Each FMP to paragraph (a)(5) of this section. In must contain an evaluation of the po- such cases, FMPs should identify a tential adverse effects of fishing on range of potential new actions that EFH designated under the FMP, in- could be taken to address adverse ef- cluding effects of each fishing activity fects on EFH, include an analysis of

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the practicability of potential new ac- semblages or communities and limits tions, and adopt any new measures on the take of prey species. that are necessary and practicable. (3) Non-Magnuson-Stevens Act fishing Amendments to the FMP or to its im- activities that may adversely affect EFH. plementing regulations must ensure FMPs must identify any fishing activi- that the FMP continues to minimize to ties that are not managed under the the extent practicable adverse effects Magnuson-Stevens Act that may ad- on EFH caused by fishing. FMPs must versely affect EFH. Such activities explain the reasons for the Council’s may include fishing managed by state conclusions regarding the past and/or agencies or other authorities. new actions that minimize to the ex- (4) Non-fishing related activities that tent practicable the adverse effects of may adversely affect EFH. FMPs must fishing on EFH. identify activities other than fishing (iii) Practicability. In determining that may adversely affect EFH. Broad whether it is practicable to minimize categories of such activities include, an adverse effect from fishing, Councils but are not limited to: dredging, fill- should consider the nature and extent ing, excavation, mining, impoundment, of the adverse effect on EFH and the discharge, water diversions, thermal long and short-term costs and benefits additions, actions that contribute to of potential management measures to non-point source pollution and sedi- EFH, associated fisheries, and the na- mentation, introduction of potentially tion, consistent with national standard hazardous materials, introduction of 7. In determining whether management exotic species, and the conversion of measures are practicable, Councils are aquatic habitat that may eliminate, di- not required to perform a formal cost/ minish, or disrupt the functions of benefit analysis. EFH. For each activity, the FMP (iv) Options for managing adverse ef- should describe known and potential fects from fishing. Fishery manage- adverse effects to EFH. ment options may include, but are not (5) Cumulative impacts analysis. Cumu- limited to: lative impacts are impacts on the envi- (A) Fishing equipment restrictions. ronment that result from the incre- These options may include, but are not mental impact of an action when added limited to: seasonal and areal restric- to other past, present, and reasonably tions on the use of specified equipment, foreseeable future actions, regardless equipment modifications to allow of who undertakes such actions. Cumu- escapement of particular species or lative impacts can result from individ- particular life stages (e.g., juveniles), ually minor, but collectively signifi- prohibitions on the use of explosives cant actions taking place over a period and chemicals, prohibitions on anchor- of time. To the extent feasible and ing or setting equipment in sensitive practicable, FMPs should analyze how areas, and prohibitions on fishing ac- the cumulative impacts of fishing and tivities that cause significant damage non-fishing activities influence the to EFH. function of EFH on an ecosystem or (B) Time/area closures. These actions watershed scale. An assessment of the may include, but are not limited to: cumulative and synergistic effects of closing areas to all fishing or specific multiple threats, including the effects equipment types during spawning, mi- of natural stresses (such as storm dam- gration, foraging, and nursery activi- age or climate-based environmental ties and designating zones for use as shifts) and an assessment of the eco- marine protected areas to limit ad- logical risks resulting from the impact verse effects of fishing practices on cer- of those threats on EFH, also should be tain vulnerable or rare areas/species/ included. life stages, such as those areas des- (6) Conservation and enhancement. ignated as habitat areas of particular FMPs must identify actions to encour- concern. age the conservation and enhancement (C) Harvest limits. These actions may of EFH, including recommended op- include, but are not limited to, limits tions to avoid, minimize, or com- on the take of species that provide pensate for the adverse effects identi- structural habitat for other species as- fied pursuant to paragraphs (a)(3)

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through (5) of this section, especially information should include, but not be in habitat areas of particular concern. limited to, evaluating published sci- (7) Prey species. Loss of prey may be entific literature and unpublished sci- an adverse effect on EFH and managed entific reports; soliciting information species because the presence of prey from interested parties; and searching makes waters and substrate function for previously unavailable or inacces- as feeding habitat, and the definition of sible data. Councils should report on EFH includes waters and substrate nec- their review of EFH information as essary to fish for feeding. Therefore, part of the annual Stock Assessment actions that reduce the availability of and Fishery Evaluation (SAFE) report a major prey species, either through di- prepared pursuant to § 600.315(e). A rect harm or capture, or through ad- complete review of all EFH informa- verse impacts to the prey species’ habi- tion should be conducted as rec- tat that are known to cause a reduc- ommended by the Secretary, but at tion in the population of the prey spe- least once every 5 years. cies, may be considered adverse effects on EFH if such actions reduce the qual- (b) Development of EFH recommenda- ity of EFH. FMPs should list the major tions for Councils. After reviewing the prey species for the species in the fish- best available scientific information, ery management unit and discuss the as well as other appropriate informa- location of prey species’ habitat. Ad- tion, and in consultation with the verse effects on prey species and their Councils, participants in the fishery, habitats may result from fishing and interstate commissions, Federal agen- non-fishing activities. cies, state agencies, and other inter- (8) Identification of habitat areas of ested parties, NMFS will develop writ- particular concern. FMPs should iden- ten recommendations to assist each tify specific types or areas of habitat Council in the identification of EFH, within EFH as habitat areas of par- adverse impacts to EFH, and actions ticular concern based on one or more of that should be considered to ensure the the following considerations: conservation and enhancement of EFH (i) The importance of the ecological for each FMP. NMFS will provide such function provided by the habitat. recommendations for the initial incor- (ii) The extent to which the habitat poration of EFH information into an is sensitive to human-induced environ- FMP and for any subsequent modifica- mental degradation. tion of the EFH components of an (iii) Whether, and to what extent, de- FMP. The NMFS EFH recommenda- velopment activities are, or will be, tions may be provided either before the stressing the habitat type. Council’s development of a draft EFH (iv) The rarity of the habitat type. document or later as a review of a draft (9) Research and information needs. EFH document developed by a Council, Each FMP should contain rec- as appropriate. ommendations, preferably in priority (c) Relationship to other fishery man- order, for research efforts that the agement authorities. Councils are en- Councils and NMFS view as necessary couraged to coordinate with state and to improve upon the description and identification of EFH, the identifica- interstate fishery management agen- tion of threats to EFH from fishing and cies where Federal fisheries affect other activities, and the development state and interstate managed fisheries of conservation and enhancement or where state or interstate fishery measures for EFH. regulations affect the management of (10) Review and revision of EFH compo- Federal fisheries. Where a state or nents of FMPs. Councils and NMFS interstate fishing activity adversely af- should periodically review the EFH fects EFH, NMFS will consider that ac- provisions of FMPs and revise or tion to be an adverse effect on EFH amend EFH provisions as warranted pursuant to paragraph (a)(3) of this sec- based on available information. FMPs tion and will provide EFH Conserva- should outline the procedures the tion Recommendations to the appro- Council will follow to review and up- priate state or interstate fishery mandate EFH information. The review of agement agency on that activity.

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Subpart K—EFH Coordination, ommendations on actions that may ad- Consultation, and Rec- versely affect EFH. However, NMFS ommendations and the Councils also have the authority to act independently.

SOURCE: 67 FR 2376, Jan. 17, 2002, unless § 600.910 Definitions and word usage. otherwise noted. (a) Definitions. In addition to the defi- § 600.905 Purpose, scope, and NMFS/ nitions in the Magnuson-Stevens Act Council cooperation. and § 600.10, the terms in this subpart (a) Purpose. These procedures address have the following meanings: the coordination, consultation, and Adverse effect means any impact that recommendation requirements of sec- reduces quality and/or quantity of tions 305(b)(1)(D) and 305(b)(2–4) of the EFH. Adverse effects may include di- Magnuson-Stevens Act. The purpose of rect or indirect physical, chemical, or these procedures is to promote the pro- biological alterations of the waters or tection of EFH in the review of Federal substrate and loss of, or injury to, and state actions that may adversely benthic organisms, prey species and affect EFH. their habitat, and other ecosystem (b) Scope. Section 305(b)(1)(D) of the components, if such modifications re- Magnuson-Stevens Act requires the duce the quality and/or quantity of Secretary to coordinate with, and pro- EFH. Adverse effects to EFH may re- vide information to, other Federal sult from actions occurring within agencies regarding the conservation EFH or outside of EFH and may in- and enhancement of EFH. Section clude site-specific or habitat-wide im- 305(b)(2) requires all Federal agencies pacts, including individual, cumu- to consult with the Secretary on all ac- lative, or synergistic consequences of tions or proposed actions authorized, actions. funded, or undertaken by the agency Anadromous fishery resource under that may adversely affect EFH. Sec- Council authority means an anadromous tions 305(b)(3) and (4) direct the Sec- species managed under an FMP. retary and the Councils to provide Federal action means any action au- comments and EFH Conservation Rec- thorized, funded, or undertaken, or pro- ommendations to Federal or state posed to be authorized, funded, or un- agencies on actions that affect EFH. dertaken by a Federal agency. Such recommendations may include Habitat areas of particular concern measures to avoid, minimize, mitigate, means those areas of EFH identified or otherwise offset adverse effects on pursuant to § 600.815(a)(8). EFH resulting from actions or proposed actions authorized, funded, or under- State action means any action author- taken by that agency. Section ized, funded, or undertaken, or pro- 305(b)(4)(B) requires Federal agencies posed to be authorized, funded, or un- to respond in writing to such com- dertaken by a state agency. ments. The following procedures for co- (b) Word usage. The terms ‘‘must’’, ordination, consultation, and rec- ‘‘shall’’, ‘‘should’’, ‘‘may’’, ‘‘may not’’, ommendations allow all parties in- ‘‘will’’, ‘‘could’’, and ‘‘can’’ are used in volved to understand and implement the same manner as in § 600.305(c). the requirements of the Magnuson-Ste- vens Act. § 600.915 Coordination for the con- (c) Cooperation between Councils and servation and enhancement of EFH. NMFS. The Councils and NMFS should To further the conservation and en- cooperate closely to identify actions hancement of EFH in accordance with that may adversely affect EFH, to de- section 305(b)(1)(D) of the Magnuson- velop comments and EFH Conservation Stevens Act, NMFS will compile and Recommendations to Federal and state make available to other Federal and agencies, and to provide EFH informa- state agencies, and the general public, tion to Federal and state agencies. information on the locations of EFH, NMFS will work with each Council to including maps and/or narrative de- share information and to coordinate scriptions. NMFS will also provide in- Council and NMFS comments and rec- formation on ways to improve ongoing

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Federal operations to promote the con- proach for handling EFH consultation servation and enhancement of EFH. depends on the nature and scope of the Federal and state agencies empowered actions that may adversely affect EFH. to authorize, fund, or undertake ac- Federal agencies should use the most tions that may adversely affect EFH efficient approach for EFH consulta- are encouraged to contact NMFS and tion that is appropriate for a given ac- the Councils to become familiar with tion or actions. The five approaches areas designated as EFH, potential are: use of existing environmental re- threats to EFH, and opportunities to view procedures, General Concurrence, promote the conservation and enhance- abbreviated consultation, expanded ment of EFH. consultation, and programmatic consultation. § 600.920 Federal agency consultation with the Secretary. (3) Early notification and coordination. The Federal agency should notify (a) Consultation generally—(1) Actions NMFS in writing as early as prac- requiring consultation. Pursuant to sec- ticable regarding actions that may ad- tion 305(b)(2) of the Magnuson-Stevens versely affect EFH. Notification will Act, Federal agencies must consult facilitate discussion of measures to with NMFS regarding any of their ac- conserve EFH. Such early coordination tions authorized, funded, or under- should occur during pre-application taken, or proposed to be authorized, planning for projects subject to a Fed- funded, or undertaken that may ad- eral permit or license and during pre- versely affect EFH. EFH consultation liminary planning for projects to be is not required for actions that were funded or undertaken directly by a completed prior to the approval of EFH Federal agency. designations by the Secretary, e.g., issued permits. Consultation is re- (b) Designation of lead agency. If more quired for renewals, reviews, or sub- than one Federal agency is responsible stantial revisions of actions if the re- for a Federal action, the consultation newal, review, or revision may ad- requirements of sections 305(b)(2) versely affect EFH. Consultation on through (4) of the Magnuson-Stevens Federal programs delegated to non- Act may be fulfilled through a lead Federal entities is required at the time agency. The lead agency should notify of delegation, review, and renewal of NMFS in writing that it is rep- the delegation. EFH consultation is re- resenting one or more additional agen- quired for any Federal funding of ac- cies. Alternatively, if one Federal tions that may adversely affect EFH. agency has completed an EFH con- NMFS and Federal agencies respon- sultation for an action and another sible for funding actions that may ad- Federal agency acts separately to au- versely affect EFH should consult on a thorize, fund, or undertake the same programmatic level under paragraph (j) activity (such as issuing a permit for of this section, if appropriate, with re- an activity that was funded via a sepa- spect to these actions. Consultation is rate Federal action), the completed required for emergency Federal actions EFH consultation may suffice for both that may adversely affect EFH, such as Federal actions if it adequately ad- hazardous material clean-up, response dresses the adverse effects of the ac- to natural disasters, or actions to pro- tions on EFH. Federal agencies may tect public safety. Federal agencies need to consult with NMFS separately should contact NMFS early in emer- if, for example, only one of the agen- gency response planning, but may con- cies has the authority to implement sult after-the-fact if consultation on an measures necessary to minimize ad- expedited basis is not practicable be- verse effects on EFH and that agency fore taking the action. does not act as the lead agency. (2) Approaches for conducting consulta- (c) Designation of non-Federal rep- tion. Federal agencies may use one of resentative. A Federal agency may des- the five approaches described in para- ignate a non-Federal representative to graphs (f) through (j) of this section to conduct an EFH consultation by giving fulfill the EFH consultation require- written notice of such designation to ments. The selection of a particular ap- NMFS. If a non-Federal representative

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is used, the Federal action agency re- fects of the action. For example, for mains ultimately responsible for com- relatively simple actions involving pliance with sections 305(b)(2) and minor adverse effects on EFH, the as- 305(b)(4)(B) of the Magnuson-Stevens sessment may be very brief. Actions Act. that may pose a more serious threat to (d) Best available information. The EFH warrant a correspondingly more Federal agency and NMFS must use detailed EFH Assessment. the best scientific information avail- (3) Mandatory contents. The assess- able regarding the effects of the action ment must contain: on EFH and the measures that can be (i) A description of the action. taken to avoid, minimize, or offset (ii) An analysis of the potential ad- such effects. Other appropriate sources verse effects of the action on EFH and of information may also be considered. the managed species. (e) EFH Assessments—(1) Preparation (iii) The Federal agency’s conclu- requirement. For any Federal action sions regarding the effects of the ac- that may adversely affect EFH, Fed- tion on EFH. eral agencies must provide NMFS with (iv) Proposed mitigation, if applica- a written assessment of the effects of ble. that action on EFH. For actions cov- (4) Additional information. If appro- ered by a General Concurrence under priate, the assessment should also in- paragraph (g) of this section, an EFH clude: Assessment should be completed during (i) The results of an on-site inspec- the development of the General Con- tion to evaluate the habitat and the currence and is not required for the in- site-specific effects of the project. dividual actions. For actions addressed (ii) The views of recognized experts by a programmatic consultation under on the habitat or species that may be paragraph (j) of this section, an EFH affected. Assessment should be completed during (iii) A review of pertinent literature the programmatic consultation and is and related information. not required for individual actions im- (iv) An analysis of alternatives to the plemented under the program, except action. Such analysis should include in those instances identified by NMFS alternatives that could avoid or mini- in the programmatic consultation as mize adverse effects on EFH. requiring separate EFH consultation. (v) Other relevant information. Federal agencies are not required to (5) Incorporation by reference. The as- provide NMFS with assessments re- sessment may incorporate by reference garding actions that they have deter- a completed EFH Assessment prepared mined would not adversely affect EFH. for a similar action, supplemented with Federal agencies may incorporate an any relevant new project specific infor- EFH Assessment into documents pre- mation, provided the proposed action pared for other purposes such as En- involves similar impacts to EFH in the dangered Species Act (ESA) Biological same geographic area or a similar eco- Assessments pursuant to 50 CFR part logical setting. It may also incorporate 402 or National Environmental Policy by reference other relevant environ- Act (NEPA) documents and public no- mental assessment documents. These tices pursuant to 40 CFR part 1500. If documents must be provided to NMFS an EFH Assessment is contained in an- with the EFH Assessment. other document, it must include all of (f) Use of existing environmental review the information required in paragraph procedures—(1) Purpose and criteria. (e)(3) of this section and be clearly Consultation and commenting under identified as an EFH Assessment. The sections 305(b)(2) and 305(b)(4) of the procedure for combining an EFH con- Magnuson-Stevens Act should be consultation with other environmental re- solidated, where appropriate, with views is set forth in paragraph (f) of interagency consultation, coordina- this section. tion, and environmental review proce- (2) Level of detail. The level of detail dures required by other statutes, such in an EFH Assessment should be com- as NEPA, the Fish and Wildlife Coordi- mensurate with the complexity and nation Act, Clean Water Act, ESA, and magnitude of the potential adverse ef- Federal Power Act. The requirements

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of sections 305(b)(2) and 305(b)(4) of the tified as such (e.g., a section in the Magnuson-Stevens Act, including con- comment letter entitled ‘‘EFH Con- sultations that would be considered to servation Recommendations’’) and a be abbreviated or expanded consulta- Federal agency response pursuant to tions under paragraphs (h) and (i) of section 305(b)(4)(B) of the Magnuson- this section, can be combined with ex- Stevens Act is required for only the isting procedures required by other identified portion of the comments. statutes if such processes meet, or are (3) NMFS finding. A Federal agency modified to meet, the following cri- with an existing environmental review teria: process should contact NMFS at the (i) The existing process must provide appropriate level (regional offices for NMFS with timely notification of ac- regional processes, headquarters office tions that may adversely affect EFH. for national processes) to discuss how The Federal agency should notify to combine the EFH consultation re- NMFS according to the same time- quirements with the existing process, frames for notification (or for public with or without modifications. If, at comment) as in the existing process. the conclusion of these discussions, Whenever possible, NMFS should have NMFS determines that the existing or at least 60 days notice prior to a final modified process meets the criteria of decision on an action, or at least 90 paragraph (f)(1) of this section, NMFS days if the action would result in sub- will make a finding that the process stantial adverse impacts. NMFS and can be used to satisfy the EFH con- the action agency may agree to use sultation requirements of the Magnu- shorter timeframes provided that they son-Stevens Act. If NMFS does not allow sufficient time for NMFS to de- make such a finding, or if there are no velop EFH Conservation Recommenda- existing consultation processes rel- tions. evant to the Federal agency’s actions, (ii) Notification must include an as- the agency and NMFS should follow sessment of the impacts of the action one of the approaches for consultation on EFH that meets the requirements discussed in the following sections. for EFH Assessments contained in (g) General Concurrence—(1) Purpose. paragraph (e) of this section. If the A General Concurrence identifies spe- EFH Assessment is contained in an- cific types of Federal actions that may other document, the Federal agency adversely affect EFH, but for which no must identify that section of the docu- further consultation is generally re- ment as the EFH Assessment. quired because NMFS has determined, (iii) NMFS must have made a finding through an analysis of that type of ac- pursuant to paragraph (f)(3) of this section, that it will likely result in no tion that the existing process can be more than minimal adverse effects in- used to satisfy the requirements of sec- dividually and cumulatively. General tions 305(b)(2) and 305(b)(4) of the Mag- Concurrences may be national or re- nuson-Stevens Act. gional in scope. (2) NMFS response to Federal agency. If (2) Criteria. (i) For Federal actions to an existing environmental review proc- qualify for General Concurrence, NMFS ess is used to fulfill the EFH consulta- must determine that the actions meet tion requirements, the comment dead- all of the following criteria: line for that process should apply to (A) The actions must be similar in the submittal of NMFS EFH Conserva- nature and similar in their impact on tion Recommendations under section EFH. 305(b)(4)(A) of the Magnuson-Stevens (B) The actions must not cause great- Act, unless NMFS and the Federal er than minimal adverse effects on agency agree to a different deadline. If EFH when implemented individually. NMFS EFH Conservation Rec- (C) The actions must not cause great- ommendations are combined with er than minimal cumulative adverse ef- other NMFS or NOAA comments on a fects on EFH. Federal action, such as NOAA com- (ii) Actions qualifying for General ments on a draft Environmental Im- Concurrence must be tracked to ensure pact Statement, the EFH Conservation that their cumulative effects are no Recommendations will be clearly iden- more than minimal. In most cases,

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tracking actions covered by a General (4) Further consultation. NMFS may Concurrence will be the responsibility request notification for actions covered of the Federal agency. However, NMFS under a General Concurrence if NMFS may agree to track such actions. concludes there are circumstances Tracking should include numbers of ac- under which such actions could result tions and the amount and type of habi- in more than a minimal impact on tat adversely affected, and should EFH, or if it determines that there is specify the baseline against which the no process in place to adequately as- actions will be tracked. The agency re- sess the cumulative impacts of actions sponsible for tracking such actions covered under the General Concur- should make the information available rence. NMFS may request further con- to NMFS, the applicable Council(s), sultation for these actions on a case- and to the public on an annual basis. by-case basis. Each General Concur- (iii) Categories of Federal actions rence should establish specific proce- may also qualify for General Concur- dures for further consultation, if appro- rence if they are modified by appropriate. priate conditions that ensure the ac- (5) Notification. After completing a tions will meet the criteria in para- General Concurrence, NMFS will pro- graph (g)(2)(i) of this section. For ex- vide a copy to the appropriate Coun- ample, NMFS may provide General cil(s) and will make the General Con- Concurrence for additional actions concurrence available to the public by tingent upon project size limitations, posting the document on the internet seasonal restrictions, or other condi- or through other appropriate means. tions. (6) Revisions. NMFS will periodically (iv) If a General Concurrence is pro- review and revise its General Concur- posed for actions that may adversely rences, as appropriate. affect habitat areas of particular con- (h) Abbreviated consultation proce- cern, the General Concurrence should dures—(1) Purpose and criteria. Abbre- be subject to a higher level of scrutiny viated consultation allows NMFS to than a General Concurrence not involv- determine quickly whether, and to ing a habitat area of particular con- what degree, a Federal action may ad- cern. versely affect EFH. Federal actions (3) General Concurrence development. A that may adversely affect EFH should Federal agency may request a General be addressed through the abbreviated Concurrence for a category of its ac- consultation procedures when those actions by providing NMFS with an EFH tions do not qualify for a General Con- Assessment containing a description of currence, but do not have the potential the nature and approximate number of to cause substantial adverse effects on the actions, an analysis of the effects EFH. For example, the abbreviated of the actions on EFH, including cumu- consultation procedures should be used lative effects, and the Federal agency’s when the adverse effect(s) of an action conclusions regarding the magnitude of could be alleviated through minor such effects. If NMFS agrees that the modifications. actions fit the criteria in paragraph (2) Notification by agency and submittal (g)(2)(i) of this section, NMFS will proof EFH Assessment. Abbreviated con- vide the Federal agency with a written sultation begins when NMFS receives statement of General Concurrence that from the Federal agency an EFH As- further consultation is not required. If sessment in accordance with paragraph NMFS does not agree that the actions (e) of this section and a written request fit the criteria in paragraph (g)(2)(i) of for consultation. this section, NMFS will notify the Fed- (3) NMFS response to Federal agency. If eral agency that a General Concur- NMFS determines, contrary to the rence will not be issued and that an- Federal agency’s assessment, that an other type of consultation will be re- action would not adversely affect EFH, quired. If NMFS identifies specific or if NMFS determines that no EFH types of Federal actions that may meet Conservation Recommendations are 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

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that the action may result in substan- (i) Review the EFH Assessment, any tial adverse effects on EFH, or that ad- additional information furnished by ditional analysis is needed to assess the Federal agency, and other relevant the effects of the action, NMFS will re- information. quest in writing that the Federal agen- (ii) Conduct a site visit, if appro- cy initiate expanded consultation. priate, to assess the quality of the Such request will explain why NMFS habitat and to clarify the impacts of believes expanded consultation is need- the Federal agency action. Such a site ed and will specify any new informa- visit should be coordinated with the tion needed. If expanded consultation Federal agency and appropriate Coun- is not necessary, NMFS will provide cil(s), if feasible. EFH Conservation Recommendations, (iii) Coordinate its review of the ac- if appropriate, pursuant to section tion with the appropriate Council(s). 305(b)(4)(A) of the Magnuson-Stevens (iv) Discuss EFH Conservation Rec- Act. ommendations with the Federal agency (4) Timing. The Federal agency must and provide such recommendations to submit its EFH Assessment to NMFS the Federal agency, pursuant to sec- as soon as practicable, but at least 60 tion 305(b)(4)(A) of the Magnuson-Ste- days prior to a final decision on the ac- vens Act. tion. NMFS must respond in writing (4) Timing. The Federal agency must within 30 days. NMFS and the Federal submit its EFH Assessment to NMFS agency may agree to use a compressed as soon as practicable, but at least 90 schedule in cases where regulatory ap- days prior to a final decision on the ac- provals or emergency situations cannot tion. NMFS must respond within 60 accommodate 30 days for consultation, days of submittal of a complete EFH or to conduct consultation earlier in Assessment unless consultation is ex- the planning cycle for actions with tended by agreement between NMFS lengthy approval processes. and the Federal agency. NMFS and (i) Expanded consultation procedures— Federal agencies may agree to use a (1) Purpose and criteria. Expanded con- compressed schedule in cases where sultation allows maximum opportunity regulatory approvals or emergency sit- for NMFS and the Federal agency to uations cannot accommodate 60 days work together to review the action’s for consultation, or to conduct con- impacts on EFH and to develop EFH sultation earlier in the planning cycle Conservation Recommendations. Ex- for actions with lengthy approval proc- panded consultation procedures must esses. be used for Federal actions that would (5) Extension of consultation. If NMFS result in substantial adverse effects to determines that additional data or EFH. Federal agencies are encouraged analysis would provide better informa- to contact NMFS at the earliest oppor- tion for development of EFH Conserva- tunity to discuss whether the adverse tion Recommendations, NMFS may re- effects of an action make expanded quest additional time for expanded consultation appropriate. consultation. If NMFS and the Federal (2) Notification by agency and submittal agency agree to an extension, the Fed- of EFH Assessment. Expanded consulta- eral agency should provide the addition begins when NMFS receives from tional information to NMFS, to the ex- the Federal agency an EFH Assessment tent practicable. If NMFS and the Fed- in accordance with paragraph (e) of eral agency do not agree to extend con- this section and a written request for sultation, NMFS must provide EFH expanded consultation. Federal agen- Conservation Recommendations to the cies are encouraged to provide in the Federal agency using the best sci- EFH Assessment the additional infor- entific information available to NMFS. mation identified under paragraph (j) Programmatic consultation—(1) Pur- (e)(4) of this section to facilitate re- pose. Programmatic consultation pro- view of the effects of the action on vides a means for NMFS and a Federal EFH. agency to consult regarding a poten- (3) NMFS response to Federal agency. tially large number of individual ac- NMFS will: tions that may adversely affect EFH.

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Programmatic consultation will gen- alternative time frames for the Federal erally be the most appropriate option agency response. The response must in- to address funding programs, large- clude a description of measures pro- scale planning efforts, and other in- posed by the agency for avoiding, miti- stances where sufficient information is gating, or offsetting the impact of the available to address all reasonably activity on EFH. In the case of a re- foreseeable adverse effects on EFH of sponse that is inconsistent with NMFS an entire program, parts of a program, Conservation Recommendations, the or a number of similar individual ac- Federal agency must explain its rea- tions occurring within a given geo- sons for not following the recommenda- graphic area. tions, including the scientific justifica- (2) Process. A Federal agency may re- tion for any disagreements with NMFS quest programmatic consultation by over the anticipated effects of the ac- providing NMFS with an EFH Assess- tion and the measures needed to avoid, ment in accordance with paragraph (e) minimize, mitigate, or offset such ef- of this section. The description of the fects. proposed action in the EFH Assessment (2) Further review of decisions incon- should describe the program and the sistent with NMFS or Council rec- nature and approximate number (annu- ommendations. If a Federal agency deci- ally or by some other appropriate time sion is inconsistent with a NMFS EFH frame) of the actions. NMFS may also Conservation Recommendation, the As- initiate programmatic consultation by sistant Administrator for Fisheries requesting pertinent information from may request a meeting with the head a Federal agency. of the Federal agency, as well as with (3) NMFS response to Federal agency. any other agencies involved, to discuss NMFS will respond to the Federal the action and opportunities for resolv- agency with programmatic EFH Con- ing any disagreements. If a Federal servation Recommendations and, if applicable, will identify any potential ad- agency decision is also inconsistent verse effects that could not be ad- with a Council recommendation made dressed programmatically and require pursuant to section 305(b)(3) of the project-specific consultation. NMFS Magnuson-Stevens Act, the Council may also determine that programmatic may request that the Assistant Admin- consultation is not appropriate, in istrator initiate further review of the which case all EFH Conservation Rec- Federal agency’s decision and involve ommendations will be deferred to the Council in any interagency discus- project-specific consultations. If appro- sion to resolve disagreements with the priate, NMFS’ response may include a Federal agency. The Assistant Admin- General Concurrence for activities that istrator will make every effort to ac- qualify under paragraph (g) of this sec- commodate such a request. NMFS may tion. develop written procedures to further (k) Responsibilities of Federal agency define such review processes. following receipt of EFH Conservation (l) Supplemental consultation. A Fed- Recommendations—(1) Federal agency re- eral agency must reinitiate consulta- sponse. As required by section tion with NMFS if the agency substan- 305(b)(4)(B) of the Magnuson-Stevens tially revises its plans for an action in Act, the Federal agency must provide a a manner that may adversely affect detailed response in writing to NMFS EFH or if new information becomes and to any Council commenting on the available that affects the basis for action under section 305(b)(3) of the NMFS EFH Conservation Rec- Magnuson-Stevens Act within 30 days ommendations. after receiving an EFH Conservation Recommendation from NMFS. Such a § 600.925 NMFS EFH Conservation response must be provided at least 10 Recommendations to Federal and days prior to final approval of the ac- state agencies. tion if the response is inconsistent (a) General. Under section 305(b)(4)(A) with any of NMFS’ EFH Conservation of the Magnuson-Stevens Act, NMFS is Recommendations, unless NMFS and required to provide EFH Conservation the Federal agency have agreed to use Recommendations to Federal and state

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agencies for actions that would ad- § 600.930 Council comments and rec- versely affect EFH. NMFS will not recommendations to Federal and state ommend that state or Federal agencies agencies. take actions beyond their statutory Under section 305(b)(3) of the Magnu- authority. son-Stevens Act, Councils may com- (b) Recommendations to Federal agen- ment on and make recommendations to cies. For Federal actions, EFH Con- the Secretary and any Federal or state servation Recommendations will be agency concerning any activity or pro- provided to Federal agencies as part of posed activity authorized, funded, or EFH consultations conducted pursuant undertaken by the agency that, in the to § 600.920. If NMFS becomes aware of view of the Council, may affect the a Federal action that would adversely habitat, including EFH, of a fishery re- affect EFH, but for which a Federal source under its authority. Councils agency has not initiated an EFH con- must provide such comments and rec- sultation, NMFS may request that the ommendations concerning any activity that, in the view of the Council, is like- Federal agency initiate EFH consulta- ly to substantially affect the habitat, tion, or NMFS will provide EFH Con- including EFH, of an anadromous fish- servation Recommendations based on ery resource under Council authority. the information available. (a) Establishment of procedures. Each (c) Recommendations to state agencies— Council should establish procedures for (1) Establishment of procedures. The reviewing Federal or state actions that Magnuson-Stevens Act does not require may adversely affect the habitat, in- state agencies to consult with the Sec- cluding EFH, of a species under its au- retary regarding EFH. NMFS will use thority. Each Council may receive in- existing coordination procedures or es- formation on actions of concern by tablish new procedures to identify methods such as directing Council staff state actions that may adversely affect to track proposed actions, recom- EFH, and to determine the most appro- mending that the Council’s habitat priate method for providing EFH Con- committee identify actions of concern, servation Recommendations to state or entering into an agreement with agencies. NMFS to have the appropriate Re- (2) Coordination with states on rec- gional Administrator notify the Coun- ommendations to Federal agencies. When cil of actions of concern that would ad- an action that would adversely affect versely affect EFH. Federal and state EFH is authorized, funded, or under- actions often follow specific timetables which may not coincide with Council taken by both Federal and state agen- meetings. Therefore, Councils should cies, NMFS will provide the appro- consider establishing abbreviated propriate state agencies with copies of cedures for the development of Council EFH Conservation Recommendations recommendations. developed as part of the Federal con- (b) Early involvement. Councils should sultation procedures in § 600.920. NMFS provide comments and recommenda- will also seek agreements on sharing tions on proposed state and Federal ac- information and copies of recommendations of concern as early as practicable tions with Federal or state agencies in project planning to ensure thorough conducting similar consultation and consideration of Council concerns by recommendation processes to ensure the action agency. Each Council should coordination of such efforts. provide NMFS with copies of its com- (d) Coordination with Councils. NMFS ments and recommendations to state will coordinate with each Council to and Federal agencies. identify the types of actions on which Councils intend to comment pursuant Subpart L—Fishing Capacity to section 305(b)(3) of the Magnuson- Reduction Framework Stevens Act. For such actions NMFS will share pertinent information with AUTHORITY: 16 U.S.C. 1861a(b)–(e). the Council, including copies of NMFS’ SOURCE: 65 FR 31443, May 18, 2000, unless EFH Conservation Recommendations. otherwise noted.

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§ 600.1000 Definitions. collected fee revenue before sending In addition to the definitions in the the fee revenue to NMFS for repaying a Magnuson-Stevens Fishery Conserva- reduction loan. tion and Management Act (Magnuson- Fair market value means the amount Stevens Act) and in § 600.10 of this title, that a buyer pays a seller in an arm’s the terms used in this subpart have the length transaction or, alternatively, following meanings: would pay a seller if the transaction Address of Record means the business were at arm’s length. address of a person, partnership, or cor- Fee means the amount that fish buy- poration. Addresses listed on permits ers deduct from the delivery value or other NMFS records are presumed to under a financed reduction program. be business addresses, unless clearly in- The fee is the delivery value times the dicated otherwise. reduction fishery’s applicable fee rate Bid means the price a vessel owner or under section 600.1013. reduction fishery permit holder re- Fee fish means all fish harvested from quests for reduction of his/her fishing a reduction fishery involving a fi- capacity. It is an irrevocable offer in nanced program during the period in response to the invitation to bid in which any amount of the reduction § 600.1009. loan remains unpaid. The term fee fish Borrower means, individually and col- excludes fish harvested incidentally lectively, each post-reduction fishing while fishing for fish not included in permit holder and/or fishing vessel the reduction fishery. owner fishing in the reduction fishery. Final development plan means the doc- Business plan means the document ument NMFS prepares, under containing the information specified in § 600.1006(b) and based on the prelimi- § 600.1003(n) and required to be sub- nary development plan the requester mitted with a request for a financed submits, for a subsidized program. program. Financed means funded, in any part, Business week means a 7-day period, by a reduction loan. Saturday through Friday. Fish buyer means the first ex-vessel Controlling fishery management plan or party who: program (CFMP) means either any fish- (1) In an arm’s—length transaction, ery management plan or any state fish- purchases fee fish from a fish seller; ery management plan or program, in- (2) Takes fish on consignment from a cluding amendments to the plan or pro- fish seller; or gram, pursuant to which a fishery is (3) Otherwise receives fish from a fish managed. seller in a non arm’s-length trans- Delivery value means: action. (1) For unprocessed fish, all com- Fish delivery means the point at pensation that a fish buyer pays to a which a fish buyer first purchases fee fish seller in exchange for fee fish; and fish or takes possession of fee fish from (2) For processed fish, all compensa- a fish seller. tion that a fish buyer would have paid Fishing capacity reduction specifica- to a fish seller in exchange for fee fish tions means the minimum amount of if the fee fish had been unprocessed fish fishing capacity reduction and the instead of processed fish. maximum amount of reduction loan Delivery value encompasses fair mar- principal specified in a business plan. ket value, as defined herein, and in- Fish seller means the party who har- cludes the value of all in-kind com- vests and first sells or otherwise deliv- pensation or all other goods or services ers fee fish to a fish buyer. exchanged in lieu of cash. It is synony- Fishery Management Plan (FMP) mous with the statutory term ‘‘ex-ves- means any Federal fishery manage- sel value’’ as used in section 312 of the ment plan, including amendments to Magnuson Act. the plan, that the Secretary of Com- Deposit principal means all collected merce approves or adopts pursuant to fee revenue that a fish buyer deposits section 303 of the Magnuson-Stevens in a segregated account maintained at Act. a federally insured financial institu- Fund means the Fishing Capacity Re- tion for the sole purpose of aggregating duction Fund, and each subaccount for

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each program, established in the U.S. acceptance of each such bid under Treasury for the deposit into, and dis- § 600.1009. bursement from, all funds, including Reduction cost means the total dollar all reduction loan capital and all fee amount of all reduction payments to revenue, involving each program. fishing permit owners, fishing vessel Implementation plan means the plan owners, or both, in a reduction fishery. in § 600.1008 for carrying out each pro- Reduction fishery means the fishery or gram. portion of a fishery to which a program Implementation regulations mean the applies. The reduction fishery must regulations in § 600.1008 for carrying specify each included species, as well out each program. as any limitations by gear type, fishing Net delivery value means the delivery vessel size, geographic area, and any value minus the fee. other relevant factor(s). Post-bidding referendum means a ref- Reduction loan means a loan, under erendum that follows bidding under section 1111 and section 1112 of Title XI § 600.1009. of the Merchant Marine Act, 1936, as Post-reduction means after a program amended (46 U.S.C. 1279f and g App.), reduces fishing capacity in a reduction for financing any portion, or all, of a fi- fishery. nanced program’s reduction cost and Pre-bidding referendum means a ref- repayable by a fee under, and in ac- erendum that occurs at any time after cordance with, § 600.1012, § 600.1013, and a request for a financed program but § 600.1014. before a proposal under § 600.1008 of an Reduction payment means the Federal implementation plan and implementa- Government’s fishing capacity reduction regulations. tion payment to a fishing permit Preliminary development plan means owner, fishing vessel owner, or both, the document specified in § 600.1005(g) under a reduction contract. Addition- and required to be submitted with a re- ally, it is payment for reduction to quest for a subsidized program. each bidder whose bid NMFS accepts Processed fish means fish in any form under § 600.1009. In a financed program different from the form in which the each reduction payment constitutes a fish existed at the time the fish was disbursement of a reduction loan’s pro- first harvested, unless any such dif- ceeds and is for either revoking a fish- ference in form represents, in the re- ing permit or both revoking a fishing duction fishery involved, the standard permit and withdrawing a vessel from ex-vessel form upon which fish sellers fishing either by scrapping or title re- and fish buyers characteristically base striction. the delivery value of unprocessed fish. Reduction permit means any fishing Program means each instance of re- permit revoked in a program in ex- duction under this subpart, in each re- change for a reduction payment under duction fishery—starting with a re- a reduction contract. quest and ending, for a financed pro- Reduction vessel means any fishing gram, with full reduction loan repay- vessel withdrawn from fishing either ment. by scrapping or title restriction in ex- Reduction means the act of reducing change for a reduction payment under fishing capacity under any program. a reduction contract. Reduction amendment means any Referendum means the voting process amendment, or, where appropriate, under § 600.1010 for approving the fee framework adjustment, to a CFMP system for repaying a reduction loan. that may be necessary for a program to Request means a request, under meet the requirements of this subpart. § 600.1001, for a program. Reduction amendment specifications Requester means a Council for a fish- mean the reduction amendment to a ery identified in § 600.1001(c) or a state CFMP specified in a business plan. governor for a fishery identified in Reduction contract means the invita- § 600.1001(d), or a majority of permit tion to bid under § 600.1009, together holders in the fishery. with each bidder’s irrevocable offer and Scrap means to completely and per- NMFS’ conditional or non-conditional manently reduce a fishing vessel’s hull,

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superstructures, and other fixed struc- fishery is subject to the jurisdiction of tural components to fragments having two or more states, the Governors of value, if any, only as raw materials for those States shall make a joint re- reprocessing or for other non-fisheries quest. No Governor of a State may use. make a request, or join in making a re- Subsidized means wholly funded by quest, until the State conducts a public anything other than a reduction loan. hearing about the request. Treasury percentage means the annual (e) For a fishery under the direct percentage rate at which NMFS must management authority of the Sec- pay interest to the U.S. Treasury on retary, NMFS may conduct a program any principal amount that NMFS bor- on NMFS’ own motion by fulfilling the rows from the U.S. Treasury in order to requirements of this subpart that rea- generate the funds with which to later sonably apply to a program not initi- disburse a reduction loan’s principal ated by a request. amount. (f) Where necessary to accommodate Unprocessed fish means fish in the special circumstances in a particular same form as the fish existed at the fishery, NMFS may waive, as NMFS time the fish was harvested, unless any deems necessary and appropriate, com- difference in form represents, in the re- pliance with any specific requirements duction fishery involved, the standard under this subpart not required by ex-vessel form upon which fish sellers statute. and fish buyers characteristically base the delivery value of unprocessed fish. [65 FR 31443, May 18, 2000, as amended at 75 Vote means a vote in a referendum. FR 62328, Oct. 8, 2010] [65 FR 31443, May 18, 2000, as amended at 75 § 600.1002 General requirements. FR 62328, Oct. 8, 2010] (a) Each program must be: § 600.1001 Requests. (1) Necessary to prevent or end over- (a) A Council, the Governor of a fishing, rebuild stocks of fish, or State under whose authority a pro- achieve measurable and significant imposed reduction fishery is subject, or a provements in the conservation and majority of permit holders in the fish- management of the reduction fishery; ery may request that NMFS conduct a (2) Accompanied by the appropriate program in that fishery. Each request environmental, economic and/or socio- shall be in writing. Each request shall economic analyses, in accordance with satisfy the requirements of § 600.1003 or applicable statutes, regulations, or § 600.1005, as applicable, and enable other authorities; and NMFS to make the determinations re- (3) Consistent with the CFMP, in- quired by § 600.1004 or § 600.1006, as ap- cluding any reduction amendment, for plicable. the reduction fishery. (b) NMFS cannot conduct a program (b) Each CFMP for a reduction fish- in any fishery subject to the jurisdic- ery must: tion of a Council or a state unless (1) Prevent the replacement of fish- NMFS first receives a request from the ing capacity removed by the program Council or the governor to whose juris- through a moratorium on new en- diction the fishery is subject. trants, restrictions on vessel upgrades, (c) For a fishery subject to the juris- and other effort control measures, tak- diction of a Council, only that Council ing into account the full potential fish- can or must make the request. If the ing capacity of the fleet; fishery is subject to the jurisdiction of (2) Establish a specified or target two or more Councils, those Councils total allowable catch or other meas- must make a joint request. No Council ures that trigger closure of the fishery may make a request, or join in making or adjustments to reduce catch; and a request, until after the Council con- (3) Include, for a financed program in ducts a public hearing about the re- a reduction fishery involving only a quest. portion of a fishery, appropriate provi- (d) For a fishery subject to the juris- sions for the post-reduction allocation diction of a State, only the Governor of of fish between the reduction fishery that State can make the request. If the and the rest of the fishery that both

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protect the borrower’s reduction in- thorized to harvest fish from the reduc- vestment in the program and support tion fishery, excluding those whose au- the borrower’s ability to repay the re- thority is limited to incidentally har- duction loan. vesting fish from the reduction fishery (c) The Secretary may not make a during directed fishing for fish not in fishing capacity reduction program the reduction fishery. The list shall be payment with respect to a reduction based on the best information available vessel that will not be scrapped unless to the requester. The list shall take the Secretary certifies that the vessel into account any limitation by type of will not be used for fishing in the wa- fishing gear operated, size of fishing ters of the U.S., a foreign nation, or on vessel operated, geographic area of op- the high seas. eration, or other factor that the pro- [65 FR 31443, May 18, 2000, as amended at 75 posed program involves. The list may FR 62328, Oct. 8, 2010] include any relevant information that NMFS may supply to the requester. § 600.1003 Content of a request for a fi- (j) Specify the aggregate total allow- nanced program. able catch in the reduction fishery dur- A request for a financed program ing each of the preceding 5 years and shall: the aggregate portion of such catch (a) Specify the reduction fishery. harvested by the parties listed under (b) Project the amount of the reduc- paragraph (i) of this section. tion and specify what a reduction of (k) Specify the criteria for deter- that amount achieves in the reduction mining the types and number of fishing fishery. permits or fishing permits and fishing (c) Specify whether the program is to vessels that are eligible for reduction be wholly or partially financed and, if under the program. The criteria shall the latter, specify the amount and de- take into account: scribe the availability of all funding (1) The characteristics of the fishery; from sources other than a reduction (2) Whether the program is limited to loan. a particular gear type within the re- (d) Project the availability of all duction fishery or is otherwise limited Federal appropriation authority or by size of fishing vessel operated, geo- other funding, if any, that the financed graphic area of operation, or other fac- program requires, including the time tor; at which funding from each source will (3) Whether the program is limited to be available and how that relates to fishing permits or involves both fishing the time at which elements of the re- permits and fishing vessels; duction process are projected to occur. (4) The reduction amendment re- (e) Demonstrate how the program quired; meets, or will meet after an appro- (5) The needs of fishing communities; priate reduction amendment, the re- (6) Minimizing the program’s reduc- quirements in § 600.1002(a). tion cost; and (f) Demonstrate how the CFMP (7) All other relevant factors. meets, or will meet after an appro- (l) Include the requester’s assessment priate reduction amendment, the re- of the program’s potential impact on quirements in § 600.1002(b). fisheries other than the reduction fish- (g) If a reduction amendment is nec- ery, including an evaluation of the essary, include an actual reduction likely increase in participation or ef- amendment or the requester’s endorse- fort in such other fisheries, the general ment in principle of the reduction economic impact on such other fish- amendment specifications in the busi- eries, and recommendations that could ness plan. Endorsement in principle is mitigate, or enable such other fisheries non-binding. to mitigate, any undesirable impacts. (h) Request that NMFS conduct, at (m) Include any other information or the appropriate time, a referendum guidance that would assist NMFS in under § 600.1010 of this subpart. developing an implementation plan and (i) List the names and addresses of implementation regulations. record of all fishing permit or fishing (n) Include a business plan, prepared vessel owners who are currently au- by, or on behalf of, knowledgeable and

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concerned harvesters in the reduction amortize the reduction loan over its re- fishery, that: payment term; (1) Specifies a detailed reduction (5) Analyzes and demonstrates the methodology that accomplishes the ability to repay the reduction loan at maximum sustained reduction in the the minimum reduction level and at reduction fishery’s fishing capacity at various reduction-level increments rea- the least reduction cost and in the sonably greater than the minimum minimum period of time, and otherwise one, based on the: achieves the program result that the (i) Best and most representative his- requester specifies under paragraph (b) torical fishing revenue and expense of this section. The methodology shall: data and any other relevant produc- (i) Establish the appropriate point for tivity measures available in the reduc- NMFS to conduct a pre-bidding ref- tion fishery, and erendum and be sufficiently detailed to (ii) Projected effect of the program enable NMFS to readily: on the post-reduction operating eco- (A) Design, propose, and adopt a nomics of typical harvesters in the re- timely and reliable implementation duction fishery, with particular empha- plan, sis on the extent to which the reduc- (B) Propose and issue timely and reli- tion increases the ratio of delivery able implementation regulations, value to fixed cost and improves (C) Invite bids, harvesting’s other relevant produc- (D) Accept or reject bids, and tivity measures; (E) Complete a program in accordance with this subpart, and (6) Demonstrates how the business (ii) Address, consistently with this plan’s proposed program meets, or will subpart: meet after an appropriate reduction (A) The contents and terms of invita- amendment, the requirements in tions to bid, § 600.1002(a); (B) Bidder eligibility, (7) Demonstrates how the CFMP (C) The type of information that bid- meets, or will meet after an appro- ders shall supply, priate reduction amendment, the re- (D) The criteria for accepting or requirements in § 600.1002(b); jecting bids, (8) Includes, if a reduction amend- (E) The terms of bid acceptances, ment is necessary, the reduction (F) Any referendum procedures in ad- amendment specifications upon which dition to, but consistent with, those in the pre-bidding referendum will be § 600.1010, and based; (G) All other technical matters nec- (9) Includes an assessment of the pro- essary to conduct a program; gram’s potential impact on fisheries (2) Projects and supports the reduc- other than the reduction fishery, in- tion fishery’s annual delivery value cluding an evaluation of the likely in- during the reduction loan’s repayment crease in participation or effort in such period based on documented analysis of other fisheries, the general economic actual representative experience for a impact on such other fisheries, and rec- reasonable number of past years in the ommendations that could mitigate, or reduction fishery; enable such other fisheries to mitigate, (3) Includes the fishing capacity re- any undesirable impacts; duction specifications upon which both (10) Specifies the names and address- the pre-bidding referendum and the es of record of all fish buyers who can, bidding under § 600.1009 will be based. after reduction, reasonably be expected The reduction loan’s maximum prin- to receive deliveries of fee fish. This cipal amount cannot, at the interest shall be based on the best information rate projected to prevail at the time of available, including any information reduction, exceed the principal amount that NMFS may be able to supply to that can be amortized in 20 years by 5 the business planners; percent of the projected delivery value; (11) Specifies, after full consultation (4) States the reduction loan’s repay- with fish buyers, any special cir- ment term and the fee rate, or range of cumstances in the reduction fishery fee rates, prospectively necessary to that may require the implementing

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regulations to contain provisions in ad- NMFS’ discretion, the comments re- dition to, or different from, those con- ceived in response to such notice war- tained in § 600.1013 and/or § 600.1014 in rants it, or other good cause warrants order to accommodate the cir- it, NMFS may modify such list by pub- cumstances of, and practices in, the re- lishing another notice in the FEDERAL duction fishery while still fulfilling the REGISTER. intent and purpose of § 600.1013 and/or (b) Determination about initiating a fi- § 600.1014—including, but not limited to: nanced program. After receipt of a con- (i) In the case of reduction fisheries forming request for a financed pro- in which state data confidentiality gram, NMFS will, after reviewing and laws or other impediments may nega- responding to any public comments re- tively affect the efficient and effective ceived in response to the notice pub- conduct of the same, specification of lished in the FEDERAL REGISTER under who needs to take what action to re- paragraph (a) of this section, initiate solve any such impediments, and the program if NMFS determines that: (ii) In the case of reduction fisheries (1) The program meets, or will meet in which some fish sellers sell unproc- after an appropriate reduction amend- essed, and other fish sellers sell proc- ment, the requirements in § 600.1002(a); essed fish to fish buyers, specification (2) The CFMP meets, or will meet of an accurate and efficient method of after an appropriate reduction amend- establishing the delivery value of proc- ment, the requirements in § 600.1002(b); essed fish; and (3) The program, if successfully im- (12) Demonstrates by a survey of po- plemented, is cost effective; tential voters, or by any other con- (4) The reduction requested con- vincing means, a substantial degree of stitutes a realistic and practical pros- potential voter support for the business pect for successfully completing a pro- plan and confidence in its feasibility. gram in accordance with this subpart (o) Include the requester’s statement and the borrower is capable of repaying of belief that the business plan, the the reduction loan. This includes ena- CFMP, the reduction amendment spec- bling NMFS to readily design, propose, ifications, and all other request aspects and adopt a timely and reliable imple- constitute a complete, realistic, and mentation plan as well as propose and practical prospect for successfully issue timely and reliable implementa- completing a program in accordance tion regulations and otherwise com- with this subpart. plete the program in accordance with this subpart; and § 600.1004 Accepting a request for, and (5) The program accords with all determinations about initiating, a other applicable law. financed program. (a) Accepting a request. Once it re- § 600.1005 Content of a request for a ceives a request, NMFS will review any subsidized program. request for a financed program to de- A request for a subsidized program termine whether the request conforms shall: with the requirements of § 600.1003. If (a) Specify the reduction fishery. the request does not conform, NMFS (b) Project the amount of the reduc- will return the request with guidance tion and specify what a reduction of on how to make the request conform. If that amount achieves in the reduction the request conforms, NMFS shall ac- fishery. cept it and publish a notice in the FED- (c) Project the reduction cost, the ERAL REGISTER requesting public com- amount of reduction cost to be funded ments on the request. Such notice shall by Federal appropriations, and the state the name and address of record of amount, if any, to be funded by other each eligible voter, as well as the basis sources. for having determined the eligibility of (d) Project the availability of Federal those voters. This shall constitute no- appropriations or other funding, if any, tice and opportunity to respond about that completion of the program re- 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

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at which elements of the reduction tion under the program. The criteria process are projected to occur. shall take into account: (e) List the names and addresses of (i) The characteristics of the fishery, record of all fishing permit or fishing (ii) Whether the program is limited vessel owners who are currently au- to a particular gear type within the re- thorized to harvest fish from the reduc- duction fishery, or is otherwise limited tion fishery, excluding those whose au- by size of fishing vessel operated, geo- thority is limited to incidentally har- graphic area of operation, or other fac- vesting fish from the reduction fishery tor, during directed fishing for fish not in (iii) Whether the program is limited the reduction fishery. The list shall be to fishing permits or involves both based on the best information available fishing permits and fishing vessels, to the requester, including any infor- (iv) The reduction amendment re- mation that NMFS may supply to the quired, requester, and take into account any (v) The needs of fishing communities, limitation by type of fishing gear oper- and ated, size of fishing vessel operated, ge- (vi) The need to minimize the pro- ographic area of operation, or other gram’s reduction cost; and factor that the proposed program in- (3) Demonstrates the program’s cost volves. effectiveness. (f) Specify the aggregate total allow- (h) Demonstrate how the program able catch in the reduction fishery dur- meets, or will meet after an appro- ing each of the preceding 5 years and priate reduction amendment, the re- the aggregate portion of such catch quirements in § 600.1002(a). harvested by the parties listed under (i) Demonstrate how the CFMP paragraph (e) of this section. meets, or will meet after an appro- (g) Include a preliminary develop- priate reduction amendment, the re- ment plan that: quirements in § 600.1002(b)(1) and (2). (1) Specifies a detailed reduction (j) Specify any other information or methodology that accomplishes the guidance that assists NMFS in pre- maximum sustained reduction in the paring a final development plan and a reduction fishery’s fishing capacity at proposed implementation plan and pro- the least cost and in a minimum period posed implementation regulations. of time, and otherwise achieves the (k) Include the requester’s statement program result that the requester of belief that the program constitutes a specifies under paragraph (b) of this reasonably realistic and practical pros- section. The methodology shall: pect for successfully completing a pro- (i) Be sufficiently detailed to enable gram in accordance with this subpart. NMFS to prepare a final development § 600.1006 Accepting a request for, and plan to serve as the basis for NMFS to determinations about conducting, a readily design, propose, and adopt a subsidized program. timely and reliable implementation plan and propose and issue timely and (a) Accepting a request. NMFS will re- reliable implementation regulations, view any request for a subsidized pro- and gram submitted to NMFS to determine whether the request conforms with the (ii) Include: requirements of § 600.1005. If the request (A) The contents and terms of invita- does not conform, NMFS will return it tions to bid, with guidance on how to make the re- (B) Eligible bidders, quest conform. If the request conforms, (C) The type of information that bid- NMFS shall accept it and publish a no- ders shall supply, tice in the FEDERAL REGISTER request- (D) The criteria for accepting or re- ing public comments about the request. jecting bids, and (b) Final development plan. After re- (E) The terms of bid acceptances; ceipt of a conforming request, NMFS (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

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completing a program in accordance (4) The program, if successfully im- with this subpart. This includes ena- plemented, will be cost effective; and bling NMFS to readily design, propose, (5) The program is in accord with all and adopt a timely and reliable imple- other applicable provisions of the Mag- mentation plan as well as propose and nuson-Stevens Act and this subpart. issue timely and reliable implementation regulations and otherwise com- § 600.1007 Reduction amendments. plete the program in accordance with (a) Each reduction amendment may this subpart. NMFS will, as far as pos- contain provisions that are either de- sible, base the final development plan on the requester’s preliminary develop- pendent upon or independent of a pro- ment plan. Before completing the final gram. Each provision of a reduction development plan, NMFS will consult, amendment is a dependent provision as NMFS deems necessary, with the re- unless the amendment expressly des- quester, Federal agencies, state and re- ignates the provision as independent. gional authorities, affected fishing (b) Independent provisions are effec- communities, participants in the re- tive without regard to any subsequent duction fishery, conservation organiza- program actions. tions, and other interested parties in (c) Dependent provisions are initially preparing the final development plan. effective for the sole limited purpose of (c) Reaffirmation of the request. After enabling initiation and completion of completing the final development plan, the pre-reduction processing stage of a NMFS will submit the plan to the re- program. quester for the requester’s reaffirma- (d) All dependent provisions of a re- tion of the request. Based on the final duction amendment for a financed pro- development plan, the reaffirmation gram are fully in force and effect for shall: (1) Certify that the final develop- all other purposes only when NMFS ei- ment plan meets, or will meet after an ther: appropriate reduction amendment, the requirements in § 600.1002(a); (1) For bidding results that conform (2) Certify that the CFMP meets, or to the fishing capacity reduction speci- will meet after an appropriate reduc- fications and are not subject to any tion amendment, the requirements in other condition, notifies bidders, under § 600.1002(b)(1) and (2); and § 600.1009(e)(3), that reduction contracts (3) Project the date on which the re- then exist between the bidders and the quester will forward any necessary re- United States; or duction amendment and, if the re- (2) For bidding results that do not quester is a Council, proposed regula- conform to the fishing capacity reductions to implement the reduction tion specifications or are subject to amendment. The requester shall base any other condition, notifies bidders any necessary reduction amendment on whose bids NMFS had conditionally ac- the final development plan. cepted, under § 600.1010 (d)(8)(iii), that (d) Determinations about conducting a the condition pertaining to the reduc- subsidized program. After NMFS’ receipt tion contracts between them and the of the requester’s reaffirmation, any United States is fulfilled. required reduction amendment, and (e) If NMFS does not, in accordance any proposed regulations required to with this subpart and any special pro- implement the amendment, NMFS will visions in the implementation regula- initiate the program if NMFS deter- tions, subsequently make all reduction mines that: payments that circumstances, in (1) The program meets, or will meet after an appropriate reduction amend- NMFS’ judgment, reasonably permit ment, the requirements in § 600.1002(a); NMFS to make and, thus, complete a (2) The CFMP meets, or will meet program, no dependent provisions shall after an appropriate reduction amend- then have any further force or effect ment, the requirements in for any purpose and all final regula- § 600.1002(b)(1) and (2); and tions involving such dependent provi- (3) The program is reasonably capa- sions shall then be repealed. ble of being successfully implemented;

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§ 600.1008 Implementation plan and fishing permits and fishing vessels eli- implementation regulations. gible to participate in the program; (a) As soon as practicable after decid- (6) The invitation to bid and bidding ing to initiate a program, NMFS will procedures; prepare and publish, for a 60-day public (7) The criteria for determining bid comment period, a proposed implemen- acceptance; and tation plan and implementation regu- (8) Any relevant post-bidding pro- lations. During the public comment pe- gram procedures other than those in riod, NMFS will conduct a public hear- the implementation regulations or this ing of the proposed implementation subpart. plan and implementation regulations (d) The implementation regulations in each state that the program affects. will: (b) To the greatest extent prac- (1) Specify, for invitations to bid, ticable, NMFS will base the implemen- bids, and reduction contracts under tation plan and implementation regu- § 600.1009: lations for a financed program on the (i) Bidder eligibility, business plan. The implementation (ii) Bid submission requirements and plan for a financed program will de- procedures, scribe in detail all relevant aspects of (iii) A bid opening date, before which implementing the program, including: a bidder may not bid, and a bid closing (1) The reduction fishery; date, after which a bidder may not bid, (2) The reduction methodology; (iv) A bid expiration date after which (3) The maximum reduction cost; the irrevocable offer contained in each (4) The maximum reduction loan bid expires unless NMFS, before that amount, if different from the max- date, accepts the bid by mailing a writ- imum reduction cost; ten acceptance notice to the bidder at (5) The reduction cost funding, if any, the bidder’s address of record, other than a reduction loan; (v) The manner of bid submission and (6) The minimum acceptable reduc- the information each bidder shall sup- tion level; ply for NMFS to deem a bid responsive, (7) The potential amount of the fee; (vi) The conditions under which (8) The criteria for determining the NMFS will accept or reject a bid, types and number of fishing permits or (vii) The manner in which NMFS will fishing permits and fishing vessels eli- accept or reject a bid, and gible to participate in the program; (9) The invitation to bid and bidding (viii) The manner in which NMFS procedures; will notify each bidder of bid accept- (10) The criteria for determining bid ance or rejection; acceptance; (2) Specify any other special ref- (11) The referendum procedures; and erendum procedures or criteria; and (12) Any relevant post-referendum re- (3) Specify such other provisions, in duction procedures other than those in addition to and consistent with those the implementation regulations or this in this subpart, necessary to regulate subpart. the individual terms and conditions of (c) NMFS will base each implementa- each program and reduction loan. This tion plan and implementation regula- includes, but is not limited to: tions for a subsidized program on the (i) Provisions for the payment of final development plan. The implemen- costs and penalties for non-payment, tation plan will describe in detail all non-collection, non-deposit, and/or relevant aspects of implementing the non-disbursement of the fee in accord- program, including: ance with § 600.1013 and § 600.1014, (1) The reduction fishery; (ii) Prospective fee rate determina- (2) The reduction methodology; tions, and (3) The maximum reduction cost; (iii) Any other aspect of fee payment, (4) The reduction-cost funding, if collection, deposit, disbursement, ac- any, other than Federal appropria- counting, record keeping, and/or re- tions; porting. (5) The criteria for determining the (e) NMFS will issue final implemen- types and number of fishing permits or tation regulations and adopt a final

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implementation plan within 45 days of ulations simultaneously with another the close of the public-comment period. financed program in another reduction (f) NMFS may repeal the final imple- fishery, where the acceptance of bids mentation regulations for any program for each financed program is condi- if: tional upon successful post-bidding (1) For a financed program, the bid- referenda approving industry fee sys- ding results do not conform to the fish- tems for both financed programs, ing capacity reduction specifications NMFS’ acceptance of all bids is, in ad- or a post-bidding referendum does not dition to any condition under para- subsequently approve an industry fee graph (a)(3) of this section, also subject system based on the bidding results; to the additional conditions that both (2) For a subsidized program, NMFS referenda approve the industry fee sys- does not accept bids; and tems required for both financed pro- (3) For either a financed program or grams—all as otherwise provided in a subsidized program, if NMFS is un- paragraph (a)(3) of this section; able to make all reduction payments (5) Upon NMFS’ acceptance of the bid due to a material adverse change. and tender of a reduction payment, the bidder consents to: § 600.1009 Bids. (i) The revocation, by NMFS, of any (a) Each invitation to bid, bid, bid ac- reduction permit, and ceptance, reduction contract, and bid- (ii) Where the program also involves der—or any other party in any way af- the withdrawal of reduction vessels fected by any of the foregoing—under from fishing: this subpart is subject to the terms and (A) Title restrictions imposed by the conditions in this section: U.S. Coast Guard on any reduction ves- (1) Each invitation to bid constitutes sel that is Federally documented to the entire terms and conditions of a re- forever prohibit and effectively prevent duction contract under which: any future use of the reduction vessel (i) Each bidder makes an irrevocable for fishing: offer to the United States of fishing ca- (1) In any area subject to the juris- pacity for reduction, and diction of the United States, or any (ii) NMFS accepts or rejects, on be- state, territory, commonwealth, or half of the United States, each bidder’s possession of the United States, or offer; (2) On the high seas, or (2) NMFS may, at any time before (3) In the waters of a foreign nation; the bid expiration date, accept or re- or ject any or all bids; (B) Scrapping of all reduction vessels (3) For a financed program in which involved in a fishing capacity reduc- bidding results do not conform to the tion program, unless the reduction pro- fishing capacity reduction specifica- gram vessel has been certified by the tions, NMFS’ acceptance of any bid is Secretary, and the requirements estab- subject to the condition that the indus- lished under § 600.1002(c) are met. Where try fee system necessary to repay the reduction vessel scrapping is involved reduction loan is subsequently ap- and the reduction vessel’s owner does proved by a successful post-bidding ref- not comply with the owner’s obligation erendum conducted under § 600.1010. Ap- under the reduction contract to scrap proval or disapproval of the industry the reduction vessel, the Secretary fee system by post-bidding referendum may take such measures as necessary is an event that neither the United to cause the reduction vessel’s prompt States nor the bidders can control. Dis- scrapping. The scrapping will be at the approval of the industry fee system by reduction vessel owner’s risk and ex- an unsuccessful post-bidding ref- pense. Upon completion of scrapping, erendum fully excuses both parties NMFS will take such action as may be 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

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reduction contract, the United States on the completion of reduction are im- is, in all particulars, entitled to spe- plemented; cific performance of each reduction (2) The final implementation plan is contract. This includes, but is not lim- adopted and the final implementation ited to, the scrapping of a reduction regulations are issued; vessel; (3) All required program funding is (7) Any reduction payment is avail- approved and in place, including all able, upon timely and adequately docu- Federal appropriation and apportion- mented notice to NMFS, to satisfy ment authority; liens, as allowed by law, against any (4) Any reduction loan involved is reduction permit/and or reduction ves- fully approved; sel; provided, however, that: (5) Any non-Federal funding involved (i) No reduction payment to any bid- is fully available at the required time der either relieves the bidder of respon- for NMFS disbursement as reduction sibility to discharge the obligation payments; and which gives rise to any lien or relieves any lien holder of responsibility to pro- (6) All other actions necessary to dis- tect the lien holder’s interest, burse reduction payments, except for (ii) No reduction payment in any way matters involving bidding and post-bid- gives rise to any liability of the United ding referenda, are completed. States for the obligation underlying (c) After making the affirmative de- any lien, terminations required under paragraph (iii) No lien holder has any right or (b) of this section, NMFS will publish a standing, not otherwise provided by FEDERAL REGISTER notice inviting eli- law, against the United States in con- gible bidders to offer to the United nection with the revocation of any re- States, under this subpart, fishing ca- duction permit or the title restriction pacity for reduction. or scrapping of any reduction vessel (d) NMFS may extend a bid closing under this subpart, and date and/or a bid expiration date for a (iv) This subpart does not provide reasonable period. NMFS may also any lien holder with any right or issue serial invitations to bid if the re- standing to seek to set aside any rev- sult of previous bidding, in NMFS’ ocation of any reduction permit or the judgment, warrant this. title restriction or scrapping of any re- (e) After the bid expiration date, duction vessel for which the United NMFS will: States made, or has agreed to make, (1) Analyze responsive bids; any reduction payment. A lien holder (2) Determine which bids, if any, is limited to recovery against the hold- NMFS accepts; and er of the reduction permit or the owner (3) Notify, by U.S. mail at each bid- of the reduction vessel as otherwise der’s address of record, those bidders provided by law; and whose bids NMFS accepts that a reduc- (8) Each invitation to bid may specify tion contract now exists between them such other terms and conditions as and the United States—subject, where NMFS believes necessary to enforce appropriate, to the conditions provided specific performance of each reduction for elsewhere in this subpart. contract or otherwise to ensure com- (f) NMFS will keep confidential the pleting each program. This includes, identity of all bidders whose bids but is not limited to, each bidder’s cer- NMFS does not accept. In financed pro- tification, subject to the penalties in grams where bidding results do not § 600.1017, of the bidder’s full authority conform to the fishing capacity reduc- to submit each bid and to dispose of tion specifications, NMFS also will the property involved in the bid in the keep confidential the identity of all 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: (1) Any necessary reduction amend- § 600.1010. ment is fully and finally approved and [65 FR 31443, May 18, 2000, as amended at 75 all provisions except those dependent FR 62329, Oct. 8, 2010]

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§ 600.1010 Referenda. process will either cease or NMFS may (a) Referendum success. A referendum suspend the process pending an appro- is successful if at least a majority of priate amendment of the business plan the permit holders in the fishery who and the request. participate in the fishery cast ballots (c) Post-bidding referendum. A post- in favor of an industry fee system. bidding referendum shall occur only if, (b) Pre-bidding referendum—(1) Initial in NMFS’ judgment, the result of bid- referendum. An initial pre-bidding ref- ding under § 600.1009 does not conform, erendum shall be conducted for each fi- in any material respect, to the fishing nanced program. The business plan capacity reduction specifications and shall, subject to this subpart, deter- such result justifies, in NMFS’ judg- mine the chronological relationship of ment, conducting a post-bidding ref- the initial pre-bidding referendum to erendum. Bidding that results in reduc- other pre-bidding aspects of the reducing fishing capacity in any amount not tion process sequence. The initial pre- less than the minimum fishing capac- bidding referendum shall be based on ity reduction amount for any reduction the fishing capacity reduction speci- loan amount not more than the max- fications. If the initial pre-bidding ref- imum reduction loan amount, and oth- erendum precedes the adoption of any erwise achieves all material require- necessary reduction amendment, the ments of the fishing capacity reduction initial pre-bidding referendum shall specifications, shall conform to the also be based on the reduction amend- fishing capacity reduction specifica- ment specifications. If the initial pre- tions. The sole purpose of any post-bid- bidding referendum follows the adop- ding referendum shall be to determine tion of any necessary reduction amend- whether voters authorize an industry ment, the initial pre-bidding ref- fee system for bidding that results in erendum shall also be based on the reducing fishing capacity in any adopted reduction amendment; amount materially less than the min- (2) Successful initial pre-bidding ref- imum amount in the fishing capacity erendum. If the initial pre-bidding ref- reduction specifications. erendum is successful, the reduction (d) NMFS will conduct referenda in process will proceed as follows: accordance with the following: (i) If the initial pre-bidding ref- (1) Eligible voters. The parties eligible erendum follows reduction amendment to vote in each referendum are the par- adoption, no second pre-bidding ref- ties whose names are listed as being el- erendum shall be conducted, igible to vote in the notice published in (ii) If the initial pre-bidding ref- the FEDERAL REGISTER under erendum precedes reduction amend- § 600.1004(a); ment adoption, a second pre-bidding (2) Ballot issuance. NMFS will mail, referendum shall be conducted if, in by U.S. certified mail, return receipt NMFS’ judgment, the reduction requested, a ballot to each eligible amendment subsequently adopted dif- voter. Each ballot will bear a randomly fers, in any respect materially affect- derived, 5-digit number assigned to ing the borrower’s reduction invest- each eligible voter. Each ballot will ment in the program and the bor- contain a place for the voter to vote for rower’s ability to repay the reduction or against the proposed industry fee loan, from the reduction amendment system and a place, adjacent to the 5- specifications upon which the initial digit number, for the signature of the pre-bidding referendum successfully oc- fishing permit or fishing vessel owner curred. The sole purpose of any second to whom the ballot is addressed or, if pre-bidding referendum shall be to de- the fishing permit or fishing vessel termine whether the voters authorize owner is an organization, the person 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

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voter shall use to return the ballot to ing capacity reduction specifications, NMFS; and (3) Voter certification. Each ballot will (ix) State or include whatever else contain a certification, subject to the NMFS deems appropriate; penalties set forth in § 600.1017, that the (5) Enclosures to accompany a ballot. person signing the ballot is the fishing Each ballot mailing will include: permit or fishing vessel owner to whom (i) A specially-marked, postage-paid, the ballot is addressed or, if the fishing and pre-addressed envelope that a voter permit or fishing vessel owner is an or- must use to return the original of a ganization, the person having author- ballot to NMFS by whatever means of ity to vote and cast the ballot on the delivery the voter chooses, and organization’s behalf; (ii) Such other materials as NMFS (4) Information included on a ballot. deems appropriate; Each ballot mailing will: (6) Vote qualification. A completed (i) Summarize the referendum’s na- ballot qualifies to be counted as a vote ture and purpose, if the ballot: (ii) Specify the date by which NMFS (i) Is physically received by NMFS on must receive a ballot in order for the or before the last day NMFS specifies ballot to be counted as a qualified vote, for receipt of the ballot, (iii) Identify the place on the ballot (ii) Is cast for or against the proposed for the voter to vote for or against the industry fee system, proposed industry fee system, the place (iii) Is signed by the voter, on the ballot where the voter shall sign (iv) Is the original ballot NMFS sent the ballot, and the purpose of the re- to the voter bearing the same 5-digit turn envelope, number that NMFS assigned to the voter, and (iv) For each pre-bidding referendum, (v) Was returned to NMFS in the spe- state: cially-marked envelope that NMFS (A) The fishing capacity reduction provided for the ballot’s return; specifications, (6) Vote tally and notification. NMFS (B) The reduction loan’s repayment will: term, and (i) Tally all ballots qualified to be (C) The fee rate, or range of fee rates, counted as referendum votes, prospectively necessary to amortize (ii) Notify, by U.S. mail at the ad- the reduction loan over the loan’s dress of record, all eligible voters who term, received ballots of: (v) For each initial pre-bidding ref- (A) The number of potential voters, erendum that precedes reduction (B) The number of actual voters who amendment adoption, state the reduc- returned a ballot, tion amendment specifications, (C) The number of returned ballots (vi) For each initial pre-bidding ref- that qualified to be counted as referendum that follows reduction amend- erendum votes, ment adoption, summarize the mate- (D) The number of votes for and the rial aspects of the reduction amend- number of votes against the industry ment adopted, fee system, and (vii) For each second pre-bidding ref- (E) Whether the referendum was suc- erendum, summarize how the adopted cessful and approved the industry fee reduction amendment materially dif- system or unsuccessful and disapproved fers from the reduction amendment the industry fee system, and specifications upon which a successful (iii) If a successful referendum is a initial pre-bidding referendum occurred post-bidding referendum, NMFS will, 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

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ballot qualifications and about all used to harvest fishery resources under other referendum matters, including, the reduction permit that could qualify but not limited to, eligible voters and the reduction permit holder or the fish- their addresses of record, are conclu- ing vessel owner for any present or fu- sive and final as of the date NMFS ture limited access system fishing per- makes such determinations. No matter mit in the reduction fishery. respecting such determinations shall (c) Reduction vessel title restriction or impair, invalidate, avoid, or otherwise scrapping. For each program that in- render unenforceable any referendum, volves reduction vessel title restriction reduction contract, reduction loan, or or scrapping: fee payment and collection obligation (1) Each reduction vessel that is sub- under § 600.1013 and § 600.1014 necessary ject to title restriction only and is thus to repay any reduction loan; not required to be scrapped, is, upon (8) Ballot confidentiality. NMFS will NMFS’ tender of the reduction pay- not voluntarily release the name of ment, forever prohibited from any fu- any party who voted. NMFS will re- ture use for fishing in any area subject strict the availability of all voter in- to the jurisdiction of the United States formation to the maximum extent al- or any State, territory, possession, or lowed by law; and (9) Conclusive authorization of industry commonwealth of the United States. fee system. Each successful referendum NMFS will request that the U.S. Coast conclusively authorizes NMFS’ imposi- Guard permanently restrict each such tion of an industry fee system—includ- reduction vessel’s title to exclude the ing the fee payment, collection, and reduction vessel’s future use for fishing other provisions regarding fee payment in any such area; and collection under § 600.1013 and (2) Each reduction vessel owner § 600.1014—to repay the reduction loan whose reduction vessel is required to be for each financed program that NMFS scrapped shall, upon NMFS’ tender of conducts under this subpart. the reduction payment, immediately cease all further use of the reduction [65 FR 31443, May 18, 2000, as amended at 75 vessel and arrange, without delay and FR 62329, Oct. 8, 2010] at the reduction vessel owner’s ex- § 600.1011 Reduction methods and pense, to scrap the reduction vessel to other conditions. NMFS’ satisfaction, including ade- (a) Reduction permits or reduction per- quate provision for NMFS to document mits and reduction vessels. Each program the physical act of scrapping; and may involve either the surrender and (3) Each reduction vessel owner, upon revocation of reduction permits or both NMFS’ tender of the reduction pay- the surrender and revocation of reduc- ment, forever relinquishes any claim tion permits and the withdrawal from associated with the reduction vessel fishing either by title restriction or by and with the reduction permit that scrapping of reduction vessels. No fi- could qualify the reduction vessel nanced program may, however, require owner or the reduction permit holder such title restriction or scrapping of for any present or future limited access reduction vessels unless the business system fishing permit in the reduction plan voluntarily includes the same. fishery. (b) Reduction permit revocation and (d) Fishing permits in a non-reduction surrender. Each reduction permit is, fishery. A financed program that does upon NMFS’ tender of the reduction not involve the withdrawal from fish- payment for the reduction permit, for- ing or scrapping of reduction vessels ever revoked. Each reduction permit may not require any holder of a reduc- holder shall, upon NMFS’ tender of the tion permit in a reduction fishery to reduction payment, surrender the surrender any fishing permit in any original reduction permit to NMFS. non-reduction fishery or restrict or re- The reduction permit holder, upon voke any fishing permit other than a NMFS’ tender of the reduction pay- reduction permit in the reduction fish- ment, forever relinquishes any claim ery, except those fishing permits au- associated with the reduction permit thorizing the incidental harvesting of and with the fishing vessel that was species in any non-reduction fishery

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during, and as a consequence of, di- lect, the fee necessary to fully repay rected fishing for species in the reduc- the full reduction loan balance that re- tion fishery. sults from all reduction payments that (e) Reduction vessels disposition. Where NMFS actually makes and does not re- a business plan requires the withdrawal cover. from fishing of reduction vessels as (h) Program completion. Other than well as the revocation of reduction per- the payment and collection of the fee mits: that repays a reduction loan and any (1) Each reduction vessel that is not other residual matters regarding reduc- documented under Federal law must in tion payments and the disposition of every case always be scrapped, without reduction permits and reduction ves- regard to whether a program is a fi- sels, a program shall be completed nanced program or a subsidized pro- when NMFS tenders or makes all re- gram; duction payments under all reduction (2) No financed program may require contracts that circumstances, in any disposition of a reduction vessel NMFS’ judgment, reasonably permit documented under Federal law other NMFS to make. than the title restriction in paragraph (b) of this section unless the business § 600.1012 Reduction loan. plan volunteers to do otherwise; and (a) Obligation. The borrower shall be (3) Any subsidized program may re- obligated to repay a reduction loan. quire the scrapping of reduction vessels The borrower’s obligation to repay a documented under Federal law. reduction loan shall be discharged by (f) Reduction payments. NMFS will fish sellers paying a fee in accordance disburse all reduction payments in the with § 600.1013. Fish buyers shall be ob- amount and in the manner prescribed ligated to collect the fee in accordance in reduction contracts, except reduc- with § 600.1013 and to deposit and dis- tion payments that a bidder’s reduc- burse the fee revenue in accordance tion-contract nonperformance prevents with § 600.1014. NMFS from disbursing. In financed (b) Principal amount, interest rate, re- programs, the reduction loan’s prin- payment term, and penalties for non-pay- cipal amount is the total amount of all ment or non-collection. The reduction reduction payments that NMFS dis- loan shall be: burses from the proceeds of a reduction (1) In a principal amount that shall loan. Any reduction payment that be determined by subsequent program NMFS, because of a bidder’s reduction- events under this subpart, but which contract nonperformance, disburses shall not exceed the maximum prin- but subsequently recovers, shall reduce cipal amount in the fishing capacity the principal amount of the reduction reduction specifications; loan accordingly. (2) At an annual rate, that shall be (g) Effect of reduction-contract non- determined by subsequent events, of performance. No referendum, no reduc- simple interest on the reduction loan’s tion contract, no reduction loan, and principal balance that shall equal 2 no fee payment and collection obliga- percent plus the Treasury percentage; tion under § 600.1013 and § 600.1014 nec- (3) Repayable over the repayment essary to repay any reduction loan, term specified in the business plan or shall be impaired, invalidated, avoided, otherwise determined by subsequent or otherwise rendered unenforceable by events; and virtue of any reduction contract’s non- (4) Subject to such provisions as im- performance. This is without regard to plementation regulations shall specify the cause of, or reason for, nonperform- for the payment of costs and penalties ance. NMFS shall endeavor to enforce for non-payment, non-collection, non- 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

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the U.S. Treasury determines the buyer the net delivery value, or the Treasury percentage and an interest fish buyer’s promise to pay the net de- rate first known after the U.S. Treas- livery value, rather than the delivery ury determines the Treasury percent- value. Regardless of when the fish age shall not void, invalidate, or other- buyer pays the net delivery value, the wise impair any reduction contract, fish buyer shall collect the fee at the any reduction loan repayment obliga- time of fish delivery; tion, or any other aspect of the reduc- (2) In the event of any post-delivery tion process under this subpart. Should payment for fee fish—including, but any such difference result in a reduc- not limited to bonuses—whose amount tion loan that cannot, at the maximum depends on conditions that cannot be fee rate allowed by law, be repaid, as known until after fish delivery, that ei- previously projected, within the max- ther first determines the delivery value imum maturity, any amount of the re- or later increases the previous delivery duction loan remaining unpaid at ma- value, the fish seller shall pay, and the turity shall be repaid after maturity by fish buyer shall collect, at the time the continuing fee payment and collection amount of such post-delivery payment under this subpart at such maximum first becomes known, the fee that fee rate until the reduction loan’s un- would otherwise have been due and paid principal balance and accrued in- payable as if the amount of the post- terest is fully repaid. The above not- delivery payment had been known, and withstanding, at the discretion of the as if the post-delivery payment had Secretary, the reduction contract can consequently occurred, at the time of be voided if a material adverse change initial fish delivery; affects the reduction contract, reduc- (3)(i) Each fish seller shall be deemed tion loan obligation, or any other as- to be, for the purpose of the fee collec- pect of the reduction process under this tion, deposit, disbursement, and ac- subpart. counting requirements of this subpart, § 600.1013 Fee payment and collection. both the fish seller and the fish buyer, and shall be responsible for all require- (a) The fee amount is the de- Amount. ments and liable for any penalties livery value times the fee rate. under this subpart applicable to fish (b) Rate. NMFS will establish the fee sellers and/or fish buyers, each time rate. The fee rate may not exceed 5 per- that a fish seller sells fee fish to: cent of the delivery value. NMFS will establish the initial fee rate by calcu- (A) Any party whose place of busi- lating the fee revenue annually re- ness is not located in the United quired to amortize a reduction loan States, who does not take delivery or over the reduction loan’s term, pro- possession of the fee fish in the United jecting the annual delivery value, and States, who is not otherwise subject to expressing such fee revenue as a per- this subpart, or to whom or against centage of such delivery value. Before whom NMFS cannot otherwise apply or each anniversary of the initial fee rate enforce this subpart, determination, NMFS will recalculate (B) Any party who is a general food- the fee rate reasonably required to en- service wholesaler or supplier, a res- sure reduction loan repayment. This taurant, a retailer, a consumer, some will include any changed delivery value other type of end-user, or some other projections and any adjustment re- party not engaged in the business of quired to correct for previous delivery buying fish from fish sellers for the values higher or lower than projected. purpose of reselling the fish, either (c) Payment and collection. (1) The full with or without processing the fish, or fee is due and payable at the time of (C) Any other party who the fish sell- fish delivery. Each fish buyer shall col- er has good reason to believe is a party lect the fee at the time of fish delivery not subject to this subpart or to whom by deducting the fee from the delivery or against whom NMFS cannot other- value before paying, or promising to wise apply or enforce this subpart, pay, the net delivery value. Each fish (ii) In each such case the fish seller seller shall pay the fee at the time of shall, with respect to the fee fish in- fish delivery by receiving from the fish volved in each such case, discharge, in

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addition to the fee payment require- requires, the fish seller shall then ad- ments of this subpart, all the fee col- vise the fish buyer of the fish seller’s lection, deposit, disbursement, ac- fee payment obligation and of the fish counting, record keeping, and report- buyer’s fee collection obligation. If the ing requirements that this subpart oth- fish buyer still refuses to properly col- erwise imposes on the fish buyer, and lect the fee, the fish seller, within the the fish seller shall be subject to all next 7 calendar days, shall forward the the penalties this subpart provides for fee to NMFS. The fish seller at the a fish buyer’s failure to discharge such same time shall also advise NMFS in requirements; writing of the full particulars, includ- (4) Fee payment begins on the date ing: NMFS specifies under the notification (i) The fish buyer’s and fish seller’s procedures of paragraph (d) of this sec- name, address, and telephone number, tion and continues without interrup- (ii) The name of the fishing vessel tion at the fee rates NMFS specifies in from which the fish seller made fish de- accordance this subpart until NMFS livery and the date of doing so, determines that the reduction loan is (iii) The quantity and delivery value fully repaid. If a reduction loan is, for of each species of fee fish that the fish any reason, not fully repaid at the ma- seller delivered, and turity of the reduction loan’s original (iv) The fish buyer’s reason, if amortization period, fee payment and known, for refusing to collect the fee in collection shall continue until the re- accordance with this subpart; duction loan is fully repaid, notwith- (2) If a fish seller refuses to pay the standing that the time required to fee in the amount and manner that this fully repay the reduction loan exceeds subpart requires, the fish buyer shall the reduction loan’s initially permis- then advise the fish seller of the fish sible maturity. buyer’s collection obligation and of the (d) Notification. (1) At least 30 days fish seller’s payment obligation. If the before the effective date of any fee or fish seller still refuses to pay the fee, of any fee rate change, NMFS will pub- the fish buyer shall then either deduct lish a FEDERAL REGISTER notice estab- the fee from the delivery value over lishing the date from and after which the fish seller’s protest or refuse to buy the fee or fee rate change is effective. the fee fish. The fish buyer shall also, NMFS will then also send, by U.S. within the next 7 calendar days, advise mail, an appropriate notification to NMFS in writing of the full particu- each affected fish seller and fish buyer lars, including: of whom NMFS has notice; (i) The fish buyer’s and fish seller’s (2) When NMFS determines that a re- name, address, and telephone number, duction loan is fully repaid, NMFS will (ii) The name of the fishing vessel publish a FEDERAL REGISTER notice from which the fish seller made or at- that the fee is no longer in effect and tempted to make fish delivery and the should no longer be either paid or col- date of doing so, lected. NMFS will then also send, by (iii) The quantity and delivery value U.S. mail, notification to each affected of each species of fee fish the fish seller fish seller and fish buyer of whom delivered or attempted to deliver, NMFS has knowledge; (iv) Whether the fish buyer deducted (3) If NMFS fails to notify a fish sell- the fee over the fish seller’s protest or er or a fish buyer by U.S. mail, or if the refused to buy the fee fish, and fish seller or fish buyer otherwise does (v) The fish seller’s reason, if known, not receive the notice, of the date fee for refusing to pay the fee in accord- payments start or of the fee rate in ef- ance with this subpart. fect, each fish seller is, nevertheless, (f) Implementation regulations at vari- obligated to pay the fee at the fee rate ance with this section. If any special cir- 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,

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a reduction fishery while still fulfilling settlement sheet by means of the noti- the intent and purpose of this section, fication in § 600.1013(d). NMFS may, notwithstanding this sec- (d) Records maintenance. Each fish tion, include such provisions in the im- buyer shall maintain, in a secure and plementation regulations for such re- orderly manner for a period of at least duction fishery. 3 years from the date of each transaction involved, at least the following § 600.1014 Fee collection deposits, dis- information: bursements, records, and reports. (1) For all deliveries of fee fish that (a) Deposit accounts. Each fish buyer the fish buyer buys from each fish sell- that this subpart requires to collect a er: fee shall maintain a segregated ac- (i) The date of delivery, count at a federally insured financial (ii) The seller’s identity, institution for the sole purpose of de- (iii) The weight, number, or volume positing collected fee revenue and dis- of each species of fee fish delivered, bursing the fee revenue directly to (iv) The identity of the fishing vessel NMFS in accordance with paragraph that delivered the fee fish, (c) of this section. (v) The delivery value of each species (b) Fee collection deposits. Each fish of fee fish, buyer, no less frequently than at the (vi) The net delivery value, end of each business week, shall de- (vii) The identity of the party to posit, in the deposit account estab- whom the net delivery value is paid, if lished under paragraph (a) of this sec- other than the fish seller, tion, all fee revenue, not previously de- (viii) The date the net delivery value posited, that the fish buyer collects was paid, and through a date not more than two cal- (ix) The total fee amount collected; endar days before the date of deposit. Neither the deposit account nor the (2) For all fee collection deposits to principal amount of deposits in the ac- and disbursements from the deposit account may be pledged, assigned, or count: used for any purpose other than aggre- (i) The dates and amounts of depos- gating collected fee revenue for dis- its, bursement to the Fund in accordance (ii) The dates and amounts of dis- with paragraph (c) of this section. The bursements to the Fund’s lockbox ac- fish buyer is entitled, at any time, to count, and withdraw deposit interest, if any, but (iii) The dates and amounts of dis- never deposit principal, from the de- bursements to the fish buyer or other posit account for the fish buyer’s own parties of interest earned on deposits. use and purposes. (e) Annual report. In each year, on the (c) Deposit principal disbursement. On date to be specified in each implemen- the last business day of each month, or tation regulation, succeeding the year more frequently if the amount in the during which NMFS first implemented account exceeds the account limit for a fee, each fish buyer shall submit to insurance purposes, the fish buyer shall NMFS a report, on or in the form disburse to NMFS the full amount of NMFS specifies, containing the fol- deposit principal then in the deposit lowing information for the preceding account. The fish buyer shall do this by year, or whatever longer period may be check made payable to the Fund sub- involved in the first annual report, for account to which the deposit principal all fee fish each fish buyer purchases relates. The fish buyer shall mail each from fish sellers: such check to the Fund subaccount (1) Total weight, number, or volume lockbox that NMFS establishes for the bought; receipt of the disbursements for each (2) Total delivery value paid; program. Each disbursement shall be (3) Total fee amounts collected; accompanied by the fish buyer’s settle- (4) Total fee collection amounts de- ment sheet completed in the manner posited by month; and form that NMFS specifies. NMFS (5) Dates and amounts of monthly will specify the Fund subaccount disbursements to each Fund lockbox lockbox and the manner and form of account;

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(6) Total amount of interest earned (h) Confidentiality of records. NMFS on deposits; and and NMFS’ auditing agents shall main- (7) Depository account balance at tain the confidentiality of all data to year-end. which NMFS has access under this sec- (f) State records. If landing records tion and shall neither release the data that a state requires from fish sellers nor allow the data’s use for any pur- contain some or all of the data that pose other than the purpose of this sub- this section requires and state con- part; provided, however, that NMFS fidentiality laws or regulations do not may aggregate such data so as to pre- prevent NMFS’ access to the records clude their identification with any fish maintained for the state, then fish buy- buyer or any fish seller and use them ers can use such records to meet appro- in the aggregate for other purposes). priate portions of this section’s record- (i) Refunds. When NMFS determines keeping requirements. If, however, that a reduction loan is fully repaid, state confidentiality laws or regula- NMFS will refund any excess fee re- tions make such records unavailable to ceipts, on a last-in/first-out basis, to NMFS, then fish buyers shall maintain the fish buyers. Fish buyers shall re- separate records for NMFS that meet turn the refunds, on a last-in/first-out the requirements of this section. If any basis, to the fish sellers who paid the state law or regulation prohibits fish amounts refunded. buyers, or fish sellers where appro- (j) Implementation regulations at vari- priate, from keeping, for the purpose of ance with this section. If any special cir- complying with any requirement of cumstances in a reduction fishery re- this section, separate records that in- quire, in NMFS’s judgment, fee collec- volve some or all of the same data ele- tion deposit, disbursement, or records ments as the landing records that the provisions in addition to, or different fish buyers also keep, for state pur- from, those in this section in order to poses and under state law or regula- accommodate the circumstances of, tion, then a financed reduction pro- and practices in, a reduction fishery gram will not be possible. while still fulfilling the intent and pur- (g) Audits. NMFS or its agents may pose of this section, NMFS may, not- audit, in whatever manner NMFS be- withstanding this section, include such lieves reasonably necessary for the provisions in the implementation regu- duly diligent administration of reduc- lations for such reduction fishery. tion loans, the financial records of fish buyers and fish sellers in each reduc- § 600.1015 Late charges. tion fishery in order to ensure proper The late charge to fish buyers for fee fee payment, collection, deposit, dis- payment, collection, deposit, and/or bursement, accounting, record keeping, disbursement shall be one and one-half and reporting. Fish buyers and fish (1.5) percent per month, or the max- sellers shall make all records of all imum rate permitted by state law, for program transactions involving post- the total amount of the fee not paid, reduction fish harvests, fish deliveries, collected, deposited, and/or disbursed and fee payments, collections, deposits, when due to be paid, collected, depos- disbursements, accounting, record ited, and/or disbursed. The full late keeping, and reporting available to charge shall apply to the fee for each NMFS or NMFS’ agents at reasonable month or portion of a month that the times and places and promptly provide fee remains unpaid, uncollected, all requested information reasonably undeposited, and/or undisbursed. related to these records that such fish sellers and fish buyers may otherwise § 600.1016 Enforcement. lawfully provide. Trip tickets (or simi- In accordance with applicable law or lar accounting records establishing the other authority, NMFS may take ap- pounds of fee fish that each fish buyer propriate action against each fish sell- 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

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seller and/or fish buyer of any fee (in- subpart intends, any paid or collected cluding penalties and all costs of col- fee; lection) due and owing the United (10) Fail to fully and properly deposit States on account of the loan that such on time the full amount of all fee rev- fish seller and/or fish buyer should enue collected under this subpart into have, but did not, pay, collect, deposit, a deposit account and disburse the full and/or disburse in accordance with this amount of all deposit principal to the subpart. All such loan recoveries shall Fund’s lockbox account—all as this be applied to reduce the unpaid balance subpart requires; of the loan. (11) Fail to maintain full, timely, and proper fee payment, collection, deposit, § 600.1017 Prohibitions and penalties. and/or disbursement records or make (a) The following activities are pro- full, timely, and proper reports of such hibited, and it is unlawful for any information to NMFS-all as this sub- party to: part requires; (1) Vote in any referendum under this (12) Fail to advise NMFS of any fish subpart if the party is ineligible to do seller’s refusal to pay, or of any fish so; buyer’s refusal to collect, any fee due (2) Vote more than once in any ref- and payable under this subpart; erendum under this subpart; (13) Refuse to allow NMFS or agents (3) Sign or otherwise cast a ballot on that NMFS designates to review and behalf of a voter in any referendum audit at reasonable times all books and under this subpart unless the voter has records reasonably pertinent to fee fully authorized the party to do so and payment, collection, deposit, disburse- doing so otherwise comports with this ment, and accounting under this sub- subpart; part or otherwise interfere with, (4) Interfere with or attempt to hinder, or delay NMFS or it agents in hinder, delay, buy, or otherwise unduly the course of their activities under this or unlawfully influence any eligible subpart; voter’s vote in any referendum under (14) Make false statements to NMFS, this subpart; any of the NMFS’ employees, or any of (5) Submit a fraudulent, unauthor- NMFS’ agents about any of the mat- ized, incomplete, misleading, unen- ters in this subpart; forceable by specific performance, or (15) Obstruct, prevent, or unreason- inaccurate bid in response to an invita- ably delay or attempt to obstruct, pre- tion to bid under this subpart or, in vent, or unreasonably delay any audit any other way, interfere with or at- or investigation NMFS or its agents tempt to interfere with, hinder, or conduct, or attempt to conduct, in con- delay, any invitation to bid, any bid nection with any of the matters in this submitted under any invitation to bid, subpart; and/or any reduction contract, or any other (16) Otherwise materially interfere reduction process in connection with with the efficient and effective conduct any invitation to bid; of reduction and the repayment of re- (6) Revoke or attempt to revoke any duction loans under this subpart. bid under this subpart; (b) Any party who violates one or (7) Fail to comply with the terms and more of the prohibitions of paragraph conditions of any invitation to bid, bid, (a) of this section is subject to the full or reduction contract under this sub- range of penalties the Magnuson-Ste- part, including NMFS’ right under such vens Act and 15 CFR part 904 provide— reduction contracts to specific per- including, but not limited to: civil pen- formance; alties, sanctions, forfeitures, and pun- (8) Fail to fully and properly pay and ishment for criminal offenses—and to collect any fee due payable, and col- the full penalties and punishments oth- lectible under this subpart or otherwise erwise provided by any other applicable avoid, decrease, interfere with, hinder, law of the United States. or delay any such payment and collec- (c) Additionally, NMFS may take tion, any and all appropriate actions, includ- (9) Convert, or otherwise use for any ing the communication of action at purpose other than the purpose this law, against each party responsible for

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the non-payment, non-collection, non- Fee means the six-tenths (0.6) of one deposit, and/or non-disbursement in ac- cent that fish buyers deduct at fish de- cordance with § 600.1013 and/or § 600.1014 livery from the delivery value of each to enforce the United States’ receipt pound of round weight fee fish. from such party of any fee—including Fee fish means all pollock harvested penalties and all costs of collection— from the IC directed fishing allowance due and owing the United States on ac- beginning on February 10, 2000 and end- count of the reduction loan that such ing at such time as the loan’s principal party should have, but did not, pay, and interest are fully repaid. collect, deposit, and/or disburse in ac- Fish buyer means the first ex-vessel cordance with § 600.1013 and/or § 600.1014. fish buyer who purchases fee fish from All such reduction loan recoveries shall a fish seller. be applied to reduce the unpaid bal- Fish delivery means the point at ances of reduction loans. which a fish buyer first takes delivery or possession of fee fish from a fish Subpart M—Specific Fishery or seller. Program Fishing Capacity Re- Fish seller means the harvester who duction Regulations catches and first sells fee fish to a fish buyer. IC directed fishing allowance means AUTHORITY: 5 U.S.C. 561, 16 U.S.C. 1801 et seq., 16 U.S.C. 1861a(b) through (e), 46 App. the directed fishing allowance allo- U.S.C. 53735, section 144(d) of Division B of cated to the inshore component under Pub. L. 106–554, section 2201 of Pub. L. 107–20, section 206(b)(1) of the AFA. and section 205 of Pub. L. 107–117, Pub. L. Loan means the loan authorized by 107–206, Pub. L. 108–7, Pub. L. 108–199, and section 207(a) of the AFA. Pub. L. 108–447. Net delivery value means the delivery SOURCE: 69 FR 53361, Sept. 1, 2004, unless value minus the fee. otherwise noted. Subaccount means the Inshore Com- ponent Pollock Subaccount of the § 600.1100 [Reserved] Fishing Capacity Reduction Fund in the U.S. Treasury for the deposit of all § 600.1101 Inshore fee system for repayment of the loan to harvesters funds involving the loan. of Pollock from the directed fishing (b) Loan—(1) Principal amount. The allowance allocated to the inshore loan’s principal amount is $75,000,000 component under section 206(b)(1) (seventy five million dollars). of the AFA. (2) Interest. Interest shall, from De- (a) Definition. In addition to the defi- cember 30, 1998, when NMFS disbursed nitions in the Magnuson-Stevens Act the loan, until the date the borrower 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

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before paying or promising later to pay fected fish seller and fish buyer of the net delivery value. Each fish seller whom NMFS has knowledge. shall pay the fee at the time of fish de- (ii) When NMFS determines that the livery by receiving from the fish buyer loan is fully repaid, NMFS will publish the net delivery value or the fish buy- a FEDERAL REGISTER notification that er’s promise later to pay the net deliv- the fee is no longer in effect and should ery value rather than the delivery no longer be either paid or collected. value. Regardless of when the fish NMFS will then also send an appro- buyer pays the net delivery value, the priate fee termination notification to fish buyer shall collect the fee at the each affected fish seller and fish buyer time of fish delivery; of whom NMFS has knowledge; (ii)(A) Each fish seller shall be (3) Failure to pay or collect. (i) If a fish deemed, for the purpose of the fee col- buyer refuses to collect the fee in the lection, deposit, disbursement, and ac- amount and manner that this subpart counting requirements of this subpart, requires, the fish seller shall then ad- to be both the fish seller and the fish vise the fish buyer of the fish seller’s buyer—and all requirements and pen- fee payment obligation and of the fish alties under this subpart applicable to buyer’s fee collection obligation. If the both a fish seller and a fish buyer shall fish buyer still refuses to properly col- equally apply to the fish seller—each lect the fee, the fish seller, within the time that the fish seller sells fee fish next 7 calendar days, shall forward the to: fee to NMFS. The fish seller at the (1) Any fish buyer whose place of same time shall also advise NMFS in business is not located in the United writing of the full particulars, includ- States, who does not take delivery or ing: possession of the fee fish in the United (A) The fish buyer’s and fish seller’s States, who is not otherwise subject to name, address, and telephone number, this subpart, or to whom or against (B) The name of the fishing vessel whom NMFS cannot otherwise apply or from which the fish seller made fish de- enforce this subpart, livery and the date of doing so, (2) Any fish buyer who is a general (C) The quantity and delivery value food-service wholesaler or supplier, a of fee fish that the fish seller delivered, restaurant, a retailer, a consumer, and some other type of end-user, or some (D) The fish buyer’s reason (if known) other fish buyer not engaged in the for refusing to collect the fee in ac- business of buying fish from fish sellers cordance with this subpart; for the purpose of reselling the fish, or (ii) If a fish seller refuses to pay the (3) Any other fish buyer who the fish fee in the amount and manner that this seller has good reason to believe is a subpart requires, the fish buyer shall fish buyer not subject to this subpart then advise the fish seller of the fish or to whom or against whom NMFS buyer’s collection obligation and of the cannot otherwise apply or enforce this fish seller’s payment obligation. If the subpart, fish seller still refuses to pay the fee, (B) In each such case the fish seller the fish buyer shall then either deduct shall, with respect to the fee fish in- the fee from the delivery value over volved in each such case, discharge, in the fish seller’s protest or refuse to buy addition to the fee payment require- the fee fish. The fish buyer shall also, ments of this subpart, all the fee col- within the next 7 calendar days, advise lection, deposit, disbursement, ac- NMFS in writing of the full particu- counting, recordkeeping, and reporting lars, including: requirements that this subpart other- (A) The fish buyer’s and fish seller’s wise imposes on the fish buyer, and the name, address, and telephone number, fish seller shall be subject to all the (B) The name of the fishing vessel penalties this subpart provides for a from which the fish seller made or at- fish buyer’s failure to discharge such tempted to make fish delivery and the requirements; date of doing so, (2) Notification. (i) NMFS will send an (C) The quantity and delivery value appropriate fee payment and collection of fee fish the fish seller delivered or commencement notification to each af- attempted to deliver,

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(D) Whether the fish buyer deducted (4) Records maintenance. Each fish the fee over the fish seller’s protest or buyer shall maintain, in a secure and refused to buy the fee fish, and orderly manner for a period of at least (E) The fish seller’s reason (if known) 3 years from the date of each trans- for refusing to pay the fee in accord- action involved, at least the following ance with this subpart. information: (d) Fee collection deposits, disburse- (i) For all deliveries of fee fish that ments, records, and reports—(1) Deposit the fish buyer buys from each fish sell- accounts. Each fish buyer that this sub- er: part requires to collect a fee shall (A) The date of delivery, maintain a segregated account at a fed- (B) The fish seller’s identity, erally insured financial institution for (C) The round weight of fee fish deliv- the sole purpose of depositing collected ered, fee revenue and disbursing the fee rev- (D) The identity of the fishing vessel enue directly to NMFS in accordance that delivered the fee fish, with paragraph (c) of this section. (E) The delivery value, (2) Fee collection deposits. Each fish (F) The net delivery value, buyer, no less frequently than at the (G) The identity of the party to end of each business week, shall de- whom the net delivery value is paid, if posit, in the deposit account estab- other than the fish seller, lished under paragraph (a) of this sec- (H) The date the net delivery value tion, all fee revenue, not previously de- was paid, and posited, that the fish buyer has col- (I) The total fee amount collected; lected through a date not more than 2 (ii) For all fee collection deposits to calendar days before the date of de- and disbursements from the deposit ac- posit. Neither the deposit account nor count: the principal amount of deposits in the (A) The dates and amounts of depos- account may be pledged, assigned, or its, used for any purpose other than aggre- (B) The dates and amounts of dis- gating collected fee revenue for disbursements to the subaccount’s bursement to the subaccount in accord- lockbox account, and ance with paragraph (c) of this section. (C) The dates and amounts of dis- The fish buyer is entitled, at any time, bursements to the fish buyer or other to withdraw deposit interest, if any, parties of interest earned on deposits. but never deposit principal, from the (5) Annual report. By January 15, 2001, deposit account for the fish buyer’s and by each January 15 thereafter until own use and purposes. the loan is fully repaid, each fish buyer (3) Deposit principal disbursement. On shall submit to NMFS a report, on or the last business day of each month, or in the form NMFS specifies, containing more frequently if the amount in the the following information for the pre- account exceeds the account limit for ceding year for all fee fish each fish insurance purposes, the fish buyer shall buyer purchases from fish sellers: disburse to NMFS the full amount of (i) Total round weight bought; deposit principal then in the deposit (ii) Total delivery value paid; account. The fish buyer shall do this by (iii) Total fee amount collected; check made payable to ‘‘NOAA Inshore (iv) Total fee collection amounts de- Component Pollock Loan Subaccount.’’ posited by month; The fish buyer shall mail each such (v) Dates and amounts of monthly check to the subaccount lockbox ac- disbursements to the subaccount count that NMFS establishes for the lockbox; receipt of the disbursements of deposit (vi) Total amount of interest earned principal. Each disbursement shall be on deposits; and accompanied by the fish buyer’s settle- (vii) Depository account balance at ment sheet completed in the manner year-end. and form that NMFS specifies. NMFS (6) State records. If landing records will specify the subaccount’s lockbox that a state requires from fish sellers and the manner and form of settlement contain some or all of the data that sheet by means of the notification in this section requires and state con- § 600.1101(c). fidentiality laws or regulations do not

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prevent NMFS’ access to the records deposit, and/or disbursement shall be maintained for the state, then fish buy- one and one-half (1.5) percent per ers can use such records to meet appro- month, or the maximum rate per- priate portions of this section’s record- mitted by state law, for the total keeping requirements. If, however, amount of the fee not paid, collected, state confidentiality laws or regula- deposited, and/or disbursed when due to tions make such records unavailable to be paid, collected, deposited, and/or NMFS, then fish buyers shall maintain disbursed within 5 days of the date due. separate records for NMFS that meet The full late charge shall apply to the the requirements of this section. fee for each month or portion of a (7) Audits. NMFS or its agents may month that the fee remains unpaid, un- audit, in whatever manner NMFS be- collected, undeposited, and/or lieves reasonably necessary for the undisbursed. duly diligent administration of the (f) Enforcement. In accordance with loan, the financial records of the fish applicable law or other authority, buyers and the fish sellers in order to NMFS may take appropriate action ensure proper fee payment, collection, against each fish seller and/or fish deposit, disbursement, accounting, rec- buyer responsible for non-payment, ordkeeping, and reporting. Fish buyers non-collection, non-deposit, and/or and fish sellers shall make all records non-disbursement of the fee in accord- of all transactions involving fee fish ance with this subpart to enforce the catches, fish deliveries, and fee pay- collection from such fish seller and/or ments, collections, deposits, disburse- fish buyer of any fee (including pen- ments, accounting, recordkeeping, and alties and all costs of collection) due reporting available to NMFS or its and owing the United States on ac- agents at reasonable times and places count of the loan that such fish seller and promptly provide all requested in- and/or fish buyer should have, but did formation reasonably related to these not, pay, collect, deposit, and/or dis- records that such fish sellers and fish burse in accordance with this subpart. buyers may otherwise lawfully provide. All such loan recoveries shall be ap- Trip tickets (or similar accounting plied to reduce the unpaid balance of records establishing the round weight the loan. pounds of fee fish that each fish buyer (g) Prohibitions and penalties. (1) The buys from each fish seller each time following activities are prohibited, and that each fish buyer does so) are essen- it is unlawful for anyone to: tial audit documentation. (8) Confidentiality of records. NMFS (i) Avoid, decrease, interfere with, and its auditing agents shall maintain hinder, or delay payment or collection the confidentiality of all data to which of, or otherwise fail to fully and prop- NMFS has access under this section erly pay or collect, any fee due and and shall neither release the data nor payable under this subpart or convert, allow the data’s use for any purpose or otherwise use for any purpose other other than the purpose of this subpart, than the purpose this subpart intends, unless otherwise required by law; pro- any paid or collected fee; vided, however, that NMFS may aggre- (ii) Fail to fully and properly deposit gate such data so as to preclude their 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

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buyer’s refusal to collect, any fee due or in both the reduction fishery and and payable under this subpart; any or all of the fee-share fisheries. (v) Refuse to allow NMFS or agents Deposit principal means all collected that NMFS designates to review and fee revenue that a fish buyer deposits audit at reasonable times all books and in an account maintained at a federally records reasonably pertinent to fee insured financial institution for the payment, collection, deposit, disburse- purpose of aggregating collected fee ment, and accounting under this sub- revenue before sending the fee revenue part or otherwise interfere with, to NMFS for repaying the reduction hinder, or delay NMFS or it agents in loan. the course of their activities under this Fee fish means all fish harvested from subpart; the reduction fishery during the period (vi) Make false statements to NMFS, in which any portion of the reduction any of the NMFS’ employees, or any of fishery’s subamount is outstanding and NMFS’ agents about any of the mat- all fish harvested from each of the fee- ters in this subpart; share fisheries during the period in (vii) Obstruct, prevent, or unreason- which any portion of each fee-share ably delay or attempt to obstruct, pre- fishery’s subamount is outstanding. vent, or unreasonably delay any audit Fee-share fishery means each of the or investigation NMFS or its agents fisheries for coastal Dungeness crab conduct, or attempt to conduct, in con- and pink shrimp in each of the States nection with any of the matters in this of California and Oregon and the fish- subpart; and/or ery for coastal Dungeness crab and (viii) Otherwise materially interfere ocean pink shrimp in the State of with the efficient and effective repay- Washington. ment of the loan. Fee-share fishery subaccount means (2) Anyone who violates one or more each of the six subaccounts established of the prohibitions of paragraph (a) of in the groundfish program’s fund sub- this section is subject to the full range account in which each of the six fee- of penalties the Magnuson-Stevens Act share fishery subamounts are depos- and 15 CFR part 904 provide (including, ited. but not limited to: civil penalties, Reduction fishery means all species in, sanctions, forfeitures, and punishment and that portion of, the limited entry 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 § 600.1102 Pacific Coast groundfish catcher-processors, which are endorsed fee. for trawl gear operation. 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– 7 and implemented by a final notifica- Subamount means each portion of the reduction loan’s original principal tion in the FEDERAL REGISTER (July 18, 2003; 68 FR 42613). amount which is allocated either to the (b) Definitions. Unless otherwise de- reduction fishery or to any one of the fined in this section, the terms defined fee-share fisheries. in § 600.1000 of subpart L expressly (c) Reduction loan amount. The reduc- apply to this section. The following tion loan’s original principal amount is terms have the following meanings for $35,662,471. 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,

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(ii) California pink shrimp fee-share count for other operational purposes as fishery, $674,202, well, but the fish buyer shall ensure (iii) Oregon coastal Dungeness crab that the account separately accounts fee-share fishery, $1,367,545, for all deposit principal collected from (iv) Oregon pink shrimp fee-share the reduction fishery and from each of fishery, $2,228,845, the six fee-share fisheries. The fish (v) Washington coastal Dungeness buyer shall separately account for all crab fee-share fishery, $369,426, and fee collections as follows: (vi) Washington ocean pink shrimp (i) All fee collections from the reduc- fee-share fishery, $259,400. tion fishery shall be accounted for in a (e) Interest accrual inception. Interest reduction fishery subaccount, began accruing on each portion of the (ii) All fee collections from the Cali- reduction loan amount on and from the fornia pink shrimp fee-share fishery date each such portion was disbursed. shall be accounted for in a California (f) Interest rate. The reduction loan’s shrimp fee-share fishery subaccount, interest rate is 6.97 percent. This is a (iii) All fee collections from the Cali- fixed rate of interest for the full term fornia coastal Dungeness crab fishery of the reduction loan’s life. shall be accounted for in a California (g) Repayment term. For the purpose crab fee-share fishery subaccount, of determining fee rates, the reduction (iv) All fee collections from the Or- loan’s repayment term shall be 30 years egon pink shrimp fee-share fishery from March 1, 2004, but each fee shall shall be accounted for in an Oregon continue for as long as necessary to shrimp fee-share fishery subaccount, fully repay each subamount. (v) All fee collections from the Or- (h) Reduction loan. The reduction egon coastal Dungeness crab fee-share loan shall be subject to the provisions fishery shall be accounted for in an Or- of § 600.1012 of subpart L, except that: egon crab fee-share fishery subaccount, (1) The borrower’s obligation to (vi) All fee collections from the repay the reduction loan shall be dis- Washington ocean pink shrimp fee- charged by fish sellers in the reduction share fishery shall be accounted for in fishery and in each of the fee-share a Washington ocean shrimp fee-share fisheries paying the fee applicable to fishery subaccount, and 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

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more frequently if the amount in the (E) The delivery value of each species account exceeds the account limit for of fee fish, insurance purposes, the fish buyer shall (F) The net delivery value of each disburse to NMFS the full deposit prin- species of fee fish, cipal then in the deposit account, pro- (G) The identity of the payor to vided that the deposit principal then whom the net delivery value is paid, if totals $100 or more. If the deposit prin- different than the fish seller, cipal then totals less than $100, the fish (H) The date the net delivery value buyer need not disburse the deposit was paid, principal until either the next month (I) The total fee amount collected as during which the deposit principal then a result of all fee fish, and totals $100 or more, or not later than (J) The total fee amount collected as the 14th calendar day after the last cal- a result of all fee fish from the reduc- endar day of any year in which the de- tion fishery and/or all fee fish from posit principal has not since the last each of the six fee-share fisheries; and required disbursement totaled $100 or (ii) For all collected fee deposits to, more, whichever comes first. The fish and disbursements of deposit principal buyer shall disburse deposit principal from, the deposit account include: by check made payable to the ground- (A) The date of each deposit, fish program’s fund subaccount. The (B) The total amount deposited, fish buyer shall mail each such check (C) The total amount deposited in the to the groundfish program’s fund sub- reduction fishery subaccount and/or in account lockbox that NMFS estab- each of the six fee-share fishery sub- lishes for the receipt of groundfish pro- accounts, gram disbursements. Each disburse- (D) The date of each disbursement to ment shall be accompanied by the fish the Fund’s lockbox, buyer’s fee collection report completed (E) The total amount disbursed, in the manner and form which NMFS (F) The total amount disbursed from specifies. NMFS will, before fee pay- the reduction fishery subaccount and/ ment and collection begins, specify the or from each of the six fee-share fish- groundfish program’s fund subaccount ery subaccounts, and lockbox and the manner and form of (G) The dates and amounts of dis- fee collection report. NMFS will do bursements to the fish buyer, or other this by means of the notification in parties, of interest earned on deposits; § 600.1013(d) of subpart L. NMFS’ fee and collection report instructions will in- (5) Annual report. No fish buyer needs clude provisions for the fish buyer to to submit an annual report about fee specify the amount of each disburse- fish collection activities unless, during ment which was disbursed from the re- the course of an audit under duction fishery subaccount and/or from § 600.1014(g), NMFS requires a fish each of the six fee-share fishery sub- buyer to submit such a report or re- accounts; ports. (4) Records maintenance. Each fish (j) Other provisions. The reduction buyer shall maintain, in a secure and loan is, in all other respects, subject to orderly manner for a period of at least the provisions of § 600.1012 through ap- 3 years from the date of each trans- plicable portions of § 600.1017, except action involved, at least the following § 600.1014(e). information: [70 FR 40229, July 13, 2005, as amended at 71 (i) For all deliveries of fee fish that FR 28, Jan. 3, 2006] the fish buyer buys from each fish seller: § 600.1103 Bering Sea and Aleutian Is- (A) The date of delivery, lands (BSAI) Crab species program. (B) The fish seller’s identity, (a) Purpose. This section’s purpose is (C) The weight, number, or volume of to implement the program that Section each species of fee fish delivered, 144(d) of Division B of Pub. L. 106–554, (D) Information sufficient to specifi- as amended by section 2201 of Pub. L. cally identify the fishing vessel which 107–20 and section 205 of Pub. L. 107–117, delivered the fee fish, enacted for BSAI crab species.

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(b) Terms. Unless otherwise defined in Crab license means a License Limita- this section, the terms defined in tion Program license for crab issued § 600.1000 expressly apply to the pro- pursuant to § 679.4(k)(5) of this chapter. gram for BSAI crab. Likewise, the Crab reduction permit means a non-in- terms defined in § 679.2 of this chapter terim crab license endorsed for one or also apply to terms not otherwise de- more reduction endorsement fisheries, fined in either § 600.1000 or this section. regardless of whether it is also en- The following terms used in this sec- dorsed for the Norton Sound fishery. tion have the following meanings for FSD means NMFS’ Financial Serv- the purpose of this section: ices Division, located in NMFS’ Silver Acceptance means NMFS’ acceptance, Spring, MD, headquarters office. on behalf of the United States, of a bid. Non-crab reduction permit means a fishing license, including all of its Bid means a bidder’s irrevocable predecessor history, for which a bidder offer, in response to an invitation to is the holder of record on December 12, bid under this section, to surrender, to 2003 and which was issued based on the have revoked, to have restricted, to re- fishing history of the bidder’s -reduc- linquish, to have withdrawn, or to have tion/history vessel. extinguished by other means, in the Norton Sound fishery means the non- manner this section requires, the bid- reduction fishery defined in § 679.2 of der’s reduction fishing interest. this chapter as the area/species en- Bid amount means the dollar amount dorsement for Norton Sound red king of each bid. and Norton Sound blue king crab. Bidder means either a qualifying bid- NVDC means the U.S. Coast Guard’s der bidding alone or a qualifying bidder National Vessel Documentation Center and a co-bidder bidding together who located in Falling Waters, WV. at the time of bidding holds the reduc- Qualifying bidder means a person who tion fishing interests specified at at the time of bidding is the license § 600.1018(e). holder of record of a crab reduction Bid crab means the crab that NMFS permit. determines each bidder’s reduction/his- Qualifying voter means a person who tory vessel (see definition) harvested, at the time of voting in a referendum is according to the State of Alaska’s the license holder of record either of an records of the documented harvest of interim or a non-interim crab license, crab, from each reduction endorsement except a crab license whose sole area/ 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. means ning on January 1, 1990, and ending on Reduction endorsement fishery any of the seven fisheries that § 679.2 of December 31, 1999. this chapter defines as area/species en- Bid score means the criterion by dorsements except the area/species en- which NMFS decides in what order to dorsement for the Norton Sound fish- accept bids in the reverse auction this ery. section specifies. Reduction fishery means the fishery Co-bidder means a person who is not a for all crab covered by the Bering Sea/ qualifying bidder, but who at the time Aleutian Islands King and Tanner of bidding owns the reduction/privilege Crabs Fishery Management Plan under vessel this section requires to be in- all area/species endorsements that sec- cluded in a bid and is bidding together tion 679.2 of the chapter defines, except with a qualifying bidder. the area/species endorsement for the Crab means the crab species covered Norton Sound fishery. by the Fishery Management Plan for Reduction fishing history means, for the Bering Sea/Aleutian Islands King each bid, the complete documented and Tanner Crabs pursuant to § 679.2 of harvest of the bidder’s reduction/his- this chapter. tory vessel, upon any part of which

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such harvest NMFS based issuance of paragraph (c)(2) of this section pro- the crab license included in the bid as vides; and a crab reduction permit, plus such fish- (2) Provisions that do not apply. The ing history, after the issuance of such following sections, or portions of them, crab license, of any other vessel upon of this subpart do not apply to this pro- which the bidder used such crab li- gram: cense. (i) All of: Reduction fishing interest means, for (A) Section 600.1001, each bid, the bidder’s: (B) Section 600.1002, (1) Reduction fishing privilege (see (C) Section 600.1003, definition); (D) Section 600.1004, (2) Crab reduction permit; (E) Section 600.1005, (3) Non-crab reduction permit; (F) Section 600.1006, and (4) Reduction fishing history (see def- (G) Section 600.1007, inition); and (ii) The portions of § 600.1008: (5) Any other claim that could in any (A) Pertaining to an implementation way qualify the owner, holder, or re- plan, tainer of any of the reduction compo- (B) Pertaining to a 60–day comment nents, or any person claiming under period for a proposed implementation such owner, holder, or retainer, for any regulation, present or future limited access system (C) Pertaining to public hearings in fishing license or permit in any United each State that the this program af- States fishery (including, but not lim- fects, ited to, any harvesting privilege or (D) Pertaining to basing the imple- quota allocation under any present or mentation regulation on a business future individual fishing quota sys- plan, tem). (E) Within paragraphs (d)(1)(ii) Reduction fishing privilege means the through (viii), worldwide fishing privileges of a bid’s (F) Within paragraph (d)(2)(ii), reduction/privilege vessel (see defini- (G) Within paragraph (e), and tion). (H) Within paragraph (f) and per- Reduction/history vessel means the taining to fishing capacity reduction vessel or vessels which generated the specifications and a subsidized pro- reduction fishing history. gram, 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),

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(vi) The portions of § 600.1012: quired crab license at the time the (A) Within paragraph (b)(3) following qualifying voter submits its ref- the word ‘‘subpart’’, and erendum ballot. (B) Within paragraph (b)(3), and (g) Qualifying bidders and co-bidders— (vii) The last sentence of § 600.1014(f). (1) Qualifying bidders bidding alone. (d) Reduction cost financing. NMFS There is no co-bidder when a qualifying will use the proceeds of a reduction bidder owns, holds, or retains all the loan, authorized for this purpose, to fi- required components of the reduction nance 100 percent of the reduction cost. fishing interest; The original principal amount of the (2) Qualifying bidders bidding together reduction loan will be the total of all with co-bidders. When a qualifying bid- reduction payments that NMFS makes der does not own the reduction/privi- under reduction contracts. This lege vessel, the person who does may be amount shall not exceed $100 million. the qualifying bidder’s co-bidder; and (e) Who constitutes a bidder. A bidder (3) Minimum reduction components that is a person or persons who is the: qualifying bidders must hold or retain (1) Holder of record and person other- At a min- wise fully and legally entitled to offer, when bidding with co-bidders. in the manner this section requires, imum, a qualifying bidder must hold the bid’s crab reduction permit and the the crab reduction permit and the non- bid’s non-crab reduction permit; crab reduction permit and retain the (2) Reduction/privilege vessel owner, reduction fishing history. The reduc- title holder of record, and person other- tion/privilege vessel may, however, be wise fully and legally entitled to offer, owned by another person who is a co- in the manner this section requires, bidder. the bid’s reduction fishing privilege; (h) Reduction fishing interest—(1) Gen- and eral requirements. Each bidder must: (3) Retainer and person otherwise (i) In its bid, offer to surrender, to fully and legally entitled to offer, in have revoked, to have restricted, to re- the manner this section requires, the linquish, to have withdrawn, or to have bid’s reduction fishing history. extinguished by other means, in the (f) How crab licenses determine quali- manner that this section requires, the fying bidders and qualifying voters—(1) reduction fishing interest, Non-interim crab licenses. Each person (ii) At the time of bidding, hold, own, who is the record holder of a non-in- or retain the reduction fishing interest terim crab license endorsed for one or and be fully and legally entitled to more reduction endorsement fisheries offer, in the manner that this section is both a qualifying bidder and a quali- requires, the reduction fishing interest, fying voter and can both bid and vote; and (2) Interim crab licenses. Each person (iii) Continuously thereafter hold, who is the record holder of an interim own, or retain the reduction fishing in- crab license endorsed for one or more terest and remain fully and legally en- reduction endorsement fisheries is a titled to offer, in the manner that this qualifying voter but not a qualifying section requires, the reduction fishing bidder and can vote but not bid; interest until: (3) Crab licenses endorsed solely for the (A) The bid expires without NMFS Norton Sound Fishery. Each person who first having accepted the bid, is the record holder of any crab license endorsed solely for the Norton Sound (B) NMFS notifies the bidder that fishery is neither a qualifying bidder NMFS rejects the bid, nor a qualifying voter and can neither (C) NMFS notifies the bidder that a bid nor vote; and reduction contract between the bidder (4) Time at which qualifying bidders and the United States no longer exists, and voters must hold required crab li- or censes. A qualifying bidder must be the (D) NMFS tenders reduction payment record holder of the required crab li- to the bidder; cense at the time the qualifying bidder (2) Reduction/privilege vessel require- submits its bid. A qualifying voter ments. The reduction/privilege vessel in must be the record holder of the re- each bid must be:

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(i) The vessel designated, at the time that of a single reduction/history ves- this final rule is published in the FED- sel. ERAL REGISTER, on a crab license which (i) Exceptions to the reduction fishing becomes a bid’s crab reduction permit, interest requirements—(1) Lost or de- and stroyed vessel salvaged. When a bidder (ii) Be neither lost nor destroyed at has salvaged a lost or destroyed vessel the time of bidding; and has made from the salvaged vessel (3) Reduction fishing privilege require- the documented harvest of crab ments. The reduction fishing privilege § 679.4(k)(5)(iii)(B)(3) of this chapter re- in each bid must be the reduction/privi- quires, the crab portion of the reduc- lege vessel’s: tion fishing history is the salvaged ves- (i) Fisheries trade endorsement under sel’s documented harvest of crab; and the Merchant Marine Act, 1936 (46 (2) Lost or destroyed vessel not U.S.C.A. 12108), salvaged. When a bidder has not (ii) Qualification for any present or salvaged the lost or destroyed vessel future U.S. Government approval under but has made from a replacement ves- section (9)(c)(2) of the Shipping Act, sel the documented harvest of crab 1916 (46 U.S.C. App. 808(c)(2)) for place- § 679.4(k)(5)(iii)(B)(3) of this chapter re- ment under foreign registry or oper- quires: ation under the authority of a foreign (i) The crab portion of the reduction country, and fishing history is the total of the lost (iii) Any other privilege to ever fish or destroyed vessel’s documented har- anywhere in the world; vest of crab through the date of such (4) Crab reduction permit requirements. vessel’s loss or destruction plus the re- (i) Except as otherwise provided in placement vessel’s documented harvest paragraph (i) of this section, the crab of crab after such date, and reduction permit must in each bid: (A) Be the crab license that NMFS (ii) For the purposes of this program, issued on the basis of the bidder’s re- the lost or destroyed vessel’s docu- duction fishing history, mented harvest of crab merges with, (B) Be non-interim at the time each and becomes a part of, the replacement bidder submits its bid, and vessel’s documented harvest of crab; (C) Include an area/species endorse- and ment for any one or more reduction en- (3) Acquired crab fishing history. When dorsement fisheries, a bidder, in the manner § 679.4(k)(5)(iv) (ii) Although the Norton Sound fish- of this chapter requires, has made a ery is not a reduction endorsement documented harvest of crab from one fishery, an area/species endorsement vessel and has acquired a replacement for the Norton Sound fishery occurring vessel’s documented harvest of crab: on a crab reduction permit must be (i) The crab portion of the reduction surrendered and revoked (and all fish- fishing history is the total of the ac- ing history involving it relinquished) quired documented harvest of crab in the same manner as all other reduc- through December 31, 1994, plus the tion endorsement fisheries occurring documented harvest of crab after De- on the crab reduction permit; cember 31, 1994, of the vessel from (5) Non-crab reduction permit require- which the bidder made the documented ments. The non-crab reduction permit crab harvest § 679.4(k)(5)(iv) of this must in each bid be every license, per- chapter requires, and mit, or other harvesting privilege that: (ii) [Reserved] (i) NMFS issued on the basis of the (iii) For the purposes of this pro- fishing history of the bidder’s reduc- gram, the acquired documented harvest tion/history vessel, and of crab merges with, and becomes a (ii) For which the bidder was the li- part of, the non-acquired documented cense holder of record on the effective harvest of crab. date of this section; and (j) Determining value of reduction/his- (6) Reduction fishing history require- tory vessels’ bid crab—(1) In each fishery. ments. Except as otherwise provided in NMFS will determine the dollar value paragraph (i) of this section, the reduc- of each reduction/history vessel’s bid tion fishing history in each bid must crab in each reduction endorsement

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fishery and in the Norton Sound Fish- tion loan’s full original principal ery by multiplying each reduction/his- amount by each of the yields in para- tory vessel’s number of pounds of each graph (l)(3) of this section; and species of bid crab by the average ex- (5) Loan sub-amount. Each of the vessel price per pound that the State of amounts resulting from the calculation Alaska annually publishes for each in paragraph (l)(4) of this section will crab species in the bid crab; and be the reduction loan subamount that (2) In all fisheries. NMFS will deter- a reduction endorsement fishery must mine the dollar value of each reduc- repay. tion/history vessel’s bid crab in all re- (m) Prospectively qualifying bidder and duction endorsement fisheries and in voter notification—(1) General. At the the Norton Sound fishery by adding appropriate point before issuing an in- each of the products of the multiplica- vitation to bid, NMFS will publish a tions in paragraph (j)(1) of this section; notification in the FEDERAL REGISTER and listing all persons who at the time of (3) Crab excluded from bid crab. A re- publishing the notification prospec- duction/history vessel’s bid crab may tively are qualifying bidders and quali- not include, to the extent that NMFS fying voters; has knowledge: (2) Qualifying bidder list. The prospec- (i) Triangle tanner crab, grooved tan- tively qualifying bidder list will in- ner crab, and any other crab not include the names and addresses of volved in the various area/species en- record of each license holder of record dorsements, for all non-interim crab licenses except (ii) Discarded crab, only crab licenses whose sole area/spe- (iii) Crab caught for personal use, cies endorsement is for the Norton (iv) Unspecified crab, and Sound fishery; (v) Any other crab for which the dol- (3) Qualifying voter list. The prospec- lar value, crab fishery, landing date, or tively qualifying voter list will include harvesting vessel NMFS cannot, for the names and addresses of record of whatever reason, determine. each license holder of record for all (k) Determining bid score. NMFS will non-interim and interim crab licenses determine each bid score by dividing except only crab licenses whose sole each bid amount by the sum in para- area/species endorsement is for the graph (j)(2) of this section. Norton Sound fishery; (l) Determining reduction loan sub- (4) Basis of lists. NMFS will base both amount—(1) Value of all bid crab in each the lists on the RAM Program’s license 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

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(iii) Persons who believe their names may include a co-bidder. Each quali- and/or business mailing addresses ap- fying bidder is solely responsible to pearing on one or more lists are incor- have any required co-bidder properly rect. complete the bid. No person may bid (n) Invitation to bid—(1) Notification. before receiving the invitation to bid At the appropriate point after issuing and the bidding package that NMFS the notification in paragraph (m) of mailed to that person. this section, NMFS will publish the in- (o) Bids—(1) Content. Each invitation vitation to bid in the FEDERAL REG- to bid that NMFS mails to a qualifying ISTER notification further specified in bidder will have a bid form requiring § 600.1009(c) of this subpart, along with each bid to: a bidding form and terms of capacity reduction agreement. No person may, (i) Identify, by name, regular mail however, bid at this stage; address, telephone number, and (if (2) Notification contents. The invita- available) electronic mail address, the tion to bid notification will state all qualifying bidder and each co-bidder, applicable bid submission requirements (ii) State the bid amount in U.S. dol- and procedures (including, but not lim- lars, ited to, those included in this section). (iii) Identify, by crab license number, In particular, the invitation to bid no- the qualifying bidder’s crab reduction tification will: permit and include an exact copy of (i) State the date on which NMFS this crab license (which the RAM Pro- will invite bids by mailing an invita- gram issued), tion to bid to each person on the pro- (iv) Identify, by vessel name and offi- spectively qualifying bidder list, cial number, the bidder’s reduction/ (ii) State a bid opening date, before privilege vessel, and include an exact which a bidder may not bid, and a bid copy of this vessel’s official document closing date, after which a bidder may (which NVDC issued), not bid, (v) Identify, by license or permit (iii) State a bid expiration date after number, each of the bidder’s non-crab which each bid expires unless, prior to reduction permits; and include an that date, NMFS accepts the bid by mailing a written acceptance notice to exact copy of each of these licenses or the bidder at the bidder’s address of permits (which the RAM Program record, issued for licenses or permits involving (iv) State the manner of bid submis- species under the jurisdiction of NMFS’ sion and the information each bidder Alaska Region and which other NMFS must submit for NMFS to deem a bid offices issued for licenses or permits in- responsive, volving species under those offices’ ju- (v) State any other information re- risdiction), quired for bid submission, and (vi) Identify, separately for crab and (vi) Include a facsimile of the invita- for each other species: tion to bid, along with a bidding form (A) The qualifying bidder’s reduction and terms of capacity reduction agree- fishing history, and ment comprising the entire terms and (B) The dates that each portion of conditions of the reduction contract the reduction fishing history encom- under which each bidder must bid and passes; the name and official number of under which NMFS must accept a bid; the reduction/history vessel or vessels and which gave rise to it; and the dates (3) Mailing. On the date specified in during which the qualifying bidder this notification, NMFS will invite owned such vessels or, if the qualifying bids by mailing the invitation to bid and a bidding package, including a bid- bidder acquired any reduction fishing ding form terms of capacity reduction history from another person, the name agreement, to each person then on the of the person from which the qualifying prospectively qualifying bidder list. bidder acquired such reduction fishing NMFS will not mail the invitation to history and the manner in which and bid to any potential co-bidder because the date on which the qualifying bidder NMFS will not then know which bids did so,

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(vii) State, declare, and affirm that the fee that this section requires to the qualifying bidder holds the crab re- repay this program’s reduction loan. duction permit and retains the com- (q) Reduction contracts subject to suc- plete reduction fishing history, and is cessful post-bidding referendum condition. fully and legally entitled to offer both Although this program involves no in the manner this section requires, fishing capacity reduction specifica- (viii) State, declare, and affirm that tions under this subpart, each bid, each either the qualifying bidder or the co- acceptance, and each reduction con- bidder owns the reduction/privilege tract is nevertheless subject to the suc- vessel and holds the non-crab reduction cessful post-bidding referendum condi- permit and is fully and legally entitled tion that § 600.1009(a)(3) of this subpart to offer both in the manner that this specifies for bidding results that do not section requires, and conform to the fishing capacity reduc- (ix) Provide any other information or tion specifications. materials that NMFS believes is nec- (r) Post-bidding referendum—(1) Pur- essary and appropriate; and pose. NMFS will conduct a post-bidding (2) Rejection. NMFS, regardless of bid referendum whose sole purpose is to de- scores, will reject any bid that NMFS termine whether, based on the bidding believes is unresponsive to the invita- results, qualifying voters who cast ref- tion to bid. All bid rejections will con- erendum ballots in the manner that this section requires authorize the fee stitute final agency action as of the required to repay this program’s reduc- date of rejection. Before rejection, tion loan; NMFS may, however, contact any bid- (2) Manner of conducting. NMFS will der to attempt to correct a bid defi- mail a referendum ballot to each per- ciency if NMFS, in its discretion, be- son then on the prospectively quali- lieves the attempt warranted. fying voter list for each crab license (p) Acceptance—(1) Reverse auction. that the person holds and otherwise NMFS will determine which responsive conduct the referendum as specified in bids NMFS accepts by using a reverse § 600.1010 of this subpart; auction in which NMFS first accepts (3) One vote per crab license. Each the responsive bid with the lowest bid qualifying voter may cast only one score and successively accepts each ad- vote for each crab license that each ditional responsive bid with the next qualifying voter holds; lowest bid score until either there are (4) Crab license numbers on ballots. no more responsive bids to accept or Each referendum ballot that NMFS acceptance of the last responsive bid mails will contain the license number with the next lowest bid score would of the prospectively qualifying voter’s cause the reduction cost to exceed $100 crab license to which the ballot relates; 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

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and in the reduction fishery, for all re- reduction payment to the accepted bid- duction/history vessels during the pe- der; riod for which NMFS calculates the (2) Notification to the public. After a dollar value of bid crab, successful referendum but before ten- (ii) The reduction loan sub-amount dering reduction payment, NMFS will that each reduction endorsement fish- publish a notification in the FEDERAL ery must repay if a referendum ap- REGISTER listing all proposed reduction proves the fee, and payments and putting the public on no- (iii) Any other useful information tice: NMFS may then have about the poten- (i) Of the crab reduction permits, the tial sub-fee rate initially necessary in reduction/privilege vessels, the reduc- each reduction endorsement fishery to tion fishing histories, and the non-crab repay each reduction loan sub-amount; reduction permits upon whose holding, and owning, retaining, or other legal au- (6) Notice that condition fulfilled. If the thority representations accepted bid- referendum is successful, NMFS will ders based their bids and NMFS based notify accepted bidders, in the manner its acceptances, and that § 600.1010(d)(6)(iii) of this subpart (ii) That NMFS intends, in accord- specifies, that a successful referendum ance with the reduction contracts, to has fulfilled the reduction contracts’ tender reduction payments in return successful post-bidding referendum for the actions specified in paragraph condition specified in paragraph (q) of (s) of this section; this section. (3) The public has 30 (s) Reduction method. In return for Public response. each reduction payment, NMFS will days after the date on which NMFS permanently: publishes the reduction payment ten- (1) Revoke each crab reduction per- der notification to advise NMFS in mit; writing of any holding, owning, or re- (2) Revoke each non-crab reduction taining claims that conflict with the permit; representations upon which the accept- (3) Revoke each reduction fishing ed bidders based their bids and on privilege (which revocation will run which NMFS based its acceptances; with the reduction/privilege vessel’s (4) Tender and disbursement parties. title in the manner § 600.1009(a)(5)(ii)(A) NMFS will tender reduction payments of this subpart requires and in accord- only to accepted bidders, unless other- ance with 46 U.S.C. 12108(d)); wise provided contrary written instruc- (4) Effect relinquishment of each re- tions by accepted bidders. Creditors or duction fishing history for the purposes other parties with secured or other in- specified in this section by noting in terests in reduction/privilege vessels or the RAM Program records (or such reduction permits are responsible to other records as may be appropriate for make their own arrangements with ac- reduction permits issued elsewhere) cepted bidders; that the reduction fishing history has (5) Time of tender. At the end of the been relinquished under this section reduction payment tender notification and will never again be available to period, NMFS will tender reduction anyone for any fisheries purpose; and payments to accepted bidders, unless (5) Otherwise restrict in accordance NMFS then knows of a material dis- with this subpart each reduction/privi- pute about an accepted bidder’s author- lege vessel and fully effect the sur- ity to enter into the reduction contract render, revocation, restriction, relin- with respect to any one or more com- quishment, withdrawal, or extinguish- ponents of the reduction fishing inter- ment by other means of all components est that warrants, in NMFS’ discretion, of each reduction fishing interest. an alternative course of action; (t) Reduction payment tender and dis- (6) Method of tender and disbursement. bursement—(1) Fishing continues until NMFS will tender reduction payment tender. Each accepted bidder may con- by requesting from each accepted bid- tinue fishing as it otherwise would der specific, written instructions for have absent the program until NMFS, paying the reduction payments. Upon after a successful referendum, tenders receipt of these payment instructions,

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NMFS will immediately disburse re- ment, and with the sole exception in duction payments in accordance with paragraph (t)(7)(i) of this section, no the payment instructions; and person whatsoever may, and it is un- (7) Effect of tender. Concurrently with lawful for any person to: NMFS’ tender of reduction payment to (i) Fish with or attempt to fish with, each accepted bidder: or allow others to fish with or attempt (i) All fishing activity for any species to fish with, the reduction/privilege anywhere in the world in any way asso- vessel anywhere in the world for any ciated with each accepted bidder’s re- species under any conditions and reduction fishing interest must cease, gardless of the reduction/privilege ves- (ii) Each accepted bidder must re- sel’s ownership or registry for so long trieve all fixed fishing gear for whose as the reduction/privilege vessel exists. deployment the accepted bidder’s re- This prohibition includes, but is not duction/privilege vessel was respon- limited to, fishing on the high seas or sible, and in the jurisdiction of any foreign coun- (iii) NMFS will fully exercise its retry (to the extent prohibited by law) duction contract rights with respect to while operating under U.S. flag, the reduction fishing interest by tak- (ii) Place or attempt to place, or ing the actions specified in paragraph allow others to place or attempt to (s) of this section. place, the reduction/privilege vessel (u) Fee payment and collection—(1) under foreign flag or registry, Fish sellers who pay the fee. Any person (iii) Operate or attempt to operate, who harvests any crab, but whom or allow others to operate or attempt ADF&G’s fisheries reporting require- to operate, the reduction/privilege ves- ments do not require to record and sub- sel under the authority of a foreign mit an ADF&G fish ticket for that country to the extent prohibited by crab, is a fish seller for the purpose of law, paying any fee on that crab and other- (iv) Otherwise avoid or attempt to wise complying with the requirements avoid, or allow others to avoid or at- of § 600.1013 of this subpart; tempt to avoid, the revocation of the (2) Fish buyers who collect the fee. Any reduction fishing privilege with respect person whom ADF&G’s fisheries re- to any reduction/privilege vessel, and porting requirements require to record (v) Make any claim or attempt to and submit an ADF&G fish ticket for make any claim, or allow others to any crab that another person harvested claim or attempt to make any claim, is a fish buyer for the purpose of col- for any present or future limited access lecting the fee on that crab and other- fishing license or permit in any U.S. wise complying with the requirements fishery (including, but not limited to, of § 600.1013 of this subpart; and any quota allocation under any present (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

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implementing and administering this (2) In accordance with § 600.1013 program. FSD will: through § 600.1016 of subpart L, imple- (i) Issue all notifications and mail- ment an industry fee system for the re- ings that this section requires, duction fishery. (ii) Prepare and issue the invitation (b) Definitions. Unless otherwise de- to bid, fined in this section, the terms defined (iii) Receive bids, in § 600.1000 of subpart L and § 600.1103 of (iv) Reject bids, this subpart expressly apply to this (v) Score bids, section. The following terms have the (vi) Make acceptances, following meanings for the purpose of (vii) Prepare and issue referendum this section: ballots, Crab rationalization crab means the (viii) Receive referendum ballots, same as in § 680.2 of this chapter. (ix) Tally referendum ballots, (x) Determine referendum success or Crab rationalization fisheries means failure, the same as in § 680.2 of this chapter. (xi) Tender and disburse reduction Reduction endorsement fishery means payments, any of the seven fisheries that § 679.2 of (xii) Administer reduction contracts, this chapter formerly (before adoption (xiii) Administer fees and reduction of part 680 of this chapter) defined as loan repayment, and crab area/species endorsements, except (xiv) Discharge all other manage- the area/species endorsement for Nor- ment and administration functions ton Sound red king. More specifically, that this section requires; the reduction endorsement fisheries, (2) RAM Program responsibilities. Upon and the crab rationalization fisheries FSD’s advice, the RAM Program (for which (after adoption of part 680 of this fishing licenses under the jurisdiction chapter) correspond to the reduction of NMFS’s Alaska Region) and any endorsement fisheries, are: other appropriate NMFS authority (for (1) Bristol Bay red king (the cor- fishing licenses under the jurisdiction responding crab rationalization fishery of any other NMFS office) will revoke is Bristol Bay red king crab), reduction permits and effect the sur- (2) Bering Sea and Aleutian Islands render of fishing histories in accord- Area C. opilio and C. bairdi (the cor- ance with this section; and responding crab rationalization fish- (3) NVDC and MARAD responsibilities. eries are two separate fisheries, one for FSD will advise NVDC, MARAD, such Bering Sea snow crab and another for other agency or agencies as may be in- Bering Sea Tanner crab), volved, or all of them to revoke reduc- (3) Aleutian Islands brown king (the tion/privilege vessels’ fisheries trade corresponding crab rationalization endorsements and otherwise restrict fisheries are the two separate fisheries, reduction/privilege vessels in accord- one for Eastern Aleutian Islands golden ance with this section. (x) Reduction loan and reduction loan king crab and another for Western sub-amounts. [Reserved] Aleutian Islands golden king crab), (4) Aleutian Islands red king (the cor- [68 FR 69337, Dec. 12, 2003. Redesignated at 69 responding crab rationalization fishery FR 53362, Sept. 1, 2004] is Western Aleutian Islands red king § 600.1104 Bering Sea and Aleutian Is- crab), lands (BSAI) crab species fee pay- (5) Pribilof red king and Pribilof blue ment and collection system. king (the corresponding crab rational- (a) Purpose. As authorized by Public ization fishery is Pribilof red king and Law 106–554, this section’s purpose is blue king crab), and to: (6) St. Matthew blue king (the cor- (1) In accordance with § 600.1012 of responding crab rationalization fishery subpart L, establish: is also St. Matthew blue king crab). (i) The borrower’s obligation to repay Reduction fishery means the fishery a reduction loan, and for all crab rationalization crab, ex- (ii) The loan’s principal amount, including CDQ allocations, in all crab ra- terest rate, and repayment term; and tionalization fisheries.

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Sub-amount means the portion of the NMFS not later than the 7th calendar reduction loan amount for whose re- day of each month; and the require- payment the borrower in each reduc- ments specified under paragraph (e) of tion endorsement fishery is obligated. this section concerning annual reports (c) Reduction loan amount. The reduc- which shall be submitted to NMFS by tion loan’s original principal amount is July 1 of each calendar year; and, $97,399,357.11. (5) The reduction loan is, in all other (d) Sub-amounts. The sub-amounts respects, subject to the provisions of are: § 600.1012 through § 600.1017. (1) For Bristol Bay red king, $17,129,957.23; [70 FR 54656, Sept. 16, 2005, as amended at 71 FR 27210, May 10, 2006] (2) For Bering Sea and Aleutian Is- lands Area C. opilio and C. bairdi, § 600.1105 Longline catcher processor $66,410,767.20; subsector of the Bering Sea and (3) For Aleutian Islands brown king, Aleutian Islands (BSAI) non-pollock $6,380,837.19; groundfish fishery program. (4) For Aleutian Islands red king, (a) Purpose. This section implements $237,588.04; the capacity reduction program that (5) For Pribilof red king and Pribilof Title II, Section 219(e) of Public Law blue king, $1,571,216.35; and 108–447 enacted for the longline catcher (6) For St. Matthew blue king, processor subsector of the Bering Sea $5,668,991.10. and Aleutian Islands (BSAI) non-pol- (e) Interest accrual from inception. In- lock groundfish fishery. terest began accruing on each portion (b) Definitions. Unless otherwise de- of the reduction loan amount on and fined in this section, the terms defined from the date on which NMFS dis- in § 600.1000 of subpart L of this part ex- bursed each such portion. pressly apply to this section. The fol- (f) The reduction loan’s Interest rate. lowing terms have the following mean- interest rate shall be the applicable ings for the purpose of this section: rate which the U.S. Treasury deter- Act means Title II, Section 219 of mines at the end of fiscal year 2005 plus Public Law 108–447. 2 percent. (g) Repayment term. For the purpose AI means the Aleutian Islands. of determining fee rates, the reduction Application Form means the form pub- loan’s repayment term is 30 years from lished on the FLCC’s website that sets January 19, 2005, but each fee shall con- forth whether the qualifying LLP Li- tinue indefinitely for as long as nec- cense is a Latent License and identifies essary to fully repay each subamount. the individual(s) authorized to execute (h) Reduction loan repayment. (1) The and deliver Offers and Offer Ranking borrower shall, in accordance with Ballots on behalf of the Subsector § 600.1012, repay the reduction loan; Member. (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

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Community Development Program re- LLP License means a Federal License serve. Limitation Program groundfish license Capacity Reduction Agreement or Re- issued pursuant to § 679.4(k) of this duction Agreement means an agreement chapter or successor regulation that is entered into by the Subsector Members noninterim and transferable, or that is and the FLCC under which the FLCC is interim and subsequently becomes non- permitted to develop and submit a Ca- interim and transferable, and that is pacity Reduction Plan to the Sec- endorsed for BS or AI catcher processor retary. fishing activity, C/P, Pacific cod and Certificate of Documentation (COD) hook and line gear. means a document issued by the U.S. Longline Subsector means the longline Coast Guard’s National Documentation catcher processor subsector of the Center that registers the vessel with BSAI non-pollock groundfish fishery as the United States Government. defined in the Act. Closing Vote means a vote held pursu- Longline Subsector ITAC means the ant to paragraph (d)(7) of this section, longline catcher processor subsector after two-thirds (2⁄3) or more of the remainder of the Total Allowable Nonoffering Subsector Members submit Catch after the subtraction of the 7.5 Ranking Forms electing to accept the percent Community Development Pro- Selected Offerors and close the Selec- gram reserve. tion Process, and there are no unre- Nonoffering Subsector Member shall solved Protests or Arbitrations. have the meaning ascribed thereto in Current Offer means an Offer sub- paragraph (d)(5)(i) of this section. mitted by a Subsector Member to the Offer Content means all information Auditor during any Submission Period included in Offers submitted to the and, with regard to such Offer, Offeror Auditor pursuant to paragraph (d)(2)(ii) has not become a Rejected Offeror. The of this section. term ‘‘Current Offer’’ includes Selected Offer Form means the form found on Offers. the Auditor’s website used to make an Current Offeror means an Offering offer. Subsector Member that has submitted Offer(s) means a binding offer(s) from an Offer to the Auditor during any a Subsector Member to sell its LLP, Submission Period and, with regard to right to participate in the fisheries, the such Offer, Offeror has not become a fishing history associated with such Rejected Offeror. The term ‘‘Current LLP, and any vessel set forth on the Offeror’’ includes Selected Offerors. Offer Form submitted by Offeror pursu- Database means the online LLP Li- ant to the terms of this Capacity Re- cense database maintained by NMFS as duction Agreement. downloaded by the Auditor pursuant to Opening Date means the first Monday paragraph (c)(1) of this section. following the Effective Date set forth Effective Date means the date the Ca- in paragraph (c)(3) of this section. pacity Reduction Agreement becomes Person includes any natural person(s) effective pursuant to section 4.e of the and any corporation, partnership, lim- Capacity Reduction Agreement. ited partnership, limited liability com- Fishing Capacity Reduction Contract or pany, association or any other entity Reduction Contract means the contract whatsoever, organized under the laws that any Current Offeror must sign and of the United States or of a state. agree to abide by if NMFS accepts the Prequalification Offer shall have the offer by signing the Reduction Con- meaning ascribed thereto in paragraph tract. (d)(2)(iii) of this section. FLCC Counsel means Bauer Moynihan Ranking Form means the form posted & Johnson LLP or other counsel rep- by the Auditor pursuant to paragraph resenting the FLCC in any review or (d)(5)(iii) of this section. arbitration under the Capacity Reduc- Ranking Period shall have the mean- tion Agreement. ing ascribed thereto in paragraph Latent License means an LLP License (d)(5)(ii) of this section. on which a vessel was not designated at Reduction Fishery means the BSAI the time an Offer is submitted. non-pollock groundfish fishery.

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Reduction Fishing Interests shall have of an LLP License endorsed for BS or the meaning ascribed thereto in the AI catcher processor activity, C/P, Pa- Fishing Capacity Reduction Contract. cific cod and hook and line gear, as the Reduction Plan means a business plan Auditor determines from the Database prepared by the Subsector Members in downloaded by the Auditor as of Janu- accordance with Section 1 of the Ca- ary 30, 2006, regardless of whether the pacity Reduction Agreement and for- LLP License is indicated in the Data- warded to the Secretary for approval. base as noninterim and transferable or Reduction Privilege Vessel means the otherwise. vessel listed on the Offeror’s License (2) Application. Any person, regard- Limitation Program license. less of whether having received the Rejected Offer means an Offer that mailing described in paragraph (c)(1) of has been through one or more this section, may as a Subsector Mem- Rankings and is not a Selected Offer ber apply to enroll with the FLCC to following the latest Ranking Period, participate in the Reduction Program, with respect to which the Offering Sub- by submitting all of the following doc- sector Member’s obligations have ter- uments: minated pursuant to paragraphs (i) Fully executed Reduction Agree- (d)(2)(i) and (d)(6)(v) of this section. ment; Rejected Offeror means a Subsector (ii) Photocopy of the LLP License(s) Member that has submitted an Offer evidencing Subsector Member’s quali- which has been ranked and was not fication as a member of the Longline posted as a Selected Offer pursuant to Subsector; paragraph (d)(6)(ii) of this section. (iii) Unless applying as the holder of Restricted Access Management (RAM) a Latent License, a photocopy of Fed- means the Restricted Access Manage- eral Fisheries Permit for the vessel(s) ment Program in the Alaska Region, designated on the LLP License(s) on NMFS, located in Juneau, Alaska. the date the Reduction Agreement is Secretary means the Secretary of signed by the Subsector Member; Commerce or a designee. (iv) Unless applying as the holder of Selected Offer shall have the meaning a Latent License, a photocopy of the ascribed thereto in paragraph (d)(6)(iv) Certificate of Documentation (COD) for of this section. the vessel(s) designated on the LLP Li- Selected Offeror means a Subsector cense(s) on the date the Reduction Member that has submitted an Offer Agreement is signed by the Subsector which has been ranked and is posted as Member; and a Selected Offer pursuant to paragraph (v) An executed Application Form (d)(6)(ii) of this section. which sets forth whether the qualifying Selection Process means the process LLP License is a Latent License and set forth in paragraph (d) of this sec- identifies the individual(s) authorized tion for selecting the fishing capacity to execute and deliver Offers and Offer to be removed by the Reduction Plan. Ranking Ballots on behalf of the Sub- Submission Period(s) or Submitting Pe- sector Member. riod(s) shall have the meaning ascribed (3) Examination by Auditor—(i) In gen- thereto in paragraph (d)(3)(ii) of this eral. Each application must be subsection. mitted to the Auditor who will exam- Subsector Member(s) means a mem- ine applications for completeness and ber(s) of the Longline Subsector. inconsistencies, whether on the face of Web site means the internet Web site the documents or with the Database. developed and maintained on behalf of Any application which is incomplete or the FLCC for implementation of the which contains inconsistencies shall be Selection Process described herein invalid. The Auditor shall notify by e- with a URL address of http:// mail or mail an applicant of the basis www.freezerlonglinecoop.org. for the Auditor’s finding an application (c) Qualification and enrollment of sub- invalid. An applicant may resubmit a sector members—(1) Distribution. A copy revised application. If the application of the Reduction Agreement, Applica- meets all requirements, the Auditor tion Form, and Reduction Contract may accept the application as valid shall be mailed to each holder of record and enroll the applicant.

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(ii) Interim LLP Licenses. If an LLP the Reduction Agreement. Attempted License is interim and/or nontransfer- withdrawal by a Current Offeror or Se- able, the applicant’s enrollment shall lected Offeror shall be invalid, and be accepted as a Subsector Member and such Offer shall remain a binding, ir- may fully participate in the Selection revocable Offer, unaffected by the at- Process. However, any posting of an tempted withdrawal. Offer submitted with respect to such (d) Selection of fishing capacity to be LLP License shall note the status of removed by Reduction Plan. The fishing such LLP License until that Subsector capacity removed by the Reduction Member submits to the Auditor a let- Plan will be the Reduction Fishing In- ter from the RAM confirming that it is terests voluntarily offered through the within the Subsector Member’s control Reduction Plan by offering Subsector to cause the qualifying LLP License to Members and as selected by the Non- be issued as noninterim and transfer- offering Subsector Members, up to an able upon withdrawal of all applicable aggregate amount of thirty six million appeals. dollars ($36,000,000) as set forth in this (4) Enrollment period. Applications paragraph (d). that meet all requirements will be ac- (1) Overview. The Selection Process cepted until the Selection Process is will begin upon the Effective Date of completed. the Reduction Agreement. The Selec- (5) Effective date. The Effective Date tion Process will alternate on a weekly of any Reduction Agreement shall be basis between: ten (10) calendar days after written no- (i) Submitting Periods, during which tice is sent by the Auditor to each individual Subsector Members may holder of record of an LLP License en- submit Offers of fishing capacity they dorsed for BS or AI catcher processor wish to include in the Reduction Plan; activity, C/P, Pacific cod and hook and and line gear (as determined by the Auditor (ii) Ranking Periods, during which from the Auditor’s examination of the Nonoffering Subsector Members will Database) advising that the number of rank the submitted Offers. Subsector Members that have delivered (2) Offers—(i) Binding agreement. An to the Auditor a complete Application, Offer from a Subsector Member shall including a fully executed Reduction be a binding, irrevocable offer from a Agreement, exceeds seventy percent (70 Subsector Member to relinquish to percent) of the members of the NMFS the Reduction Fishing Interests Longline Subsector (as determined by for the price set forth on the Offer con- the Auditor from the Auditor’s exam- tingent on such Offer being a Selected ination of the Database). Offer at the closing of the Selection (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

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price. The Offer shall also state wheth- even if that Subsector Member has not er a vessel is currently designated on submitted an Offer in any previous the LLP License and as such will be Submission Period. If a Subsector withdrawn from all fisheries if the Member holds more than one LLP Li- Offer is selected for reduction in the cense, such Subsector Member may, Reduction Plan. If so, the Offer shall but is not required to, submit an Offer identify such vessel by name, official for each LLP License held during a number, and current owner. In addi- Submission Period. tion, the Offer shall provide a summary (ii) Submission periods. The initial of the Pacific cod catch history for the Submission Period shall commence at 9 calendar years 1995–2004 of the vessel to a.m. (Pacific time) on the Tuesday fol- be retired from the fisheries. All sum- lowing the Opening Date and end at 5 mary catch histories included in Offers p.m. (Pacific time) on the Friday of shall be calculated utilizing both the that week. Subsequent Submission Pe- weekly production report and best riods shall commence at 9 a.m. (Pacific blend methodology and shall separately state for each methodology the time) on the first Tuesday following Pacific cod catch in metric tons and as the preceding Ranking Period and end a percentage of the overall catch for at 5 p.m. (Pacific time) on the Friday the longline catcher processor sub- of that week. All times set forth in the sector on an annual basis for each of Reduction Agreement and used in the the required years. If the vessel stated Offer process shall be the time kept in to be withdrawn from the fisheries is the Pacific time zone as calculated by not owned by the LLP License owner of the National Institute of Standards record, the Offer shall be countersigned and Technology. by the owner of record of the vessel. An (iii) Validity of offer. The Auditor Offer offering a Latent License shall shall examine each Offer for consist- state on the Offer Form that the of- ency with the Database and informa- fered LLP License is a Latent License. tion contained in the enrollment docu- The Offer Form shall also include a ments. If there is an inconsistency in comment section for any additional in- the information contained in the Offer, formation that Offerors wish to provide any of the elements required of an to the Subsector Members concerning Offer pursuant to paragraph (d)(2)(ii) of the Offer. this section are missing, or the Auditor (iii) Prequalification of offers. A Sub- does not receive the original Offer sector Member may submit a Form before the Offers are to be posted Prequalification Offer to the Auditor pursuant to paragraph (d)(4) of this sec- at any time prior to the Opening Date. tion, the Auditor shall notify the offer- A Prequalification Offer shall contain ing Subsector Member by e-mail or all elements of an Offer, except that a mail that the Offer is nonconforming price need not be provided. The Auditor as soon as practicable after discovering shall notify the Subsector Member sub- the basis of invalidity. The Subsector mitting a Prequalification Offer as to Member may submit a revised, con- any deficiencies as soon as practicable. forming Offer prior to the close of that All details of a Prequalification Offer Submission Period or, in any subse- shall be kept confidential by the Audi- tor. quent Submission Period. Only one (3) Submitting an offer—(i) Offer sub- Offer may be submitted with respect to mission. Commencing on the first Tues- an LLP License during a Submission day following the Opening Date and Period. In the event a Subsector Mem- during all Submission Periods until the ber submits more than one Offer with Selection Process is closed, any Sub- respect to an LLP License during a sector Member may submit an Offer. Submission Period, the first con- All Offers are to be on the applicable forming Offer received by the Auditor form provided on the FLCC website, ex- shall be binding and irrevocable and ecuted by an Authorized Party and sub- any subsequent Offers shall be deemed mitted to the Auditor by facsimile. invalid. Any Subsector Member may submit an (iv) Warranty. By submitting an Offer during any Submission Period, Offer, the Offering Subsector Member,

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warrants and represents that the Offer- (iv) Archive. The Auditor shall main- ing Subsector Member has read and un- tain on the Website an archive of prior derstands the terms of the Reduction Offers posted, which shall be available Agreement, the Offer, and the Reduc- for review by all Subsector Members. tion Contract and has had the oppor- (5) Ranking—(i) Eligibility. Each Sub- tunity to seek independent legal coun- sector Member that has not submitted sel regarding such documents and/or an Offer during the preceding Submis- agreements and the consequences of sion Period, or whose vessel is not in- submitting an Offer. cluded as a withdrawing vessel in an (4) Posting offers—(i) Current offers. Offer during the preceding Submission For each Offer received during a Sub- Period (i.e., a Nonoffering Subsector mission Period, the Auditor shall post Member), may submit to the Auditor a on the Website no later than 5 p.m. Ranking Form during a Ranking Pe- (Pacific time) on the following Tuesday riod. With respect to Ranking, a Sub- all of the details of such Offer as set sector Member that holds more than forth on the Offer Form. In addition, one LLP License may participate in the Auditor shall post, as available to the Ranking process for each LLP Li- Auditor, a summary by year of up to cense not included in an Offer. ten (10) years catch history during the (ii) Ranking period. The initial Rank- period 1995–2004 in total round weight ing Period shall commence imme- equivalents and percentage of Longline diately after the Offers from the pre- Subsector ITAC harvested for any ves- ceding Submission Period have been posted and end at 5 p.m. (Pacific time) sel that is included in the Offer. Sub- on the Friday of that week. Subsequent sector Member (or vessel owner, if Ranking Periods shall commence im- other than the Subsector Member) ex- mediately after the Offers from the pressly authorizes Auditor to release preceding Submission Period have been the catch history summary informa- posted and end at 5 p.m. (Pacific time) tion previously prepared for that Sub- on the Friday of that week. sector Member or vessel owner by the (iii) Ranking form. Prior to each Auditor as part of the analysis of Ranking Period, the Auditor will post FLCC’s membership’s catch history a Ranking Form on the Website in previously conducted by the Auditor on ‘‘pdf’’ file format. Each eligible Sub- behalf of the FLCC. sector Member wishing to rank the (ii) Posting order. Offers shall be post- current Offers shall rank the Offers on ed on the Website by the Auditor in al- the Ranking Form numerically in the phabetical order of the Offering Sub- Subsector Member’s preferred order of sector Member’s name. purchase. The Offer that Subsector (iii) Questions as to offer. The Auditor Member would most like to have ac- shall respond to no questions from Sub- cepted should be ranked number one sector Member regarding Offers except (1), and subsequent Offers ranked se- 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

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Period. A Subsector Member is not re- (iii) Selected offer information or con- quired to rank the Offers during a fidentiality. The Auditor shall post the Ranking Period or call for a Closing name of the Offering Subsector Mem- Vote. ber, the amount of the Offer, and a (iv) Validity of subsector member rank- summary of the total number of Rank- ing. The Auditor shall examine each ing Forms received and the number of Ranking Form for completeness, such forms on which the Members whether the form either ranks the Of- called for a Closing Vote. Other than fers or calls for a Closing Vote (but not the foregoing, the Auditor shall not both), and authorized signature. Any post any details of the compilation of incomplete or otherwise noncompliant the Ranking Forms. Ranking Form(s) shall be invalid, and (iv) Selected offerors. Selected Offerors shall not be included in the Rankings may not withdraw their Offers unless of the Current Offers. The Auditor in subsequent rankings their Offers no shall notify the Subsector Member of longer are within the highest ranking the reason for declaring any Ranking Offers and they become Rejected Form invalid as soon as practicable. A Offerors. A Selected Offeror may, how- Subsector Member may cure the sub- ever, modify a Selected Offer solely to mission of an invalid Ranking Form by the extent such modification consists submitting a complying Ranking Form of a reduction in the Offer price. A Se- if accomplished before the end of the lected Offeror may submit a modified Offer to the Auditor during the next applicable Ranking Period. Offering Period as set forth in para- (6) Ranking results—(i) Compiling the graph (d)(3) of this section. Unless a Se- rankings. Unless two-thirds (2⁄3) of the lected Offeror becomes a Rejected Of- Nonoffering Subsector Members have feror in a subsequent Ranking, a Se- called for a Closing Vote, the Auditor lected Offeror shall be bound by the shall compile the results of the Rank- terms of the lowest Selected Offer sub- ing Forms by assigning one point for mitted as if such modified Offer had each position on a Ranking Form. That been the original Selected Offer. In the is, the Offer ranked number one (1) on event a Selected Offeror submits a a Ranking Form shall be awarded one modified Offer and such Offer is not (1) point, the Offer ranked two (2) shall ranked because sufficient votes are re- receive two (2) points, and continuing ceived to call for a Closing Vote, the on in this manner until all Offers have previously Selected Offer shall remain been assigned points correlating to its the Selected Offer. ranking on each valid Ranking Form. (v) Rejected offerors. The Offer of a Re- The Offer with the least number of jected Offeror is terminated and the total points assigned shall be the high- Rejected Offeror is no longer bound by est ranked Offer, and the Offer with the the terms of its Offer. A Rejected Offer- greatest total points assigned shall be or may, at its sole discretion, resubmit the lowest ranked Offer. the same Offer, submit a revised Offer, (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.

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(7) Closing. The Selection Process will Subsector Members shall be a Selected close when two-thirds (2⁄3) or more of Offeror and shall be the basis for the the Nonoffering Subsector Members of Reduction Plan submitted to NMFS. the Longline Subsector, as determined Any Offer on the Closing Ballot that by the Auditor, affirmatively vote to does not receive such two-thirds (2⁄3) accept the Selected Offerors selected approval shall be rejected and shall not during the prior Ranking Period as be included among the Offers included part of the Reduction Plan to be sub- among the Reduction Plan submitted mitted to the Secretary. to NMFS. (i) Call for vote. A Closing Vote will (v) Notification to NMFS. Upon closing be held when: at least two-thirds (2⁄3) of of the Selection Process, FLCC shall the Nonoffering Subsector Members notify NMFS in writing of the identi- submit Ranking Forms electing to ac- ties of the Selected Offerors and pro- cept the Selected Offerors and close the vide to NMFS a completed and fully Selection Process in lieu of Ranking executed original Reduction Agree- the current Offers; and there are no un- ment from each of the Selected resolved Protests or Arbitrations. The Offerors and a certified copy of the Auditor shall notify all Subsector fully executed Reduction Agreement Members by e-mail or mail and posting and Reduction Contract. a notice on the Website as soon as (e) Submission of reduction plan, in- practicable that a Closing Vote is to be cluding repayment. Upon completion of held. Such notice shall state the start- the offering process, the FLCC on being and ending dates and times of the half of the Subsector Members shall voting period, which shall be not less submit to NMFS the Reduction Plan than three (3) nor more than seven (7) which shall include the provisions set calendar days from the date of such no- forth in this paragraph (e). tice. A voting period shall commence (1) Capacity reduction. The Reduction at 9 a.m. (Pacific time) on Monday and Plan shall identify as the proposed ca- end at 5 p.m. on the Friday of that pacity reduction, without auction proc- week. ess, the LLP Licenses as well as the (ii) Voting. No less than three (3) cal- vessels and the catch histories related endar days prior to the voting period, to the LLP Licenses, linked crab LLP the Auditor will post a Closing Ballot Licenses, and any other fishing rights on the Website in ‘‘pdf’’ file format. or other interests associated with the Each eligible Nonoffering Subsector LLP Licenses and vessels included in Member wishing to vote shall print out the Selected Offers. The aggregate of the Closing Ballot, and, with respect to all Reduction Agreements and Reduc- each of the currently Selected Offers tion Contracts signed by Subsector on the Closing Ballot, vote either in Members whose offers to participate in favor of or opposed to accepting that this buyback were accepted by votes of Selected Offer and submit a completed the Subsector Members, will together 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

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payments made under the Reduction not, will be accessed and collected as Plan are insufficient to repay the ac- provided for in this paragraph (e). tual loan, the term of repayment shall (B) Fees must be accessed and col- be extended by NMFS until the loan is lected on Pacific cod used for bait or paid in full. discarded. Although the fee could be up (ii) Interest. The Reduction Loan’s in- to 5 percent of the ex-vessel production terest rate will be the U.S. Treasury’s value of all post-reduction Longline cost of borrowing equivalent maturity Subsector landings, the fee will be less funds plus 2 percent. NMFS will deter- than 5 percent if NMFS projects that a mine the Reduction Loan’s initial in- lesser rate can amortize the fishery’s terest rate when NMFS borrows from reduction loan over the reduction the U.S. Treasury the funds with which loan’s 30-year term. In the event that to disburse reduction payments. The the total principal and interest due ex- initial interest rate will change to a ceeds 5 percent of the ex-vessel Pacific final interest rate at the end of the cod revenues, a penny per pound round Federal fiscal year in which NMFS bor- weight fee will be calculated based on rows the funds from the U.S. Treasury. the latest available revenue records The final interest rate will be 2 percent and NMFS conversion factors for pol- plus a weighted average, throughout lock, arrowtooth flounder, Greenland that fiscal year, of the U.S. Treasury’s turbot, skate, yellowfin sole and rock cost of borrowing equivalent maturity sole. funds. The final interest rate will be (C) The additional fee will be limited to the amount necessary to amortize fixed, and will not vary over the re- the remaining twelve months principal mainder of the reduction loan’s 30-year and interest in addition to the 5 per- term. The Reduction loan will be sub- cent fee accessed against Pacific cod. ject to a level debt amortization. There The additional fee will be a minimum is no prepayment penalty. of one cent per pound. In the event (iii) Fees. The Reduction Loan shall that collections exceed the total prin- be repaid by fees collected from the cipal and interest needed to amortize Longline Subsector. The fee amount the payment due, the principal balance will be based upon: The principal and of the loan will be reduced. To verify interest due over the next twelve that the fees collected do not exceed 5 months divided by the product of the percent of the fishery revenues, the an- Hook & Line, Catcher Processor nual total of principal and interest due (Longline Subsector; sometimes re- will be compared to the latest avail- ferred to as the ‘‘H&LCP Subsector’’) able annual Longline Subsector reve- portion of the BSAI Pacific cod ITAC nues to ensure it is equal to or less (in metric tons) set by the North Pa- than 5 percent of the total ex-vessel cific Fishery Management Council production revenues. In the event that (NPFMC) in December of each year any of the components necessary to multiplied by 2,205 (i.e., the number of calculate the next year’s fee are not 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

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maximum 5 percent, NMFS will in- duction Fishing Interests in such Re- crease the fisheries’ fee rate to the duction Contract. maximum 5 percent of the revenues for (f) Decisions of the Auditor and the Pacific cod and the species mentioned FLCC. Time is of the essence in devel- in paragraph (e)(2)(iii)(B), apply all oping and implementing a Reduction subsequent fee revenue first to the pay- Plan and, accordingly, the Offerors ment of accrued interest, and continue shall be limited to, and bound by, the the maximum fee rates until all prin- decisions of the Auditor and the FLCC. cipal and interest payments become (1) The Auditor’s examination of sub- current. Once all principal and interest mitted applications, Offers, payments are current, NMFS will Prequalification Offers and Rankings make a determination about adjusting shall be solely ministerial in nature. the fee rate. That is, the Auditor will verify wheth- (iv) Reduction loan. NMFS has pro- er the documents submitted by Sub- mulgated framework regulations gen- sector Members are, on their face, con- erally applicable to all fishing capacity sistent with each other and the Data- reduction programs (§ 600.1000 et seq.). base, in compliance with the require- The reduction loan shall be subject to ments set forth in the Reduction the provisions of § 600.1012, except that: Agreement, and, signed by an Author- the borrower’s obligation to repay the ized Party. The Auditor may presume reduction loan shall be discharged by the validity of all signatures on docu- the owner of the Longline Subsector li- ments submitted. The Auditor shall cense regardless of which vessel not make substantive decisions as to catches fish under this license and re- compliance (e.g., whether an interim gardless of who processes the fish in LLP License satisfies the requirements the reduction fishery in accordance of the Act, or whether a discrepancy in with § 600.1013. Longline Subsector li- the name appearing on LLP Licenses cense owners in the reduction fishery and other documents is material). shall be obligated to collect the fee in (2) [Reserved] (g) Enforcement/specific performance. accordance with § 600.1013. The parties to the Reduction Agree- (v) Collection. The LLP License hold- ment have agreed that the opportunity er of the vessel harvesting in the post- to develop and submit a capacity re- capacity reduction plan Longline Sub- duction program for the Longline Sub- sector shall be responsible for self-col- sector under the terms of the Act is lecting the repayment fees owed by both unique and finite and that failure that LLP License holder. Fees shall be of a Selected Offeror, and vessel owner, submitted to NMFS monthly and shall if not a Subsector Member, to perform be due no later than fifteen (15) cal- the obligations provided by the Reduc- endar days following the end of each tion Agreement will result in irrep- calendar month. arable damage to the FLCC, the Sub- (vi) Record keeping and Reporting. The sector Members and other Selected holder of the LLP License on which a Offerors. Accordingly, the parties to 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

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National Institute of Standards and ment, the Reduction Contract, and the Technology. In the event that any date Reduction Plan may be subject to occurring within the Selection Process amendment to conform to the require- is a Federal holiday, the date shall roll ments for approval of the Reduction over to the next occurring business Plan by NMFS on behalf of the Sec- day. retary. The Auditor shall distribute to (2) Termination. The Reduction Agree- each Subsector Member in electronic ment shall automatically terminate if format the amended form of the Reduc- no vote of acceptance is completed by tion Agreement, the Reduction Con- December 31, 2007. The Reduction tract, and the Reduction Plan, which Agreement may be terminated at any amended documents in the form dis- time prior to approval of the Reduction tributed by the Auditor and identified Plan by NMFS, on behalf of the Sec- by the Auditor by date and version, the retary, by written notice from 50 per- version of each such document then in cent of Subsector Members. effect at the time of any dispute aris- (3) Choice of law/venue. The Reduction ing or action taken shall be deemed Agreement shall be construed and en- binding upon the parties with respect forced in accordance with the laws of to such dispute and/or action. the State of Washington without re- (j) Warranties. Subsector Member gard to its choice of law provisions. must expressly warrant and represent The parties submit to the exclusive in the Reduction Agreement that: personal jurisdiction of the United (1) Subsector Member has had an op- States District Court located in Se- portunity to consult with Subsector attle, Washington, with respect to any Member’s attorney or other advisors of litigation arising out of or relating to Subsector Member with respect to the the Reduction Agreement or out of the Reduction Agreement, the Reduction performance of services hereunder. Contract, and the Act and the rami- (4) Incorporation. All executed coun- fications of the ratification of the Re- terparts of the Reduction Agreement, duction Plan contemplated therein; Application Forms and Offers con- (2) Subsector Member has full under- stitute the agreement between the par- standing and appreciation of the rami- ties with respect to the subject matter fications of executing and delivering of the Reduction Agreement and are in- the Reduction Agreement and, free corporated into the Reduction Agree- from coercion of any kind by the FLCC ment as if fully written. or any of its members, officers, agents (5) Counterparts. The Reduction and/or employees, executes and deliv- Agreement may be executed in mul- ers the Reduction Agreement as the tiple counterparts and will be effective free and voluntary act of Subsector as to signatories on the Effective Date. Member; The Reduction Agreement may be exe- (3) The execution and delivery of the cuted in duplicate originals, each of Reduction Agreement, does not and which shall be deemed to be an original will not conflict with any provisions of instrument. All such counterparts and the governing documents of Subsector duplicate originals together shall con- Member; stitute the same agreement, whether (4) The person executing the Reduc- or not all parties execute each counter- tion Agreement has been duly author- part. ized by Subsector Member to execute (i) The facsimile signature of any and deliver the Reduction Agreement party to the Reduction Agreement and to undertake and perform the ac- shall constitute the duly authorized, tions contemplated herein; and irrevocable execution and delivery of (5) Subsector Member has taken all the Reduction Agreement as fully as if actions necessary for the Reduction the Reduction Agreement contained Agreement to constitute the valid and the original ink signatures of the party binding obligation of Subsector Mem- or parties supplying a facsimile signa- ber, enforceable in accordance with its ture. terms. (ii) [Reserved] (k) Approval of the reduction plan. Ac- (i) Amendment. Subsector Member acceptance of the Offers are at the sole knowledges that the Reduction Agree- discretion of NMFS on behalf of the

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Secretary of Commerce. To be ap- tion Offer Submission Form and Reduction proved by NMFS, on behalf of the Sec- Fishing Interests Identification,’’ as the retary, any Reduction Plan developed qualifying Offeror and as the co-Offeror (if and submitted in accordance with this there is a co-Offeror) (collectively the ‘‘Of- feror’’) and the United States of America, section and subpart M to this part acting by and through the Secretary of Com- must be found by the Assistant Admin- merce, National Oceanic and Atmospheric istrator of NMFS, to: Administration, National Marine Fisheries (1) Be consistent with the require- Service, Financial Services Division ments of Section 219(e) of the FY 2005 (‘‘NMFS’’). The Reduction Contract is effec- Appropriations Act (Public Law 108– tive when NMFS signs the Reduction Con- 447); tract and, thereby, accepts the Offeror’s (2) Be consistent with the require- offer, subject to the condition subsequent of NMFS’ formal notification of a successful ments of Section 312(b) of the Magnu- referendum. son-Stevens Fishery Conservation and Management Act (16 U.S.C. 1861(a)) ex- Witnesseth cept for the requirement that a Council Whereas, Section 219, Title II, Division B of or Governor of a State request such a the Consolidated Appropriations Act, 2005, as program (as set out in section 312(b)(1)) enacted on December 8, 2004, (the ‘‘Act’’) au- and for the requirements of section thorizes a fishing capacity reduction pro- 312(b)(4); gram implementing capacity reduction plans (3) Contain provisions for a fee sys- submitted to NMFS by catcher processor tem that provides for full and timely subsectors of the Bering Sea and Aleutian Is- lands (‘‘BSAI’’) non-pollock groundfish fish- repayment of the capacity reduction ery as set forth in the Act; loan by the Longline Subsector and Whereas, the longline catcher processor that it provide for the assessment of subsector (the ‘‘Longline Subsector’’) is such fees; among the catcher processor subsectors eli- (4) Not require a bidding or auction gible to submit to NMFS a capacity reduc- process; tion plan under the terms of the Act; (5) Result in the maximum sustained Whereas, the Freezer Longline Conserva- reduction in fishing capacity at the tion Cooperative (the ‘‘FLCC’’) has developed and is submitting to NMFS concurrently least cost and in the minimum amount with this Reduction Contract a capacity re- of time; and duction plan for the Longline Subsector (the (6) Permit vessels in the Longline ‘‘Reduction Plan’’); Subsector to be upgraded to achieve ef- Whereas, the selection process will be pur- ficiencies in fishing operations pro- suant to the fishing capacity Reduction Con- vided that such upgrades do not result tract and the Reduction Plan; in the vessel exceeding the applicable Whereas, the term ‘‘Reduction Fishery’’ is defined by the Reduction Plan as the length, tonnage, or horsepower limita- longline catcher processor subsector of the tions set out in Federal law or regula- BSAI non-pollock groundfish fishery; tion. Whereas, the Reduction Plan’s express ob- (l) Referenda. The provisions of jective is to permanently reduce harvesting § 600.1010 (including §§ 600.1004(a), capacity in the Reduction Fishery; Whereas, 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 Management Act (16 U.S.C. 1861a(b)–(e))(as the extent that they do not conflict 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- tion Plan, (50 CFR 600.1000 et seq.); FISHING CAPACITY REDUCTION CONTRACT: BER- Whereas, NMFS can implement the Reduc- ING SEA AND ALEUTIAN ISLANDS LONGLINE tion Plan only after giving notice to all CATCHER PROCESSOR SUBSECTOR 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

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Whereas, this Reduction Contract is sub- named on the Groundfish Reduction Permit mitted by Offeror and the FLCC as an inte- as well as any present or future claims of eli- gral element of the Reduction Plan and is ex- gibility for any fishery privilege based upon pressly subject to the terms and conditions such permit, including any Latent License, set forth herein, the framework regulations, (the ‘‘Reduction Permits’’). the final rule (as used in this contract ‘‘final 6. Reduction Privilege Vessel. The Reduction rule’’ means the final rule promulgated by Privilege Vessel is the vessel listed on the NMFS which sets forth the regulations im- Offeror’s License Limitation Program li- plementing the Reduction Plan for the cense. Longline Subsector) and applicable law. 7. Reduction Fishing Privilege. If a vessel is Now therefore, for good and valuable con- specified in section 46 of this contract (the sideration and the premises and covenants ‘‘Reduction Privilege Vessel’’), Offeror here- hereinafter set forth the receipt and suffi- by acknowledges that Offeror offers to relin- ciency of which the parties to the Reduction quish and surrender the Reduction Privilege Contract hereby acknowledge, and intending Vessel’s fishing privilege and consents to the to be legally bound hereby, the parties here- imposition of Federal vessel documentation to agree as follows: restrictions that have the effect of perma- 1. Incorporation of Recitals. The foregoing nently revoking the Reduction Privilege recitals are true and correct and are ex- Vessel’s legal ability to fish anywhere in the pressly incorporated herein by this ref- world as well as its legal ability to operate erence. under foreign registry or control—including 2. Further Incorporation. The Act, frame- the Reduction Privilege Vessel’s: fisheries work regulations, final rule and any other trade endorsement under the Commercial rule promulgated pursuant to the Act are ex- Fishing Industry Vessel Anti-Reflagging Act pressly incorporated herein by this ref- (46 U.S.C. 12108); eligibility for the approval erence. In the event of conflicting language, required under section 9(c)(2) of the Shipping the framework regulations, the final rule Act, 1916 (46 U.S.C. App. 808(c)(2)), for the and any other rule promulgated pursuant to placement of a vessel under foreign flag or the Act, take precedence over the Reduction registry, as well as its operation under the Contract. authority of a foreign country; and the privi- 3. Contract Form. By completing and sub- lege otherwise to ever fish again anywhere in mitting the Reduction Contract to NMFS the world (the ‘‘Reduction Fishing Privi- the Offeror hereby irrevocably offers to re- lege’’). Offeror agrees to instruct the United linquish its Reduction Fishing Interests. If States Coast Guard’s Vessel Documentation NMFS discovers any deficiencies in the Center to remove the fishery endorsement Offeror’s submission to NMFS, NMFS may, from the Reduction Privilege Vessel. If the at its sole discretion, contact the Offeror in Reduction Privilege Vessel is not a federally an attempt to correct such offer deficiency. documented vessel, the Offeror offers to ‘‘Reduction Fishing Interests’’ means all of promptly scrap the vessel and allow NMFS Offeror(s) rights, title and interest to the whatever access to the scrapping NMFS Groundfish Reduction Permit, Reduction deems reasonably necessary to document and Permit(s), Reduction Fishing Privilege and confirm the scrapping. Reduction Fishing History as defined in this 8. Reduction Fishing History. Offeror surren- Reduction Contract. ders, relinquishes, and consents to NMFS’ 4. Groundfish Reduction Permit. Offeror ex- permanent revocation of the following Re- pressly acknowledges that it hereby offers to duction Fishing History (the ‘‘Reduction permanently surrender, relinquish, and have Fishing History’’): 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 spe- therewith, but without prejudice to any cies endorsements issued for any vessel party who before submission of this offer

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may have for value independently acquired wise comply with Reduction Contract re- the fishing history involving any such docu- quirements. mented harvest; 13. Use of Official Fishing License or Permit c. Any documented harvest on any other Databases. Offeror expressly acknowledges vessel (Reduction Fishing Vessel) that gave that NMFS shall use the appropriate official rise to the Groundfish Reduction Permit; governmental fishing license or permit data- and base to: d. All fishing history associated with the Determine the Offeror’s address of record; latent LLP license identified on the Selected verify the Offeror’s qualification to offer; de- Offer and any fishing history associated with termine the holder of record of the Ground- the fishing vessel that gave rise to the latent fish Reduction Permit and Reduction Per- LLP license that remains in the Offeror’s mit(s); and verify the Offeror’s inclusion in possession as of August 11, 2006 (i.e., date of the offer of all permits and licenses required publication of the proposed rule in the FED- to be offered in the Offer. ERAL REGISTER). 14. Use of National Vessel Documentation 9. Halibut, Sablefish and Crab IFQs Excluded. Center Database. Offeror expressly acknowl- Notwithstanding any other provision of this edges that NMFS shall use the records of the Reduction Contract, no right, title and/or in- National Vessel Documentation Center to terest to harvest, process or otherwise uti- determine the owner of record for a federally lize individual fishing quota (‘‘IFQ’’) quota documented Reduction Privilege Vessel and share in the halibut, sablefish and crab fish- the appropriate State records to determine the owner of record of a non-federally docu- eries pursuant to 50 CFR parts 679 and 680, mented Reduction Privilege Vessel. nor crab LLP license history to the extent 15. Offeror to Ensure Accurate Records. Offer- necessary for the issuance of crab IFQ pursu- or shall, to the best of its ability, ensure ant to 50 CFR part 680 as in effect as of the that the records of the databases relevant to date of this Contract, shall be included sections 13 and 14 of this contract are true, among Offeror’s Reduction Fishing Interests. accurate, and complete. 10. Representations and Warranties. Offeror 16. Submissions are Irrevocable. The parties represents and warrants that, as of the date hereto expressly acknowledge as the essence of submission of this Reduction Contract, Of- hereof that the Offeror voluntarily submits feror is: to NMFS this firm and irrevocable offer. The a. The holder of record, according to Offeror expressly acknowledges that it here- NMFS’ official fishing license records, at the by waives any privilege or right to withdraw, time of offer, of the Groundfish Reduction change, modify, alter, rescind, or cancel any Permit and the Reduction Permit(s). portion of the Reduction Contract and that b. The Reduction Privilege Vessel’s owner the receipt date and time which NMFS of record, according to the National Vessel marks on the Reduction Contract con- Documentation Center’s official vessel docu- stitutes the date and time of the offer’s sub- mentation records, at the time of offer, and mission. that the Reduction Privilege Vessel is nei- 17. Offer Rejection. NMFS shall reject an ther lost nor destroyed at the time of offer. offer that NMFS deems is in any way unre- c. In retention of and fully and legally en- sponsive or not in conformance with the Re- titled to offer and dispose of hereunder, full duction Contract, and the applicable law or and complete rights to the Reduction Privi- regulations unless the Offeror corrects the lege Vessel’s full and complete Reduction defect and NMFS, in its sole discretion, ac- Fishing History necessary to fully and com- cepts the correction. pletely comply with the requirements of sec- 18. Notarized Offeror Signature(s) Required. tion 8 of this contract. NMFS shall deem as non-responsive and re- 11. Offer Amount. NMFS’ payment to Offer- ject an offer whose Offer Submission Form or in the exact amount of the amount set does not contain the notarized signatures of forth by Offeror in section 46 of this contract all persons required to sign the form on be- is full and complete consideration for the half of the Offeror. Offeror’s offer. 19. Offer Rejections Constitute Final Agency 12. Additional Offer Elements. Offeror shall Action. NMFS’s offer rejections are conclu- include with its offer an exact photocopy of sive and constitute final agency action as of the Reduction Privilege Vessel’s official ves- the rejection date. sel documentation or registration (i.e., the 20. Effect of Offer Submission. Submitting an certificate of documentation the U.S. Coast irrevocable offer conforming to the require- Guard’s National Vessel Documentation Cen- ments stated herein entitles the Offeror to ter issued for federally documented vessels have NMFS accept the offer if NMFS, in its or the registration a State issues for State sole discretion, deems that the offer is fully registered vessels) and an exact photocopy of responsive and complies with the Act, the the Groundfish Reduction Permit and all Re- final rule and any other rule promulgated duction Permit(s). The Offeror shall also in- pursuant to the Act. clude with the offer all other information re- 21. Offeror Retains Use. After submitting an quired in this Reduction Contract and other- offer, the Offeror shall continue to hold, own,

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or retain unimpaired every aspect of any and 29. Request for Written Payment Instructions all LLP License(s) and or vessels set forth on Constitutes Tender. NMFS’ request to the Of- an Offer included as Reduction Fishing Inter- feror for written payment instructions con- ests, until such time as: NMFS notifies the stitutes reduction payment tender, as speci- Offeror that the Reduction Plan is not in fied in 50 CFR 600.1011. compliance with the Act or other applicable 30. Offeror Responsibilities upon Tender. law and will not be approved by NMFS; noti- Upon NMFS’ reduction payment tender to fies the Offeror that the referendum was un- the Offeror, the Offeror shall immediately successful; NMFS tenders the reduction pay- surrender and relinquish and allow the rev- ment and the Offeror complies with its obli- ocation or restriction of (as NMFS deems ap- gations under the Reduction Contract; or propriate) the Reduction Fishing Interests. NMFS otherwise excuses the Offeror’s per- The Offeror must then return the original of formance. its Groundfish Reduction Permit and Reduc- 22. Acceptance by Referendum. NMFS shall tion Permit(s) to NMFS. Concurrently with formally notify the Offeror in writing wheth- NMFS’ reduction payment tender, the Offer- er the referendum is successful, which writ- or shall forever cease all fishing for any spe- ten notice shall inform Offeror that the con- cies with the Reduction Privilege Vessel and dition subsequent has been satisfied. There- immediately retrieve all fishing gear, irre- fore, Offeror expressly acknowledges that all spective of ownership, previously deployed parties must perform under the Reduction from the Reduction Privilege Vessel. Offeror Contract and the Reduction Contract is en- agrees to authorize the United States Coast forceable against, and binding on, the Reduc- Guard to cancel the fishery endorsement in tion Contract parties in accordance with the the Reduction Privilege Vessel. terms and conditions herein. 31. Reduction Privilege Vessel Lacking Fed- eral Documentation. Upon NMFS’ reduction 23. Reduction Contract Subject to Federal payment tender to the Offeror, the Offeror Law. The Reduction Contract is subject to shall immediately scrap any vessel which the Federal law. Offeror specified as a Reduction Privilege 24. Notice to Creditors. Upon NMFS’ offer ac- Vessel and which is documented solely under ceptance notice to the Offeror, Offeror agrees state law or otherwise lacks documentation to notify all parties with secured interests in under Federal law. The Offeror shall scrap the Reduction Fishing Interests that the Of- such vessel at the Offeror’s expense. The Of- feror has entered into the Reduction Con- feror shall allow NMFS, its agents, or its ap- tract. pointees reasonable opportunity to observe 25. Referendum. Offeror acknowledges that and confirm such scrapping. The Offeror the outcome of the referendum of the Reduc- shall conclude such scrapping within a rea- tion Plan is an occurrence over which NMFS sonable time. has no control. 32. Future Harvest Privilege and Reduction 26. Unsuccessful Referendum Excuses Per- Fishing History Extinguished. Upon NMFS’ re- formance. An unsuccessful referendum ex- duction payment tender to the Offeror, the cuses all parties hereto from every obliga- Offeror shall surrender and relinquish and tion to perform under the Reduction Con- consent to the revocation, restriction, with- tract. In such event, NMFS need not tender drawal, invalidation, or extinguishment by reduction payment and the Offeror need not other means (as NMFS deems appropriate), 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 33. Post Tender Use of Federally Documented Fishing Interests. Reduction Privilege Vessel. After NMFS’ re- 28. Written Payment Instructions. After a duction payment tender to the Offeror, the successful referendum, NMFS shall tender Offeror may continue to use a federally docu- reduction payment by requesting the Offeror mented Reduction Privilege Vessel for any to provide to NMFS, and the Offeror shall lawful purpose except ‘‘fishing’’ as defined subsequently so provide, written payment in- under the Magnuson-Stevens Act and may structions for NMFS’ disbursement of the re- transfer—subject to all restrictions in the duction payment to the Offeror or to the Reduction Contract, other applicable regula- Offeror’s order. tions, and the applicable law—the vessel to a

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new owner. The Offeror or any subsequent the reduction payment to the Offeror. If the owner shall only operate the Reduction qualifying Offeror offers with a co-Offeror, Privilege Vessel under the United States flag both the qualifying Offeror and the co-Offer- and shall not operate such vessel under the or must approve and sign the written pay- authority of a foreign country. In the event ment instructions. the Offeror fails to abide by such restric- 37. Reduction Payment Withheld for Scrap- tions, the Offeror expressly acknowledges ping or for Other Reasons. In the event that a and hereby agrees to allow NMFS to pursue Reduction Privilege Vessel which is not any and all remedies available to it, includ- under Federal documentation must be ing, but not limited to, recovering the reduc- scrapped, NMFS shall withhold from reduction payment and seizing the Reduction tion payment disbursement an amount suffi- Privilege Vessel and scrapping it at the cient to scrap such vessel. NMFS shall with- Offeror’s expense. hold such sum until the vessel is completely 34. NMFS’ Actions upon Tender. Contem- scrapped before disbursing any amount with- poraneously with NMFS’ reduction payment held. NMFS may confirm, if NMFS so choos- tender to the Offeror, and without regard to es, that the vessel has been scrapped before the Offeror’s refusal or failure to perform disbursing any amount withheld. If NMFS any of its Reduction Contract duties and ob- has reason to believe the Offeror has failed ligations, NMFS shall: Permanently revoke to comply with any of the Reduction Con- the Offeror’s Groundfish Reduction Permit tract terms and conditions, NMFS shall also and Reduction Permit(s); notify the National withhold reduction payment disbursement Vessel Documentation Center to perma- until such time as the Offeror performs in nently revoke the Reduction Privilege Ves- accordance with the Reduction Contract sel’s fishery trade endorsement; notify the terms and conditions. U.S. Maritime Administration to make the 38. Offeror Assistance with Restriction. The Reduction Privilege Vessel permanently in- Offeror shall, upon NMFS’ request, furnish eligible for the approval of requests to place such additional documents, undertakings, the vessel under foreign registry or operate assurances, or take such other actions as the vessel under a foreign country’s author- may be reasonably required to enable NMFS’ ity; record in the appropriate NMFS records revocation, restriction, invalidation, with- that the Reduction Fishing History rep- drawal, or extinguishment by other means resented by any documented harvest fishing (as NMFS deems appropriate) of all compo- history accrued on, under, or as a result of nents of the Reduction Contract’s Reduction the operation of the Reduction Privilege Fishing Interest in accordance with the re- Vessel and/or Reduction Fishing Vessel (sub- quirements of the Reduction Contract terms ject to and in accordance with the provisions and conditions, applicable regulations and of section 8 of this contract), the Groundfish the applicable law. Reduction Permit, and the Reduction Per- 39. Recordation of Restrictions. Upon the Re- mit(s) which could ever qualify the Offeror duction Fishing Privilege’s revocation, the for any future limited access fishing license, Offeror shall do everything reasonably nec- fishing permit, or other harvesting privilege essary to ensure that such revocation is re- of any kind shall never again be available to corded on the Reduction Privilege Vessel’s 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

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in the Reduction Contract and to be subject past, present, or future oral agreement be- to the Reduction Contract’s terms and condi- tween them. tions; and all Reduction Contract terms and 44. Severable Provisions. The Reduction Con- conditions which should have applied to such tract provisions are severable; and, in the omitted element had it not be omitted shall event that any portion of the Reduction Con- apply as if such element had not been omit- tract is held to be void, invalid, non-binding, ted. Upon the Offeror discovering any such or otherwise unenforceable, the remaining omission, the Offeror shall immediately and portion thereof shall remain fully valid, fully advise NMFS of such omission. Upon ei- binding, and enforceable against the Offeror ther NMFS or the Offeror discovering any and NMFS. such omission, the Offeror shall act in ac- 45. Disputes. Any and all disputes involving cordance with the Reduction Contract, appli- the Reduction Contract, and any other Re- cable regulations and the applicable law. duction Plan aspect affecting them shall in 41. Remedy for Breach. Because money dam- all respects be governed by the Federal laws ages are not a sufficient remedy for the Of- of the United States; and the Offeror and all feror breaching any one or more of the Re- other parties claiming under the Offeror ir- duction Contract terms and conditions, the revocably submit themselves to the jurisdic- Offeror explicitly agrees to and hereby au- tion of the Federal courts of the United thorizes specific performance of the Reduc- States and/or to any other Federal adminis- tion Contract, in addition to any money trative body which the applicable law au- damages, as a remedy for such breach. In the thorizes to adjudicate such disputes. event of such breach, NMFS shall take any 46. Fishing Capacity Reduction Offer Submis- reasonable action, including requiring and sion Form and Reduction Fishing Interests enforcing specific performance of the Reduc- Identification. tion Contract, NMFS deems necessary to a. Completion and Submission. The Offeror carry out the Reduction Contract, applicable must fully, faithfully, and accurately com- regulations and the applicable law. plete this section 46 of this contract and 42. Waiver of Data Confidentiality. The Of- thereafter submit the full and complete Re- feror consents to the public release of any in- duction Contract to NMFS in accordance formation provided in connection with the with the Reduction Contract. If completing Reduction Contract or pursuant to Reduc- this section requires inserting more information Plan requirements, including any infor- tion than the places provided for the inser- mation provided in the Reduction Contract tion of such information allows, the Offeror or by any other means associated with, or should attach an addendum to the Reduction necessary for evaluation of, the Offeror’s Re- Contract that: Includes and identifies the ad- duction Contract if NMFS finds that the re- ditional information, states that the adden- lease of such information is necessary to dum is a part of the Reduction Fishing Inter- achieve the Reduction Plan’s authorized pur- ests Identification portion of the Reduction pose. The Offeror hereby explicitly waives Contract, states (as a means of identifying any claim of confidentiality otherwise af- the Reduction Contract to which the adden- forded to catch, or harvest data and fishing dum relates) the NMFS license number des- histories otherwise protected from release ignated on the Reduction Contract’s Ground- under the Magnuson-Stevens Fishery Con- fish Reduction Permit, and is signed by all servation and Management Act (16 U.S.C. persons who signed the Reduction Contract 1881 a(b)) or any other law. In the event of as the Offeror. such information release, the Offeror hereby b. Offeror Information. forever fully and unconditionally releases (1) Offeror name(s). Insert in the table pro- and holds harmless the United States and its vided under this section 46.b(1) of this con- officers, agents, employees, representatives, tract the name(s) of the qualifying Offeror of and from any and all claims, demands, and of the co-Offeror (if there is a co-Offer- debts, damages, duties, causes of action, ac- or), and check the appropriate box for each tions and suits whatsoever, in law or equity, name listed. on account of any act, failure to act or event Each name the Offeror inserts must be the arising from, out of, or in any way related full and exact legal name of record of each to, the release of any information associated person, partnership, corporation or other with the Reduction Program. business entity identified on the offer. If any 43. Oral Agreement Invalid. The Reduction Reduction Fishing Interest element is co- Contract, any addendums to section 46 of owned by more than one person, partnership, this contract, and enclosures of photocopies corporation or other business entity, the Of- of licenses and permits required under sec- feror must insert each co-owner’s name. tion 46 of this contract, contain the final In each case, the Offeror is the holder of terms and conditions of the agreement be- record, at the time of Offeror’s execution of tween the Offeror and NMFS and represent this Reduction Contract, of the Groundfish the entire and exclusive agreement between Reduction Permit and the Reduction Per- them. NMFS and the Offeror forever waive mit(s). A co-Offeror is not allowed for either all right to sue, or otherwise counterclaim the Groundfish Reduction Permit or the Re- against each other, based on any claim of duction Permit(s). If the Offeror is also the

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owner of record, at the time of offering, of Privilege Vessel is not exactly the same as the Reduction Privilege Vessel, the quali- the Offeror, then the owner of record is the fying Offeror is the sole Offeror. If, however, co-Offeror; and the Offeror and the co-Offeror the owner of record, at the time of execution jointly offer together as the Offeror. of this Reduction Contract, of the Reduction

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)

(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)

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(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)

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)

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(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)

g. Offer Amount. Insert in the place this United States flag, and shall impose or cre- section 46.g provides the Offeror’s full and ate other legal and contractual restrictions, exact offer amount, both in words and in impediments, limitations, obligations, or numbers. other provisions which restrict, revoke, withdraw, invalidate, or extinguish by other OFFER AMOUNT [U.S. DOLLARS] means (as NMFS deems appropriate) the In words In numbers complete Reduction Fishing Interest and any other fishery privileges or claims associated with the Groundfish Reduction Permit, any Reduction Permit(s), the Reduction Privi- h. Reduction Contract Signature. In compli- lege Vessel, and the Reduction Fishing His- ance with the Reduction Contract, applicable tory—all as more fully set forth in the Re- regulations and the applicable law, the Offer- duction Contract, applicable regulations, or submits the Reduction Contract as the and the applicable law. Offeror’s irrevocable offer to NMFS for the By completing and signing the Reduction permanent surrender and relinquishment and Contract, the Offeror expressly acknowledges revocation, restriction, withdrawal, invali- that the Offeror has fully and completely dation, or extinguishment by other means read the entire Reduction Contract. The Of- (as NMFS deems appropriate) of the Ground- feror expressly states, declares, affirms, at- fish Reduction Permit, any Reduction Per- tests, warrants, and represents to NMFS mit(s), the Reduction Fishing Privilege, and that the Offeror is fully able to enter into the Reduction Fishing History—all as identi- the Reduction Contract and that the Offeror fied in the Reduction Contract or as required legally holds, owns, or retains, and is fully under applicable regulations, or the applica- able under the Reduction Contract provi- ble law. sions to offer and dispose of, the full Reduc- The Offeror expressly acknowledges that tion Fishing Interest which the Reduction NMFS’ acceptance of the Offeror’s offer here- Contract specifies and the applicable regula- under and NMFS’ tender, following a suc- tions, and the applicable law requires that cessful referendum, of a reduction payment any person or entity completing the Reduc- in the same amount specified in section 46.g tion Contract and/or signing the Reduction of this contract (less any sum withheld for Contract on behalf of another person or enti- scrapping any Reduction Privilege Vessel ty, expressly attests, warrants, and rep- lacking Federal documentation or for any resents to NMFS that such completing and/ other purpose) to the Offeror shall, among or signing person or entity has the express other things, render the Reduction Privilege and written permission or other grant of au- Vessel permanently ineligible or any fishing thority to bind such other person or entity worldwide, including, but not limited to, to the Reduction Contract’s terms and condi- fishing on the high seas or in the jurisdiction tions. The Offeror expressly attests, war- of any foreign country while operating under rants, and represents to NMFS that every co-

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owner of the Offeror necessary to constitute tion Contract either as an Offeror offering the Offeror’s full and complete execution of alone or as an Offeror and co-Offeror (if there the Reduction Contract has signed the Re- is a co-Offeror) jointly offering together, in duction Contract. The Offeror expressly at- accordance with the requirements specified tests, warrants, and represents to NMFS above, and on the date written below. The that the Offeror: Fully understands the con- Reduction Contract is effective as of the date sequences of submitting the completed Re- NMFS accepts the Offeror’s offer by signing duction Contract of which it is a party to the Reduction Contract. NMFS; pledges to abide by the terms and conditions of the Reduction Contract; and is The Offeror and co-Offeror (if there is a co- aware of, understands, and consents to, any Offeror) must each sign the Reduction Con- and all remedies available to NMFS for the tract exactly as instructed herein. Each co- Offeror’s breach of the Reduction Contract owner (if there is a co-owner) of each Offeror or submission of an offer which fails to con- and co-Offeror (if there is a co-Offeror) must form with the Reduction Contract, final rule, also sign the Reduction Contract exactly as applicable regulations and the applicable instructed herein. A notary public must, for law. The Offeror expressly attests, warrants, each person or entity signing on behalf of and represents to NMFS that all information the Offeror, complete and sign the acknowl- which the Offeror inserted in the Reduction edgment and certification provision associ- Contract is true, accurate, complete, and ated with each such person or entity’s signa- fully in accordance with the Reduction Con- ture. tract, final rule, other applicable regulations I. Offeror and co-Offeror’s (if there is a co-Of- and the applicable law. feror) signature(s) and notary’s acknowledg- In witness whereof, the Offeror has, in the ment(s) and certification(s). place provided below, executed the Reduc-

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. § 600.1106 Longline catcher processor United States of America, Acting by and subsector Bering Sea and Aleutian through the Secretary of Commerce, Na- Islands (BSAI) non-pollock ground- tional Oceanic and Atmospheric Administra- fish species fee payment and collection, National Marine Fisheries Service, Fi- tion system. nancial Services Division. Dated: llllllllllllllllllll (a) Purpose. As authorized by Public By: lllllllllllllllllllll Law 108 447, this section’s purpose is to: Leo C. Erwin, Chief, (1) In accordance with § 600.1012, es- Financial Services Division, National Marine tablish: Fisheries Service. (i) The borrower’s obligation to repay [71 FR 57701, Sept. 29, 2006] a reduction loan, and

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(ii) The loan’s principal amount, in- cerning the deposit principal disburse- terest rate, and repayment term; and ment shall be made to NMFS no later (2) In accordance with §§ 600.1013 than fifteen (15) calendar days fol- through 600.1016, implement an indus- lowing the end of each calendar month; try fee system for the reduction fish- and the requirements specified under ery. paragraph (e) of this section con- (b) Definitions. Unless otherwise de- cerning annual reports which shall be fined in this section, the terms defined submitted to NMFS by February 1 of in § 600.1000 and § 600.1105 expressly each calendar year; and apply to this section. In addition, the (5) The reduction loan is, in all other following definition applies to this sec- respects, subject to the provisions of tion: §§ 600.1012 through 600.1017. Reduction fishery means the longline [72 FR 54222, Sept. 24, 2007] catcher processor subsector of the BSAI non-pollock groundfish fishery § 600.1107 Southeast Alaska Purse that § 679.2 of this chapter defined as Seine Salmon Fishery capacity re- groundfish area/species endorsements. duction program, including fee pay- (c) Reduction loan amount. The reduc- ment and collection system. tion loan’s original principal amount is (a) Purpose. This section implements $35,000,000. the fishing capacity reduction program (d) Interest accrual from inception. In- for the Southeast Alaska purse seine terest began accruing on the reduction salmon fishery enacted by Section 209 loan from May 29, 2007, the date on of Public Law 108–447 and amended by which NMFS disbursed such loan. Section 121 of Public Law 109–479, with (e) Interest rate. The reduction loan’s appropriations authorized by Section interest rate shall be the applicable 121 of Public Law 109–479 and Public rate which the U.S. Treasury deter- Law 110–161. The intent of the program mines at the end of fiscal year 2007 plus is to permanently reduce, through an 2 percent. industry-financed permit buyback, the (f) Repayment term. For the purpose of most harvesting capacity in the Reduc- determining fee rates, the reduction tion Fishery at the least cost, increase loan’s repayment term is 30 years from harvesting productivity for post-reduc- May 29, 2007, but fees shall continue in- tion Permit Holders and improve flexi- definitely for as long as necessary to bility in the conservation and manage- fully repay the loan. ment of the fishery. Fishery partici- (g) Reduction loan repayment. (1) The pants will finance this program borrower shall, in accordance with through a federal loan that will be re- § 600.1012, repay the reduction loan; paid over 40 years through a fee collec- (2) For the purpose of the fee collection system. The intent of the fee col- tion, deposit, disbursement, and ac- lection system is to establish the post- counting requirements of this subpart, reduction Permit Holders’ obligation subsector members are deemed to be to repay the Reduction Loan’s prin- both the fish buyer and fish seller. In cipal and accrued interest over the re- 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.

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Authorized party means the individ- Reduction loan means the loan used uals authorized by the Permit Holder to purchase the relinquished permits on the application form to execute and pursuant to the approved Reduction submit Bids, protests and other docu- Plan. ments and/or notices on behalf of the Reduction loan amount means the Re- Permit Holder. duction Loan’s original principal Bid means a bidder’s irrevocable offer amount up to $23,476,500. to relinquish a permit. Reduction plan means the aggregate Bid amount means the dollar amount of all Bids, Relinquishment Contracts, submitted by a bidder. Conditional Notices, Conditional Bidder means a permit holder who Relinquishments, and supporting docu- submits a bid. ments and rationale, submitted to the Commercial Fisheries Entry Commission Secretary for approval. (CFEC) means the Alaska state com- Relinquishment contract means the mission mandated to conserve and contract that any Permit Holder agree- maintain the economic health of Alas- ing to relinquish a permit pursuant to ka’s commercial fisheries by limiting Alaska Statute (A.S. 16.43.150(i)) must the number of participating fishers, by sign and agree to abide by upon accept- issuing permits and vessel licenses to ance of the Bid, and before payment of qualified individuals in both limited the bid amount (Appendix A to and unlimited fisheries, and by pro- § 600.1107). viding due process hearings and ap- Secretary means the Secretary of peals. Commerce or his/her designee. Southeast Revitalization Association CFEC documents means any docu- means the qualified fishery asso- ments issued by the CFEC in connec- (SRA) ciation authorized to develop and im- tion with the Southeast Alaska purse plement this capacity reduction pro- seine salmon fishery. gram under Alaska Statute 16.40.250 Conditional notice means the CFEC and Federal law. form that any Bidder must sign and (c) Enrollment in the capacity reduction agree to abide by upon submission of a program—(1) Distribution. The SRA shall Bid Agreement (Appendix B to mail a copy of the following four docu- § 600.1107). ments via certified mail to each Per- Conditional relinquishment means the mit Holder: Bid; Fleet Consolidation CFEC form that any Permit Holder, Relinquishment Contract (Relinquish- agreeing to relinquish a permit, must ment Contract); Conditional Notice to sign and agree to abide by upon SRA CFEC and Request by Permit Holder; acceptance of the bid (Appendix C to and (Conditional Relinquishment of § 600.1107). Southeast Salmon Purse Seine Entry Fishery means the Southeast Alaska Permit. Such mailing shall include a administrative area as defined under closing date after which the SRA will Title 5 Alaska Administrative Code not accept new bids. Section 33.100 for salmon with purse (2) Application. Any Permit Holder, seine gear. regardless of whether having received 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;

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(iv) A fully executed Conditional No- er active or latent, that are voluntarily tice to CFEC and Request by Permit offered by Permit Holders and selected Holder consistent with the appendix C by the SRA up to an aggregate amount to this section; and of $23,476,500. Due to a rescission of (v) A fully executed Conditional Re- funds, the underlying appropriations linquishment of Southeast Salmon for this Reduction Program were re- Purse Seine Entry Permit consistent duced from $250,000 to $234,765, result- with the appendix D to this section. ing in a loan ceiling of $23,476,500. (A) The submitted Bid shall include (1) Overview. The Selection Process the following information: Name, ad- shall begin upon the receipt by the dress, telephone number, social secu- SRA of the first application and shall rity number, and (if available) elec- continue until: The bid closing date tronic mail address of the submitting specified by the SRA (paragraph (c)(1) Permit Holder, permit number, and of this section); or the ranking of the whether any authorized party holds a next lowest bid would cause the total security interest in the permit. Each program costs to exceed $23,476,500. The application must be submitted to the SRA will have a period of 21 days after SRA, c/o Elgee, Rehfeld, Mertz, LLC, the bid closing date to consult with Professional Plaza Building B, 9309 Gla- CFEC and examine bid results to com- cier Highway, Suite B–200, Juneau, plete the selection process. When ei- Alaska 99801. The initial determination ther one of these events is reached, the that an application conforms to the Selection Process shall be completed. prescribed requirements is made by (i) During the selection process, the this independent accounting firm and SRA in consultation with the CFEC not the SRA. shall examine each submitted Bid for (B) The SRA or the independent ac- consistency and the necessary ele- counting firm will notify the Permit ments, including the validity of the Holder if the Bid is non-conforming permit and whether any authorized and, in such cases, the Permit Holder party holds a security interest in the may submit a revised, conforming Bid permit. within the prescribed period (i.e., until (ii) [Reserved] the bid closing date). (2) Bids. By submitting the Bid, the (3) Enrollment period. Applications bidder expressly acknowledges that he that meet all requirements will be ac- makes an irrevocable offer to relin- cepted until the bid selection process is quish to CFEC a permit for a specific completed but no later than the bid price, and once having submitted the closing date specified by the SRA. The Bid, the bidder is not entitled to with- SRA will have a period of 21 days after draw or in any way amend the Bid. The the bid closing date to consult with permit will be relinquished for the CFEC and examine bid results to com- price set forth in the Bid contingent on plete the selection process. such Bid being accepted by the SRA at (4) Effective date. The effective date of the closing of the Selection Process. any Bid shall be when the SRA has Any attempted withdrawal by a bidder 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

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terms of the Program Regulations, Bid, received were higher than the largest Relinquishment Contract, Conditional dollar amount of the last bid accepted. Notice and Conditional Relinquish- (2) Required findings. In order to ap- ment, and has had the opportunity to prove a Reduction Plan, the Assistant seek independent legal counsel regard- Administrator of NMFS, on behalf of ing such documents and the con- the Secretary, must find that: The Re- sequences of submitting the Bid Agree- duction Plan is consistent with the ment. amended Consolidated Appropriations (3) Ranking. The SRA shall rank all Act of 2005 and applicable sections of conforming bids by using a reverse auc- the Magnuson-Stevens Act, particu- tion in which the SRA ranks the Bid larly that it is cost-effective; the Re- with the lowest dollar amount and suc- duction Plan will result in the max- cessively ranks each additional Bid imum sustained reduction in fishing with the next lowest dollar amount capacity at the least cost; and the Re- until there are no more Bids or the duction Plan will increase harvesting ranking of the next lowest bid would productivity for post-reduction Permit cause the total program cost to exceed Holders participating in the fishery. $23,476,500. In the event of a tie with (3) The referendum. If NMFS approves bids which results in the tied bids ex- the Reduction Plan and subsequent to ceeding $23,476,500, the SRA will select the publication of a final rule resulting the tied bid first received, if known. If from this rule, NMFS shall conduct a the receipt time cannot be determined, referendum to determine the industry’s willingness to repay a fishing capacity neither bid will be accepted. reduction loan to purchase the permits (4) Acceptance and post-acceptance re- identified in the Reduction Plan. Upon striction of renewals and transfers. NMFS shall publish a notice in the expiration of the bid closing date, the FEDERAL REGISTER requesting votes by SRA shall determine whether the num- Permit Holders on whether to accept or ber of ranked bids it is willing to ac- reject the Reduction Plan for imple- cept is sufficient to achieve a substan- mentation. The notice shall state the tial reduction in harvest capacity and starting and ending dates and times of increased economic efficiencies for the voting period, which shall be not those Permit Holders remaining in the less than twenty one (21) nor more than fishery. If the SRA makes such a deter- thirty (30) calendar days from the date mination and thereafter accepts bids, of such notice. the SRA shall send CFEC the Condi- (i) Such notice shall state the name tional Notice form restricting renewal and address of record of each eligible and transfer of each permit for which a voter, as well as the basis for having bid was accepted. The Bid, Relinquish- determined the eligibility of those vot- ment Contract, Conditional Notice and ers. This shall constitute notice and Conditional Relinquishment are termi- opportunity to respond about adding nated for any rejected bid and the ap- eligible voters, deleting ineligible vot- plicant is no longer bound by the terms ers, and/or correcting any voter’s name of these documents. and address of record, and will provide (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

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and complete the reduction process. (i) Interest. The Reduction Loan’s in- NMFS shall publish a notice in the terest rate will be the U.S. Treasury’s FEDERAL REGISTER advising the public cost of borrowing equivalent maturity that the referendum was successful. funds plus two percent. NMFS will de- Thereafter the Reduction Program termine the Reduction Loan’s initial shall be implemented. interest rate when NMFS borrows from (iii) The provisions of § 600.1010 and the U.S. Treasury the funds with which § 600.1017(a)(1)–(4) shall apply to any ref- to disburse reduction payments. Inter- erendum on the Reduction Plan of this est will begin accruing on the Reduc- section to the extent that they do not tion Loan from the date on which conflict with this section or with sub- NMFS disburses such loan. The initial part M of this part. interest rate will change to a final in- (f) Implementation—(1) Reduction pay- terest rate at the end of the Federal ments. Within 60 days of a successful fiscal year in which NMFS borrows the referendum, the CFEC will provide no- funds from the U.S. Treasury. The final tice to NMFS of the permits retired interest rate will be two percent plus a from the Reduction Fishery. Upon receiving such notification, NMFS will weighted average, throughout that fis- then tender the accepted bid amounts cal year, of the U.S. Treasury’s cost of to the Permit Holders. Reduction pay- borrowing equivalent maturity funds. ments may not exceed $23,476,500 and if The final interest rate will be fixed and the SRA accepts a total number of bids will not vary over the remainder of the in an aggregate amount less than reduction loan’s 40-year term. The Re- $23,476,500, any remaining funds would duction Loan will be subject to a level be available for reduction payments as debt amortization. There is no prepay- part of a later, separate Reduction ment penalty. Plan conforming to these regulations. (ii) Fees. Post-reduction Permit Hold- Upon NMFS tendering the reduction ers operating in the fishery shall be ob- program’s payments to the selected ligated to pay the fee in accordance Permit Holders, each such Permit with paragraph (f) of this section. The Holder must permanently stop all fish- amount of such fee will be calculated ing with the relinquished permit(s). by NMFS on an annual basis as the (2) Repayment term. As authorized by principal and interest payment amount the Act, the Reduction Loan shall be necessary to amortize the loan over a amortized over a forty (40) year term. 40-year term. The fee shall be expressed The Reduction Loan’s original prin- as a percentage of the ex-vessel value cipal amount may not exceed of all salmon harvested and landed in $23,476,500, but may be less if the ulti- the fishery. In the event that payments mate reduction cost is less. The final made under the Reduction Plan are in- Reduction Loan periodic payment sufficient to repay the Reduction Loan amount will be determined by NMFS’ within the 40-year term, NMFS shall analysis of the ability of the post-re- extend the term of the repayment until duction fishery to service debt. The the Reduction Loan is paid in full. provisions of §§ 600.1012–600.1017 shall (A) Fees must be assessed and col- apply to any reduction loan, fee payment and collection under this section lected on all salmon harvested in the to the extent they do not conflict with fishery. Although the fee could be up to this section or with subpart M of this three percent of the ex-vessel price of part. all post-reduction landings, the fee will (3) Loan repayment. Permit Holders be less than three percent if NMFS operating in the fishery shall be obli- projects that a lesser rate can amortize gated to pay the fee in accordance with the Reduction Loan over the 40-year this section. In the event that pay- term. To verify that the fees collected ments made under the Reduction Plan do not exceed three percent of the fish- are insufficient to pay the Reduction ery revenues, NMFS will compare the Loan within the 40-year term, NMFS annual total of principal and interest shall extend the term of the repayment due with the latest available annual until the Reduction Loan is paid in revenues in the fishery to ensure that full. it is equal to or less than three percent

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of the total ex-vessel production reve- failure of a Permit Holder, whose bid nues. In the event that any of the com- was accepted, to perform the obliga- ponents necessary to calculate the next tions under the Relinquishment Con- year’s fee are not available, or post- tract will result in irreparable damage poned, the fee will remain at the pre- to the SRA and all the other Permit vious year’s amount until such time as Holders. Accordingly, the parties to new calculations are made and commu- the Relinquishment Contract expressly nicated to the post-reduction fishery acknowledge that money damages are participants. an inadequate means of redress and (B) If the fishery does not open dur- agree, that upon failure of the Permit ing a year, interest will continue to ac- Holder to fulfill his/her obligations crue on the principal balance even under the Relinquishment Contract, though no fee revenue will be gen- that specific performance of those obli- erated. When this happens, if the fee is gations may be obtained by suit in eq- not already at the maximum three per- uity brought by the SRA in any court cent, NMFS shall increase the fee to of competent jurisdiction without obli- the maximum three percent, apply all gation to arbitrate such action. subsequent fee revenue first to the pay- (h) Enforcement for failure to pay fees. ment of accrued interest, and continue The provisions and requirements of the maximum fee rates until the prin- § 600.1016 (Enforcement) shall also apply cipal and interest payments become to fish sellers and fish buyers subject current. Once all principal and interest to this fishery. payments are current, NMFS will (i) Prohibitions and penalties. Fish make a determination about adjusting buyers are prohibited from purchasing the fee rate. fish from fish sellers who do not pay (iii) Collection. The buyer who first the required landing fees. Fish sellers purchases the salmon landed in the are prohibited from selling to fish buy- fishery shall be responsible for col- ers who do not pay the required land- lecting and submitting the repayment ing fees. fees to NMFS monthly. The fees shall be submitted to NMFS no later than APPENDIX A TO § 600.1107—BID fifteen (15) calendar days following the This Bid (Bid) is entered between the indi- end of each calendar month. vidual named in section III, 11(a) of the (iv) Recordkeeping and reporting. The Agreement and the Southeast Revitalization dealer who first purchases the salmon Association (SRA). landed in the fishery shall be respon- I. DEFINITIONS sible for compliance with the applicable recordkeeping and reporting re- Unless otherwise defined, the following terms have the following meanings for the quirements. purpose of this Agreement. (A) All requirements and penalties Acceptance means SRA acceptance of a Bid. set forth in the provisions of §§ 600.1013 Act means Section 209 of Title II of Divi- (Fee payment and collection), 600.1014 sion B of Public Law 108–447, Consolidated (Fee collection deposits, disburse- Appropriations Act of 2005; as amended by ments, records, and reports), 600.1015 Section 121 of Public Law 109–447, Magnuson- (Late charges), and 600.1017 (Prohibi- Stevens (MSA) Reauthorization Act of 2006. tions and penalties) shall apply to any Bid means a bidder’s irrevocable offer to relinquish a permit. 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. part M of this part. Conditional notice means the Commercial (B) [Reserved] Fisheries Entry Commission (CFEC) form (g) Specific performance under the re- that any Bidder must sign and agree to abide linquishment contract. The parties to by upon submission of a Bid Agreement. the Relinquishment Contract have Conditional relinquishment means the CFEC 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. gram for the fishery under the terms of Fishery means the Southeast Alaska ad- the Act is both unique and finite. The ministrative area as defined under Title 5

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Alaska Administrative Code Section 33.100 and subsequent NMFS payment to bidder in for salmon with purse seine gear. the exact bid amount set forth in section III, Permit means a valid entry permit issued 11(f) of the Bid is full and complete consider- by CFEC to operate in the Southeast Alaska ation. purse seine salmon fishery. 2. Irrevocable. The bidder expressly ac- Permit holder means an individual who at knowledges that by submitting the Bid he/ the time of bidding is the holder of record of she makes an irrevocable offer to relinquish a permit. the permit and once having submitted the Reduction plan means the aggregate of all Bid is not entitled to withdraw or in any Bids, Relinquishment Contracts (Appendix manner amend the Bid. The receipt date that B), Commercial Fisheries Entry Commission the SRA marks on the Bid constitutes the (‘‘CFEC’’) Conditional Notice and Condi- date of the bidder’s submittal. tional Relinquishment (Appendices C & D), 3. Warranty. The bidder warrants and rep- and supporting documents and rationale; resents that he/she is the holder of record of submitted to the Secretary for approval. the permit, according to the CFEC records, Referendum means the voting procedure to and that he/she has read and understands the determine the Permit Holder’s willingness to terms of the Program Regulations, Bid, Re- repay a fishing capacity reduction loan to linquishment Contract, Conditional Notice purchase the permits identified in the Plan. and the Conditional Relinquishment and has Relinquishment contract means the contract had the opportunity to seek independent that any bidder agreeing to relinquish a per- legal counsel regarding such documents and mit pursuant to Alaska Statute (A.S. the consequences of submitting the Bid. 16.43.150(i) must sign and agree to abide by 4. Validity. The SRA, in consultation with upon acceptance of the Bid, and before pay- the CFEC, shall examine each Bid for comment of the bid amount. pleteness and consistency. The SRA shall no- Secretary means the Secretary of Com- tify the bidder if the Bid is non-conforming. merce or his/her designee. In such cases, the bidder may submit a re- Southeast Revitalization Association (SRA) vised, conforming Bid within the prescribed means the qualified fishery association au- period (i.e., until the bid closing date). thorized to develop and implement this ca- 5. Ranking. The SRA shall rank the bid pacity reduction program under Alaska Stat- amount entered in section III, 11(f) of this ute 16.40.250 and Federal law. Bid by using a reverse auction in which the SRA ranks the Bid with the lowest dollar II. RECITALS amount and successively ranks each additional Bid with the next lowest dollar Whereas Alaska Statute 16.40.250 and the amount until there are no more Bids or the Act authorize a fishing capacity reduction ranking of the next lowest Bid would exceed program for the fishery; the total program cost. In the event of a tie Whereas, within 30 days of concluding the with bids which results in the tied bids ex- selection process, the SRA shall submit the ceeding $23,476,500, the SRA will select the Reduction Plan, together with supporting tied bid first received. documents and rationale, to NMFS for final 6. Acceptance and Rejection. If the Bid is ac- approval on behalf of the Secretary; cepted, the SRA shall formally notify the Whereas, the reduction Plan’s express ob- bidder in writing. If the SRA rejects the Bid, jective is to reduce fishing capacity by per- the SRA will formally notify the bidder in manently revoking permits thereby pro- writing and the Bid shall terminate without moting economic efficiency, improving flexi- further obligation. bility in the conservation and management 7. Restriction of Transfer of permit: Upon ac- of the fishery and obtain the maximum re- ceptance, the SRA will send the CFEC the duction in permits at the least cost; Conditional Notice, restricting transfer of Whereas, the SRA can implement the Re- the permit until such time as: The SRA noti- duction Plan only after giving notice to all fies the bidder that the Plan is not in com- Permit Holders and subsequent approval of pliance with the Act and will not be ap- the reduction Plan by referendum. proved; or NMFS notifies the bidder the ref- Whereas, the Agreement submitted by the erendum was unsuccessful. bidder and the SRA is an integral element of 8. Payment. Within 60 days from the close the Reduction Plan. of the voting period of a successful ref- Now, therefore, for good and valuable con- erendum, the CFEC will provide notice to sideration, the sufficiency of which is hereby NMFS of the permits retired from the Reduc- acknowledged, the SRA and bidder agree as tion Fishery. Upon receiving such notice, follows: NMFS will then tender the accepted bid amounts to the Permit Holders. III. TERMS AND CONDITIONS 9. Specific Performance. The failure of a bid- 1. Form. By completing and submitting this der whose Bid was accepted to comply with Bid to the SRA the bidder hereby offers to the terms of this Bid will result in irrep- permanently relinquish, and have the CFEC arable damage to the SRA and its members revoke, the permit. The SRA signing the Bid because the Bid was part of the basis for the

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Plan submitted to the Secretary for approval. Accordingly, the SRA and bidder expressly acknowledge that money damages are an inadequate means of redress and agree (f) BID AMOUNT. Insert, in U.S. dollars, that specific performance of those obliga- the bid’s full and exact amount, both in tions may be obtained by suit in equity words and numbers. brought by the SRA in any court of competent jurisdiction without obligation to ar- In words In numbers bitrate such action. 10. Submission. This Bid must be submitted $ within the prescribed period to the SRA, c/o Elgee, Rehfeld, Mertz, LLC, Professional Plaza Building B, 9309 Glacier Highway, (g) SECURITY INTERESTS. Insert the Suite B–200, Juneau, AK 99801. name of any authorized third party that may 11. Complete Bid Information: To fully and hold a security interest in the permit. accurately complete this Bid, the bidder must fully complete the following questions and provide an exact photocopy of the permit. The Bidder must further sign this form, Appendices B, C, and D to § 600.1107, and acknowledge the signature before a notary (h) SOCIAL SECURITY NUMBER. Insert public. the full and exact social security number of (a) BIDDER’S NAME. This must be the full the bidder. and exact legal name of record of the person bidding. Insert the name of the bidder.

(i) BID SIGNATURE. In compliance with applicable law and this Bid, the bidder sub- (b) BIDDER’S ADDRESS OF RECORD. In- mits the above bid amount as an offer to the sert the full and exact address of record for SRA for the permanent relinquishment of the bidder. his/her permit. By completing the sections above and signing below, the bidder acknowledges that the bidder has completely reviewed this Bid and attachments. The bidder warrants that the bidder is fully able to enter into the Relinquishment Contract. The bidder expressly warrants and attests that all information included herein is accurate.

Signature (c) BIDDER’S TELEPHONE NUMBER. In- sert the full and exact telephone number of the bidder. Printed Name

Date of Signature

(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

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12. SRA SIGNATURE. By signing below, the holder of record of the permit according the SRA acknowledges acceptance of this to the CFEC official permit records. Bid, including the bidder’s bid amount. 4. Upon notification by the SRA to the Bid- der that the SRA accepted the bid; the SRA will submit to the CFEC the Permit Holder’s Signature executed notice form (Appendix C to § 600.1107) and executed relinquishment form (Appendix D to § 600.1107). Printed Name 5. In the event an authorized third party holds a security interest in the permit, NMFS will not make payment until receiv- Date of Signature ing notice of written consent by the third party to the SRA and the CFEC on a form provided by the CFEC. 6. NMFS’ payment to the accepted bidder APPENDIX B TO § 600.1107—RELINQUISHMENT in the exact amount of the accepted bid CONTRACT: SOUTHEAST ALASKA SALMON amount is full and complete consideration PURSE SEINE PERMIT HOLDERS for the CFEC revoking the permit. 7. The bidder shall, upon the SRA or the This Relinquishment Contract (‘‘Con- CFEC request, furnish such additional docu- tract’’) and agreement is entered into be- ments, information, or take such other ac- tween the Southeast Revitalization Associa- tions as may be reasonably required to en- tion (‘‘SRA’’) and the bidder named in Sec- able the CFEC to implement relinquishment tion 11(a) of the Bid. The contract is effec- of the permit. tive when the bidder signs the Bid and this 8. The bidder consents to the public release contract and, thereby, agrees to relinquish of any information provided in connection his/her permit, issued by the Alaska Com- with the contract or program requirements mercial Fisheries Entry Commission after completion of the plan. (‘‘CFEC’’) for the Southeast Alaska salmon 9. The contract contains the final terms purse seine fishery (‘‘fishery’’). and conditions of this agreement between Whereas Alaska Statute 16.40.250 and Fed- the parties and represents the entire and ex- eral law authorize a fishing capacity reduc- clusive agreement between them. tion program for the fishery; 10. The contract terms are severable, and, Whereas, upon accepting and signing the in the event that any portion of the contract Bid, the SRA shall submit a Reduction Plan is held to be unenforceable, the remaining to NMFS; portion shall remain fully enforceable Whereas, the Reduction Plan’s express ob- against the parties. jective is to reduce fishing capacity by per- 11. Any and all disputes involving the con- manently revoking permits thereby pro- tract shall be governed by laws of the State moting economic efficiency, improving flexi- of Alaska. The bidder expressly acknowl- bility in the conservation and management edges that by submitting the Bid, he/she of the fishery and obtain the maximum re- makes an irrevocable offer to relinquish the duction in permits at the least cost; permit, and once having submitted the Bid, Whereas, this contract is subject to the is not entitled to withdraw or in any way terms and conditions set forth herein, in- amend the Bid. cluding the CFEC forms marked as Appen- 12. The failure of a bidder to perform his/ dices C and D to § 600.1107; her obligations under the Bid will result in Now, therefore, for valuable consideration irreparable damage to the SRA and its mem- and the covenants hereinafter set forth, the bers upon submittal of the Plan to the Sec- parties hereto agree as follows: retary for approval. Accordingly, the SRA 1. The foregoing, including the Bid and spe- and the bidder expressly acknowledge that cifically the definitions under section 1, are money damages are an inadequate means of expressly incorporated herein by this ref- redress and agree that upon failure of the erence. bidder to fulfill his/her obligations under the 2. Under AS 16.43.150(i), the Bidder agrees Bid that specific performance of those obli- to permanently relinquish and have the gations may be obtained by suit in equity CFEC revoke the permit. brought by the SRA in any court of com- 3. The Bidder represents that, as of the petent jurisdiction without obligation to ar- date of submitting the contract, he or she is 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

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BIDDER’S SIGNATURE AND NOTARY’S ACKNOWLEDGEMENT AND CERTIFICATION—Continued

Bidder signature Notary signature

(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 I fully understand this relinquishment of SIGNATURE SOUTHEAST REVITALIZATION AS- my permanent entry permit #lllllll SOCIATION under AS 16.43.150(i) is permanent, and I will Dated: llllllllllllllllllll not be able to reinstate the permit. DATED this lll day of lllll , 2011. By: lllllllllllllllllllll llllllllllllllllllllllll APPENDIX C TO § 600.1107—CONDITIONAL NO- (Permit Holder/Bidder) TICE TO CFEC AND REQUEST BY PERMIT SUBSCRIBED AND SWORN TO before me HOLDER this lll day of lllll , 2011. In support of my Bid to the Southeast Re- llllllllllllllllllllllll vitalization Association (SRA), I have exe- Notary Public, State of cuted this Conditional Notice and request lllllllll and authorize the Southeast Revitalization My commission expires: lllllll Association (SRA) to submit this executed [76 FR 61990, Oct. 6, 2011] document to the Alaska Commercial Fish- eries Entry Commission (CFEC) in the event § 600.1108 Longline catcher processor that the SRA accepts my bid to permanently subsector of the Bering Sea and relinquish my Southeast Salmon Purse Seine Aleutian Islands (BSAI) non-pollock Entry Permit under AS 16.43.150(i). groundfish fishery program. I hereby notify the CFEC that the SRA has accepted my Bid to permanently relinquish (a) Purpose. This section implements my Southeast Salmon Purse Seine Entry the capacity reduction program that Permit #lllllll. Title II, section 219(e) of Public Law I request the CFEC: (1) not to renew my 108–447 established for the longline above-identified entry permit; and (2) not to authorize any transfer of my entry permit. catcher processor subsector of the Ber- DATED this lll day of lllll , 2011. ing Sea and Aleutian Islands (BSAI) llllllllllllllllllllllll non-pollock groundfish fishery. (Permit Holder/Bidder) (b) Definitions. Unless otherwise de- SUBSCRIBED AND SWORN TO before me fined in this section, the terms defined this lll day of lllll , 2011. in § 600.1000 of subpart L and § 600.1105 of llllllllllllllllllllllll subpart M of this part expressly apply Notary Public, State of lllllllll to this section. The following terms My commission expires: lllllll have the following meanings for the

APPENDIX D TO § 600.1107—CONDITIONAL RE- purpose of this section: LINQUISHMENT OF SOUTHEAST SALMON Reduction fishery means the Hook & PURSE SEINE ENTRY PERMIT Line, Catcher Processor (Longline Sub- sector); sometimes referred to as the [AS 16.43.150(i)] ‘‘H&LCP Subsector) portion of the Upon satisfaction of the conditions that BSAI Pacific cod ITAC (in metric tons) the Southeast Revitalization Association set by the North Pacific Fishery Man- (SRA) accepts my bid and that NMFS agrees agement Council (NPFMC) in Decem- to pay my full bid amount to me, the SRA may submit this executed Conditional Relin- ber of each year multiplied by 2,205 quishment of Southeast Salmon Purse Seine (i.e., the rounded number of pounds in Entry Permit to the Commercial Fisheries a metric ton)or the Longline Subsector Entry Commission. of the BSAI non-pollock groundfish

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fishery that § 679.2 of this chapter de- ensuing year is not available, the fined as groundfish area/species en- Longline Subsector portion forecast dorsement. from the preceding year will be used to (c) Capacity Reduction Program. As a calculate the fee. result of the completion of the Selec- (A) The fee will be expressed in cents tion Process, written notification from per pound rounded up to the next one- the FLCC to NMFS identifying the se- tenth of a cent. For example: If the lected offeror, and submission of the principal and interest due equal reduction plan, the capacity reduction $2,900,000 and the Longline Subsector program is implemented as follows: portion equals 100,000 metric tons, then (1) Loan repayment—(i) Term. As au- the fee per round weight pound of Pa- thorized by section 219(B)(2) of the Ap- cific cod will equal 1.4 cents per pound. propriations Act, the capacity reduc- [2,900,000/(100,000 × 2,205) = .01315]. The tion loan (the Reduction Loan) shall be fee will be assessed and collected on amortized over a thirty (30) year term. Pacific cod to the extent possible and if The Reduction Loan’s original prin- not, will be assessed and collected as cipal amount may not exceed the provided for in paragraph (c)(1)(iii)(B) amount approved by the subsector. The of this section. subsector has currently approved a (B) Fees must be assessed and col- loan of two million seven hundred lected on Pacific cod used for bait or thousand dollars ($2,700,000). Subsector discarded. Although the fee could be up Members acknowledge that in the to 5 percent of the ex-vessel production event payments made under the Reduc- value of all post-reduction Longline tion Plan are insufficient to repay the Subsector landings, the fee will be less actual loan, the term of repayment than 5 percent if NMFS projects that a shall be extended by NMFS until the lesser rate can amortize the fishery’s loan is paid in full. Repayment calcula- reduction loan over the reduction tions and records will be kept sepa- loan’s 30-year term. In the event that rately for each program. the total principal and interest due ex- (ii) Interest. The Reduction Loan’s in- ceeds 5 percent of the ex-vessel Pacific terest rate will be the U.S. Treasury’s cod revenues, a standardized additional cost of borrowing equivalent maturity fee will be assessed. The additional fee funds plus 2 percent. NMFS will deter- shall be one cent per pound round mine the Reduction Loan’s initial in- weight, which is calculated based on terest rate when NMFS borrows from the latest available revenue records the U.S. Treasury the funds with which and NMFS conversion factors for pol- to disburse reduction payments. The lock, arrowtooth flounder, Greenland initial interest rate will change to a turbot, skate, yellowfin sole and rock final interest rate at the end of the sole. Federal fiscal year in which NMFS bor- (C) To verify that the fees collected rows the funds from the U.S. Treasury. do not exceed 5 percent of the fishery The final interest rate will be 2 percent revenues, the annual total of principal plus a weighted average, throughout and interest due will be compared to that fiscal year, of the U.S. Treasury’s the latest available annual Longline cost of borrowing equivalent maturity Subsector revenues. In the event that funds. The final interest rate will be any of the components necessary to fixed, and will not vary over the recalculate the next year’s fee are not mainder of the reduction loan’s 30-year available, or for any other reason term. The Reduction loan will be sub- NMFS believes the calculation must be ject to a level debt amortization. There postponed, the fee will remain at the is no prepayment penalty. previous year’s amount until such a (iii) Fees. The Reduction Loan shall time that new calculations are made be repaid by fees collected from the and communicated to the post-reduc- Longline Subsector. The fee amount tion fishery participants. will be based upon: The principal and (D) It is possible that the fishery may interest due over the next twelve not open during some years and no months divided by the product of the Longline Subsector portion of the Longline Subsector. In the event that ITAC is granted. Consequently, the the Longline Subsector portion for the fishery will not produce fee revenue

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with which to service the reduction tion Fishing Interests in such Reduc- loan during those years. However, in- tion Contract. terest will continue to accrue on the (d) Decisions of the Auditor and the principal balance. When this happens, FLCC. Time was of the essence in de- if the fee rate is not already at the veloping and implementing a Reduc- maximum 5 percent, NMFS will in- tion Plan and, accordingly, the Offeror crease the fishery’s fee rate to the is limited to, and bound by, the deci- maximum 5 percent of revenue for Pa- sions of the Auditor and the FLCC. cific cod, apply all subsequent fee rev- (1) The Auditor’s examination of sub- enue first to the payment of accrued mitted applications, Offers, interest, and continue the maximum Prequalification Offers and Rankings fee rates until all principal and inter- was solely ministerial in nature. That est payments become current. Once all is, the Auditor verified whether the principal and interest payments are documents submitted by Subsector current, NMFS will make a determina- Members were, on their face, con- tion about adjusting the fee rate. sistent with each other and the Data- (iv) Reduction loan. NMFS has pro- base, in compliance with the require- mulgated framework regulations gen- ments set forth in the Reduction erally applicable to all fishing capacity Agreement, and signed by an Author- reduction programs in subpart L of this ized Party. The Auditor presumed the part. The reduction loan shall be sub- validity of all signatures on documents ject to the provisions of § 600.1012, ex- submitted. The Auditor made no sub- cept that: the subsector members’ obli- stantive decisions as to compliance gation to repay the reduction loan (e.g., whether an interim LLP License shall be discharged by the owner of the satisfies the requirements of the Act, Longline Subsector license regardless or whether a discrepancy in the name of which vessel catches fish under this appearing on LLP Licenses and other license and regardless of who processes documents was material). the fish in the reduction fishery in ac- (2) [Reserved] cordance with § 600.1013. Longline Sub- (e) Specific performance. The parties sector license owners in the reduction to the Reduction Agreement have fishery shall be obligated to collect the agreed that the opportunity to develop fee in accordance with § 600.1013. and submit a capacity reduction pro- (v) Collection. The LLP License hold- gram for the Longline Subsector under ers of vessels harvesting in the post-ca- the terms of the Appropriations Act is pacity reduction plan Longline Sub- both unique and finite and that failure sector shall be responsible for self-col- of the Selected Offeror to perform the lecting the repayment fees owed by the obligations provided by the Reduction LLP License holder. Fees shall be sub- Agreement will result in irreparable mitted to NMFS monthly and shall be damage to the FLCC and the Subsector due no later than fifteen (15) calendar Members. Accordingly, the parties to days following the end of each calendar the Reduction Agreement expressly ac- month. knowledge that money damages are an (vi) Recordkeeping and reporting. The inadequate means of redress and agree holder of the LLP Licenses on which that upon the failure of the Selected vessels harvesting in the post-capacity Offeror to fulfill their obligations reduction plan Longline Subsector is under the Reduction Agreement that designated shall be responsible for specific performance of those obliga- compliance with the applicable record- tions may be obtained by suit in equity keeping and reporting requirements. brought by the FLCC in any court of (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.

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(2) Choice of law/venue. The Reduction dispute arising or action taken shall be Agreement shall be construed and en- deemed binding upon the parties with forced in accordance with the laws of respect to such dispute and/or action. the State of Washington without re- (h) Warranties. The Offeror must ex- gard to its choice of law provisions. pressly warrant and represent in the The parties submit to the exclusive Reduction Agreement that: personal jurisdiction of the United (1) The Offeror has had an oppor- States District Court located in Se- tunity to consult with an attorney or attle, Washington, with respect to any other advisors with respect to the Re- litigation arising out of or relating to duction Agreement, the Reduction the Reduction Agreement or out of the Contract, and the Act and the rami- performance of services hereunder. fications of the ratification of the Re- (3) Incorporation. All executed coun- duction Plan contemplated therein; terparts of the Reduction Agreement, (2) The Offeror has full understanding Application Forms and Offers con- and appreciation of the ramifications stitute the agreement between the par- of executing and delivering the Reduc- ties with respect to the subject matter tion Agreement and, free from coercion of the Reduction Agreement and are in- of any kind by the FLCC or any of its corporated into the Reduction Agree- members, officers, agents and/or em- ment as if fully written. ployees, executes and delivers the Re- (4) Counterparts. The Reduction duction Agreement as the free and vol- Agreement may be executed in mul- untary act of the Offeror; tiple counterparts and will be effective as to signatories on the Effective Date. (3) The execution and delivery of the The Reduction Agreement may be exe- Reduction Agreement, does not and cuted in duplicate originals, each of will not conflict with any provisions of which shall be deemed to be an original the governing documents of the Offer- instrument. All such counterparts and or; duplicate originals together shall con- (4) The person executing the Reduc- stitute the same agreement, whether tion Agreement has been duly author- or not all parties execute each counter- ized by the Offeror to execute and depart. liver the Reduction Agreement and to (i) The facsimile signature of any undertake and perform the actions con- party to the Reduction Agreement templated herein; and shall constitute the duly authorized, (5) The Offeror has taken all actions irrevocable execution and delivery of necessary for the Reduction Agreement the Reduction Agreement as fully as if to constitute a valid and binding obli- the Reduction Agreement contained gation, enforceable in accordance with the original ink signatures of the party its terms. or parties supplying a facsimile signa- (i) Approval of the Reduction Plan. Ac- ture. ceptance of the Offer is at the sole dis- (ii) [Reserved] cretion of NMFS on behalf of the Sec- (g) Amendment. All Subsector Mem- retary of Commerce. To be approved by bers acknowledge that the Reduction NMFS, on behalf of the Secretary, any Agreement, the Reduction Contract, Reduction Plan developed and sub- and the Reduction Plan may be subject mitted in accordance with this section to amendment to conform to the re- and subpart M of this part must be quirements for approval of the Reduc- found by the Assistant Administrator tion Plan by NMFS on behalf of the of NMFS, to: Secretary. The Auditor shall distribute (1) Be consistent with the require- to each Subsector Member in elec- ments of section 219(e) of the FY 2005 tronic format the amended form of the Appropriations Act (Pub. L. 108–447); Reduction Agreement, the Reduction (2) Be consistent with the require- Contract, and the Reduction Plan, ments of section 312(b) of the Magnu- which amended documents in the form son-Stevens Fishery Conservation and distributed by the Auditor and identi- Management Act (16 U.S.C. 1861(a)) ex- fied by the Auditor by date and cept for the requirement that a Council version, the version of each such docu- or Governor of a State request such a ment then in effect at the time of any program (as set out in section 312(b)(1))

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and for the requirements of section mines at the end of fiscal year in which 312(b)(4); loan is disbursed plus 2 percent. (3) Contain provisions for a fee sys- (5) Repayment terms. For the purpose tem that provides for full and timely of determining fee rates, the reduction repayment of the capacity reduction loan’s repayment term is 30 years from loan by the Longline Subsector and the date NMFS disburses the loan. that it provide for the assessment of However, fee collections shall continue such fees; indefinitely until the loan is fully re- (4) Not require a bidding or auction paid. process; (6) Reduction loan repayment. The sub- (5) Result in the maximum sustained sector members shall repay the reduc- reduction in fishing capacity at the tion loan in accordance with § 600.1012. least cost and in the minimum amount Both fish buyers and fish sellers are of time; and considered subsector members for pur- (6) Permit vessels in the Longline poses of fee collection, deposit, dis- Subsector to be upgraded to achieve ef- bursement, and accounting in accord- ficiencies in fishing operations pro- ance with § 600.1013. vided that such upgrades do not result (i) Subsector members in the reduc- in the vessel exceeding the applicable tion fishery shall collect and pay the length, tonnage, or horsepower limita- fee amount in accordance with tions set out in Federal law or regula- § 600.1105; tion. (ii) Subsector members in the reduc- (j) Referendum. The following provi- tion fishery shall deposit and disburse, sions apply to the Reduction Plan of as well as keep records for and submit this section to the extent that they do reports about, the applicable fees in ac- not conflict with subpart L of this part cordance with § 600.1014, except the re- including §§ 600.1009, 600.1010, 600.1013, quirements under paragraphs (c) and and 600.1014 or 16 U.S.C. 1861a; except (e) of this section. All collected fee rev- where the referendum is successful if a enue a fish buyer collects to repay the majority of all permit holders within loan identified in paragraph (c) of this the fishery vote in favor of the Reduc- section shall be made to NMFS no later tion Program is accordance with 18 than fifteen (15) calendar days fol- U.S.C. 1861a(d)(1)(B). lowing the end of each calendar month. (k)(1) Fee payment and collection sys- The annual reports identified in para- tem. Upon successful completion of the graph (e) of this section shall be sub- Referendum discussed above as author- mitted to NMFS by February 1 of each ized by Public Law 108–447 and in ac- calendar year. cordance with 16 U.S.C. 1861a and (iii) The reduction loan is, in all § 600.1012 this fee collection system es- other respects, subject to the provi- tablishes: sions of §§ 600.1012 through 600.1017. (i) The subsector members’ obliga- (l) Enforcement for failure to pay fees. tion to repay the reduction loan, and The provisions and requirements of (ii) The loan’s principal amount, in- § 600.1016 (Enforcement) shall also apply terest rate, and repayment term; and to fish sellers and fish buyers subject (iii) In accordance with §§ 600.1013 to this fishery. through 600.1016, implements an indus- [77 FR 58779, Sept. 24, 2012] try fee system for the reduction fishery. (2) Reduction loan amount. The reduc- Subpart N—Shark Fin Removal, tion loan’s original principal amount is Possession, Transfer and Landing $2,700,000. (3) Interest accrual from inception. In- SOURCE: 81 FR 42289, June 29, 2016, unless terest begins accruing on the reduction otherwise noted. 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 im- interest rate shall be the applicable plement the Shark Conservation Act of rate which the U.S. Treasury deter- 2010.

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§ 600.1201 Relation to other laws. (4) Receive a fin in a transfer from one vessel to another vessel at sea un- (a) Regulations pertaining to con- less the fin is naturally attached. servation and management (including (5) Land a fin unless the fin is natu- record keeping and reporting) for cer- rally attached. tain shark fisheries are also set forth (6) Land a shark carcass without all in parts 635 (for Federal Atlantic of its fins naturally attached. Ocean, Gulf of Mexico, and Caribbean (7) Possess, purchase, offer to sell, or shark fisheries), 648 (for spiny dogfish sell fins or shark carcasses taken, fisheries), 660 (for fisheries off West transferred, landed, or possessed in vio- Coast states), and 665 (for fisheries in lation of this section. the western Pacific) of this chapter. (8) When requested, fail to allow an (b) This subpart does not apply to an authorized officer or any employee of individual engaged in commercial fish- NMFS designated by a Regional Ad- ing for smooth dogfish (Mustelus canis) ministrator, or by the Director of the when the conditions in § 635.30(c)(5) Office of Sustainable Fisheries in the have been met. case of the Atlantic Highly Migratory (c) This subpart does not supersede Species, access to or inspection or state laws or regulations governing copying of any records pertaining to conservation and management of state the landing, sale, transfer, purchase, or shark fisheries in state waters. other disposition of fins or shark carcasses. § 600.1202 Definitions. (b) For purposes of this section, it is (a) In addition to the definitions in a rebuttable presumption that: the Magnuson-Stevens Act and in (1) If a fin is found aboard a vessel, § 600.10, the terms used in this subpart other than a fishing vessel, without have the following meanings: being naturally attached, such fin was transferred in violation of this section. Fin means any of the fins of a shark (2) If, after landing, the total weight (including the tail) or a portion thereof fins landed from any vessel exceeds of. five percent of the total weight of Land or landing means offloading shark carcasses landed, such fins were fish, or causing fish to be offloaded, taken, held, or landed in violation of from a fishing vessel, either to another this section. vessel or to a shore side location or facility, or arriving in port, or at a dock, berth, beach, seawall, or ramp to begin Subpart O—Limited Access offloading fish. Privilege Programs Naturally attached, with respect to a shark fin, means attached to the cor- AUTHORITY: 16 U.S.C. 1801 et seq. responding shark carcass through some SOURCE: 73 FR 75973, Dec. 15, 2008, unless portion of uncut skin. otherwise noted. (b) If there is any difference between a definition in this section and in §§ 600.1300–600.1309 [Reserved] § 600.10, the definition in this section is § 600.1310 New England and Gulf of the operative definition for the pur- Mexico Individual Fishing Quota poses of this subpart. Referenda. § 600.1203 Prohibitions. (a) Purpose and scope. This section establishes procedures and guidelines for (a) It is unlawful for any person to referenda to be conducted on Individual do, or attempt to do, any of the fol- Fishing Quota (IFQ) program proposals lowing: developed by the New England Fishery (1) Remove a fin at sea. Management Council (NEFMC) and the (2) To have custody, control, or pos- Gulf of Mexico Fishery Management session of a fin, aboard a fishing vessel, Council (GMFMC). These procedures unless the fin is naturally attached. and guidelines also apply to IFQ pro- (3) Transfer a fin from one vessel to gram proposals developed by NMFS for another vessel at sea unless the fin is fisheries under the jurisdiction of the naturally attached. NEFMC or GMFMC, except for certain

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provisions that only apply to a fishery include the minimum percentage of a management council. This section pro- crew member’s total income that must vides guidance on developing voter eli- have been earned during the eligibility gibility and vote weighting, and estab- periods in the proposed IFQ fishery as lishes general procedures to ensure discussed in paragraph (c)(2)(ii) of this referenda are conducted in a fair and section; and include criteria for ‘‘ref- equitable manner. erendum eligible vessels’’ as described (b) Initiating IFQ referenda. (1) The in paragraph (c)(2)(i) of this section; NEFMC and the GMFMC shall not sub- and mit, and the Secretary shall not ap- (vii) GMFMC letters initiating prove, an FMP or FMP amendment referenda of multispecies permit hold- that would create an IFQ program ers in the Gulf of Mexico must include until the IFQ program proposal, as ul- recommended criteria to be used in timately developed, has been approved identifying those permit holders who by a referendum of eligible voters. have substantially fished the species to Paragraph (h) of this section provides be included in the proposed IFQ pro- criteria for determining the outcome of gram, along with alternatives to the IFQ referenda. recommendation, and supporting anal- (2) To initiate a referendum on a pro- yses. Guidelines for developing such posed IFQ program: recommendations are provided at para- (i) The relevant Council must have graph (c)(3) of this section. held public hearings on the FMP or (3) Following a referendum that has FMP amendment in which the IFQ pro- failed to approve the IFQ proposal, any gram is proposed; request from a Council for a new ref- (ii) The relevant Council must have erendum in the same fishery must in- considered public comments on the clude an explanation of the substantive proposed IFQ program; changes to the proposed IFQ program (iii) The relevant Council must have or the changes of circumstances in the selected preferred alternatives for the fishery that would warrant initiation proposed IFQ program; of an additional referendum. (iv) The chair of the Council with ju- (c) Referenda voter eligibility—(1) Per- risdiction over such proposed IFQ fish- mit holders and other fishery participants. ery must request a referendum on the (i) To be eligible to vote in IFQ proposed IFQ program in a letter to the referenda, permit holders and other 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 let- (C) Other factors as may be deter- ters must: recommend criteria that are mined by the Council with jurisdiction consistent with paragraph (c)(2)(iii) of over the fishery for which an IFQ pro- this section for NMFS to use in deter- gram is proposed to be relevant to the mining the eligibility of other fishery fishery and to the proposed IFQ pro- participants to vote in the referendum; gram.

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(2) Crew member eligibility in NEFMC percentage of a crew member’s total in- IFQ referenda. (i) For the purposes of come from the fishery should be con- this section, ‘‘referendum-eligible ves- sidered significant for the purposes of sel’’ means a vessel, the permit holder this section; or owner of which has been determined (D) The availability of documentary to be eligible to vote in the referendum proof of employment and income to on the basis of such vessel’s history or validate eligibility; and other characteristics. (E) Any other factors as may be de- (ii) To be eligible to vote in an termined by the Council to be relevant NEFMC IFQ referendum, crew mem- to the fishery and the proposed IFQ bers must meet the following require- program. ments: (3) GMFMC’s substantially fished cri- (A) The crew member must have terion. When developing criteria for worked aboard a referendum-eligible identifying those multispecies permit vessel at sea, during the qualifying pe- holders who have substantially fished riod(s), while the vessel was engaged in the species to be included in the IFQ fishing; program proposal, the Council or Sec- (B) If requested, the crew member retary must consider, but is not lim- must produce documentary proof of ited to considering: employment or service as a crew mem- (i) Current and historical harvest and ber and income during the qualifying participation in the fishery; periods. Documents that may be re- (ii) The economic value of and em- quired include, but are not limited to, ployment practices in the fishery; and signed crew contracts, records of payment, settlement sheets, income tax (iii) Any other factors determined by records, a signed statement from the the Council with jurisdiction over the permit holder, and other documentary fishery for which an IFQ program is evidence of the period of employment proposed to be relevant to the fishery and the vessel upon which the crew and the proposed IFQ program. member worked; (d) Council-recommended criteria (C) During the qualifying period(s), under paragraph (c) of this section may the crew member must have derived a include, but are not limited to, levels percentage of his/her total income from of participation or reliance on the fish- the fishery under the proposed IFQ pro- ery as represented by landings, sales, gram that is equal to or greater than expenditures, or other considerations. the percentage determined to be sig- A Council may also apply the same cri- nificant relative to the economic value teria for weighting eligible referendum and employment practices of the fish- votes. ery; and (e) Actions by NMFS: Review of Council (D) Any additional eligibility criteria referendum criteria and Secretarial IFQ promulgated by the NMFS. plans. (1) NMFS shall determine wheth- (iii) When developing criteria for de- er Council recommended referendum termining whether other fishery par- criteria will provide for a fair and equi- ticipants, including crew members, table referendum and will be consistent may participate in a NEFMC IFQ ref- with national standards and other pro- erendum, the Council or Secretary visions of the Magnuson-Stevens Act, must consider, but is not limited to and other applicable legal standards. considering: The Secretary’s considerations shall (A) The full range of entities likely include, but shall not be limited to: to be eligible to receive initial quota (i) Whether the criteria are ration- under the proposed IFQ program; ally connected to or further the objec- (B) A crew member’s current and his- tives of the proposed IFQ program; torical participation in the fishery (ii) Whether the criteria are designed aboard a referendum-eligible vessel; in such a way to prevent any person or (C) The economic value of the pro- single entity from obtaining an exces- posed IFQ fishery, employment prac- sive share of voting privileges; tices in the proposed IFQ fishery, and (iii) Whether the criteria are reason- other economic and social factors that able relative to the availability of doc- would bear on a determination of what umentary evidence and the possibility

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of validating a participant’s eligibility; (i) Proposed rule. A proposed rule and shall seek public comment on the spe- (iv) Whether the referendum can be cific schedule, procedures, and other administered and executed in a fair and requirements for the referendum proc- equitable manner, in a reasonable ess. time, and without subjecting industry (A) For NEFMC IFQ program members, the Council, or NMFS to ad- referenda, the proposed rule shall es- ministrative burdens, costs or other re- tablish procedures for documenting or quirements that would be considered certifying that other fishery partici- onerous. pants, including crew members, meet (2) If NMFS determines that ref- the proposed voter eligibility criteria. erendum criteria would not provide for (B) For GMFMC IFQ program a fair and equitable referendum; would referenda for multispecies permit hold- not be consistent with national stand- ers, the proposed rule shall include cri- ards and other provisions of the Mag- teria to be used in identifying those nuson-Stevens Act, and other applica- permit holders who have substantially ble legal standards; or, in the case of a fished the species that are the subject referendum request subsequent to a of the proposed IFQ program. failed referendum in the same fishery, (ii) Final rule. (A) If NMFS decides to that the Council has not substantively proceed with the referendum after re- amended the IFQ proposal or cir- viewing public comments, NMFS shall cumstances have not changed suffi- publish implementing regulations ciently to warrant initiation of a new through a final rule in the FEDERAL referendum, NMFS shall inform the REGISTER as soon as practicable after Council of the Agency’s decision to the Council determines the IFQ pro- deny the referendum request and of the gram proposal and supporting analyses reasons for the decision. are complete and ready for Secretarial (3) If NMFS determines that ref- review. Otherwise, NMFS shall publish erendum criteria would provide for a a notice in the FEDERAL REGISTER to fair and equitable referendum and inform the Council and the public of its would be consistent with national decision not to conduct the ref- standards and other provisions of the erendum, as proposed, including rea- Magnuson-Stevens Act, and other ap- sons for the Agency’s decision. plicable legal standards; then NMFS (B) Upon implementation of the ref- shall conduct the referendum in ac- erendum through a final rule, NMFS cordance with procedures and guide- shall provide eligible voters referenda lines provided in paragraph (f) of this ballots and shall make available infor- section. mation about the schedule, procedures, (4) In accordance with paragraphs and eligibility requirements for the (c)(2) and (3) of this section, NMFS may referendum process and the proposed initiate a referendum and promulgate IFQ program. referendum criteria for any IFQ pro- (2) NMFS shall notify the public in gram proposal advanced through a Sec- the region of the subject fishery of the retarial fishery management plan referendum eligibility criteria. (FMP) or FMP amendment under the (3) Individuals who wish to vote as authority of section 304(c) of the Mag- other fishery participants in a NEFMC nuson-Stevens Act for a New England IFQ referendum, based on criteria es- or Gulf of Mexico fishery. Such criteria tablished by the NEFMC under (c)(2), must provide for a fair and equitable must contact NMFS and produce all re- referendum and NMFS shall conduct quired documentation and certifi- the referendum in accordance with pro- cations to receive a ballot. NMFS shall cedures and guidelines provided in provide sufficient time in the ref- paragraph (f) of this section. erendum process to allow for crew (f) Conducting IFQ referenda. (1) members to request, receive, and sub- NMFS shall promulgate specific mit referendum ballots. referenda procedural requirements, (g) Referenda ballots. (1) Ballots shall voter eligibility requirements, and any be composed such that voters will indi- vote weighting criteria through appro- cate approval or disapproval of the pre- priate rulemaking. ferred IFQ program proposal.

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(2) NMFS may require voters to self- (3) If NMFS notifies a Council that certify on referenda ballots that they an IFQ referendum has failed, then the meet voter eligibility criteria. To be Council may modify its IFQ program considered valid, ballots must be proposal and request a new referendum signed by the eligible voter. pursuant to paragraph (b) of this sec- (3) Referenda ballots shall be num- tion. bered serially or otherwise designed to guard against submission of duplicate Subpart P—Marine Recreational ballots. Fisheries of the United States (4) If votes are weighted, the value of

weighted votes shall be indicated on SOURCE: 73 FR 79717, Dec. 30, 2008, unless the ballot. The weighted vote must be otherwise noted. cast as a single unit. Its value may not be split. The full value must be applied § 600.1400 Definitions. to the selection made on the ballot. In addition to the definitions in the (5) NMFS shall allow at least 30 days Magnuson-Stevens Fishery Conserva- for eligible voters to receive and return tion and Management Act (Magnuson- their ballots and shall specify a dead- Stevens Act) and in § 600.10 of this title, line by which ballots must be received. the terms used in this subpart have the Ballots received after the deadline following meanings. For purposes of shall not be considered valid. this subpart, if applicable, the terms (h) Determining the outcome of an IFQ used in this subpart supersede those referendum. (1) NMFS shall tally and used in § 600.10. announce the results of the referendum Anadromous species means the fol- within 90 days of the deadline by which lowing: completed ballots must be received. NMFS may declare a referendum in- American shad: Alosa sapidissima Blueback herring: Alosa aestivalus valid if the Agency can demonstrate Alewife: Alosa pseudoharengus the referendum was not conducted in Hickory shad: Alosa mediocris accordance with the procedures estab- Alabama shad: Alosa alabamae lished in the final rule implementing Striped bass: Morone saxatilis the referendum. Rainbow smelt: Osmerus mordax (2) A NEFMC IFQ program ref- Atlantic salmon: Salmo salar erendum shall be considered approved Chinook, or king, salmon: Oncorhynchus tshawytscha only if more than 2⁄3 of the votes sub- Coho, or silver, salmon: Oncorhynchus mitted on valid ballots are in favor of kisutch the referendum question. Pink salmon: Oncorhynchus gorbuscha (3) A GMFMC IFQ program ref- Sockeye salmon: Oncorhynchus nerka erendum shall be considered approved Chum salmon: Oncorhynchus keta only if a majority of the votes sub- Steelhead: Oncorhynchus mykiss mitted on valid ballots are in favor of Coastal cutthroat trout: Oncorhynchus clarki the referendum question. clarki (i) Council actions. (1) If NMFS noti- Eulachon or candlefish: Thaleichthys pacificus Dolly varden: Salvelinus malma fies a Council that an IFQ program pro- Sheefish or inconnu: Stenodus leucichthys posal has been approved through a ref- Atlantic sturgeon: Acipenser oxyrhynchus erendum, then the Council may submit oxyrhynchus the associated FMP or FMP amend- Shortnose sturgeon: Acipenser brevirostrum ment for Secretarial review and imple- Gulf sturgeon: Acipenser oxyrhynchus desotoi mentation. White sturgeon: Acipenser transmontanus (2) Any changes that would modify Green sturgeon: Acipenser medirostris an IFQ program proposal that was re- Angler means a person who is angling viewed by referenda voters may invali- (see 50 CFR 600.10) in tidal waters. date the results of the referendum and Authorized officer has the same mean- require the modified program proposal ing as in 50 CFR 600.10. to be approved through a new ref- Combination license means either: erendum before it can be submitted to (1) A single state fishing license that the Secretary for review and imple- permits fishing in fresh waters and mentation. tidal waters at one price; or

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(2) A single state license that permits (3) Operates a for-hire fishing vessel a group of fishing and hunting activi- that engages in angling or spearfishing ties, including fishing in tidal waters, for: at a price that is less than the sum of (i) Anadromous species in any tidal the cost of the individual licenses. waters; or Commercial fishing has the same (ii) Continental shelf fishery re- meaning as in 16 U.S.C. 1802. sources beyond the EEZ. Continental shelf fishery resources has (4) Possesses equipment used for an- the same meaning as in 16 U.S.C. 1802. gling or spearfishing and also pos- Exempted state means a state that has sesses: been designated as an exempted state (i) Fish in the EEZ; by NMFS pursuant to § 600.1415. (ii) Anadromous species in any tidal For-hire fishing vessel means a vessel waters; or on which passengers are carried to engage in angling or spear fishing, from (iii) Continental shelf fishery re- whom a consideration is contributed as sources beyond the EEZ. a condition of such carriage, whether (b) No person may engage in the ac- directly or indirectly flowing to the tivities listed in paragraph (a) of this owner, charterer, operator, agent or section unless that person: any other person having an interest in (1) Has registered annually with the vessel. NMFS in accordance with § 600.1410 of Indigenous people means persons who this part; are documented members of a federally (2) Holds a valid fishing license issued recognized tribe or Alaskan Native by, or is registered by, an exempted Corporation or persons who reside in state; the western Pacific who are descended (3) Is a resident of an exempted state, from the aboriginal people indigenous but is not required to hold a fishing li- to the region who conducted commer- cense, or to be registered to fish, under cial or subsistence fishing using tradi- the laws of that state; tional fishing methods, including an- (4) Holds a permit issued by NMFS gling. for for-hire fishing under 50 CFR Spearfishing means fishing for, at- 622.4(a)(1), 635.4(b), 648.4(a), or tempting to fish for, catching or at- 660.707(a)(1); tempting to catch fish in tidal waters (5) Is under the age of 16; 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.

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(c) Any angler or spear fisher or oper- § 600.1415 Procedures for designating ator of a for-hire vessel must, on re- exempted states-general provisions. quest of an authorized officer, produce (a) States with an exempted state the NMFS registration number and designation must: certificate or evidence that such person (1) Submit state angler and for-hire or for-hire vessel operator is exempt vessel license holder data to NMFS for from the registration requirement pur- inclusion in a national or regional reg- suant to § 600.1405(b)(2) through istry database; or § 600.1405(b)(10). (2) Participate in regional surveys of recreational catch and effort and make [73 FR 79717, Dec. 30, 2008, as amended at 77 the data from those surveys available FR 42191, July 18, 2012] to NMFS. (b) Process for getting an exempted § 600.1410 Registry process. state designation: (a) A person may register through (1) To apply for exempted state des- the NMFS web site at ignation, a state must submit: www.nmfs.noaa.gov or by calling a toll- (i) A complete description of the data free telephone number available by it intends to submit to NMFS; contacting NMFS or at the NMFS (ii) An assessment of how the data website. conforms to the requirements of (b) Individuals must submit their §§ 600.1416 or 600. 1417; name; address; telephone number; date (iii) A description of the database in of birth; region(s) of the country in which the data exists and will be trans- which they intend to fish in the upcom- mitted; and (iv) The proposed process, schedule ing year; and additional information and frequency of submission of the necessary for the issuance or adminis- data. tration of the registration. (2) If NMFS determines the sub- (c) To register a for-hire fishing ves- mitted material meets the require- sel, the vessel owner or operator must ments of §§ 600.1416 or 600.1417, NMFS submit vessel owner name, address, will initiate negotiations with the date of birth, and telephone number; state on a Memorandum of Agreement. vessel operator (if different) name, ad- The Memorandum of Agreement must dress, date of birth and telephone num- include the terms and conditions of the ber; vessel name; vessel’s state reg- data-sharing program. The Memo- istration or U.S. Coast Guard docu- randum of Agreement and state des- mentation number; home port or prin- ignation may be limited to data-shar- cipal area of operation; and additional ing related to only anglers or only for- information necessary for the issuance hire fishing vessels. or administration of the registration. (3) Following execution of a Memo- (d) NMFS will issue a registration randum of Agreement, NMFS will pub- number and certificate to registrants. lish a notice of the exempted state des- A registration number and certificate ignation in the FEDERAL REGISTER. 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

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state, or for anadromous species. The in three years of the effective date of Memorandum of Agreement developed the Memorandum of Agreement: in accordance with § 600.1415(b)(2) will (1) Name, address and telephone num- specify the timetable for a state to ber, updated annually, of excluded an- compile and submit complete informa- glers over age 59, unless the state can tion telephone numbers and dates of demonstrate that the number of an- birth for its license holders/registrants. glers excluded from the license or reg- The waters of the state for which such istration requirement based on having license-holder data must be submitted a date of birth before June 1, 1940 is so will be specified in the Memorandum of small it has no significant probability Agreement. of biasing estimates of fishing effort if (b) A state is eligible to be designated these anglers are not included in a rep- as an exempted state even if its licens- resentative sample; ing program excludes anglers who are: (2) Name, address and telephone num- (1) Under 17 years of age; ber, updated annually, of holders of (2) Over age 59 (see § 600.1416(d)(1)); state lifetime and multi-year licenses; (3) Customers on licensed for-hire (3) Name, address and telephone num- vessels; ber of state combination license hold- (4) Customers on state-licensed fishers who fished in tidal waters in the ing piers, provided that the pier license prior year, or who intend to fish in holder provides to the state complete tidal waters. The Memorandum of angler contact information or angler Agreement will define the boundaries effort information for users of the pier; of the state’s tidal waters for this pur- (5) On active military duty while on pose. furlough; or [73 FR 79717, Dec. 30, 2008, as amended at 77 (6) Disabled or a disabled Veteran as FR 42191, July 18, 2012] defined by the state. (7) Fishing on days designated as § 600.1417 Requirements for exempted ‘‘free fishing days’’ by states. ‘‘Free state designation based on submis- fishing days’’ means fishing promotion sion of recreational survey data. programs by which states allow new (a) To be designated as an exempted anglers to fish for a specified day with- state based on the state’s participation out a license or registration. in a regional survey of marine and (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

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(viii) American Samoa, Guam and capable of supporting two-way commu- the Commonwealth of the Northern nication, messaging, and electronic Mariana Islands. forms transmission via satellite. An (2) Utilize angler registry data, or di- EMTU is a transceiver or communica- rect field counts to obtain angler ef- tions device, including an antenna, and fort, or other appropriate statistical dedicated message terminal and dis- means to obtain fishing effort; play which can support a dedicated (3) Utilize angler registry data to input device such as a tablet or key- identify individuals to be surveyed by board, installed on fishing vessels par- telephone, mail or Internet if such re- ticipating in fisheries with a VMS regional survey includes a telephone sur- quirement. vey component; and Enhanced Mobile Transceiver Unit, Cel- (4) Meet NMFS survey design and lular Based (EMTU-C) means an EMTU data collection standards. that transmits and receives data via [73 FR 79717, Dec. 30, 2008, as amended at 77 cellular communications, except that FR 42192, July 18, 2012] it may not need a dedicated message terminal and display component at the Subpart Q—Vessel Monitoring time of approval as explained at System Type-Approval § 600.1502(a)(6). An EMTU–C only needs to be capable of transmission and reception when in the range of a cellular SOURCE: 85 FR 40921, July 8, 2020, unless network. otherwise noted. Latency means the state of untimely § 600.1500 Definitions and acronyms. delivery of Global Positioning System position reports and electronic forms In addition to the definitions in the to NMFS (i.e., information is not deliv- Magnuson-Stevens Act and in § 600.10, ered to NMFS consistent with timing and the acronyms in § 600.15, the terms requirements of this subpart). and acronyms in this subpart have the following meanings: Mobile Communications Service (MCS) Authorized entity means a person, de- means the satellite and/or cellular fined at 16 U.S.C. 1802(36), authorized to communications services used with receive data transmitted by a VMS particular VMS units. unit. Mobile Communications Service Pro- Bench configuration means the con- vider (MCSP) means an entity that sells figuration of a VMS unit after it has VMS satellite and/or cellular commu- been customized to meet the Federal nications services to end users. VMS requirements. Mobile Transmitter Unit (MTU) means Bundle means a mobile communica- a VMS unit capable of transmitting tions service and VMS unit sold as a Global Positioning System position re- package and considered one product. If ports via satellite. (MTUs are no longer a bundle is type-approved, the re- approved for new installations on VMS questor will be the type-approval hold- vessels). er for the bundled MCS and VMS unit. Notification Letter means a letter Cellular communication means the issued by NMFS to a type-approval wireless transmission of VMS data via holder identifying an alleged failure of a cellular network. a VMS unit, MCS, or the type-approval Communication class means the sat- holder to comply with the require- ellite or cellular communications oper- ments of this subpart. ator from which communications serv- Position report means the unique glob- ices originate. al positioning system (GPS) report Electronic form means a pre-formatted generated by a vessel’s VMS unit, message transmitted by a VMS unit which identifies the vessel’s latitude/ that is required for the collection of longitude position at a point in time. data for a specific fishery program Position reports are sent from the VMS (e.g., declaration system, catch effort unit via the MCS, to authorized enti- reporting). ties. Enhanced Mobile Transceiver Unit Requestor means a vendor seeking (EMTU) means a type of MTU that is type-approval.

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Service life means the length of time an EMTU and EMTU-C must meet the during which a VMS unit remains fully requirements for both an EMTU and an operational with reasonable repairs. EMTU-C in order to gain type-approval Sniffing means the unauthorized and as both. MTUs are no longer eligible illegitimate monitoring and capture, for type-approval. through use of a computer program or (b) Application submission. A requestor device, of data being transmitted over must submit a written type-approval a network. request and electronic copies of sup- Spoofing means the reporting of a porting materials that include the in- false Global Positioning System posi- formation required under this section tion and/or vessel identity. to the NMFS Office of Law Enforce- Time stamp means the time, in hours, ment (OLE) at: U.S. Department of minutes, and seconds in a position re- Commerce; National Oceanic and At- port. Each position report is time mospheric Administration; National stamped. Marine Fisheries Service; Office of Law Type-approval holder means an applicant whose type-approval request has Enforcement; Attention: Vessel Moni- been approved pursuant to this sub- toring System Office; 1315 East-West part. Highway, SSMC3, Suite 3301, Silver Vendor means a commercial provider Spring, Maryland 20910. of VMS hardware, software, and/or mo- (c) Application requirements. (1) bile communications services. EMTU, EMTU-C, and MCS Identifying Vessel Monitoring System (VMS) Information: In a type-approval re- means, for purposes of this subpart, a quest, the requestor should indicate satellite and/or cellular based system whether the requestor is seeking ap- designed to monitor the location and proval for an EMTU, EMTU-C, MCS, or movement of vessels using onboard bundle and must specify identifying VMS units that send Global Posi- characteristics, as applicable: Commu- tioning System position reports to an nication class; manufacturer; brand authorized entity. name; model name; model number; Vessel Monitoring System (VMS) data software version and date; firmware means the data transmitted to author- version number and date; hardware ized entities from a VMS unit. version number and date; antenna Vessel Monitoring System Program type; antenna model number and date; means the Federal program that man- tablet, monitor or terminal model ages the vessel monitoring system, number and date; MCS to be used in data, and associated program-compo- conjunction with the EMTU/EMTU-C; nents, nationally and in each NMFS re- entity providing MCS to the end user; gion; it is housed in the Department of and current global and regional cov- Commerce, National Oceanic and At- erage of the MCS. mospheric Administration, National (2) Requestor-approved third party Marine Fisheries Service’s Office of business entities: The requestor must Law Enforcement. provide the business name, address, Vessel Monitoring System (VMS) Unit phone number, contact name(s), email means MTU, EMTU or EMTU-C, as well address, specific services provided, and as the units that can operate as both geographic region covered for the fol- an EMTU and an EMTU-C. lowing third party business entities: Vessel Monitoring System (VMS) Vessels means vessels that operate in federally (i) Entities providing bench configu- managed fisheries with a requirement ration for the EMTU/EMTU-C at the to carry and operate a VMS unit. warehouse or point of supply. (ii) Entities distributing/selling the § 600.1501 Vessel Monitoring System EMTU/EMTU-C to end users. type-approval process. (iii) Entities currently approved by (a) Applicability. Unless otherwise the requestor to install the EMTU/ specified, this section applies to EMTU-C onboard vessels. EMTUs, EMTU-Cs, units that operate (iv) Entities currently approved by as both an EMTU and EMTU-C, and the requestor to offer a limited war- MCSs. Units that can operate as both ranty.

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(v) Entities approved by the re- request is submitted for a minimum of questor to offer a maintenance service 90 calendar days for testing and evalua- agreement. tion. For EMTU-Cs, the forms and soft- (vi) Entities approved by the re- ware may be loaded onto a dedicated questor to repair or install new soft- message terminal and display compo- ware on the EMTU/EMTU-C. nent to which the EMTU-C can con- (vii) Entities approved by the re- nect. Copies of forms currently used by questor to train end users. NMFS are available upon request. As (viii) Entities approved by the re- part of its review, NMFS OLE may per- questor to advertise the EMTU/EMTU- form field tests and at-sea trials that C. involve demonstrating every aspect of (ix) Entities approved by the re- EMTU/EMTU-C and communications questor to provide other customer serv- operation. The requestor is responsible ices. for all associated costs including pay- (3) Regulatory Requirements and ing for: Shipping of the EMTU/EMTU-C Documentation: In a type-approval re- to the required NMFS regional offices quest, a requestor must: and/or headquarters for testing; the (i) Identify the NMFS region(s) and/ MCS during the testing period; and or Federal fisheries for which the re- shipping of the EMTU/EMTU-C back to questor seeks type-approval. the vendor. (ii) Include copies of, or citation to, (vii) Provide thorough documenta- applicable VMS regulations and re- tion for the EMTU/EMTU-C and MCS, quirements in effect for the region(s) including: EMTU/EMTU-C fact sheets; and Federal fisheries identified under installation guides; user manuals; any paragraph (c)(3)(i) of this section that necessary interfacing software; MCS require use of VMS. global and regional coverage; perform- (iii) Provide a table with the type-ap- ance specifications; and technical sup- proval request that lists in one column port information. each requirement set out in §§ 600.1502 (d) Certification. A requestor seeking through 600.1509 and regulations de- type-approval of an EMTU/EMTU-C to scribed under paragraph (c)(3)(ii) of operate with a class or type of commu- this section. NMFS OLE will provide a nications, as opposed to type-approval template for the table upon request. for use with a specific MCS, shall cer- The requestor must indicate in subse- tify that the EMTU/EMTU-C meets re- quent columns in the table: quirements under this subpart when (A) Whether the requirement applies using at least one MCSP within that to the type-approval; and class or type of communications. (B) Whether the EMTU, EMTU-C, (e) Notification. Unless additional MCS, or bundle meets the requirement. time is required for EMTU/EMTU-C (iv) Certify that the features, compo- testing, NMFS OLE will notify the re- nents, configuration and services of the questor within 90 days after receipt of requestor’s EMTU/EMTU-C, MCS, or a complete type-approval request as bundle comply with each requirement follows: set out in §§ 600.1502 through 600.1509 (1) If a request is approved or par- and the regulations described under tially approved, NMFS OLE will pro- paragraph (c)(3)(ii) of this section. vide notice as described under § 600.1510 (v) Certify that, if the request is ap- and the type-approval letter will serve proved, the requestor agrees to be re- as official documentation and notice of sponsible for ensuring compliance with type-approval. OLE will publish and each requirement set out in §§ 600.1502 maintain the list of type-approved through 600.1509 and the regulations de- units on their Vessel Monitoring Sys- scribed under paragraph (c)(3)(ii) of tem web page. this section over the course of the (2) If a request is disapproved or par- type-approval period. tially disapproved: (vi) Provide NMFS OLE with two (i) OLE will send a letter to the re- EMTU/EMTU-Cs loaded with forms and questor that explains the reason for software, if applicable, for each NMFS the disapproval/partial disapproval. region or Federal fishery, with acti- (ii) The requestor may respond to vated MCS, for which a type-approval NMFS OLE in writing with additional

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information to address the reasons for the purpose of complying with VMS re- disapproval identified in the NMFS porting requirements in Federal fish- OLE letter. The requestor must submit eries. Depending on the reporting re- this response within 21 calendar days of quirements for the fishery(s) in which the date of the OLE letter sent under the requester is seeking type-approval, paragraph (e)(2)(i) of this section. an EMTU-C type-approval may not re- (iii) If any additional information is quire the inclusion of a dedicated mes- submitted under paragraph (e)(2)(ii) of sage terminal and display component this section, NMFS OLE, after review- at the time of approval, but the capa- ing such information, may either take bility to support such a component action under paragraph (e)(1) of this must be shown. section or determine that the request (7) Have messaging and communica- should continue to be disapproved or tions mechanisms that are completely partially disapproved. In the latter compatible with NMFS vessel moni- case, the NMFS OLE Director will send toring and surveillance software. a letter to the requestor that explains (b) In addition, messages and commu- the reasons for the continued dis- nications from a VMS unit must be approval/partial disapproval. The able to be parsed out to enable clear NMFS OLE Director’s decision is final billing of costs to the government and upon issuance of this letter and is not to the owner of a vessel or EMTU/ appealable. EMTU-C, when necessary. Also, the costs associated with position report- § 600.1502 Communications ing and the costs associated with other functionality. communications (for example, personal (a) Unless otherwise specified, this email or communications/reports to subsection applies to all VMS units. non-NMFS Office of Law Enforcement Units that can operate as both an entities) must be parsed out and billed EMTU and EMTU-C must meet the re- to separate parties, as appropriate. quirements for both an EMTU and an EMTU-C in order to gain type-approval § 600.1503 Position report data formats as both. The VMS unit must: and transmission. (1) Be able to transmit all automati- Unless otherwise specified, this sub- cally-generated position reports. section applies to all VMS units, MCSs (2) Provide visible or audible alarms and bundles. Units that can operate as onboard the vessel to indicate malfunc- both an EMTU and EMTU-C must meet tioning of the VMS unit. the requirements for both an EMTU (3) Be able to disable non-essential and an EMTU-C in order to gain type- alarms in non-Global Maritime Dis- approval as both. To be type-approved tress and Safety System (GMDSS) in- in any given fishery, a VMS unit must stallations. also meet any additional positioning (4) EMTU/EMTU-Cs must be able to information as required by the applica- send communications that function ble VMS regulations and requirements uniformly throughout the geographic in effect for each fishery or region for area(s) covered by the type-approval, which the type-approval applies. The except an EMTU-C only needs to be ca- VMS unit must meet the following re- pable of transmission and reception quirements: when in the range of a cellular net- (a) Transmit all automatically-gen- work. erated position reports, for vessels (5) EMTU/EMTU-Cs must have two- managed individually or grouped by way communications between the unit fleet, that meet the latency require- and authorized entities, via MCS, or be ment under § 600.1504. able to connect to a device that has (b) When powered up, must automati- two-way communications. cally re-establish its position reporting (6) EMTU/EMTU-Cs must be able to function without manual intervention. run or to connect to a dedicated mes- (c) Position reports must contain all sage terminal and display component of the following: that can run software and/or applica- (1) Unique identification of an EMTU/ tions that send and receive electronic EMTU-C and clear indication if the forms and internet email messages for unit is an EMTU-C.

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(2) Date (year/month/day with cen- NMFS to calculate a type-approval tury in the year) and time stamp holder’s latency. (GMT) of the position fix. (3) Date (year/month/day with cen- § 600.1505 Messaging. tury in the year) and time stamp (a) Unless otherwise specified, this (GMT) that the EMTU-C position re- section applies to all VMS units, MCSs, port was sent from the EMTU-C. and bundles. Units that can operate as (4) Position fixed latitude and lon- both an EMTU and EMTU-C must meet gitude, including the hemisphere of the requirements for both an EMTU each, which comply with the following and an EMTU-C in order to gain type- requirements: approval as both. Depending on the re- (i) The position fix precision must be porting requirements for the fishery(s) to the decimal minute hundredths. in which the requester is seeking type- (ii) Accuracy of the reported position approval, an EMTU-C type-approval must be within 100 meters (328.1 ft). may not require the inclusion of a dedi- (d) An EMTU/EMTU-C must have the cated message terminal and display ability to: (1) Store 1,000 position fixes component at the time of approval, but in local, non-volatile memory. the capability to support such a com- (2) Allow for defining variable report- ponent must be shown. To be type-ap- ing intervals between 5 minutes and 24 proved in any given fishery, a VMS hours. unit must meet messaging information (3) Allow for changes in reporting in- requirements under the applicable tervals remotely and only by author- VMS regulations and requirements in ized users. effect for each fishery or region for (e) An EMTU/EMTU-C must generate which the type-approval applies. The specially identified position reports VMS unit must also meet the following upon: requirements: (b) An EMTU must be able to run (1) Antenna disconnection. software and/or applications that send (2) Loss of positioning reference sig- email messages for the purpose of com- nals. plying with VMS reporting require- (3) Security events, power-up, power ments in Federal fisheries that require down, and other status data. email communication capability. An (4) A request for EMTU/EMTU-C sta- EMTU-C must be able to run or con- tus information such as configuration nect to a device that can run such soft- of programming and reporting inter- ware and/or applications. In such cases, vals. the EMTU/EMTU-C messaging must (5) The EMTUs loss of the mobile provide for the following capabilities: communications signals. (1) Messaging from vessel to shore, (6) An EMTU must generate a spe- and from shore to vessel by authorized cially identified position report upon entities, must have a minimum sup- the vessel crossing of a pre-defined geo- ported message length of 1 KB. For graphic boundary. EMTU-Cs, this messaging capability need only be functional when in range § 600.1504 Latency requirement. of shore-based cellular communica- (a) Ninety percent of all pre-pro- tions. grammed or requested Global Posi- (2) There must be a confirmation of tioning System position reports during delivery function that allows a user to each 24-hour period must reach NMFS ascertain whether a specific message within 15 minutes or less of being sent was successfully transmitted to the from the VMS unit, for 10 out of 11 con- MCS email server(s). secutive days (24-hour time periods). (3) Notification of failed delivery to (b) NMFS will continually examine the EMTU/EMTU-C must be sent to the latency by region and by type-approval sender of the message. The failed deliv- holder. ery notification must include sufficient (c) Exact dates for calculation of la- information to identify the specific tency will be chosen by NMFS. Days in message that failed and the cause of which isolated and documented system failure (e.g., invalid address, EMTU/ outages occur will not be used by EMTU-C switched off, etc.).

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(4) The EMTU/EMTU-C must have an ues available as menu selections on a automatic retry feature in the event subsequent field within the same form. that a message fails to be delivered. (2) A user must be able to select (5) The EMTU/EMTU-C user interface forms from a menu on the EMTU/ must: EMTU-C. (i) Support an ‘‘address book’’ capa- (3) A user must be able to populate a bility and a function permitting a form based on the last values used and ‘‘reply’’ to a received message without ‘‘modify’’ or ‘‘update’’ a prior submis- re-entering the sender’s address. sion without unnecessary re-entry of (ii) Provide the ability to review by data. A user must be able to review a date order, or by recipient, messages minimum of 20 past form submissions that were previously sent. The EMTU/ and ascertain for each form when the EMTU-C terminal must support a minimum message history of 50 sent mes- form was transmitted and whether de- sages—commonly referred to as an livery was successfully sent to the ‘‘Outbox’’ or ‘‘Sent’’ message display. type-approval holder’s VMS data proc- (iii) Provide the ability to review by essing center. In the case of a trans- date order, or by sender, all messages mission failure, a user must be pro- received. The EMTU/EMTU-C terminal vided with details of the cause and must support a minimum message his- have the opportunity to retry the form tory of at least 50 messages in an submission. inbox. (4) VMS Position Report: Each form must include VMS position data, in- § 600.1506 Electronic forms. cluding latitude, longitude, date and Unless otherwise specified, this sub- time. Data to populate these fields section applies to all EMTUs, EMTU- must be automatically generated by Cs, MCSs, and bundles. the EMTU/EMTU-C and unable to be (a) Forms. An EMTU/EMTU-C must be manually entered or altered. able to run, or to connect to and trans- (5) Delivery and Format of Forms mit data from a device that can run Data: Delivery of form data to NMFS electronic forms software. Depending must employ the same transport secu- on the reporting requirements for the rity and reliability as set out in fishery(s) in which the requester is § 600.1507 of this subpart. The forms seeking type-approval, an EMTU-C data and delivery must be completely type-approval may not require the in- compatible with NMFS vessel moni- clusion of a dedicated message ter- toring software. minal and display component at the (b) Updates to Forms. (1) The EMTU/ time of approval, but the capability to EMTU-C and MCS must be capable of support such a component must be providing updates to forms or adding shown. The EMTU/EMTU-C must be new form requirements via wireless able to support forms software that can transmission and without manual in- hold a minimum of 20 electronic forms, and it must also meet any additional stallation. forms requirements in effect for each (2) From time to time, NMFS may fishery or region for which the type-ap- provide type-approved applicants with proval applies. The EMTU/EMTU-C requirements for new forms or modi- must meet the following requirements: fications to existing forms. NMFS may (1) Form Validation: Each field on a also provide notice of forms and form form must be capable of being defined changes through the NMFS Work Order as Optional, Mandatory, or Logic Driv- System. Type-approved applicants will en. Mandatory fields are those fields be given at least 60 calendar days to that must be entered by the user before complete their implementation of new the form is complete. Optional fields or changed forms. Applicants will be are those fields that do not require capable of, and responsible for trans- data entry. Logic-driven fields have lating the requirements into their their attributes determined by earlier EMTU/EMTU-C-specific forms defini- form selections. Specifically, a logic- tions and wirelessly transmitting the driven field must allow for selection of same to all EMTU/EMTU-C terminals options in that field to change the val- supplied to fishing vessels.

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§ 600.1507 Communications security. and repairing their EMTU, EMTU-C, or Communications between an EMTU/ MTU. EMTU-C and MCS must be secure from (f) Assistance to fishers in the diag- tampering or interception, including nosis of the cause of communications the reading of passwords and data. The anomalies. EMTU/EMTU-C and MCS must have (g) Assistance in resolving commu- mechanisms to prevent to the extent nications anomalies that are traced to possible: the EMTU, EMTU-C, or MTU. (a) Sniffing and/or interception dur- (h) Assistance to NMFS Office of Law ing transmission from the EMTU/ Enforcement and its contractors, upon EMTU-C to MCS. request, in VMS system operation, re- (b) Spoofing. solving technical issues, and data anal- (c) False position reports sent from yses related to the VMS Program or an EMTU/EMTU-C. system. (d) Modification of EMTU/EMTU-C identification. § 600.1509 General. (e) Interference with Global Mari- (a) An EMTU/EMTU-C must have the time Distress and Safety System durability and reliability necessary to (GMDSS) or other safety/distress func- meet all requirements of §§ 600.1502 tions. through 600.1507 regardless of weather (f) Introduction of malware, spyware, conditions, including when placed in a keyloggers, or other software that may marine environment where the unit corrupt, disturb, or disrupt messages, may be subjected to saltwater (spray) transmission, and the VMS system. (g) The EMTU/EMTU-C terminal in smaller vessels, and in larger vessels from communicating with, influencing, where the unit may be maintained in a or interfering with the Global Posi- wheelhouse. The unit, cabling and an- tioning System antenna or its tenna must be resistant to salt, mois- functionality, position reports, or send- ture, and shock associated with sea- ing of position reports. The position re- going vessels in the marine environ- ports must not be altered, corrupted, ment. degraded, or at all affected by the oper- (b) PII and Other Protected Informa- ation of the terminal or any of its pe- tion. Personally identifying informa- ripherals or installed-software. tion (PII) and other protected informa- (h) VMS data must be encrypted and tion includes Magnuson-Stevens Act sent securely through all associated confidential information as provided at cellular, satellite, and internet com- 16 U.S.C. 1881a and Business Identifi- munication pathways and channels. able Information (BII), as defined in the Department of Commerce Informa- § 600.1508 Field and technical services. tion Technology Privacy Policy. A As a requirement of its type-ap- type-approval holder is responsible for proval, a type-approval holder must ensuring that: communicate with NMFS to resolve (1) All PII and other protected infor- technical issues with a VMS Unit, MCS mation is handled in accordance with or bundle and ensure that field and applicable state and Federal law. technical services includes: (2) All PII and other protected infor- (a) Diagnostic and troubleshooting mation provided to the type-approval support to NMFS and fishers, which is holder by vessel owners or other au- available 24 hours a day, seven days per thorized personnel for the purchase or week, and year-round. activation of an EMTU/EMTU-C or (b) Response times for customer serv- arising from participation in any Fed- ice inquiries that shall not exceed 24 eral fishery are protected from disclo- hours. sure not authorized by NMFS or the (c) Warranty and maintenance agree- vessel owner or other authorized per- ments. sonnel. (d) Escalation procedures for resolu- (3) Any release of PII or other pro- tion of problems. tected information beyond authorized (e) Established facilities and proce- entities must be requested and ap- dures to assist fishers in maintaining proved in writing, as appropriate, by

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the submitter of the data in accordance Notification Letter to the type-ap- with 16 U.S.C. 1881a, or by NMFS. proval holder that: (4) Any PII or other protected infor- (1) Identifies the MTU, EMTU, mation sent electronically by the type- EMTU-C, MCS, or bundle that alleg- approval holder to the NMFS Office of edly fails to comply with type-approval Law Enforcement must be transmitted regulations and requirements; by a secure means that prevents inter- (2) Identifies the alleged failure to ception, spoofing, or viewing by unau- comply with type-approval regulations thorized individuals. and requirements, and the urgency and impact of the alleged failure; § 600.1510 Notification of type-ap- (3) Cites relevant regulations and re- proval. quirements under this subpart; (a) If a request made pursuant to (4) Describes the indications and evi- § 600.1501 (type-approval) is approved or dence of the alleged failure; partially approved, NMFS will issue a (5) Provides documentation and data type-approval letter to indicate the demonstrating the alleged failure; specific EMTU/EMTU-C model, MCSP, (6) Sets a response date by which the or bundle that is approved for use, the type-approval holder must submit to MCS or class of MCSs permitted for use NMFS OLE a written response to the with the type-approved EMTU, and the Notification Letter, including, if appli- regions or fisheries in which the cable, a proposed solution; and EMTU/EMTU-C, MCSP, or bundle is ap- (7) Explains the type-approval hold- proved for use. er’s options if the type-approval holder (b) The NMFS Office of Law Enforce- believes the Notification Letter is in ment will maintain a list of type-ap- error. proved EMTUs/EMTU-C, MCSPs, and (b) NMFS will establish a response bundles on a publicly available website date between 30 and 120 calendar days and provide copies of the list upon re- from the date of the Notification Let- quest. ter. The type-approval holder’s response must be received in writing by § 600.1511 Changes or modifications to NMFS on or before the response date. type-approvals. If the type-approval holder fails to re- Type-approval holders must notify spond by the response date, the type- NMFS Office of Law Enforcement approval will be revoked. At its discre- (OLE) in writing no later than 2 days tion and for good cause, NMFS may ex- following modification to or replace- tend the response date to a maximum ment of any functional component or of 150 calendar days from the date of piece of their type-approved EMTU, the Notification Letter. EMTU-C, or MTU configuration, MCS, (c) A type-approval holder who has or bundle. If the changes are substan- submitted a timely response may meet tial, NMFS OLE will notify the type- with NMFS within 21 calendar days of approval holder in writing within 60 the date of that response to discuss a calendar days that an amended type- detailed and agreed-upon procedure for approval is required or that NMFS will resolving the alleged failure. The meet- initiate the type-approval revocation ing may be in person, conference call, process. or webcast. (d) If the type-approval holder dis- § 600.1512 Type-approval revocation agrees with the Notification Letter and process. believes that there is no failure to com- (a) If at any time, a type-approved ply with the type-approval regulations EMTU/EMTU-C, MCS, or bundle fails and requirements, NMFS has incor- to meet requirements at §§ 600.1502 rectly defined or described the failure through 600.1509 or applicable VMS reg- or its urgency and impact, or NMFS is ulations and requirements in effect for otherwise in error, the type-approval the region(s) and Federal fisheries for holder may submit a written objection which the EMTU/EMTU-C or MCS is letter to NMFS on or before the re- type-approved, or if an MTU fails to sponse date. Within 21 calendar days of meet the requirements under which it the date of the objection letter, the was type-approved, OLE may issue a type-approval holder may meet with

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NMFS to discuss a resolution or redefi- (ii) A revocation may be appealed nition of the issue. The meeting may pursuant to the process under § 600.1513. be in person, conference call, or webcast. If modifications to any part of § 600.1513 Type-approval revocation the Notification Letter are required, appeals process. then NMFS will issue a revised Notifi- (a) If a type-approval holder receives cation Letter to the type-approval a Revocation Letter pursuant to holder. However, the response date or § 600.1512, the type-approval holder may any other timeline in this process file an appeal of the revocation to the would not restart or be modified unless NMFS Assistant Administrator. NMFS decides to do so, at its discre- (b) An appeal must be filed within 14 tion. calendar days of the date of the Rev- (e) The total process from the date of ocation Letter. A type-approval holder the Notification Letter to the date of may not request an extension of time final resolution should not exceed 180 to file an appeal. calendar days, and may require a (c) An appeal must include a com- shorter timeframe, to be determined by plete copy of the Revocation Letter NMFS, depending on the urgency and and its attachments and a written impact of the alleged failure. In rare statement detailing any facts or cir- circumstances, NMFS, at its discre- cumstances explaining and refuting the tion, may extend the time for resolu- failures summarized in the Revocation tion of the alleged failure. In such a Letter. case, NMFS will provide a written no- (d) The NMFS Assistant Adminis- tice to the type-approval holder in- trator may, at his or her discretion, af- forming him or her of the extension firm, vacate, or modify the Revocation and the basis for the extension. Letter and send a letter to the type-ap- (f) If the failure to comply with type- proval holder explaining his or her de- approval regulations and requirements termination, within 21 calendar days of cannot be resolved through this proc- receipt of the appeal. The NMFS As- ess, the NMFS OLE Director will issue sistant Administrator’s determination a Revocation Letter to the type-ap- constitutes the final agency decision. proval holder that: § 600.1514 Revocation effective date (1) Identifies the MTU, EMTU, and notification to vessel owners. EMTU-C, MCS, or bundle for which type-approval is being revoked; (a) Following issuance of a Revoca- tion Letter pursuant to § 600.1512 and (2) Summarizes the failure to comply any appeal pursuant to § 600.1513, NMFS with type-approval regulations and re- will provide notice to all vessel owners quirements, including describing its ur- impacted by the type-approval revoca- gency and impact; tion via letter and FEDERAL REGISTER (3) Summarizes any proposed plan, or notice. NMFS will provide information attempts to produce such a plan, to re- to impacted vessel owners on: solve the failure; (1) The next steps vessel owners (4) States that revocation of the should take to remain in compliance MTU, EMTU, EMTU-C, MCS, or bun- with regional and/or national VMS re- dle’s type-approval has occurred; quirements; (5) States that no new installations (2) The date, 60–90 calendar days from of the revoked unit will be permitted in the notice date, on which the type-ap- any NMFS-managed fishery requiring proval revocation will become effec- the use of VMS; tive; (6) Cites relevant regulations and re- (3) Reimbursement of the cost of a quirements under this subpart; new type-approved EMTU/EMTU-C, (7) Explains why resolution was not should funding for reimbursement be achieved; available pursuant to § 600.1516. (8) Advises the type-approval holder that: § 600.1515 Litigation support. (i) The type-approval holder may re- (a) All technical aspects of a type-ap- apply for a type-approval under the proved EMTU, EMTU-C, MTU, MCS, or process set forth in § 600.1501, and bundle are subject to being admitted as

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evidence in a court of law, if needed. Subpart R—Standardized Bycatch The reliability of all technologies uti- Reporting Methodology lized in the EMTU, EMTU-C, MTU, MCS, or bundle may be analyzed in SOURCE: 82 FR 6337, Jan. 19, 2017, unless court for, inter alia, testing proce- otherwise noted. dures, error rates, peer review, technical processes and general industry § 600.1600 Purpose and scope. acceptance. Section 303(a)(11) of the Magnuson- (b) The type-approval holder must, as Stevens Act requires that any fishery a requirement of the holder’s type-ap- management plan (FMP) with respect proval, provide technical and expert to any fishery shall establish a stand- support for litigation to substantiate ardized reporting methodology to as- the EMTU/EMTU-C, MCS, or bundle ca- sess the amount and type of bycatch pabilities to establish NMFS Office of occurring in the fishery. 16 U.S.C. Law Enforcement cases against viola- 1853(a)(11). The purpose of a standard- tors, as needed. If the technologies ized reporting methodology is to col- have previously been subject to such lect, record, and report bycatch data in scrutiny in a court of law, the type-ap- a fishery that, in conjunction with proval holder must provide NMFS with other relevant sources of information, a brief summary of the litigation and are used to assess the amount and type any court findings on the reliability of of bycatch occurring in the fishery and the technology. inform the development of conserva- (c) The type-approval holder will be tion and management measures that, required to sign a non-disclosure agree- to the extent practicable, minimize by- ment limiting the release of certain in- catch and bycatch mortality. This sub- formation that might compromise the part sets forth requirements for and effectiveness of the VMS operations. guidance on establishing and reviewing § 600.1516 Reimbursement opportuni- a standardized reporting methodology. ties for revoked Vessel Monitoring System type-approval products. § 600.1605 Definitions and word usage. (a) Subject to the availability of (a) Definitions. In addition to the defi- funds, vessel owners may be eligible for nitions in the Magnuson-Stevens Act reimbursement payments for a replace- and § 600.10, standardized reporting meth- ment EMTU/EMTU-C if: odology means an established, con- (1) All eligibility and process require- sistent procedure or procedures used to ments specified by NMFS are met as collect, record, and report bycatch data described in NMFS Policy Directive 06– in a fishery, which may vary from one 102; and fishery to another. Bycatch assessment (2) The replacement type-approved is not part of the standardized report- EMTU/EMTU-C is installed on the ves- ing methodology, but must be consid- sel, and reporting to NMFS Office of ered as described in § 600.1610(a)(2)(iv). Law Enforcement; and (b) Word usage. The terms ‘‘bycatch’’ (3) The type-approval for the pre- and ‘‘fishery’’ are used in the same viously installed EMTU/EMTU-C has manner as in 16 U.S.C. 1802. The terms been revoked by NMFS; or ‘‘must’’, ‘‘should’’, ‘‘may’’, ‘‘will’’, (4) NMFS requires the vessel owner ‘‘could’’, and ‘‘can’’ are used in the to purchase a new EMTU/EMTU-C prior same manner as in § 600.305(c). The to the end of an existing unit’s service term ‘‘Council’’ is used in the same life. manner as in § 600.305(d)(10), and includes the regional fishery manage- (b) The cap for individual reimbursement Councils and the Secretary of ment payments is subject to change. If Commerce, as appropriate (16 U.S.C. this occurs, NMFS Office of Law En- 1854(c) and (g)). forcement will publish a notice in the FEDERAL REGISTER announcing the change.

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§ 600.1610 Establishing and reviewing address information about the charac- standardized bycatch reporting teristics of bycatch in the fishery, methodologies in fishery manage- when available, including, but not lim- ment plans. ited to: The amount and type of by- (a) Establishing a standardized report- catch occurring in the fishery, which ing methodology—(1) Fishery management may vary based on different fishing ac- plan contents. An FMP must identify tivities and operations; the importance the required procedure or procedures of bycatch in estimating the fishing that constitute the standardized re- mortality of fish stocks; and the effect porting methodology for the fishery. of bycatch on ecosystems. The required procedures may include, (ii) Feasibility. The implementation of but are not limited to, one or more of a standardized reporting methodology the following: Observer programs, elec- must be feasible from cost, technical, tronic monitoring and reporting tech- and operational perspectives. However, nologies, and self-reported mechanisms feasibility concerns do not exempt an (e.g., recreational sampling, industry- FMP from the requirement to establish reported catch and discard data). The a standardized reporting methodology. FMP, or a fishery research plan authorized under 16 U.S.C. 1862, must ex- Recognizing that costs and funding plain how the standardized reporting may vary from year to year, a Council methodology meets the purpose de- must also address how implementation scribed in § 600.1600, based on an anal- of the standardized reporting method- ysis of the requirements under ology may be adjusted while con- § 600.1610(a)(2). The FMP, or fishery re- tinuing to meet the purpose described search plan authorized under 16 U.S.C. under § 600.1600. 1862, may reference analyses and infor- (iii) Data uncertainty. A Council must mation in other FMPs, FMP amend- address the uncertainty of the data re- ments, Stock Assessment and Fishery sulting from the standardized reporting Evaluation (SAFE) reports, or other methodology. The standardized report- documents. Councils should work to- ing methodology must be designed so gether and collaborate on standardized that the uncertainty associated with reporting methodologies for fisheries the resulting bycatch data can be de- that operate across multiple jurisdic- scribed, quantitatively or quali- tions, as appropriate. In addition to tatively. The Council should seek to proposing regulations necessary to im- minimize uncertainty in the resulting plement the standardized reporting data, recognizing that different degrees methodology, a Council should also of data uncertainty may be appropriate provide in its FMP, or a fishery re- for different fisheries. search plan authorized under 16 U.S.C. (iv) Data use. A Council must address 1862, guidance to NMFS on how to ad- how data resulting from the standard- just implementation of a standardized ized reporting methodology are used to reporting methodology consistent with assess the amount and type of bycatch the FMP. See National Standard 6 occurring in the fishery. A Council guidelines, § 600.335. must consult with its scientific and (2) Requirements for standardized reporting methodology. The FMP must es- statistical committee and/or the re- tablish a standardized reporting meth- gional National Marine Fisheries Serv- odology as provided under ice science center on reporting method- § 600.1610(a)(1) that meets the specific ology design considerations such as purpose described in § 600.1600. Due to data elements, sampling designs, sam- the inherent diversity of fisheries, dif- ple sizes, and reporting frequency. The ferent standardized reporting meth- Council must also consider the sci- odologies may be appropriate for dif- entific methods and techniques avail- ferent fisheries. However, when estab- able to collect, record, and report by- lishing or reviewing a standardized re- catch data that could improve the porting methodology, a Council must quality of bycatch estimates. Different address the following: standardized reporting methodology (i) Information about the characteristics designs may be appropriate for dif- of bycatch in the fishery. A Council must ferent fisheries.

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(b) Review of FMPs. All FMPs must be 622.28 Vessel monitoring systems (VMSs). consistent with this subpart by Feb- 622.29 Conservation measures for protected ruary 21, 2022. Therefore, a Council, in resources. coordination with NMFS, must con- 622.30 Required fishing gear. 622.31 Buoy gear identification. duct a review of its FMPs for consist- 622.32 Prohibited gear and methods. ency with this subpart. A Council does 622.33 Prohibited species. not need to amend an FMP if NMFS de- 622.34 Seasonal and area closures designed termines that it is consistent with this to protect Gulf reef fish. subpart. Thereafter, Councils, in co- 622.35 Gear restricted areas. ordination with NMFS, should conduct 622.36 Seasonal harvest limitations. a review of standardized reporting 622.37 Size limits. 622.38 Bag and possession limits. methodologies at least once every 5 622.39 Quotas. years in order to verify continued com- 622.40 Restrictions on sale/purchase. pliance with the MSA and this subpart. 622.41 Annual catch limits (ACLs), annual catch targets (ACTs), and accountability PART 622—FISHERIES OF THE CAR- measures (AMs). 622.42 Adjustment of management meas- IBBEAN, GULF OF MEXICO, AND ures. SOUTH ATLANTIC 622.43 Commercial trip limits.

Subpart A—General Provisions Subpart C—Shrimp Fishery of the Gulf of Mexico Sec. 622.1 Purpose and scope. 622.50 Permits and fees. 622.2 Definitions and acronyms. 622.51 Recordkeeping and reporting. 622.3 Relation to other laws and regula- 622.52 At-sea observer coverage. tions. 622.53 Bycatch reduction device (BRD) re- 622.4 Permits and fees—general. quirements. 622.5 Recordkeeping and reporting—general. 622.54 Prohibited gear and methods. 622.6 Vessel identification. 622.55 Closed areas. 622.7 Fishing years. 622.56 Size limits. 622.8 Quotas—general. 622.57 [Reserved] 622.9 Prohibited gear and methods—general. 622.58 Annual catch limits (ACLs), annual 622.10 Landing fish intact—-general. catch targets (ACTs), and accountability 622.11 Bag and possession limits—general measures (AMs). applicability. 622.59 Prevention of gear conflicts. 622.12 Annual catch limits (ACLs) and ac- 622.60 Adjustment of management meas- countability measures (AMs) for Carib- ures. bean island management areas/Caribbean EEZ. Subpart D—Coral and Coral Reefs of the 622.13 Prohibitions—general. Gulf of Mexico 622.14 [Reserved] 622.15 Notice regarding area closures to pro- 622.70 Permits. tect corals. 622.71 Recordkeeping and reporting. 622.16 Notice regarding South Atlantic spe- 622.72 Prohibited gear and methods. cial management zones (SMZs). 622.73 Prohibited species. 622.17 Notice regarding seasonal/area clo- 622.74 Area closures to protect Gulf corals. sures to protect Gulf reef fish. 622.75 Harvest limitations. 622.76 Restrictions on sale/purchase. Subpart B—Reef Fish Resources of the Gulf 622.77 Adjustment of management meas- of Mexico ures. 622.20 Permits and endorsements. Subpart E—Red Drum Fishery of the Gulf of 622.21 Individual fishing quota (IFQ) pro- Mexico gram for Gulf red snapper. 622.22 Individual fishing quota (IFQ) pro- 622.90 Permits. gram for Gulf groupers and tilefishes. 622.91 Recordkeeping and reporting. 622.23 State management of the red snapper 622.92 Prohibited species. recreational sector private angling com- 622.93 Adjustment of management meas- ponent in the Gulf EEZ. ures. 622.24 [Reserved] 622.25 Exemptions for Gulf groundfish Subpart F—Offshore Marine Aquaculture in trawling. the Gulf of Mexico 622.26 Recordkeeping and reporting. 622.27 At-sea observer coverage. 622.100 General.

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