[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2009 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
50
Parts 600 to 659
Revised as of October 1, 2009
Wildlife and Fisheries
________________________
Containing a codification of documents of general
applicability and future effect
As of October 1, 2009
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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Table of Contents
Page
Explanation................................................. v
Title 50:
Chapter VI--Fishery Conservation and Management,
National Oceanic and Atmospheric Administration,
Department of Commerce 3
Finding Aids:
Table of CFR Titles and Chapters........................ 721
Alphabetical List of Agencies Appearing in the CFR...... 741
List of CFR Sections Affected........................... 751
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 50 CFR 600.5 refers
to title 50, part 600,
section 5.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 2009), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
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Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
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to materials already published elsewhere. For an incorporation to be
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, Washington DC 20408, or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
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REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
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the top of odd-numbered pages.
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2009.
[[Page ix]]
THIS TITLE
Title 50--Fish and Wildlife is composed of nine volumes. The parts
in these volumes are arranged in the following order: Parts 1-16; part
17 (17.1 to 17.95(b)), part 17 (17.95(c) to end of 17.95), part 17
(17.96 to 17.99(h)), part 17 (17.99(i) to end of part 17), parts 18-199,
parts 200-599, parts 600-659, and part 660 to end. The first six volumes
(parts 1-16, part 17 (17.1 to 17.95(b)), part 17 (17.95(c) to end of
17.95), part 17 (17.96 to 17.99(h)), part 17 (17.99(i) to end of part
17), and parts 18-199) contain the current regulations issued under
chapter I--United States Fish and Wildlife Service, Department of the
Interior. The seventh volume (parts 200-599) contains the current
regulations issued under chapter II--National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of Commerce;
chapter III--International Fishing and Related Activities, chapter IV--
Joint Regulations (United States Fish and Wildlife Service, Department
of the Interior and National Marine Fisheries Service, National Oceanic
and Atmospheric Administration, Department of Commerce); Endangered
Species Committee regulations; and chapter V--Marine Mammal Commission.
The eighth and ninth volumes (parts 600-659 and part 660 to end) contain
the current regulations issued under chapter VI--Fishery Conservation
and Management, National Oceanic and Atmospheric Administration,
Department of Commerce. The contents of these volumes represent all
current regulations codified under this title of the CFR as of October
1, 2009.
Alphabetical listings of endangered and threatened wildlife and
plants appear in Sec. Sec. 17.11 and 17.12.
The OMB control numbers for the National Oceanic and Atmospheric
Administration appear in 15 CFR 902.1.
For this volume, Robert J. Sheehan, III was Chief Editor. The Code
of Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 50--WILDLIFE AND FISHERIES
(This book contains part 600 to 659)
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Part
chapter vi--Fishery Conservation and Management, National
Oceanic and Atmospheric Administration, Department of
Commerce.................................................. 600
[[Page 3]]
CHAPTER VI--FISHERY CONSERVATION AND MANAGEMENT, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE
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Editorial Note: Nomenclature changes to Chapter VI appear at 69 FR
53361, 53362, Sept. 1, 2004.
Part Page
600 Magnuson-Stevens Act provisions............. 5
622 Fisheries of the Caribbean, Gulf, and South
Atlantic................................ 194
635 Atlantic highly migratory species........... 302
640 Spiny lobster fishery of the Gulf of Mexico
and South Atlantic...................... 370
644 [Reserved]
648 Fisheries of the Northeastern United States. 381
654 Stone crab fishery of the Gulf of Mexico.... 706
655-659 [Reserved]
[[Page 5]]
PART 600_MAGNUSON-STEVENS ACT PROVISIONS--Table of Contents
Subpart A_General
Sec.
600.5 Purpose and scope.
600.10 Definitions.
600.15 Other acronyms.
Subpart B_Regional Fishery Management Councils
600.105 Intercouncil boundaries.
600.110 Intercouncil fisheries.
600.115 Statement of organization, practices, and procedures (SOPP).
600.120 Employment practices.
600.125 Budgeting, funding, and accounting.
600.130 Protection of confidentiality of statistics.
600.135 Meeting procedures.
600.150 Disposition of records.
600.155 Freedom of Information Act (FOIA) requests.
Subpart C_Council Membership
600.205 Principal state officials and their designees.
600.210 Terms of Council members.
600.215 Council nomination and appointment procedures.
600.220 Oath of office.
600.225 Rules of conduct.
600.230 Removal.
600.235 Financial disclosure.
600.240 Security assurances.
600.245 Council member compensation.
Subpart D_National Standards
600.305 General.
600.310 National Standard 1--Optimum Yield.
600.315 National Standard 2--Scientific Information.
600.320 National Standard 3--Management Units.
600.325 National Standard 4--Allocations.
600.330 National Standard 5--Efficiency.
600.335 National Standard 6--Variations and Contingencies.
600.340 National Standard 7--Costs and Benefits.
600.345 National Standard 8--Communities.
600.350 National Standard 9--Bycatch.
600.355 National Standard 10--Safety of Life at Sea.
Subpart E_Confidentiality of Statistics
600.405 Types of statistics covered.
600.410 Collection and maintenance of statistics.
600.415 Access to statistics.
600.420 Control system.
600.425 Release of statistics.
Subpart F_Foreign Fishing
600.501 Vessel permits.
600.502 Vessel reports.
600.503 Vessel and gear identification.
600.504 Facilitation of enforcement.
600.505 Prohibitions.
600.506 Observers.
600.507 Recordkeeping.
600.508 Fishing operations.
600.509 Prohibited species.
600.510 Gear avoidance and disposal.
600.511 Fishery closure procedures.
600.512 Scientific research.
600.513 Recreational fishing.
600.514 Relation to other laws.
600.515 Interpretation of 16 U.S.C. 1857(4).
600.516 Total allowable level of foreign fishing (TALFF).
600.517 Allocations.
600.518 Fee schedule for foreign fishing.
600.520 Northwest Atlantic Ocean fishery.
600.525 Applicability of Subpart F to Canadian Albacore Fishing Vessels
off the West Coast.
600.530 Pacific albacore fishery.
Subpart G_Preemption of State Authority Under Section 306(b)
600.605 General policy.
600.610 Factual findings for Federal preemption.
600.615 Commencement of proceedings.
600.620 Rules pertaining to the hearing.
600.625 Secretary's decision.
600.630 Application for reinstatement of state authority.
Subpart H_General Provisions for Domestic Fisheries
600.705 Relation to other laws.
600.710 Permits.
600.715 Recordkeeping and reporting.
600.720 Vessel and gear identification.
600.725 General prohibitions.
600.730 Facilitation of enforcement.
600.735 Penalties.
600.740 Enforcement policy.
600.745 Scientific research activity, exempted fishing, and exempted
educational activity.
600.746 Observers.
600.747 Guidelines and procedures for determining new fisheries and
gear.
Subpart I_Fishery Negotiation Panels
600.750 Definitions.
600.751 Determination of need for a fishery negotiation panel.
600.752 Use of conveners and facilitators.
600.753 Notice of intent to establish a fishery negotiation panel.
[[Page 6]]
600.754 Decision to establish a fishery negotiation panel.
600.755 Establishment of a fishery negotiation panel.
600.756 Conduct and operation of a fishery negotiation panel.
600.757 Operational protocols.
600.758 Preparation of report.
600.759 Use of report.
600.760 Fishery Negotiation Panel lifetime.
Subpart J_Essential Fish Habitat (EFH)
600.805 Purpose and scope.
600.810 Definitions and word usage.
600.815 Contents of Fishery Management Plans.
Subpart K_EFH Coordination, Consultation, and Recommendations
600.905 Purpose, scope, and NMFS/Council cooperation.
600.910 Definitions and word usage.
600.915 Coordination for the conservation and enhancement of EFH.
600.920 Federal agency consultation with the Secretary.
600.925 NMFS EFH Conservation Recommendations to Federal and state
agencies.
600.930 Council comments and recommendations to Federal and state
agencies.
Subpart L_Fishing Capacity Reduction Framework
600.1000 Definitions.
600.1001 Requests.
600.1002 General requirements.
600.1003 Content of a request for a financed program.
600.1004 Accepting a request for, and determinations about initiating, a
financed program.
600.1005 Content of a request for a subsidized program.
600.1006 Accepting a request for, and determinations about conducting, a
subsidized program.
600.1007 Reduction amendments.
600.1008 Implementation plan and implementation regulations.
600.1009 Bids.
600.1010 Referenda.
600.1011 Reduction methods and other conditions.
600.1012 Reduction loan.
600.1013 Fee payment and collection.
600.1014 Fee collection deposits, disbursements, records, and reports.
600.1015 Late charges.
600.1016 Enforcement.
600.1017 Prohibitions and penalties.
Subpart M_Specific Fishery or Program Fishing Capacity Reduction
Regulations
600.1100 General. [Reserved]
600.1101 Inshore fee system for repayment of the loan to harvesters of
Pollock from the directed fishing allowance allocated to the
inshore component under section 206(b)(1) of the AFA.
600.1102 Pacific Coast groundfish fee.
600.1103 Bering Sea and Aleutian Islands (BSAI) Crab species program.
600.1104 Bering Sea and Aleutian Islands (BSAI) crab species fee payment
and collection system.
600.1105 Longline catcher processor subsector of the Bering Sea and
Aleutian Islands (BSAI) non-pollock groundfish fishery
program.
600.1106 Longline catcher processor subsector Bering Sea and Aleutian
Islands (BSAI) non-pollock groundfish species fee payment and
collection system.
Subpart N_Shark Finning
600.1200 Purpose and scope.
600.1201 Relation to other laws.
600.1202 Definitions.
600.1203 Prohibitions.
600.1204 Shark finning; possession at sea and landing of shark fins.
Subpart O_Limited Access Privilege Programs
600.1300--600.1309 [Reserved]
600.1310 New England and Gulf of Mexico Individual Fishing Quota
Referenda.
Subpart P_Marine Recreational Fisheries of the United States
600.1400 Definitions.
600.1405 Angler registration.
600.1410 Registry process.
600.1415 Procedures for designating exempted states-general provisions.
600.1416 Requirements for exempted state designation based on submission
of state license holder data.
600.1417 Requirements for exempted state designation based on submission
of recreational survey data.
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
Source: 61 FR 32540, June 24, 1996, unless otherwise noted.
Subpart A_General
Sec. 600.5 Purpose and scope.
(a) This part contains general provisions governing the operation of
the eight Regional Fishery Management
[[Page 7]]
Councils established by the Magnuson-Stevens Act and describes the
Secretary's role and responsibilities under the Act. The Councils are
institutions created by Federal law and must conform to the uniform
standards established by the Secretary in this part.
(b) This part also governs all foreign fishing under the Magnuson-
Stevens Act, prescribes procedures for the conduct of preemption
hearings under section 306(b) of the Magnuson-Stevens Act, and collects
the general provisions common to all domestic fisheries governed by this
chapter.
(c) This part also governs fishing capacity reduction programs under
the Magnuson-Stevens Act.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 65
FR 31443, May 18, 2000]
Sec. 600.10 Definitions.
Unless defined otherwise in other parts of Chapter VI, the terms in
this chapter have the following meanings:
Administrator means the Administrator of NOAA (Under Secretary of
Commerce for Oceans and Atmosphere) or a designee.
Advisory group means a Scientific and Statistical Committee (SSC),
Fishing Industry Advisory Committee (FIAC), or Advisory Panel (AP)
established by a Council under the Magnuson-Stevens Act.
Agent, for the purpose of foreign fishing (subpart F), means a
person appointed and maintained within the United States who is
authorized to receive and respond to any legal process issued in the
United States to an owner and/or operator of a vessel operating under a
permit and of any other vessel of that Nation fishing subject to the
jurisdiction of the United States. Any diplomatic official accepting
such an appointment as designated agent waives diplomatic or other
immunity in connection with such process.
Aggregate or summary form means confidential data structured in such
a way that the identity of the submitter cannot be determined either
from the present release of the data or in combination with other
releases.
Albacore means the species Thunnus alalunga, or a part thereof.
Allocated species means any species or species group allocated to a
foreign nation under Sec. 600.517 for catching by vessels of that
Nation.
Allocation means direct and deliberate distribution of the
opportunity to participate in a fishery among identifiable, discrete
user groups or individuals.
Allowable chemical means a substance, generally used to immobilize
marine life so it can be captured alive, that, when introduced into the
water, does not take Gulf and South Atlantic prohibited coral (as
defined at 50 CFR 622.2) and is allowed by Florida or Hawaii or the U.S.
Pacific Insular Area for the harvest of tropical fish.
Anadromous species means species of fish that spawn in fresh or
estuarine waters of the United States and that migrate to ocean waters.
Angling means fishing for, attempting to fish for, catching or
attempting to catch fish by any person (angler) with a hook attached to
a line that is hand-held or by rod and reel made for this purpose.
Area of custody means any vessel, building, vehicle, live car,
pound, pier or dock facility where fish might be found.
Assistant Administrator means the Assistant Administrator for
Fisheries, NOAA, or a designee.
Atlantic tunas means bluefin, albacore, bigeye, skipjack, and
yellowfin tunas found in the Atlantic Ocean.
Atlantic Tunas Convention Act means the Atlantic Tunas Convention
Act of 1975, 16 U.S.C. 971-971h.
Authorized officer means:
(1) Any commissioned, warrant, or petty officer of the USCG;
(2) Any special agent or fishery enforcement officer of NMFS;
(3) Any officer designated by the head of any Federal or state
agency that has entered into an agreement with the Secretary and the
Commandant of the USCG to enforce the provisions of the Magnuson-Stevens
Act or any other statute administered by NOAA; or
(4) Any USCG personnel accompanying and acting under the direction
of any person described in paragraph (1) of this definition.
Authorized species means any species or species group that a foreign
vessel is
[[Page 8]]
authorized to retain in a joint venture by a permit issued under
Activity Code 4 as described by Sec. 600.501(c).
Automatic reel means a reel that remains attached to a vessel when
in use from which a line and attached hook(s) are deployed. The line is
payed out from and retrieved on the reel electrically or hydraulically.
Bandit gear means vertical hook and line gear with rods that are
attached to the vessel when in use. Lines are retrieved by manual,
electric, or hydraulic reels.
Barrier net means a small-mesh net used to capture coral reef or
coastal pelagic fishes.
Bigeye tuna means the species Thunnus obesus, or a part thereof.
Billfish means blue marlin, longbill spearfish, sailfish, or white
marlin.
Bluefin tuna means the species Thunnus thynnus, or a part thereof.
Blue marlin means the species Makaira nigricans, or a part thereof.
Bully net means a circular frame attached at right angles to a pole
and supporting a conical bag of webbing.
Buoy gear means fishing gear consisting of a float and one or more
lines suspended therefrom. A hook or hooks are on the lines at or near
the end. The float and line(s) drift freely and are retrieved
periodically to remove catch and rebait hooks.
Carcass means a fish in whole condition or that portion of a fish
that has been gilled and/or gutted and the head and some or all fins
have been removed, but that is otherwise in whole condition.
Cast net means a circular net with weights attached to the
perimeter.
Catch limit means the total allowable harvest or take from a single
fishing trip or day, as defined in this section.
Catch, take, or harvest includes, but is not limited to, any
activity that results in killing any fish or bringing any live fish on
board a vessel.
Center means one of the five NMFS Fisheries Science Centers.
Charter boat means a vessel less than 100 gross tons (90.8 mt) that
meets the requirements of the U.S. Coast Guard to carry six or fewer
passengers for hire.
Coast Guard Commander means one of the commanding officers of the
Coast Guard units specified in Table 1 of Sec. 600.502, or a designee.
Codend means the terminal, closed end of a trawl net.
Compensation fishing means fishing conducted for the purpose of
recovering costs associated with resource surveys and scientific studies
that support the management of a fishery, or to provide incentive for
participation in such studies. Compensation fishing may include fishing
during or subsequent to such surveys or studies.
Confidential statistics are those submitted as a requirement of an
FMP and that reveal the business or identity of the submitter.
Conservation engineering means the development and assessment of
fishing technologies and fishing techniques designed to conserve target
and non-target species, and may include the study of fish behavior and
the development and testing of new gear technologies and fishing
techniques to minimize bycatch and any adverse effects on essential fish
habitat and promote efficient harvest of target species. Conservation
engineering may include the assessment of existing fishing technologies
applied in novel ways. An example would be assessing the ability of a
bycatch reduction device (BRD), designed and proven in one fishery, to
reduce bycatch in another fishery. Conservation engineering meeting the
definition of scientific research activity is not fishing.
Continental shelf fishery resources means the species listed under
section 3(7) of the Magnuson-Stevens Act.
Council means one of the eight Regional Fishery Management Councils
established by the Magnuson-Stevens Act.
Data, statistics, and information are used interchangeably.
Dealer means the person who first receives fish by way of purchase,
barter, or trade.
Designated representative means the person appointed by a foreign
nation and maintained within the United States who is responsible for
transmitting information to and submitting reports from vessels of that
Nation and establishing observer transfer arrangements for vessels in
both directed and joint venture activities.
[[Page 9]]
Dip net means a small mesh bag, sometimes attached to a handle,
shaped and framed in various ways. It is operated by hand or partially
by mechanical power to capture the fish.
Directed fishing, for the purpose of foreign fishing (subpart F),
means any fishing by the vessels of a foreign nation for allocations of
fish granted that Nation under Sec. 600.517.
Director means the Director of the Office of Sustainable Fisheries,
1315 East-West Highway, Silver Spring, MD 20910.
Discard means to release or return fish to the sea, whether or not
such fish are brought fully on board a fishing vessel.
Dredge means a gear consisting of a mouth frame attached to a
holding bag constructed of metal rings or mesh.
Drop net means a small, usually circular net with weight around the
perimeter and a float in the center.
Essential fish habitat (EFH) means those waters and substrate
necessary to fish for spawning, breeding, feeding, or growth to
maturity. For the purpose of interpreting the definition of essential
fish habitat: ``Waters'' include aquatic areas and their associated
physical, chemical, and biological properties that are used by fish and
may include aquatic areas historically used by fish where appropriate;
``substrate'' includes sediment, hard bottom, structures underlying the
waters, and associated biological communities; ``necessary'' means the
habitat required to support a sustainable fishery and the managed
species' contribution to a healthy ecosystem; and ``spawning, breeding,
feeding, or growth to maturity'' covers a species' full life cycle.
Exclusive economic zone (EEZ) means the zone established by
Presidential Proclamation 5030, 3 CFR part 22, dated March 10, 1983, and
is that area adjacent to the United States which, except where modified
to accommodate international boundaries, encompasses all waters from the
seaward boundary of each of the coastal states to a line on which each
point is 200 nautical miles (370.40 km) from the baseline from which the
territorial sea of the United States is measured.
Exempted educational activity means an activity that would otherwise
be considered fishing, conducted by an educational institution
accredited by a recognized national or international accreditation body,
of limited scope and duration, that is otherwise prohibited by this
chapter VI, but that is authorized by the appropriate Regional
Administrator or Director for educational purposes, i.e., the
instruction of an individual or group, and authorized capture of only
the amount of fish necessary to demonstrate the lesson.
Exempted or experimental fishing means fishing from a vessel of the
United States that involves activities otherwise prohibited by this
chapter VI, but that are authorized under an exempted fishing permit
(EFP). The regulations in Sec. 600.745 refer exclusively to exempted
fishing. References elsewhere in this chapter to experimental fishing
mean exempted fishing under this part.
Fillet means to remove slices of fish flesh from the carcass by cuts
made parallel to the backbone.
Fish means:
(1) When used as a noun, means any finfish, mollusk, crustacean, or
parts thereof, and all other forms of marine animal and plant life other
than marine mammals and birds.
(2) When used as a verb, means to engage in ``fishing,'' as defined
below.
Fishery means:
(1) One or more stocks of fish that can be treated as a unit for
purposes of conservation and management and that are identified on the
basis of geographic, scientific, technical, recreational, or economic
characteristics, or method of catch; or
(2) Any fishing for such stocks.
Fishery management unit (FMU) means a fishery or that portion of a
fishery identified in an FMP relevant to the FMP's management
objectives. The choice of an FMU depends on the focus of the FMP's
objectives, and may be organized around biological, geographic,
economic, technical, social, or ecological perspectives.
Fishery resource means any fish, any stock of fish, any species of
fish, and any habitat of fish.
Fishing, or to fish means any activity, other than scientific
research conducted by a scientific research vessel, that involves:
[[Page 10]]
(1) The catching, taking, or harvesting of fish;
(2) The attempted catching, taking, or harvesting of fish;
(3) Any other activity that can reasonably be expected to result in
the catching, taking, or harvesting of fish; or
(4) Any operations at sea in support of, or in preparation for, any
activity described in paragraphs (1), (2), or (3) of this definition.
Fishing vessel means any vessel, boat, ship, or other craft that is
used for, equipped to be used for, or of a type that is normally used
for:
(1) Fishing; or
(2) Aiding or assisting one or more vessels at sea in the
performance of any activity relating to fishing, including, but not
limited to, preparation, supply, storage, refrigeration, transportation,
or processing.
Fish weir means a large catching arrangement with a collecting
chamber that is made of non-textile material (wood, wicker) instead of
netting as in a pound net.
Foreign fishing means fishing by a foreign fishing vessel.
Foreign fishing vessel (FFV) means any fishing vessel other than a
vessel of the United States, except those foreign vessels engaged in
recreational fishing, as defined in this section.
Gear conflict means any incident at sea involving one or more
fishing vessels:
(1) In which one fishing vessel or its gear comes into contact with
another vessel or the gear of another vessel; and
(2) That results in the loss of, or damage to, a fishing vessel,
fishing gear, or catch.
Gillnet means a panel of netting, suspended vertically in the water
by floats along the top and weights along the bottom, to entangle fish
that attempt to pass through it.
Governing International Fishery Agreement (GIFA) means an agreement
between the United States and a foreign nation or Nations under section
201(c) of the Magnuson-Stevens Act.
Grants Officer means the NOAA official authorized to sign, on behalf
of the Government, the cooperative agreement providing funds to support
the Council's operations and functions.
Greenwich mean time (GMT) means the local mean time at Greenwich,
England. All times in this part are GMT unless otherwise specified.
Handgear means handline, harpoon, or rod and reel.
Hand harvest means harvesting by hand.
Handline means fishing gear that is set and pulled by hand and
consists of one vertical line to which may be attached leader lines with
hooks.
Harass means to unreasonably interfere with an individual's work
performance, or to engage in conduct that creates an intimidating,
hostile, or offensive environment.
Harpoon or harpoon gear means fishing gear consisting of a pointed
dart or iron attached to the end of a line several hundred feet in
length, the other end of which is attached to a floatation device.
Harpoon gear is attached to a pole or stick that is propelled only by
hand, and not by mechanical means.
Headboat means a vessel that holds a valid Certificate of Inspection
issued by the U.S. Coast Guard to carry passengers for hire.
Hook and line means one or more hooks attached to one or more lines
(can include a troll).
Hoop net means a cone-shaped or flat net which may or may not have
throats and flues stretched over a series of rings or hoops for support.
Industry means both recreational and commercial fishing, and
includes the harvesting, processing, and marketing sectors.
International radio call sign (IRCS) means the unique radio
identifier assigned a vessel by the appropriate authority of the flag
state.
Joint venture means any operation by a foreign vessel assisting
fishing by U.S. fishing vessels, including catching, scouting,
processing and/or support. (A joint venture generally entails a foreign
vessel processing fish received from U.S. fishing vessels and conducting
associated support activities.)
Lampara net means a surround net with the sections of netting made
and joined to create bagging. It is hauled
[[Page 11]]
with purse rings and is generally much smaller in size than a purse
seine net.
Land means to begin offloading fish, to offload fish, or to arrive
in port or at a dock, berth, beach, seawall, or ramp.
Limited access system means a system that limits participation in a
fishery to those satisfying certain eligibility criteria or requirements
contained in a fishery management plan or associated regulation.
Longbill spearfish means the species Tetrapturus pfluegeri, or a
part thereof.
Longline means a line that is deployed horizontally and to which
gangions and hooks or pots are attached. Longlines can be stationary,
anchored, or buoyed lines that may be hauled manually, electrically, or
hydraulically.
Magnuson-Stevens Act means the Magnuson-Stevens Fishery Conservation
and Management Act, as amended (16 U.S.C. 1801 et seq.), formerly known
as the Magnuson Act.
Metric ton (mt) means 1,000 kg (2,204.6 lb).
nm means nautical mile (6,076 ft (1,852 m)).
Official number means the documentation number issued by the USCG or
the certificate number issued by a state or by the USCG for an
undocumented vessel.
Operator, with respect to any vessel, means the master or other
individual aboard and in charge of that vessel.
Optimum yield (OY) means the amount of fish that:
(1) Will provide the greatest overall benefit to the Nation,
particularly with respect to food production and recreational
opportunities, and taking into account the protection of marine
ecosystems;
(2) Is prescribed as such on the basis of the maximum sustainable
yield from the fishery, as reduced by any relevant economic, social, or
ecological factor; and
(3) In the case of an overfished fishery, provides for rebuilding to
a level consistent with producing the maximum sustainable yield in such
fishery.
Owner, with respect to any vessel, means:
(1) Any person who owns that vessel in whole or in part;
(2) Any charterer of the vessel, whether bareboat, time, or voyage;
(3) Any person who acts in the capacity of a charterer, including,
but not limited to, parties to a management agreement, operating
agreement, or any similar agreement that bestows control over the
destination, function, or operation of the vessel; or
(4) Any agent designated as such by a person described in paragraph
(1), (2), or (3) of this definition.
Pelagic longline means a longline that is suspended by floats in the
water column and that is not fixed to or in contact with the ocean
bottom.
Plan Team means a Council working group selected from agencies,
institutions, and organizations having a role in the research and/or
management of fisheries, whose primary purpose is to assist the Council
in the preparation and/or review of FMPs, amendments, and supporting
documents for the Council, and/or SSC and AP.
Postmark means independently verifiable evidence of the date of
mailing, such as a U.S. Postal Service postmark, or other private
carrier postmark, certified mail receipt, overnight mail receipt, or a
receipt issued upon hand delivery to a representative of NMFS authorized
to collect fishery statistics.
Pot means trap.
Powerhead means any device with an explosive charge, usually
attached to a spear gun, spear, pole, or stick, that may or may not fire
a projectile upon contact.
Predominately means, with respect to fishing in a fishery, that more
fishing on a stock or stocks of fish covered by the FMP occurs, or would
occur in the absence of regulations, within or beyond the EEZ than
occurs in the aggregate within the boundaries of all states off the
coasts of which the fishery is conducted.
Processing, for the purpose of foreign fishing (subpart F), means
any operation by an FFV to receive fish from foreign or U.S. fishing
vessels and/or the preparation of fish, including, but not limited to,
cleaning, cooking, canning, smoking, salting, drying, or freezing,
either on the FFV's behalf or to assist other foreign or U.S. fishing
vessels.
[[Page 12]]
Product recovery rate (PRR) means a ratio expressed as a percentage
of the weight of processed product divided by the round weight of fish
used to produce that amount of product.
Prohibited species, with respect to a foreign vessel, means any
species of fish that that vessel is not specifically allocated or
authorized to retain, including fish caught or received in excess of any
allocation or authorization.
Purchase means the act or activity of buying, trading, or bartering,
or attempting to buy, trade, or barter.
Purse seine means a floated and weighted encircling net that is
closed by means of a drawstring threaded through rings attached to the
bottom of the net.
Recreational fishing, with respect to a foreign vessel, means any
fishing from a foreign vessel not operated for profit and not operated
for the purpose of scientific research. It may not involve the sale,
barter, or trade of part or all of the catch (see Sec. 600.513).
Retain on board means to fail to return fish to the sea after a
reasonable opportunity to sort the catch.
Region means one of six NMFS Regional Offices responsible for
administering the management and development of marine resources in the
United States in their respective geographical areas of responsibility.
Regional Administrator means the Administrator of one of the six
NMFS Regions.
Regional Program Officer means the NMFS official designated in the
terms and conditions of the grant award responsible for monitoring,
recommending, and reviewing any technical aspects of the application for
Federal assistance and the award.
Rod and reel means a hand-held (including rod holder) fishing rod
with a manually or electrically operated reel attached.
Round means a whole fish--one that has not been gilled, gutted,
beheaded, or definned.
Round weight means the weight of the whole fish before processing or
removal of any part.
Sailfish means the species Istiophorus platypterus, or a part
thereof.
Sale or sell means the act or activity of transferring property for
money or credit, trading, or bartering, or attempting to so transfer,
trade, or barter.
Science and Research Director means the Director of one of the six
NMFS Fisheries Science Centers described in Table 1 of Sec. 600.502, or
a designee, also known as a Center Director.
Scientific cruise means the period of time during which a scientific
research vessel is operated in furtherance of a scientific research
project, beginning when the vessel leaves port to undertake the project
and ending when the vessel completes the project as provided for in the
applicable scientific research plan.
Scientific research activity is, for the purposes of this part, an
activity in furtherance of a scientific fishery investigation or study
that would meet the definition of fishing under the Magnuson-Stevens
Act, but for the exemption applicable to scientific research activity
conducted from a scientific research vessel. Scientific research
activity includes, but is not limited to, sampling, collecting,
observing, or surveying the fish or fishery resources within the EEZ, at
sea, on board scientific research vessels, to increase scientific
knowledge of the fishery resources or their environment, and to test a
hypothesis as part of a planned, directed investigation or study
conducted according to methodologies generally accepted as appropriate
for scientific research. At-sea scientific fishery investigations
address one or more topics involving taxonomy, biology, physiology,
behavior, disease, aging, growth, mortality, migration, recruitment,
distribution, abundance, ecology, stock structure, bycatch or other
collateral effects of fishing, conservation engineering, and catch
estimation of fish species considered to be a component of the fishery
resources within the EEZ. Scientific research activity does not include
the collection and retention of fish outside the scope of the applicable
research plan, or the testing of fishing gear. Data collection designed
to capture and land quantities of fish for product development, market
research, and/or public display are not scientific research activities.
For
[[Page 13]]
foreign vessels, such data collection activities are considered
scientific research if they are carried out in full cooperation with the
United States.
Scientific research plan means a detailed, written formulation,
prepared in advance of the research, for the accomplishment of a
scientific research project. At a minimum, a sound scientific research
plan should include:
(1) A description of the nature and objectives of the project,
including the hypothesis or hypotheses to be tested.
(2) The experimental design of the project, including a description
of the methods to be used, the type and class of any vessel(s) to be
used, and a description of sampling equipment.
(3) The geographical area(s) in which the project is to be
conducted.
(4) The expected date of first appearance and final departure of the
research vessel(s) to be employed, and deployment and removal of
equipment, as appropriate.
(5) The expected quantity and species of fish to be taken and their
intended disposition, and, if significant amounts of a managed species
or species otherwise restricted by size or sex are needed, an
explanation of such need.
(6) The name, address, and telephone/telex/fax number of the
sponsoring organization and its director.
(7) The name, address, and telephone/telex/fax number, and
curriculum vitae of the person in charge of the project and, where
different, the person in charge of the research project on board the
vessel.
(8) The identity of any vessel(s) to be used including, but not
limited to, the vessel's name, official documentation number and IRCS,
home port, and name, address, and telephone number of the owner and
master.
Scientific research vessel means a vessel owned or chartered by, and
controlled by, a foreign government agency, U.S. Government agency
(including NOAA or institutions designated as federally funded research
and development centers), U.S. state or territorial agency, university
(or other educational institution accredited by a recognized national or
international accreditation body), international treaty organization, or
scientific institution. In order for a domestic commercial fishing
vessel to meet this definition, it must be under the control of a
qualifying agency or institution, and operate in accordance with a
scientific research plan, for the duration of the scientific research
activity. In order for a vessel that is owned or chartered and
controlled by a foreign government to meet this definition, the vessel
must have scientific research as its exclusive mission during the
scientific activity in question, and the vessel operations must be
conducted in accordance with a scientific research plan.
Scouting means any operation by a vessel exploring (on the behalf of
an FFV or U.S. fishing vessel) for the presence of fish by visual,
acoustic, or other means that do not involve the catching of fish.
Secretary means the Secretary of Commerce or a designee.
Seine means a net with long narrow wings, that is rigged with floats
and weights.
Skipjack tuna means the species Katsuwonus pelamis, or a part
thereof.
Slurp gun means a tube-shaped suction device that operates somewhat
like a syringe by sucking up the fish.
Snare means a device consisting of a pole to which is attached a
line forming at its end a loop with a running knot that tightens around
the fish when the line is pulled.
Spear means a sharp, pointed, or barbed instrument on a shaft.
Spears can be operated manually or shot from a gun or sling.
State means each of the several states, the District of Columbia,
the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands,
Guam, the Northern Mariana Islands, and any other Commonwealth,
territory, or possession of the United States.
State employee means any employee of the state agency responsible
for developing and monitoring the state's program for marine and/or
anadromous fisheries.
Statement of Organization, Practices, and Procedures (SOPP) means a
statement by each Council describing its organization, practices, and
procedures as required under section 302(f)(6) of the Magnuson-Stevens
Act.
Stock assessment means the process of collecting and analyzing
biological and
[[Page 14]]
statistical information to determine the changes in the abundance of
fishery stocks in response to fishing, and, to the extent possible, to
predict future trends of stock abundance. Stock assessments are based on
resource surveys; knowledge of the habitat requirements, life history,
and behavior of the species; the use of environmental indices to
determine impacts on stocks; and catch statistics. Stock assessments are
used as a basis to ``assess and specify the present and probable future
condition of a fishery'' (as is required by the Magnuson-Stevens Act),
and are summarized in the Stock Assessment and Fishery Evaluation or
similar document.
Stock Assessment and Fishery Evaluation (SAFE) means a document or
set of documents that provides Councils with a summary of the most
recent biological condition of species in an FMU, and the social and
economic condition of the recreational and commercial fishing industries
and the fish processing industries. It summarizes, on a periodic basis,
the best available scientific information concerning the past, present,
and possible future condition of the stocks and fisheries being managed
under Federal regulation.
Submersible means a manned or unmanned device that functions or
operates primarily underwater and is used to harvest fish, i.e.,
precious corals, with mechanical arms.
Substantially (affects) means, for the purpose of subpart G, with
respect to whether a state's action or omission will substantially
affect the carrying out of an FMP for a fishery, that those effects are
important or material, or considerable in degree. The effects of a
state's action or omission for purposes of this definition include
effects upon:
(1) The achievement of the FMP's goals or objectives for the
fishery;
(2) The achievement of OY from the fishery on a continuing basis;
(3) The attainment of the national standards for fishery
conservation and management (as set forth in section 301(a) of the
Magnuson-Stevens Act) and compliance with other applicable law; or
(4) The enforcement of regulations implementing the FMP.
Support means any operation by a vessel assisting fishing by foreign
or U.S. vessels, including supplying water, fuel, provisions, fish
processing equipment, or other supplies to a fishing vessel.
Swordfish means the species Xiphias gladius, or a part thereof.
Tangle net dredge means dredge gear consisting of weights and flimsy
netting that hangs loosely in order to immediately entangle fish.
Total length (TL) means the straight-line distance from the tip of
the snout to the tip of the tail (caudal fin) while the fish is lying on
its side, normally extended.
Trammel net means a net consisting of two or more panels of netting,
suspended vertically in the water column by a common float line and a
common weight line. One panel of netting has a larger mesh size than the
other(s) in order to entrap fish in a pocket.
Transship means offloading and onloading or otherwise transferring
fish or fish products and/or transporting fish or products made from
fish.
Trap means a portable, enclosed device with one or more gates or
entrances and one or more lines attached to surface floats. Also called
a pot.
Trawl means a cone or funnel-shaped net that is towed through the
water, and can include a pair trawl that is towed simultaneously by two
boats.
Trip means the time period that begins when a fishing vessel departs
from a dock, berth, beach, seawall, ramp, or port to carry out fishing
operations and that terminates with a return to a dock, berth, beach,
seawall, ramp, or port.
U.S. observer or observer means any person serving in the capacity
of an observer employed by NMFS, either directly or under contract, or
certified as a supplementary observer by NMFS.
Vessel of the United States or U.S. vessel means:
(1) Any vessel documented under chapter 121 of title 46, United
States Code;
(2) Any vessel numbered under chapter 123 of title 46, United States
Code, and measuring less than 5 net tons;
[[Page 15]]
(3) Any vessel numbered under chapter 123 of title 46, United States
Code, and used exclusively for pleasure; or
(4) Any vessel not equipped with propulsion machinery of any kind
and used exclusively for pleasure.
White marlin means the species Tetrapturus albidus, or a part
thereof.
Yellowfin tuna means the species Thunnus albacares, or a part
thereof.
[61 FR 32540, June 24, 1996, as amended at 62 FR 14646, Mar. 27, 1997;
62 FR 66551, Dec. 19, 1997; 63 FR 7073, 7075, Feb. 12, 1998; 64 FR 4036,
Jan. 27, 1999; 64 FR 29133, May 28, 1999; 64 FR 67516, Dec. 2, 1999; 67
FR 2375, Jan. 17, 2002; 67 FR 64312, Oct. 18, 2002; 69 FR 30240, May 27,
2004; 73 FR 67810, Nov. 17, 2008; 74 FR 42792, Aug. 25, 2009]
Sec. 600.15 Other acronyms.
(a) Fishery management terms. (1) ABC--acceptable biological catch
(2) ATCA-Atlantic Tunas Convention Act
(3) BFT (Atlantic bluefin tuna) means the subspecies of bluefin
tuna, Thunnus thynnus thynnus, or a part thereof, that occurs in the
Atlantic Ocean.
(4) BSD means the ICCAT bluefin tuna statistical document.
(5) DAH--estimated domestic annual harvest
(6) DAP--estimated domestic annual processing
(7) EIS--environmental impact statement
(8) EY--equilibrium yield
(9) FMP--fishery management plan
(10) ICCAT means the International Commission for the Conservation
of Atlantic Tunas.
(11) JVP--joint venture processing
(12) MSY--maximum sustainable yield
(13) PMP--preliminary FMP
(14) TAC--total allowable catch
(15) TALFF--total allowable level of foreign fishing
(b) Legislation. (1) APA--Administrative Procedure Act
(2) CZMA--Coastal Zone Management Act
(3) ESA--Endangered Species Act
(4) FACA--Federal Advisory Committee Act
(5) FOIA--Freedom of Information Act
(6) FLSA--Fair Labor Standards Act
(7) MMPA--Marine Mammal Protection Act
(8) MPRSA--Marine Protection, Research, and Sanctuaries Act
(9) NEPA--National Environmental Policy Act
(10) PA--Privacy Act
(11) PRA--Paperwork Reduction Act
(12) RFA--Regulatory Flexibility Act
(c) Federal agencies. (1) CEQ--Council on Environmental Quality
(2) DOC--Department of Commerce
(3) DOI--Department of the Interior
(4) DOS--Department of State
(5) EPA--Environmental Protection Agency
(6) FWS--Fish and Wildlife Service
(7) GSA--General Services Administration
(8) NMFS--National Marine Fisheries Service
(9) NOAA--National Oceanic and Atmospheric Administration
(10) OMB--Office of Management and Budget
(11) OPM--Office of Personnel Management
(12) SBA--Small Business Administration
(13) USCG--United States Coast Guard
[61 FR 32540, June 24, 1996, as amended at 63 FR 7073, Feb. 12, 1998; 64
FR 29134, May 28, 1999]
Subpart B_Regional Fishery Management Councils
Sec. 600.105 Intercouncil boundaries.
(a) New England and Mid-Atlantic Councils. The boundary begins at
the intersection point of Connecticut, Rhode Island, and New York at
41[deg]18[min]16.249[sec] N. lat. and 71[deg]54[min]28.477[sec] W. long.
and proceeds south 37[deg]22[min]32.75[sec] East to the point of
intersection with the outward boundary of the EEZ as specified in the
Magnuson-Stevens Act.
(b) Mid-Atlantic and South Atlantic Councils. The boundary begins at
the seaward boundary between the States of Virginia and North Carolina
(36[deg]31[min]00.8[sec] N. lat.), and proceeds due east to the point of
intersection with the outward boundary of the EEZ as specified in the
Magnuson-Stevens Act.
(c) South Atlantic and Gulf of Mexico Councils. The boundary
coincides with the line of demarcation between the Atlantic Ocean and
the Gulf of Mexico, which begins at the intersection of the
[[Page 16]]
outer boundary of the EEZ, as specified in the Magnuson-Stevens Act, and
83[deg]00[min] W. long., proceeds northward along that meridian to
24[deg]35[min] N. lat., (near the Dry Tortugas Islands), thence eastward
along that parallel, through Rebecca Shoal and the Quicksand Shoal, to
the Marquesas Keys, and then through the Florida Keys to the mainland at
the eastern end of Florida Bay, the line so running that the narrow
waters within the Dry Tortugas Islands, the Marquesas Keys and the
Florida Keys, and between the Florida Keys and the mainland, are within
the Gulf of Mexico.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.110 Intercouncil fisheries.
If any fishery extends beyond the geographical area of authority of
any one Council, the Secretary may--
(a) Designate a single Council to prepare the FMP for such fishery
and any amendments to such FMP, in consultation with the other Councils
concerned; or
(b) Require that the FMP and any amendments be prepared jointly by
all the Councils concerned.
(1) A jointly prepared FMP or amendment must be adopted by a
majority of the voting members, present and voting, of each
participating Council. Different conservation and management measures
may be developed for specific geographic areas, but the FMP should
address the entire geographic range of the stock(s).
(2) In the case of joint FMP or amendment preparation, one Council
will be designated as the ``administrative lead.'' The ``administrative
lead'' Council is responsible for the preparation of the FMP or any
amendments and other required documents for submission to the Secretary.
(3) None of the Councils involved in joint preparation may withdraw
without Secretarial approval. If Councils cannot agree on approach or
management measures within a reasonable period of time, the Secretary
may designate a single Council to prepare the FMP or may issue the FMP
under Secretarial authority.
Sec. 600.115 Statement of organization, practices, and procedures (SOPP).
(a) Councils are required to publish and make available to the
public a SOPP in accordance with such uniform standards as are
prescribed by the Secretary (section 302(f)(6)) of the Magnuson-Stevens
Act. The purpose of the SOPP is to inform the public how the Council
operates within the framework of the Secretary's uniform standards.
(b) Amendments to current SOPPs must be consistent with the
guidelines in this section and the terms and conditions of the
cooperative agreement, the statutory requirements of the Magnuson-
Stevens Act and other applicable law. Upon approval of a Council's SOPP
amendment by the Secretary, a Notice of Availability will be published
in the Federal Register, including an address where the public may write
to request copies.
(c) Councils may deviate, where lawful, from the guidelines with
appropriate supporting rationale, and Secretarial approval of each
amendment to a SOPP would constitute approval of any such deviations for
that particular Council.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.120 Employment practices.
(a) Council staff positions must be filled solely on the basis of
merit, fitness for duty, competence, and qualifications. Employment
actions must be free from discrimination based on race, religion, color,
national origin, sex, age, disability, reprisal, sexual orientation,
status as a parent, or on any additional bases protected by applicable
Federal, state, or local law.
(b) The annual pay rates for Council staff positions shall be
consistent with the pay rates established for General Schedule Federal
employees as set forth in 5 U.S.C. 5332, and the Alternative Personnel
Management System for the U.S. Department of Commerce (62 FR 67434). The
Councils have the discretion to adjust pay rates and pay increases based
on cost of living (COLA) differentials in their geographic locations.
COLA adjustments in pay rates and pay increases may be provided for
staff members whose post
[[Page 17]]
of duty is located in Alaska, Hawaii, Guam, the U.S. Virgin Islands, the
Northern Mariana Islands, and Puerto Rico.
(1) No pay adjustment based on geographic location shall exceed the
COLA and locality pay adjustments available to Federal employees in the
same geographic area.
(2) [Reserved]
(c) Salary increases funded in lieu of life and medical/dental
policies are not permitted.
(d) Unused sick leave may be accumulated without limit, or up to a
maximum number of days and contribution per day, as specified by the
Council in its SOPP. Distributions of accumulated funds for unused sick
leave may be made to the employee upon his or her retirement, or to his
or her estate upon his or her death, as established by the Council in
its SOPP.
(e) Each Council may pay for unused annual leave upon separation,
retirement, or death of an employee.
(f) One or more accounts shall be maintained to pay for unused sick
or annual leave as authorized under paragraphs (d) and (e) of this
section, and will be funded from the Council's annual operating
allowances. Councils have the option to deposit funds into these
account(s) at the end of the budget period if unobligated balances
remain. Interest earned on these account(s) will be maintained in the
account(s), along with the principal, for the purpose of payment of
unused annual and sick leave only. These account(s), including interest,
may be carried over from year to year. Budgeting for accrued leave will
be identified in the ``Other'' object class categories section of the
SF-424A.
(g) A Council must notify the NOAA Office of General Counsel before
seeking outside legal advice, which may be for technical assistance not
available from NOAA. If the Council is seeking legal services in
connection with an employment practices question, the Council must first
notify the Department of Commerce's Office of the Assistant General
Counsel for Administration, Employment and Labor Law Division. A Council
may not contract for the provision of legal services on a continuing
basis.
[66 FR 57886, Nov. 19, 2001]
Sec. 600.125 Budgeting, funding, and accounting.
(a) Each Council's grant activities are governed by OMB Circular A-
110 (Uniform Administrative Requirements for Grants and Agreements with
Institutions of Higher Education, Hospitals, and other Non-Profit
Organizations), OMB Circular A-122 (Cost Principles for Non-Profit
Organizations), 15 CFR Part 29b (Audit Requirements for Institutions of
Higher Education and other Nonprofit Organizations), and the terms and
conditions of the cooperative agreement. (See 5 CFR 1310.3 for
availability of OMB Circulars.)
(b) Councils may not independently enter into agreements, including
grants, contracts, or cooperative agreements, whereby they will receive
funds for services rendered. All such agreements must be approved and
entered into by NOAA on behalf of the Councils.
(c) Councils are not authorized to accept gifts or contributions
directly. All such donations must be directed to the NMFS Regional
Administrator in accordance with applicable Department of Commerce
regulations.
[66 FR 57887, Nov. 19, 2001]
Sec. 600.130 Protection of confidentiality of statistics.
Each Council must establish appropriate procedures for ensuring the
confidentiality of the statistics that may be submitted to it by Federal
or state authorities and may be voluntarily submitted to it by private
persons, including, but not limited to (also see Sec. 600.405):
(a) Procedures for the restriction of Council member, employee, or
advisory group access and the prevention of conflicts of interest,
except that such procedures must be consistent with procedures of the
Secretary.
(b) In the case of statistics submitted to the Council by a state,
the confidentiality laws and regulations of that state.
[[Page 18]]
Sec. 600.135 Meeting procedures.
(a) Public notice of regular meetings of the Council, scientific
statistical committee or advisory panels, including the agenda, must be
published in the Federal Register on a timely basis, and appropriate
news media notice must be given. The published agenda of any regular
meeting may not be modified to include additional matters for Council
action without public notice, or such notice must be given at least 14
days prior to the meeting date, unless such modification is to address
an emergency under section 305 (c) of the Magnuson-Stevens Act, in which
case public notice shall be given immediately. Drafts of all regular
public meeting notices must be transmitted to the NMFS Headquarters
Office at least 23 calendar days before the first day of the regular
meeting. Councils must ensure that all public meetings are accessible to
persons with disabilities, and that the public can make timely requests
for language interpreters or other auxiliary aids at public meetings.
(b) Drafts of emergency public notices must be transmitted to the
NMFS Washington Office; recommended at least 5 working days prior to the
first day of the emergency meeting. Although notices of, and agendas
for, emergency meetings are not required to be published in the Federal
Register, notices of emergency meetings must be promptly announced
through the appropriate news media.
(c) After notifying local newspapers in the major fishing ports
within its region, having included in the notification the time and
place of the meeting and the reason for closing any meeting or portion
thereof:
(1) A Council, SSC, AP, or FIAC shall close any meeting, or portion
thereof, that concerns information bearing on a national security
classification.
(2) A Council, SSC, AP, or FIAC may close any meeting, or portion
thereof, that concerns matters or information pertaining to national
security, employment matters, or briefings on litigation in which the
Council is interested.
(3) A Council, SSC, AP, or FIAC may close any meeting, or portion
thereof, that concerns internal administrative matters other than
employment. Examples of other internal administrative matters include
candidates for appointment to AP, SSC, and other subsidiary bodies and
public decorum or medical conditions of members of a Council or its
subsidiary bodies. In deciding whether to close a portion of a meeting
to discuss internal administrative matters, a Council or subsidiary body
should consider not only the privacy interests of individuals whose
conduct or qualifications may be discussed, but also the interest of the
public in being informed of Council operations and actions.
(d) Without the notice required by paragraph (c) of this section, a
Council, SSC, AP, or FIAC may briefly close a portion of a meeting to
discuss employment or other internal administrative matters. The closed
portion of a meeting that is closed without notice may not exceed 2
hours.
(e) Before closing a meeting or portion thereof, a Council or
subsidiary body should consult with the NOAA General Counsel Office to
ensure that the matters to be discussed fall within the exceptions to
the requirement to hold public meetings described in paragraph (c) of
this section.
(f) Actions that affect the public, although based on discussions in
closed meetings, must be taken in public. For example, appointments to
an AP must be made in the public part of the meeting; however, a
decision to take disciplinary action against a Council employee need not
be announced to the public.
(g) A majority of the voting members of any Council constitute a
quorum for Council meetings, but one or more such members designated by
the Council may hold hearings.
(h) Decisions of any Council are by majority vote of the voting
members present and voting (except for a vote to propose removal of a
Council member, see 50 CFR 600.230). Voting by proxy is permitted only
pursuant to 50 CFR 600.205 (b). An abstention does not affect the
unanimity of a vote.
(i) Voting members of the Council who disagree with the majority on
any issue to be submitted to the Secretary, including principal state
officials raising federalism issues, may submit a
[[Page 19]]
written statement of their reasons for dissent. If any Council member
elects to file such a statement, it should be submitted to the Secretary
at the same time the majority report is submitted.
[66 FR 57887, Nov. 19, 2001]
Sec. 600.150 Disposition of records.
(a) Council records must be handled in accordance with NOAA records
management office procedures. All records and documents created or
received by Council employees while in active duty status belong to the
Federal Government. When employees leave the Council, they may not take
the original or file copies of records with them.
(b) [Reserved]
[66 FR 57887, Nov. 19, 2001]
Sec. 600.155 Freedom of Information Act (FOIA) requests.
(a) FOIA requests received by a Council should be coordinated
promptly with the appropriate NMFS Regional Office. The Region will
forward the request to the NMFS FOIA Official to secure a FOIA number
and log into the FOIA system. The Region will also obtain clearance from
the NOAA General Counsel's Office concerning initial determination for
denial of requested information.
(b) FOIA requests will be controlled and documented in the Region.
The requests should be forwarded to the NMFS FOIA Officer who will
prepare the Form CD-244, ``FOIA Request and Action Record'', with the
official FOIA number and due date. In the event the Region determines
that the requested information is exempt from disclosure, in full or in
part, under the FOIA, the denial letter prepared for the Assistant
Administrator's signature, along with the ``Foreseeable Harm'' Memo and
list of documents to be withheld, must be cleared through the NMFS FOIA
Officer. Upon completion, a copy of the signed CD-244 and cover letter
transmitting the information should be provided to the NMFS FOIA Officer
and the NOAA FOIA Officer.
[66 FR 57887, Nov. 19, 2001]
Subpart C_Council Membership
Sec. 600.205 Principal state officials and their designees.
(a) Only a full-time state employee of the state agency responsible
for marine and/or anadromous fisheries shall be appointed by a
constituent state Governor as the principal state official for purposes
of section 302(b) of the Magnuson-Stevens Act.
(b) A principal state official may name his/her designee(s) to act
on his/her behalf at Council meetings. Individuals designated to serve
as designees of a principal state official on a Council, pursuant to
section 302(b)(1)(A) of the Magnuson-Stevens Act, must be a resident of
the state and be knowledgeable and experienced, by reason of his or her
occupational or other experience, scientific expertise, or training, in
the fishery resources of the geographic area of concern to the Council.
(c) New or revised appointments by state Governors of principal
state officials and new or revised designations by principal state
officials of their designees(s) must be delivered in writing to the
appropriate NMFS Regional Administrator and the Council chair at least
48 hours before the individual may vote on any issue before the Council.
A designee may not name another designee. Written appointment of the
principal state official must indicate his or her employment status, how
the official is employed by the state fisheries agency, and whether the
official's full salary is paid by the state. Written designation(s) by
the principal state official must indicate how the designee is
knowledgeable and experienced in fishery resources of the geographic
area of concern to the Council, the County in which the designee
resides, and whether the designee's salary is paid by the state.
[66 FR 57888, Nov. 19, 2001]
Sec. 600.210 Terms of Council members.
(a) Voting members (other than principal state officials, the
Regional Administrators, or their designees) are appointed for a term of
3 years and, except as discussed in paragraphs (b) and (c) of this
section, may be reappointed.
[[Page 20]]
A voting member's Council service of 18 months or more during a term of
office will be counted as service for the entire 3-year term.
(b) The anniversary date for measuring terms of membership is August
11. The Secretary may designate a term of appointment shorter than 3
years, if necessary, to provide for balanced expiration of terms of
office. Members may not serve more than three consecutive terms.
(c) A member appointed after January 1, 1986, who has completed
three consecutive terms will be eligible for appointment to another term
one full year after completion of the third consecutive term.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7073, Feb. 12, 1998]
Sec. 600.215 Council nomination and appointment procedures.
(a) General. (1) Each year, the 3-year terms for approximately one-
third of the appointed members of the Councils expire. The Secretary of
Commerce (Secretary) will appoint or new members or will reappoint
seated members to another term to fill the seats being vacated.
(2) There are two categories of seats to which voting members are
appointed: ``Obligatory'' and ``At-large.''
(i) Obligatory seats are state specific. Each constituent state is
entitled to one seat on the Council on which it is a member, except that
the State of Alaska is entitled to five seats and the State of
Washington is entitled to two seats on the North Pacific Fishery
Management Council. When the term of a state's obligatory member is
expiring or when that seat becomes vacant before the expiration of its
term, the governor of that state must submit the names of at least three
qualified individuals to fill that Council seat.
(ii) The Magnuson-Stevens Act also provides for appointment, by the
Secretary, of one treaty Indian tribal representative to the Pacific
Fishery Management Council (Pacific Council). To fill that seat, the
Secretary solicits written nominations from the heads of governments of
those Indian Tribes with federally recognized fishing rights from the
States of California, Oregon, Washington, or Idaho. The list of nominees
must contain a total of at least three individuals who are knowledgeable
and experienced regarding the fishery resources under the authority of
the Pacific Council. The Secretary will appoint one tribal Indian
representative from this list to the Pacific Council for a term of 3
years and rotate the appointment among the tribes.
(iii) At-large seats are regional. When the term of an at-large
member is expiring or when that seat becomes vacant before the
expiration of a term, the governors of all constituent states of that
Council must each submit the names of at least three qualified
individuals to fill the seat.
(b) Responsibilities of State Governors. (1) Council members are
selected by the Secretary from lists of nominees submitted by Governors
of the constituent states, pursuant to section 302(b)(2)(C) of the
Magnuson-Stevens Act. For each applicable vacancy, a Governor must
submit the names of at least three nominees who meet the qualification
requirements of the Magnuson-Stevens Act. A Governor must provide a
statement explaining how each of his/her nominees meet the qualification
requirements, and must also provide appropriate documentation to the
Secretary that each nomination was made in consultation with commercial
and recreational fishing interests of that state and that each nominee
is knowledgeable and experienced by reason of his or her occupational or
other experience, scientific expertise, or training in one or more of
the following ways related to the fishery resources of the geographical
area of concern to the Council:
(i) Commercial fishing or the processing or marketing of fish, fish
products, or fishing equipment;
(ii) Fishing for pleasure, relaxation, or consumption, or experience
in any business supporting fishing;
(iii) Leadership in a state, regional, or national organization
whose members participate in a fishery in the Council's area of
authority;
(iv) The management and conservation of natural resources, including
related interactions with industry, government bodies, academic
institutions, and public agencies. This includes experience serving as a
member of a
[[Page 21]]
Council, Advisory Panel, Scientific and Statistical Committee, or
Fishing Industry Advisory Committee;
(v) Representing consumers of fish or fish products through
participation in local, state, or national organizations, or performing
other activities specifically related to the education or protection of
consumers of marine resources; or
(vi) Teaching, journalism, writing, consulting, practicing law, or
researching matters related to fisheries, fishery management, and marine
resource conservation.
(2) To assist in identifying qualifications, each nominee must
furnish to the appropriate governor's office a current resume, or
equivalent, describing career history--with particular attention to
experience related to the criteria in paragraph (b)(1) of this section.
Nominees may provide such information in any format they wish.
(3) A constituent State Governor must determine the state of
residency of each of his/her nominees. A Governor may not nominate a
non-resident of that state for appointment to a Council seat obligated
to that state. A Governor may nominate residents of another constituent
state of a Council for appointment to an at large seat on that Council.
(4) If, at any time during a term, a member changes residency to
another state that is not a constituent state of that Council, or a
member appointed to an obligatory seat changes residency to any other
state, the member may no longer vote and must resign from the Council.
For purposes of this paragraph, a state resident is an individual who
maintains his/her principal residence within that constituent state and
who, if applicable, pays income taxes to that state and/or to another
appropriate jurisdiction within that state.
(5) When the terms of both an obligatory member and an at-large
member expire concurrently, the Governor of the state holding the
expiring obligatory seat may indicate that the nominees who were not
selected for appointment to the obligatory seat may be considered for
appointment to an at-large seat, provided that the resulting total
number of nominees submitted by that governor for the expiring at-large
seat is no fewer than three different nominees. When obligatory and at-
large seats do not expire concurrently, the Secretary may select from
any of the nominees for such obligatory seat and from the nominees for
any at-large seat submitted by the Governor of that state, provided that
the resulting total number of nominees submitted by that Governor for
the expiring seats is no fewer than six. If a total of fewer than six
nominees is submitted by the Governor, each of the six will be
considered for the expiring obligatory seat, but not for the expiring
at-large seat.
(c) Responsibilities of eligible tribal Indian governments. The
tribal Indian representative on the Pacific Council will be selected by
the Secretary from a list of no fewer than three individuals submitted
by the tribal Indian governments with federally recognized fishing
rights from California, Oregon, Washington, and Idaho, pursuant to
section 302(b)(5) of the Magnuson-Stevens Act. To assist in assessing
the qualifications of each nominee, each head of an appropriate tribal
Indian government must furnish to the Assistant Administrator a current
resume, or equivalent, describing the nominee's qualifications, with
emphasis on knowledge and experience related to the fishery resources
affected by recommendations of the Pacific Council. Prior service on the
Pacific Council in a different capacity will not disqualify nominees
proposed by tribal Indian governments.
(d) Nomination deadlines. Nomination letters and completed kits must
be forwarded by express mail under a single mailing to the address
specified by the Assistant Administrator by March 15. For appointments
outside the normal cycle, a different deadline for receipt of
nominations will be announced.
(1) Obligatory seats. (i) The governor of the state for which the
term of an obligatory seat is expiring must submit the names of at least
three qualified individuals to fill that seat by the March 15 deadline.
The Secretary will appoint to the Pacific Council a representative of an
Indian tribe from a list of no fewer than three individuals submitted by
the tribal Indian governments.
(ii) If the nominator fails to provide a nomination letter and at
least three
[[Page 22]]
complete nomination kits by March 15, the obligatory seat will remain
vacant until all required information has been received and processed
and the Secretary has made the appointment.
(2) At-large seats. (i) If a Governor chooses to submit nominations
for an at-large seat, he/she must submit lists that contain at least
three different qualified nominees for each vacant seat. A nomination
letter and at least three complete nomination kits must be forwarded by
express mail under a single mailing to the address specified by the
Assistant Administrator by March 15.
(ii) Nomination packages that are incomplete after March 15 will be
returned to the nominating Governor and will be processed no further.
At-large members will be appointed from among the nominations submitted
by the governors who complied with the nomination requirements and the
March 15 deadline.
(e) Responsibilities of the Secretary. (1) The Secretary must, to
the extent practicable, ensure a fair and balanced apportionment, on a
rotating or other basis, of the active participants (or their
representatives) in the commercial and recreational fisheries in the
Council's area of authority. Further, the Secretary must take action to
ensure, to the extent practicable, that those persons dependent for
their livelihood upon the fisheries in the Council's area of authority
are fairly represented as voting members on the Councils.
(2) The Secretary will review each list submitted by a governor or
the tribal Indian governments to ascertain whether the individuals on
the list are qualified for the vacancy. If the Secretary determines that
a nominee is not qualified, the Secretary will notify the appropriate
Governor or tribal Indian government of that determination. The Governor
or tribal Indian government shall then submit a revised list of nominees
or resubmit the original list with an additional explanation of the
qualifications of the nominee in question. The Secretary reserves the
right to determine whether nominees are qualified.
(3) The Secretary will select the appointees from lists of qualified
nominees provided by the Governors of the constituent Council states or
of the tribal Indian governments that are eligible to nominate
candidates for that vacancy.
(i) For Governor-nominated seats, the Secretary will select an
appointee for an obligatory seat from the list of qualified nominees
submitted by the governor of the state. In filling expiring at-large
seats, the Secretary will select an appointee(s) for an at-large seat(s)
from the list of all qualified candidates submitted. The Secretary will
consider only complete slates of nominees submitted by the governors of
the Council's constituent states. When an appointed member vacates his/
her seat prior to the expiration of his/her term, the Secretary will
fill the vacancy for the remainder of the term by selecting from
complete nomination letters and kits that are timely and contain the
required number of candidates.
(ii) For the tribal Indian seat, the Secretary will solicit
nominations of individuals for the list referred to in paragraph (c) of
this section only from those Indian tribes with federally recognized
fishing rights from California, Oregon, Washington, or Idaho. The
Secretary will consult with the Bureau of Indian Affairs, Department of
the Interior, to determine which Indian tribes may submit nominations.
Any vacancy occurring prior to the expiration of any term shall be
filled in the same manner as described in paragraphs (d)(1) and (2) of
this section, except that the Secretary may use the list referred to in
paragraph (b)(1) of this section from which the vacating member was
chosen. The Secretary shall rotate the appointment among the tribes,
taking into consideration:
(A) The qualifications of the individuals on the list referred to in
paragraph (c) of this section.
(B) The various rights of the Indian tribes involved, and judicial
cases that set out the manner in which these rights are to be exercised.
(C) The geographic area in which the tribe of the representative is
located.
(D) The limitation that no tribal Indian representative shall serve
more
[[Page 23]]
than three consecutive terms in the Indian tribal seat.
[64 FR 4600, Jan. 29, 1999]
Sec. 600.220 Oath of office.
Each member appointed to a Council must take an oath of office.
Sec. 600.225 Rules of conduct.
(a) Council members, as Federal office holders, and Council
employees are subject to most Federal criminal statutes covering
bribery, conflict-of-interest, disclosure of confidential information,
and lobbying with appropriated funds.
(b) The Councils are responsible for maintaining high standards of
ethical conduct among themselves, their staffs, and their advisory
groups. In addition to abiding by the applicable Federal conflict of
interest statutes, both members and employees of the Councils must
comply with the following standards of conduct:
(1) No employee of a Council may use his or her official authority
or influence derived from his or her position with the Council for the
purpose of interfering with or affecting the result of an election to or
a nomination for any national, state, county, or municipal elective
office.
(2) No employee of a Council may be deprived of employment,
position, work, compensation, or benefit provided for or made possible
by the Magnuson-Stevens Act on account of any political activity or lack
of such activity in support of or in opposition to any candidate or any
political party in any national, state, county, or municipal election,
or on account of his or her political affiliation.
(3) No Council member or employee may pay, offer, promise, solicit,
or receive from any person, firm, or corporation a contribution of money
or anything of value in consideration of either support or the use of
influence or the promise of support or influence in obtaining for any
person any appointive office, place, or employment under the Council.
(4) No employee of a Council may have a direct or indirect financial
interest that conflicts with the fair and impartial conduct of his or
her Council duties.
(5) No Council member, employee of a Council, or member of a Council
advisory group may use or allow the use, for other than official
purposes, of information obtained through or in connection with his or
her Council employment that has not been made available to the general
public.
(6) No Council member or employee of the Council may engage in
criminal, infamous, dishonest, notoriously immoral, or disgraceful
conduct.
(7) No Council member or employee of the Council may use Council
property on other than official business. Such property must be
protected and preserved from improper or deleterious operation or use.
(8)(i) Except as provided in Sec. 600.235(h) or in 18 U.S.C. 208,
no Council member may participate personally and substantially as a
member through decision, approval, disapproval, recommendation, the
rendering of advice, investigation, or otherwise, in a particular matter
in which the member, the member's spouse, minor child, general partner,
organization in which the member is serving as officer, director,
trustee, general partner, or employee, or any person or organization
with whom the member is negotiating or has any arrangement concerning
prospective employment, has a financial interest. (Note that this
financial interest is broader than the one defined in Sec. 600.235(a).)
(ii) No Council member may participate personally and substantially
as a member through decision, approval, disapproval, recommendation, the
rendering of advice, investigation, or otherwise, in a particular matter
primarily of individual concern, such as a contract, in which he or she
has a financial interest, even if the interest has been disclosed in
accordance with Sec. 600.235.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 63
FR 64185, Nov. 19, 1998]
Sec. 600.230 Removal.
The Secretary may remove for cause any Secretarially appointed
member of a Council in accordance with section 302(b)(6) of the
Magnuson-Stevens Act, wherein the Council concerned first recommends
removal of that member
[[Page 24]]
by not less than two-thirds of the voting members. A recommendation of a
Council to remove a member must be made in writing to the Secretary and
accompanied by a statement of the reasons upon which the recommendation
is based.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7073, Feb. 12, 1998]
Sec. 600.235 Financial disclosure.
(a) Definitions. For purposes of Sec. 600.235:
Affected individual means an individual who is--
(1) Nominated by the Governor of a state or appointed by the
Secretary of Commerce to serve as a voting member of a Council in
accordance with section 302(b)(2) of the Magnuson-Stevens Act; or
(2) A representative of an Indian tribe appointed to the Pacific
Council by the Secretary of Commerce under section 302(b)(5) of the
Magnuson-Stevens Act who is not subject to disclosure and recusal
requirements under the laws of an Indian tribal government.
Council decision means approval of a fishery management plan (FMP)
or FMP amendment (including any proposed regulations); request for
amendment to regulations implementing an FMP; finding that an emergency
exists involving any fishery (including recommendations for responding
to the emergency); and comments to the Secretary on FMPs or amendments
developed by the Secretary. It does not include a vote by a committee of
a Council.
Designated official means an attorney designated by the NOAA General
Counsel.
Financial interest in harvesting, processing, or marketing (1)
includes:
(i) Stock, equity, or other ownership interests in, or employment
with, any company, business, fishing vessel, or other entity engaging in
any harvesting, processing, or marketing activity in any fishery under
the jurisdiction of the Council concerned;
(ii) Stock, equity, or other ownership interests in, or employment
with, any company or other entity that provides equipment or other
services essential to harvesting, processing, or marketing activities in
any fishery under the jurisdiction of the Council concerned, such as a
chandler or a dock operation.
(iii) Employment with, or service as an officer, director, or
trustee of, an association whose members include companies, vessels, or
other entities engaged in harvesting, processing, or marketing
activities, or companies or other entities providing services essential
to harvesting, processing, or marketing activities in any fishery under
the jurisdiction of the Council concerned; and
(iv) Employment with an entity providing consulting, legal, or
representational services to any entity engaging in, or providing
equipment or services essential to, harvesting, processing, or marketing
activities in any fishery under the jurisdiction of the Council
concerned, or to any association whose members include entities engaged
in the activities described in paragraphs (1) (i) and (ii) of this
definition;
(2) Does not include stock, equity, or other ownership interests in,
or employment with, an entity engaging in advocacy on environmental
issues or in scientific fisheries research in any fishery under the
jurisdiction of the Council concerned, unless it is covered under
paragraph (1) of this definition. A financial interest in such entities
is covered by 18 U.S.C. 208, the Federal conflict-of-interest statute.
(b) Reporting. (1) The Magnuson-Stevens Act requires the disclosure
by each affected individual of any financial interest in harvesting,
processing, or marketing activity, and of any such financial interest of
the affected individual's spouse, minor child, partner, or any
organization (other than the Council) in which that individual is
serving as an officer, director, trustee, partner, or employee. The
information required to be reported must be disclosed on NOAA Form 88-
195, ``Statement of Financial Interests for Use by Voting Members and
Nominees of Regional Fishery Management Councils'' (Financial Interest
Form), or such other form as the Secretary may prescribe.
(2) The Financial Interest Form must be filed by each nominee for
Secretarial appointment with the Assistant
[[Page 25]]
Administrator by April 15 or, if nominated after March 15, 1 month after
nomination by the Governor. A seated voting member appointed by the
Secretary must file a Financial Interest Form with the Executive
Director of the appropriate Council within 45 days of taking office;
must file an update of his or her statement with the Executive Director
of the appropriate Council within 30 days of the time any such financial
interest is acquired or substantially changed by the affected individual
or the affected individual's spouse, minor child, partner, or any
organization (other than the Council) in which that individual is
serving as an officer, director, trustee, partner, or employee; and must
update his or her form annually and file that update with the Executive
Director of the appropriate Council by February 1 of each year.
(3) The Executive Director must, in a timely manner, provide copies
of the financial disclosure forms and all updates to the NMFS Regional
Administrator for the geographic area concerned, the Regional Attorney
who advises the Council, the Department of Commerce Assistant General
Counsel for Administration, and the NMFS Office of Sustainable
Fisheries. The completed financial interest forms will be kept on file
in the office of the NMFS Regional Administrator for the geographic area
concerned and at the Council offices, and will be made available for
public inspection at such offices during normal office hours. In
addition, the forms will be made available at each Council meeting or
hearing.
(4) Councils must retain the disclosure form for each affected
individual for at least 5 years after the expiration of that
individual's last term.
(c) Restrictions on voting. (1) No affected individual may vote on
any Council decision that would have a significant and predictable
effect on a financial interest disclosed in his/her report filed under
paragraph (b) of this section.
(2) As used in this section, a Council decision will be considered
to have a ``significant and predictable effect on a financial interest''
if there is a close causal link between the decision and an expected and
substantially disproportionate benefit to the financial interest in
harvesting, processing, or marketing of any affected individual or the
affected individual's spouse, minor child, partner, or any organization
(other than the Council) in which that individual is serving as an
officer, director, trustee, partner, or employee, relative to the
financial interests of other participants in the same gear type or
sector of the fishery. The relative financial interests of the affected
individual and other participants will be determined with reference to
the most recent fishing year for which information is available.
However, for fisheries in which IFQs are assigned, the percentage of
IFQs assigned to the affected individual will be dispositive.
(3) ``Expected and substantially disproportionate benefit'' means a
quantifiable positive or negative impact with regard to a matter likely
to affect a fishery or sector of the fishery in which the affected
individual has a significant interest, as indicated by:
(i) A greater than 10-percent interest in the total harvest of the
fishery or sector of the fishery in question;
(ii) A greater than 10-percent interest in the marketing or
processing of the total harvest of the fishery or sector of the fishery
in question; or
(iii) Full or partial ownership of more than 10 percent of the
vessels using the same gear type within the fishery or sector of the
fishery in question.
(d) Voluntary recusal. An affected individual who believes that a
Council decision would have a significant and predictable effect on that
individual's financial interest disclosed under paragraph (b) of this
section may, at any time before a vote is taken, announce to the Council
an intent not to vote on the decision.
(e) Participation in deliberations. Notwithstanding paragraph (c) of
this section, an affected individual who is recused from voting under
this section may participate in Council and committee deliberations
relating to the decision, after notifying the Council of the voting
recusal and identifying the financial interest that would be affected.
[[Page 26]]
(f) Requests for determination. (1) At the request of an affected
individual, the designated official shall determine for the record
whether a Council decision would have a significant and predictable
effect on that individual's financial interest. The determination will
be based upon a review of the information contained in the individual's
financial disclosure form and any other reliable and probative
information provided in writing. All information considered will be made
part of the public record for the decision. The affected individual may
request a determination by notifying the designated official--
(i) Within a reasonable time before the Council meeting at which the
Council decision will be made; or
(ii) During a Council meeting before a Council vote on the decision.
(2) The designated official may initiate a determination on the
basis of--
(i) His or her knowledge of the fishery and the financial interests
disclosed by an affected individual; or
(ii) Written and signed information received within a reasonable
time before a Council meeting or, if the issue could not have been
anticipated before the meeting, during a Council meeting before a
Council vote on the decision.
(3) At the beginning of each Council meeting, or during a Council
meeting at any time reliable and probative information is received, the
designated official shall announce the receipt of information relevant
to a determination concerning recusal, the nature of that information,
and the identity of the submitter of such information.
(4) If the designated official determines that the affected
individual may not vote, the individual may state for the record how he
or she would have voted. A Council Chair may not allow such an
individual to cast a vote.
(5) A reversal of a determination under paragraph (g) of this
section may not be treated as cause for invalidation or reconsideration
by the Secretary of a Council's decision.
(g) Review of determinations. (1) Any Council member may file a
written request to the NOAA General Counsel for review of the designated
official's determination. A request for review must be received within
10 days of the determination.
(2) A request must include a full statement in support of the
review, including a concise statement as to why the Council's decision
did or did not have a significantly disproportionate benefit to the
financial interest of the affected individual relative to the financial
interests of other participants in the same gear type or sector of the
fishery, and why the designated official's determination should be
reversed.
(3) If the request for review is from a Council member other than
the affected individual whose vote is at issue, the requester must
provide a copy of the request to the affected individual at the same
time it is submitted to the NOAA General Counsel. The affected
individual may submit a response to the NOAA General Counsel within 10
days from the date of his/her receipt of the request for review.
(4) The NOAA General Counsel must complete the review and issue a
decision within 30 days from the date of receipt of the request for
review. The NOAA General Counsel will limit the review to the record
before the designated official at the time of the determination, the
request, and any response.
(h) Exemption from other statutes. The provisions of 18 U.S.C. 208
regarding conflicts of interest do not apply to an affected individual
who is in compliance with the requirements of this section for filing a
financial disclosure report.
(i) Violations and penalties. It is unlawful for an affected
individual to knowingly and willfully fail to disclose, or to falsely
disclose, any financial interest as required by this section, or to
knowingly vote on a Council decision in violation of this section. In
addition to the penalties applicable under Sec. 600.735, a violation of
this provision may result in removal of the affected individual from
Council membership.
[63 FR 64185, Nov. 19, 1998]
Sec. 600.240 Security assurances.
(a) DOC/OS will issue security assurances to Council nominees and
members following completion of background checks. Security assurances
will be valid for 5 years from the date
[[Page 27]]
of issuance. A security assurance will not entitle the member to access
classified data. In instances in which Council members may need to
discuss, at closed meetings, materials classified for national security
purposes, the agency or individual (e.g., DOS, USCG) providing such
classified information will be responsible for ensuring that Council
members and other attendees have the appropriate security clearances.
(b) Each nominee to a Council is required to complete a
Certification of Status form (``form''). All nominees must certify,
pursuant to the Foreign Agents Registration Act of 1938, whether they
serve as an agent of a foreign principal. Each nominee must certify,
date, sign, and return the form with his or her completed nomination
kit. Nominees will not be considered for appointment to a Council if
they have not filed this form. Any nominee who currently is an agent of
a foreign principal will not be eligible for appointment to a Council,
and therefore should not be nominated by a Governor for appointment.
Sec. 600.245 Council member compensation.
(a) All voting Council members whose eligibility for compensation
has been established in accordance with NOAA guidelines will be paid
through the cooperative agreement as a direct line item on a contractual
basis without deductions being made for Social Security or Federal and
state income taxes. A report of compensation will be furnished each year
by the member's Council to the proper Regional Program Officer, as
required by the Internal Revenue Service. Such compensation may be paid
on a full day's basis, whether in excess of 8 hours a day or less than 8
hours a day. The time is compensable where the individual member is
required to expend a significant private effort that substantially
disrupts the daily routine to the extent that a work day is lost to the
member. ``Homework'' time in preparation for formal Council meetings is
not compensable.
(b) Non-government Council members receive compensation for:
(1) Days spent in actual attendance at a meeting of the Council or
jointly with another Council.
(2) Travel on the day preceding or following a scheduled meeting
that precluded the member from conducting his normal business on the day
in question.
(3) Meetings of standing committees of the Council if approved in
advance by the Chair.
(4) Individual member meeting with scientific and technical
advisors, when approved in advance by the Chair and a substantial
portion of any day is spent at the meeting.
(5) Conducting or attending hearings, when authorized in advance by
the Chair.
(6) Other meetings involving Council business when approved in
advance by the Chair.
(c) The Executive Director of each Council must submit to the
appropriate Regional Office annually a report, approved by the Council
Chair, of Council member compensation authorized. This report shall
identify, for each member, amount paid, dates, and location and purpose
of meetings attended.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 66
FR 57888, Nov. 19, 2001]
Subpart D_National Standards
Sec. 600.305 General.
(a) Purpose. (1) This subpart establishes guidelines, based on the
national standards, to assist in the development and review of FMPs,
amendments, and regulations prepared by the Councils and the Secretary.
(2) In developing FMPs, the Councils have the initial authority to
ascertain factual circumstances, to establish management objectives, and
to propose management measures that will achieve the objectives. The
Secretary will determine whether the proposed management objectives and
measures are consistent with the national standards, other provisions of
the Magnuson-Stevens Act, and other applicable law. The Secretary has an
obligation under section 301(b) of the Magnuson-Stevens Act to inform
the Councils of the Secretary's interpretation of the national
[[Page 28]]
standards so that they will have an understanding of the basis on which
FMPs will be reviewed.
(3) The national standards are statutory principles that must be
followed in any FMP. The guidelines summarize Secretarial
interpretations that have been, and will be, applied under these
principles. The guidelines are intended as aids to decisionmaking; FMPs
formulated according to the guidelines will have a better chance for
expeditious Secretarial review, approval, and implementation. FMPs that
are in substantial compliance with the guidelines, the Magnuson-Stevens
Act, and other applicable law must be approved.
(b) Fishery management objectives. (1) Each FMP, whether prepared by
a Council or by the Secretary, should identify what the FMP is designed
to accomplish (i.e., the management objectives to be attained in
regulating the fishery under consideration). In establishing objectives,
Councils balance biological constraints with human needs, reconcile
present and future costs and benefits, and integrate the diversity of
public and private interests. If objectives are in conflict, priorities
should be established among them.
(2) How objectives are defined is important to the management
process. Objectives should address the problems of a particular fishery.
The objectives should be clearly stated, practicably attainable, framed
in terms of definable events and measurable benefits, and based upon a
comprehensive rather than a fragmentary approach to the problems
addressed. An FMP should make a clear distinction between objectives and
the management measures chosen to achieve them. The objectives of each
FMP provide the context within which the Secretary will judge the
consistency of an FMP's conservation and management measures with the
national standards.
(c) Word usage. The word usage refers to all regulations in this
subpart.
(1) Must is used, instead of ``shall'', to denote an obligation to
act; it is used primarily when referring to requirements of the
Magnuson-Stevens Act, the logical extension thereof, or of other
applicable law.
(2) Shall is used only when quoting statutory language directly, to
avoid confusion with the future tense.
(3) Should is used to indicate that an action or consideration is
strongly recommended to fulfill the Secretary's interpretation of the
Magnuson-Stevens Act, and is a factor reviewers will look for in
evaluating a SOPP or FMP.
(4) May is used in a permissive sense.
(5) May not is proscriptive; it has the same force as ``must not.''
(6) Will is used descriptively, as distinguished from denoting an
obligation to act or the future tense.
(7) Could is used when giving examples, in a hypothetical,
permissive sense.
(8) Can is used to mean ``is able to,'' as distinguished from
``may.''
(9) Examples are given by way of illustration and further
explanation. They are not inclusive lists; they do not limit options.
(10) Analysis, as a paragraph heading, signals more detailed
guidance as to the type of discussion and examination an FMP should
contain to demonstrate compliance with the standard in question.
(11) Council includes the Secretary, as applicable, when preparing
FMPs or amendments under section 304(c) and (g) of the Magnuson-Stevens
Act.
(12) Stock or stock complex is used as a synonym for ``fishery'' in
the sense of the Magnuson-Stevens Act's first definition of the term;
that is, as ``one or more stocks of fish that can be treated as a unit
for purposes of conservation and management and that are identified on
the basis of geographic, scientific, technical, recreational, or
economic characteristics,'' as distinguished from the Magnuson-Stevens
Act's second definition of fishery as ``any fishing for such stocks.''
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 63
FR 24229, May 1, 1998]
Sec. 600.310 National Standard 1--Optimum Yield.
(a) Standard 1. Conservation and management measures shall prevent
overfishing while achieving, on a continuing basis, the optimum yield
(OY) from each fishery for the U.S. fishing industry.
[[Page 29]]
(b) General. (1) The guidelines set forth in this section describe
fishery management approaches to meet the objectives of National
Standard 1 (NS1), and include guidance on:
(i) Specifying maximum sustainable yield (MSY) and OY;
(ii) Specifying status determination criteria (SDC) so that
overfishing and overfished determinations can be made for stocks and
stock complexes that are part of a fishery;
(iii) Preventing overfishing and achieving OY, incorporation of
scientific and management uncertainty in control rules, and adaptive
management using annual catch limits (ACL) and measures to ensure
accountability (AM); and
(iv) Rebuilding stocks and stock complexes.
(2) Overview of Magnuson-Stevens Act concepts and provisions related
to NS1--(i) MSY. The Magnuson-Stevens Act establishes MSY as the basis
for fishery management and requires that: The fishing mortality rate
does not jeopardize the capacity of a stock or stock complex to produce
MSY; the abundance of an overfished stock or stock complex be rebuilt to
a level that is capable of producing MSY; and OY not exceed MSY.
(ii) OY. The determination of OY is a decisional mechanism for
resolving the Magnuson-Stevens Act's conservation and management
objectives, achieving a fishery management plan's (FMP) objectives, and
balancing the various interests that comprise the greatest overall
benefits to the Nation. OY is based on MSY as reduced under paragraphs
(e)(3)(iii) and (iv) of this section. The most important limitation on
the specification of OY is that the choice of OY and the conservation
and management measures proposed to achieve it must prevent overfishing.
(iii) ACLs and AMs. Any FMP which is prepared by any Council shall
establish a mechanism for specifying ACLs in the FMP (including a
multiyear plan), implementing regulations, or annual specifications, at
a level such that overfishing does not occur in the fishery, including
measures to ensure accountability (Magnuson-Stevens Act section
303(a)(15)). Subject to certain exceptions and circumstances described
in paragraph (h) of this section, this requirement takes effect in
fishing year 2010, for fisheries determined subject to overfishing, and
in fishing year 2011, for all other fisheries (Magnuson-Stevens Act
section 303 note). ``Council'' includes the Regional Fishery Management
Councils and the Secretary of Commerce, as appropriate (see Sec.
600.305(c)(11)).
(iv) Reference points. SDC, MSY, acceptable biological catch (ABC),
and ACL, which are described further in paragraphs (e) and (f) of this
section, are collectively referred to as ``reference points.''
(v) Scientific advice. The Magnuson-Stevens Act has requirements
regarding scientific and statistical committees (SSC) of the Regional
Fishery Management Councils, including but not limited to, the following
provisions:
(A) Each Regional Fishery Management Council shall establish an SSC
as described in section 302(g)(1)(A) of the Magnuson-Stevens Act.
(B) Each SSC shall provide its Regional Fishery Management Council
recommendations for ABC as well as other scientific advice, as described
in Magnuson-Stevens Act section 302(g)(1)(B).
(C) The Secretary and each Regional Fishery Management Council may
establish a peer review process for that Council for scientific
information used to advise the Council about the conservation and
management of a fishery (see Magnuson-Stevens Act section 302(g)(1)(E)).
If a peer review process is established, it should investigate the
technical merits of stock assessments and other scientific information
used by the SSC or agency or international scientists, as appropriate.
For Regional Fishery Management Councils, the peer review process is not
a substitute for the SSC and should work in conjunction with the SSC.
For the Secretary, which does not have an SSC, the peer review process
should provide the scientific information necessary.
(D) Each Council shall develop ACLs for each of its managed
fisheries that may not exceed the ``fishing level recommendations'' of
its SSC or peer review process (Magnuson-Stevens Act
[[Page 30]]
section 302(h)(6)). The SSC recommendation that is the most relevant to
ACLs is ABC, as both ACL and ABC are levels of annual catch.
(3) Approach for setting limits and accountability measures,
including targets, for consistency with NS1. In general, when specifying
limits and accountability measures intended to avoid overfishing and
achieve sustainable fisheries, Councils must take an approach that
considers uncertainty in scientific information and management control
of the fishery. These guidelines describe how to address uncertainty
such that there is a low risk that limits are exceeded as described in
paragraphs (f)(4) and (f)(6) of this section.
(c) Summary of items to include in FMPs related to NS1. This section
provides a summary of items that Councils must include in their FMPs and
FMP amendments in order to address ACL, AM, and other aspects of the NS1
guidelines. As described in further detail in paragraph (d) of this
section, Councils may review their FMPs to decide if all stocks are ``in
the fishery'' or whether some fit the category of ``ecosystem component
species.'' Councils must also describe fisheries data for the stocks,
stock complexes, and ecosystem component species in their FMPs, or
associated public documents such as Stock Assessment and Fishery
Evaluation (SAFE) Reports. For all stocks and stock complexes that are
``in the fishery'' (see paragraph (d)(2) of this section), the Councils
must evaluate and describe the following items in their FMPs and amend
the FMPs, if necessary, to align their management objectives to end or
prevent overfishing:
(1) MSY and SDC (see paragraphs (e)(1) and (2) of this section).
(2) OY at the stock, stock complex, or fishery level and provide the
OY specification analysis (see paragraph (e)(3) of this section).
(3) ABC control rule (see paragraph (f)(4) of this section).
(4) Mechanisms for specifying ACLs and possible sector-specific ACLs
in relationship to the ABC (see paragraphs (f)(5) and (h) of this
section).
(5) AMs (see paragraphs (g) and (h)(1) of this section).
(6) Stocks and stock complexes that have statutory exceptions from
ACLs (see paragraph (h)(2) of this section) or which fall under limited
circumstances which require different approaches to meet the ACL
requirements (see paragraph (h)(3) of this section).
(d) Classifying stocks in an FMP--(1) Introduction. Magnuson-Stevens
Act section 303(a)(2) requires that an FMP contain, among other things,
a description of the species of fish involved in the fishery. The
relevant Council determines which specific target stocks and/or non-
target stocks to include in a fishery. This section provides that a
Council may, but is not required to, use an ``ecosystem component (EC)''
species classification. As a default, all stocks in an FMP are
considered to be ``in the fishery,'' unless they are identified as EC
species (see Sec. 600.310(d)(5)) through an FMP amendment process.
(2) Stocks in a fishery. Stocks in a fishery may be grouped into
stock complexes, as appropriate. Requirements for reference points and
management measures for these stocks are described throughout these
guidelines.
(3) ``Target stocks'' are stocks that fishers seek to catch for sale
or personal use, including ``economic discards'' as defined under
Magnuson-Stevens Act section 3(9).
(4) ``Non-target species'' and ``non-target stocks'' are fish caught
incidentally during the pursuit of target stocks in a fishery, including
``regulatory discards'' as defined under Magnuson-Stevens Act section
3(38). They may or may not be retained for sale or personal use. Non-
target species may be included in a fishery and, if so, they should be
identified at the stock level. Some non-target species may be identified
in an FMP as ecosystem component (EC) species or stocks.
(5) Ecosystem component (EC) species. (i) To be considered for
possible classification as an EC species, the species should:
(A) Be a non-target species or non-target stock;
(B) Not be determined to be subject to overfishing, approaching
overfished, or overfished;
(C) Not be likely to become subject to overfishing or overfished,
according to the best available information, in
[[Page 31]]
the absence of conservation and management measures; and
(D) Not generally be retained for sale or personal use.
(ii) Occasional retention of the species would not, in and of
itself, preclude consideration of the species under the EC
classification. In addition to the general factors noted in paragraphs
(d)(5)(i)(A)-(D) of this section, it is important to consider whether
use of the EC species classification in a given instance is consistent
with MSA conservation and management requirements.
(iii) EC species may be identified at the species or stock level,
and may be grouped into complexes. EC species may, but are not required
to, be included in an FMP or FMP amendment for any of the following
reasons: For data collection purposes; for ecosystem considerations
related to specification of OY for the associated fishery; as
considerations in the development of conservation and management
measures for the associated fishery; and/or to address other ecosystem
issues. While EC species are not considered to be ``in the fishery,'' a
Council should consider measures for the fishery to minimize bycatch and
bycatch mortality of EC species consistent with National Standard 9, and
to protect their associated role in the ecosystem. EC species do not
require specification of reference points but should be monitored to the
extent that any new pertinent scientific information becomes available
(e.g., catch trends, vulnerability, etc.) to determine changes in their
status or their vulnerability to the fishery. If necessary, they should
be reclassified as ``in the fishery.''
(6) Reclassification. A Council should monitor the catch resulting
from a fishery on a regular basis to determine if the stocks and species
are appropriately classified in the FMP. If the criteria previously used
to classify a stock or species is no longer valid, the Council should
reclassify it through an FMP amendment, which documents rationale for
the decision.
(7) Stocks or species identified in more than one FMP. If a stock is
identified in more than one fishery, Councils should choose which FMP
will be the primary FMP in which management objectives, SDC, the stock's
overall ACL and other reference points for the stock are established.
Conservation and management measures in other FMPs in which the stock is
identified as part of a fishery should be consistent with the primary
FMP's management objectives for the stock.
(8) Stock complex. ``Stock complex'' means a group of stocks that
are sufficiently similar in geographic distribution, life history, and
vulnerabilities to the fishery such that the impact of management
actions on the stocks is similar. At the time a stock complex is
established, the FMP should provide a full and explicit description of
the proportional composition of each stock in the stock complex, to the
extent possible. Stocks may be grouped into complexes for various
reasons, including where stocks in a multispecies fishery cannot be
targeted independent of one another and MSY can not be defined on a
stock-by-stock basis (see paragraph (e)(1)(iii) of this section); where
there is insufficient data to measure their status relative to SDC; or
when it is not feasible for fishermen to distinguish individual stocks
among their catch. The vulnerability of stocks to the fishery should be
evaluated when determining if a particular stock complex should be
established or reorganized, or if a particular stock should be included
in a complex. Stock complexes may be comprised of: one or more indicator
stocks, each of which has SDC and ACLs, and several other stocks;
several stocks without an indicator stock, with SDC and an ACL for the
complex as a whole; or one of more indicator stocks, each of which has
SDC and management objectives, with an ACL for the complex as a whole
(this situation might be applicable to some salmon species).
(9) Indicator stocks. An indicator stock is a stock with measurable
SDC that can be used to help manage and evaluate more poorly known
stocks that are in a stock complex. If an indicator stock is used to
evaluate the status of a complex, it should be representative of the
typical status of each stock within the complex, due to similarity in
vulnerability. If the stocks within a stock complex have a wide range of
vulnerability, they
[[Page 32]]
should be reorganized into different stock complexes that have similar
vulnerabilities; otherwise the indicator stock should be chosen to
represent the more vulnerable stocks within the complex. In instances
where an indicator stock is less vulnerable than other members of the
complex, management measures need to be more conservative so that the
more vulnerable members of the complex are not at risk from the fishery.
More than one indicator stock can be selected to provide more
information about the status of the complex. When indicator stock(s) are
used, periodic re-evaluation of available quantitative or qualitative
information (e.g., catch trends, changes in vulnerability, fish health
indices, etc.) is needed to determine whether a stock is subject to
overfishing, or is approaching (or in) an overfished condition.
(10) Vulnerability. A stock's vulnerability is a combination of its
productivity, which depends upon its life history characteristics, and
its susceptibility to the fishery. Productivity refers to the capacity
of the stock to produce MSY and to recover if the population is
depleted, and susceptibility is the potential for the stock to be
impacted by the fishery, which includes direct captures, as well as
indirect impacts to the fishery (e.g., loss of habitat quality).
Councils in consultation with their SSC, should analyze the
vulnerability of stocks in stock complexes where possible.
(e) Features of MSY, SDC, and OY--(1) MSY. Each FMP must include an
estimate of MSY for the stocks and stock complexes in the fishery, as
described in paragraph (d)(2) of this section).
(i) Definitions. (A) MSY is the largest long-term average catch or
yield that can be taken from a stock or stock complex under prevailing
ecological, environmental conditions and fishery technological
characteristics (e.g., gear selectivity), and the distribution of catch
among fleets.
(B) MSY fishing mortality rate (Fmsy) is the fishing mortality rate
that, if applied over the long term, would result in MSY.
(C) MSY stock size (Bmsy) means the long-term average size of the
stock or stock complex, measured in terms of spawning biomass or other
appropriate measure of the stock's reproductive potential that would be
achieved by fishing at Fmsy.
(ii) MSY for stocks. MSY should be estimated for each stock based on
the best scientific information available (see Sec. 600.315).
(iii) MSY for stock complexes. MSY should be estimated on a stock-
by-stock basis whenever possible. However, where MSY cannot be estimated
for each stock in a stock complex, then MSY may be estimated for one or
more indicator stocks for the complex or for the complex as a whole.
When indicator stocks are used, the stock complex's MSY could be listed
as ``unknown,'' while noting that the complex is managed on the basis of
one or more indicator stocks that do have known stock-specific MSYs, or
suitable proxies, as described in paragraph (e)(1)(iv) of this section.
When indicator stocks are not used, MSY, or a suitable proxy, should be
calculated for the stock complex as a whole.
(iv) Specifying MSY. Because MSY is a long-term average, it need not
be estimated annually, but it must be based on the best scientific
information available (see Sec. 600.315), and should be re-estimated as
required by changes in long-term environmental or ecological conditions,
fishery technological characteristics, or new scientific information.
When data are insufficient to estimate MSY directly, Councils should
adopt other measures of reproductive potential, based on the best
scientific information available, that can serve as reasonable proxies
for MSY, Fmsy, and Bmsy, to the extent possible.
The MSY for a stock is influenced by its interactions with other stocks
in its ecosystem and these interactions may shift as multiple stocks in
an ecosystem are fished. These ecological conditions should be taken
into account, to the extent possible, when specifying MSY. Ecological
conditions not directly accounted for in the specification of MSY can be
among the ecological factors considered when setting OY below MSY. As
MSY values are estimates or are based on proxies, they will have some
level of uncertainty associated with them. The degree of uncertainty in
the estimates should be
[[Page 33]]
identified, when possible, through the stock assessment process and peer
review (see Sec. 600.335), and should be taken into account when
specifying the ABC Control rule. Where this uncertainty cannot be
directly calculated, such as when proxies are used, then a proxy for the
uncertainty itself should be established based on the best scientific
information, including comparison to other stocks.
(2) Status determination criteria--(i) Definitions. (A) Status
determination criteria (SDC) mean the quantifiable factors, MFMT, OFL,
and MSST, or their proxies, that are used to determine if overfishing
has occurred, or if the stock or stock complex is overfished. Magnuson-
Stevens Act (section 3(34)) defines both ``overfishing'' and
``overfished'' to mean a rate or level of fishing mortality that
jeopardizes the capacity of a fishery to produce the MSY on a continuing
basis. To avoid confusion, this section clarifies that ``overfished''
relates to biomass of a stock or stock complex, and ``overfishing''
pertains to a rate or level of removal of fish from a stock or stock
complex.
(B) Overfishing (to overfish) occurs whenever a stock or stock
complex is subjected to a level of fishing mortality or annual total
catch that jeopardizes the capacity of a stock or stock complex to
produce MSY on a continuing basis.
(C) Maximum fishing mortality threshold (MFMT) means the level of
fishing mortality (F), on an annual basis, above which overfishing is
occurring. The MFMT or reasonable proxy may be expressed either as a
single number (a fishing mortality rate or F value), or as a function of
spawning biomass or other measure of reproductive potential.
(D) Overfishing limit (OFL) means the annual amount of catch that
corresponds to the estimate of MFMT applied to a stock or stock
complex's abundance and is expressed in terms of numbers or weight of
fish. The OFL is an estimate of the catch level above which overfishing
is occurring.
(E) Overfished. A stock or stock complex is considered
``overfished'' when its biomass has declined below a level that
jeopardizes the capacity of the stock or stock complex to produce MSY on
a continuing basis.
(F) Minimum stock size threshold (MSST) means the level of biomass
below which the stock or stock complex is considered to be overfished.
(G) Approaching an overfished condition. A stock or stock complex is
approaching an overfished condition when it is projected that there is
more than a 50 percent chance that the biomass of the stock or stock
complex will decline below the MSST within two years.
(ii) Specification of SDC and overfishing and overfished
determinations. SDC must be expressed in a way that enables the Council
to monitor each stock or stock complex in the FMP, and determine
annually, if possible, whether overfishing is occurring and whether the
stock or stock complex is overfished. In specifying SDC, a Council must
provide an analysis of how the SDC were chosen and how they relate to
reproductive potential. Each FMP must specify, to the extent possible,
objective and measurable SDC as follows (see paragraphs (e)(2)(ii)(A)
and (B) of this section):
(A) SDC to determine overfishing status. Each FMP must describe
which of the following two methods will be used for each stock or stock
complex to determine an overfishing status.
(1) Fishing mortality rate exceeds MFMT. Exceeding the MFMT for a
period of 1 year or more constitutes overfishing. The MFMT or reasonable
proxy may be expressed either as a single number (a fishing mortality
rate or F value), or as a function of spawning biomass or other measure
of reproductive potential.
(2) Catch exceeds the OFL. Should the annual catch exceed the annual
OFL for 1 year or more, the stock or stock complex is considered subject
to overfishing.
(B) SDC to determine overfished status. The MSST or reasonable proxy
must be expressed in terms of spawning biomass or other measure of
reproductive potential. To the extent possible, the MSST should equal
whichever of the following is greater: One-half the MSY stock size, or
the minimum stock size at which rebuilding to the MSY level would be
expected to occur within 10
[[Page 34]]
years, if the stock or stock complex were exploited at the MFMT
specified under paragraph (e)(2)(ii)(A)(1) of this section. Should the
estimated size of the stock or stock complex in a given year fall below
this threshold, the stock or stock complex is considered overfished.
(iii) Relationship of SDC to environmental change. Some short-term
environmental changes can alter the size of a stock or stock complex
without affecting its long-term reproductive potential. Long-term
environmental changes affect both the short-term size of the stock or
stock complex and the long-term reproductive potential of the stock or
stock complex.
(A) If environmental changes cause a stock or stock complex to fall
below its MSST without affecting its long-term reproductive potential,
fishing mortality must be constrained sufficiently to allow rebuilding
within an acceptable time frame (also see paragraph (j)(3)(ii) of this
section). SDC should not be respecified.
(B) If environmental changes affect the long-term reproductive
potential of the stock or stock complex, one or more components of the
SDC must be respecified. Once SDC have been respecified, fishing
mortality may or may not have to be reduced, depending on the status of
the stock or stock complex with respect to the new criteria.
(C) If manmade environmental changes are partially responsible for a
stock or stock complex being in an overfished condition, in addition to
controlling fishing mortality, Councils should recommend restoration of
habitat and other ameliorative programs, to the extent possible (see
also the guidelines issued pursuant to section 305(b) of the Magnuson-
Stevens Act for Council actions concerning essential fish habitat).
(iv) Secretarial approval of SDC. Secretarial approval or
disapproval of proposed SDC will be based on consideration of whether
the proposal:
(A) Has sufficient scientific merit;
(B) Contains the elements described in paragraph (e)(2)(ii) of this
section;
(C) Provides a basis for objective measurement of the status of the
stock or stock complex against the criteria; and
(D) Is operationally feasible.
(3) Optimum yield--(i) Definitions--(A) Optimum yield (OY).
Magnuson-Stevens Act section (3)(33) defines ``optimum,'' with respect
to the yield from a fishery, as the amount of fish that will provide the
greatest overall benefit to the Nation, particularly with respect to
food production and recreational opportunities and taking into account
the protection of marine ecosystems; that is prescribed on the basis of
the MSY from the fishery, as reduced by any relevant economic, social,
or ecological factor; and, in the case of an overfished fishery, that
provides for rebuilding to a level consistent with producing the MSY in
such fishery. OY may be established at the stock or stock complex level,
or at the fishery level.
(B) In NS1, use of the phrase ``achieving, on a continuing basis,
the optimum yield from each fishery'' means producing, from each stock,
stock complex, or fishery: a long-term series of catches such that the
average catch is equal to the OY, overfishing is prevented, the long
term average biomass is near or above Bmsy, and overfished
stocks and stock complexes are rebuilt consistent with timing and other
requirements of section 304(e)(4) of the Magnuson-Stevens Act and
paragraph (j) of this section.
(ii) General. OY is a long-term average amount of desired yield from
a stock, stock complex, or fishery. An FMP must contain conservation and
management measures, including ACLs and AMs, to achieve OY on a
continuing basis, and provisions for information collection that are
designed to determine the degree to which OY is achieved. These measures
should allow for practical and effective implementation and enforcement
of the management regime. The Secretary has an obligation to implement
and enforce the FMP. If management measures prove unenforceable--or too
restrictive, or not rigorous enough to prevent overfishing while
achieving OY--they should be modified; an alternative is to reexamine
the adequacy of the OY specification. Exceeding OY does not necessarily
constitute overfishing.
[[Page 35]]
However, even if no overfishing resulted from exceeding OY, continual
harvest at a level above OY would violate NS1, because OY was not
achieved on a continuing basis. An FMP must contain an assessment and
specification of OY, including a summary of information utilized in
making such specification, consistent with requirements of section
303(a)(3) of the Magnuson-Stevens Act. A Council must identify those
economic, social, and ecological factors relevant to management of a
particular stock, stock complex, or fishery, and then evaluate them to
determine the OY. The choice of a particular OY must be carefully
documented to show that the OY selected will produce the greatest
benefit to the Nation and prevent overfishing.
(iii) Determining the greatest benefit to the Nation. In determining
the greatest benefit to the Nation, the values that should be weighed
and receive serious attention when considering the economic, social, or
ecological factors used in reducing MSY to obtain OY are:
(A) The benefits of food production are derived from providing
seafood to consumers; maintaining an economically viable fishery
together with its attendant contributions to the national, regional, and
local economies; and utilizing the capacity of the Nation's fishery
resources to meet nutritional needs.
(B) The benefits of recreational opportunities reflect the quality
of both the recreational fishing experience and non-consumptive fishery
uses such as ecotourism, fish watching, and recreational diving.
Benefits also include the contribution of recreational fishing to the
national, regional, and local economies and food supplies.
(C) The benefits of protection afforded to marine ecosystems are
those resulting from maintaining viable populations (including those of
unexploited species), maintaining adequate forage for all components of
the ecosystem, maintaining evolutionary and ecological processes (e.g.,
disturbance regimes, hydrological processes, nutrient cycles),
maintaining the evolutionary potential of species and ecosystems, and
accommodating human use.
(iv) Factors to consider in OY specification. Because fisheries have
limited capacities, any attempt to maximize the measures of benefits
described in paragraph (e)(3)(iii) of this section will inevitably
encounter practical constraints. OY cannot exceed MSY in any
circumstance, and must take into account the need to prevent overfishing
and rebuild overfished stocks and stock complexes. OY is prescribed on
the basis of MSY as reduced by social, economic, and ecological factors.
To the extent possible, the relevant social, economic, and ecological
factors used to establish OY for a stock, stock complex, or fishery
should be quantified and reviewed in historical, short-term, and long-
term contexts. Even where quantification of social, economic, and
ecological factors is not possible, the FMP still must address them in
its OY specification. The following is a non-exhaustive list of
potential considerations for each factor. An FMP must address each
factor but not necessarily each example.
(A) Social factors. Examples are enjoyment gained from recreational
fishing, avoidance of gear conflicts and resulting disputes,
preservation of a way of life for fishermen and their families, and
dependence of local communities on a fishery (e.g., involvement in
fisheries and ability to adapt to change). Consideration may be given to
fishery-related indicators (e.g., number of fishery permits, number of
commercial fishing vessels, number of party and charter trips, landings,
ex-vessel revenues etc.) and non-fishery related indicators (e.g.,
unemployment rates, percent of population below the poverty level,
population density, etc.). Other factors that may be considered include
the effects that past harvest levels have had on fishing communities,
the cultural place of subsistence fishing, obligations under Indian
treaties, proportions of affected minority and low-income groups, and
worldwide nutritional needs.
(B) Economic factors. Examples are prudent consideration of the risk
of overharvesting when a stock's size or reproductive potential is
uncertain (see Sec. 600.335(c)(2)(i)), satisfaction of consumer and
recreational needs, and encouragement of domestic and export
[[Page 36]]
markets for U.S. harvested fish. Other factors that may be considered
include: The value of fisheries, the level of capitalization, the
decrease in cost per unit of catch afforded by an increase in stock
size, the attendant increase in catch per unit of effort, alternate
employment opportunities, and economic contribution to fishing
communities, coastal areas, affected states, and the nation.
(C) Ecological factors. Examples include impacts on ecosystem
component species, forage fish stocks, other fisheries, predator-prey or
competitive interactions, marine mammals, threatened or endangered
species, and birds. Species interactions that have not been explicitly
taken into account when calculating MSY should be considered as relevant
factors for setting OY below MSY. In addition, consideration should be
given to managing forage stocks for higher biomass than Bmsy
to enhance and protect the marine ecosystem. Also important are
ecological or environmental conditions that stress marine organisms,
such as natural and manmade changes in wetlands or nursery grounds, and
effects of pollutants on habitat and stocks.
(v) Specification of OY. The specification of OY must be consistent
with paragraphs (e)(3)(i)-(iv) of this section. If the estimates of MFMT
and current biomass are known with a high level of certainty and
management controls can accurately limit catch then OY could be set very
close to MSY, assuming no other reductions are necessary for social,
economic, or ecological factors. To the degree that such MSY estimates
and management controls are lacking or unavailable, OY should be set
farther from MSY. If management measures cannot adequately control
fishing mortality so that the specified OY can be achieved without
overfishing, the Council should reevaluate the management measures and
specification of OY so that the dual requirements of NS1 (preventing
overfishing while achieving, on a continuing basis, OY) are met.
(A) The amount of fish that constitutes the OY should be expressed
in terms of numbers or weight of fish.
(B) Either a range or a single value may be specified for OY.
(C) All catch must be counted against OY, including that resulting
from bycatch, scientific research, and all fishing activities.
(D) The OY specification should be translatable into an annual
numerical estimate for the purposes of establishing any total allowable
level of foreign fishing (TALFF) and analyzing impacts of the management
regime.
(E) The determination of OY is based on MSY, directly or through
proxy. However, even where sufficient scientific data as to the
biological characteristics of the stock do not exist, or where the
period of exploitation or investigation has not been long enough for
adequate understanding of stock dynamics, or where frequent large-scale
fluctuations in stock size diminish the meaningfulness of the MSY
concept, OY must still be established based on the best scientific
information available.
(F) An OY established at a fishery level may not exceed the sum of
the MSY values for each of the stocks or stock complexes within the
fishery.
(G) There should be a mechanism in the FMP for periodic reassessment
of the OY specification, so that it is responsive to changing
circumstances in the fishery.
(H) Part of the OY may be held as a reserve to allow for factors
such as uncertainties in estimates of stock size and domestic annual
harvest (DAH). If an OY reserve is established, an adequate mechanism
should be included in the FMP to permit timely release of the reserve to
domestic or foreign fishermen, if necessary.
(vi) OY and foreign fishing. Section 201(d) of the Magnuson-Stevens
Act provides that fishing by foreign nations is limited to that portion
of the OY that will not be harvested by vessels of the United States.
The FMP must include an assessment to address the following, as required
by section 303(a)(4) of the Magnuson-Stevens Act:
(A) DAH. Councils and/or the Secretary must consider the capacity
of, and the extent to which, U.S. vessels will harvest the OY on an
annual basis. Estimating the amount that U.S. fishing vessels will
actually harvest is required to determine the surplus.
[[Page 37]]
(B) Domestic annual processing (DAP). Each FMP must assess the
capacity of U.S. processors. It must also assess the amount of DAP,
which is the sum of two estimates: The estimated amount of U.S. harvest
that domestic processors will process, which may be based on historical
performance or on surveys of the expressed intention of manufacturers to
process, supported by evidence of contracts, plant expansion, or other
relevant information; and the estimated amount of fish that will be
harvested by domestic vessels, but not processed (e.g., marketed as
fresh whole fish, used for private consumption, or used for bait).
(C) Joint venture processing (JVP). When DAH exceeds DAP, the
surplus is available for JVP.
(f) Acceptable biological catch, annual catch limits, and annual
catch targets. The following features (see paragraphs (f)(1) through
(f)(5) of this section) of acceptable biological catch and annual catch
limits apply to stocks and stock complexes in the fishery (see paragraph
(d)(2) of this section).
(1) Introduction. A control rule is a policy for establishing a
limit or target fishing level that is based on the best available
scientific information and is established by fishery managers in
consultation with fisheries scientists. Control rules should be designed
so that management actions become more conservative as biomass
estimates, or other proxies, for a stock or stock complex decline and as
science and management uncertainty increases. Examples of scientific
uncertainty include uncertainty in the estimates of MFMT and biomass.
Management uncertainty may include late catch reporting, misreporting,
and underreporting of catches and is affected by a fishery's ability to
control actual catch. For example, a fishery that has inseason catch
data available and inseason closure authority has better management
control and precision than a fishery that does not have these features.
(2) Definitions. (i) Catch is the total quantity of fish, measured
in weight or numbers of fish, taken in commercial, recreational,
subsistence, tribal, and other fisheries. Catch includes fish that are
retained for any purpose, as well as mortality of fish that are
discarded.
(ii) Acceptable biological catch (ABC) is a level of a stock or
stock complex's annual catch that accounts for the scientific
uncertainty in the estimate of OFL and any other scientific uncertainty
(see paragraph (f)(3) of this section), and should be specified based on
the ABC control rule.
(iii) ABC control rule means a specified approach to setting the ABC
for a stock or stock complex as a function of the scientific uncertainty
in the estimate of OFL and any other scientific uncertainty (see
paragraph (f)(4) of this section).
(iv) Annual catch limit (ACL) is the level of annual catch of a
stock or stock complex that serves as the basis for invoking AMs. ACL
cannot exceed the ABC, but may be divided into sector-ACLs (see
paragraph (f)(5) of this section).
(v) Annual catch target (ACT) is an amount of annual catch of a
stock or stock complex that is the management target of the fishery, and
accounts for management uncertainty in controlling the actual catch at
or below the ACL. ACTs are recommended in the system of accountability
measures so that ACL is not exceeded.
(vi) ACT control rule means a specified approach to setting the ACT
for a stock or stock complex such that the risk of exceeding the ACL due
to management uncertainty is at an acceptably low level.
(3) Specification of ABC. ABC may not exceed OFL (see paragraph
(e)(2)(i)(D) of this section). Councils should develop a process for
receiving scientific information and advice used to establish ABC. This
process should: Identify the body that will apply the ABC control rule
(i.e. , calculates the ABC), and identify the review process that will
evaluate the resulting ABC. The SSC must recommend the ABC to the
Council. An SSC may recommend an ABC that differs from the result of the
ABC control rule calculation, based on factors such as data uncertainty,
recruitment variability, declining trends in population variables, and
other factors, but must explain why. For Secretarial FMPs or FMP
amendments, agency scientists or a peer review process would provide the
scientific advice to establish ABC. For internationally-assessed
[[Page 38]]
stocks, an ABC as defined in these guidelines is not required if they
meet the international exception (see paragraph (h)(2)(ii)). While the
ABC is allowed to equal OFL, NMFS expects that in most cases ABC will be
reduced from OFL to reduce the probability that overfishing might occur
in a year. Also, see paragraph (f)(5) of this section for cases where a
Council recommends that ACL is equal to ABC, and ABC is equal to OFL.
(i) Expression of ABC. ABC should be expressed in terms of catch,
but may be expressed in terms of landings as long as estimates of
bycatch and any other fishing mortality not accounted for in the
landings are incorporated into the determination of ABC.
(ii) ABC for overfished stocks. For overfished stocks and stock
complexes, a rebuilding ABC must be set to reflect the annual catch that
is consistent with the schedule of fishing mortality rates in the
rebuilding plan.
(4) ABC control rule. For stocks and stock complexes required to
have an ABC, each Council must establish an ABC control rule based on
scientific advice from its SSC. The determination of ABC should be
based, when possible, on the probability that an actual catch equal to
the stock's ABC would result in overfishing. This probability that
overfishing will occur cannot exceed 50 percent and should be a lower
value. The ABC control rule should consider reducing fishing mortality
as stock size declines and may establish a stock abundance level below
which fishing would not be allowed. The process of establishing an ABC
control rule could also involve science advisors or the peer review
process established under Magnuson-Stevens Act section 302(g)(1)(E). The
ABC control rule must articulate how ABC will be set compared to the OFL
based on the scientific knowledge about the stock or stock complex and
the scientific uncertainty in the estimate of OFL and any other
scientific uncertainty. The ABC control rule should consider uncertainty
in factors such as stock assessment results, time lags in updating
assessments, the degree of retrospective revision of assessment results,
and projections. The control rule may be used in a tiered approach to
address different levels of scientific uncertainty.
(5) Setting the annual catch limit--(i) General. ACL cannot exceed
the ABC and may be set annually or on a multiyear plan basis. ACLs in
coordination with AMs must prevent overfishing (see MSA section
303(a)(15)). If a Council recommends an ACL which equals ABC, and the
ABC is equal to OFL, the Secretary may presume that the proposal would
not prevent overfishing, in the absence of sufficient analysis and
justification for the approach. A ``multiyear plan'' as referenced in
section 303(a)(15) of the Magnuson-Stevens Act is a plan that
establishes harvest specifications or harvest guidelines for each year
of a time period greater than 1 year. A multiyear plan must include a
mechanism for specifying ACLs for each year with appropriate AMs to
prevent overfishing and maintain an appropriate rate of rebuilding if
the stock or stock complex is in a rebuilding plan. A multiyear plan
must provide that, if an ACL is exceeded for a year, then AMs are
triggered for the next year consistent with paragraph (g)(3) of this
section.
(ii) Sector-ACLs. A Council may, but is not required to, divide an
ACL into sector-ACLs. ``Sector,'' for purposes of this section, means a
distinct user group to which separate management strategies and separate
catch quotas apply. Examples of sectors include the commercial sector,
recreational sector, or various gear groups within a fishery. If the
management measures for different sectors differ in the degree of
management uncertainty, then sector ACLs may be necessary so that
appropriate AMs can be developed for each sector. If a Council chooses
to use sector ACLs, the sum of sector ACLs must not exceed the stock or
stock complex level ACL. The system of ACLs and AMs designed must be
effective in protecting the stock or stock complex as a whole. Even if
sector-ACLs and AMs are established, additional AMs at the stock or
stock complex level may be necessary.
(iii) ACLs for State-Federal Fisheries. For stocks or stock
complexes that have harvest in state or territorial waters, FMPs and FMP
amendments should include an ACL for the overall
[[Page 39]]
stock that may be further divided. For example, the overall ACL could be
divided into a Federal-ACL and state-ACL. However, NMFS recognizes that
Federal management is limited to the portion of the fishery under
Federal authority (see paragraph (g)(5) of this section). When stocks
are co-managed by Federal, state, tribal, and/or territorial fishery
managers, the goal should be to develop collaborative conservation and
management strategies, and scientific capacity to support such
strategies (including AMs for state or territorial and Federal waters),
to prevent overfishing of shared stocks and ensure their sustainability.
(6) ACT control rule. If ACT is specified as part of the AMs for a
fishery, an ACT control rule is utilized for setting the ACT. The ACT
control rule should clearly articulate how management uncertainty in the
amount of catch in the fishery is accounted for in setting ACT. The
objective for establishing the ACT and related AMs is that the ACL not
be exceeded.
(i) Determining management uncertainty. Two sources of management
uncertainty should be accounted for in establishing the AMs for a
fishery, including the ACT control rule if utilized: Uncertainty in the
ability of managers to constrain catch so the ACL is not exceeded, and
uncertainty in quantifying the true catch amounts (i.e., estimation
errors). To determine the level of management uncertainty in controlling
catch, analyses need to consider past management performance in the
fishery and factors such as time lags in reported catch. Such analyses
must be based on the best available scientific information from an SSC,
agency scientists, or peer review process as appropriate.
(ii) Establishing tiers and corresponding ACT control rules. Tiers
can be established based on levels of management uncertainty associated
with the fishery, frequency and accuracy of catch monitoring data
available, and risks of exceeding the limit. An ACT control rule could
be established for each tier and have, as appropriate, different
formulas and standards used to establish the ACT.
(7) A Council may choose to use a single control rule that combines
both scientific and management uncertainty and supports the ABC
recommendation and establishment of ACL and if used ACT.
(g) Accountability measures. The following features (see paragraphs
(g)(1) through (5) of this section) of accountability measures apply to
those stocks and stock complexes in the fishery.
(1) Introduction. AMs are management controls to prevent ACLs,
including sector-ACLs, from being exceeded, and to correct or mitigate
overages of the ACL if they occur. AMs should address and minimize both
the frequency and magnitude of overages and correct the problems that
caused the overage in as short a time as possible. NMFS identifies two
categories of AMs, inseason AMs and AMs for when the ACL is exceeded.
(2) Inseason AMs. Whenever possible, FMPs should include inseason
monitoring and management measures to prevent catch from exceeding ACLs.
Inseason AMs could include, but are not limited to: ACT; closure of a
fishery; closure of specific areas; changes in gear; changes in trip
size or bag limits; reductions in effort; or other appropriate
management controls for the fishery. If final data or data components of
catch are delayed, Councils should make appropriate use of preliminary
data, such as landed catch, in implementing inseason AMs. FMPs should
contain inseason closure authority giving NMFS the ability to close
fisheries if it determines, based on data that it deems sufficiently
reliable, that an ACL has been exceeded or is projected to be reached,
and that closure of the fishery is necessary to prevent overfishing. For
fisheries without inseason management control to prevent the ACL from
being exceeded, AMs should utilize ACTs that are set below ACLs so that
catches do not exceed the ACL.
(3) AMs for when the ACL is exceeded. On an annual basis, the
Council must determine as soon as possible after the fishing year if an
ACL was exceeded. If an ACL was exceeded, AMs must be triggered and
implemented as soon as possible to correct the operational issue that
caused the ACL overage, as well as any biological consequences to the
stock or stock complex resulting
[[Page 40]]
from the overage when it is known. These AMs could include, among other
things, modifications of inseason AMs or overage adjustments. For stocks
and stock complexes in rebuilding plans, the AMs should include overage
adjustments that reduce the ACLs in the next fishing year by the full
amount of the overages, unless the best scientific information available
shows that a reduced overage adjustment, or no adjustment, is needed to
mitigate the effects of the overages. If catch exceeds the ACL for a
given stock or stock complex more than once in the last four years, the
system of ACLs and AMs should be re-evaluated, and modified if
necessary, to improve its performance and effectiveness. A Council could
choose a higher performance standard (e.g., a stock's catch should not
exceed its ACL more often than once every five or six years) for a stock
that is particularly vulnerable to the effects of overfishing, if the
vulnerability of the stock has not already been accounted for in the ABC
control rule.
(4) AMs based on multi-year average data. Some fisheries have highly
variable annual catches and lack reliable inseason or annual data on
which to base AMs. If there are insufficient data upon which to compare
catch to ACL, either inseason or on an annual basis, AMs could be based
on comparisons of average catch to average ACL over a three-year moving
average period or, if supported by analysis, some other appropriate
multi-year period. Councils should explain why basing AMs on a multi-
year period is appropriate. Evaluation of the moving average catch to
the average ACL must be conducted annually and AMs should be implemented
if the average catch exceeds the average ACL. As a performance standard,
if the average catch exceeds the average ACL for a stock or stock
complex more than once in the last four years, then the system of ACLs
and AMs should be re-evaluated and modified if necessary to improve its
performance and effectiveness. The initial ACL and management measures
may incorporate information from previous years so that AMs based on
average ACLs can be applied from the first year. Alternatively, a
Council could use a stepped approach where in year-1, catch is compared
to the ACL for year-1; in year-2 the average catch for the past 2 years
is compared to the average ACL; then in year 3 and beyond, the most
recent 3 years of catch are compared to the corresponding ACLs for those
years.
(5) AMs for State-Federal Fisheries. For stocks or stock complexes
that have harvest in state or territorial waters, FMPs and FMP
amendments must, at a minimum, have AMs for the portion of the fishery
under Federal authority. Such AMs could include closing the EEZ when the
Federal portion of the ACL is reached, or the overall stock's ACL is
reached, or other measures.
(h) Establishing ACL mechanisms and AMs in FMPs. FMPs or FMP
amendments must establish ACL mechanisms and AMs for all stocks and
stock complexes in the fishery, unless paragraph (h)(2) of this section
is applicable. These mechanisms should describe the annual or multiyear
process by which specific ACLs, AMs, and other reference points such as
OFL, and ABC will be established. If a complex has multiple indicator
stocks, each indicator stock must have its own ACL; an additional ACL
for the stock complex as a whole is optional. In cases where fisheries
(e.g., Pacific salmon) harvest multiple indicator stocks of a single
species that cannot be distinguished at the time of capture, separate
ACLs for the indicator stocks are not required and the ACL can be
established for the complex as a whole.
(1) In establishing ACL mechanisms and AMs, FMPs should describe:
(i) Timeframes for setting ACLs (e.g., annually or multi-year
periods);
(ii) Sector-ACLs, if any (including set-asides for research or
bycatch);
(iii) AMs and how AMs are triggered and what sources of data will be
used (e.g., inseason data, annual catch compared to the ACL, or multi-
year averaging approach); and
(iv) Sector-AMs, if there are sector-ACLs.
(2) Exceptions from ACL and AM requirements--(i) Life cycle. Section
303(a)(15) of the Magnuson-Stevens Act ``shall not apply to a fishery
for species that has a life cycle of approximately 1
[[Page 41]]
year unless the Secretary has determined the fishery is subject to
overfishing of that species'' (as described in Magnuson-Stevens Act
section 303 note). This exception applies to a stock for which the
average length of time it takes for an individual to produce a
reproductively active offspring is approximately 1 year and that the
individual has only one breeding season in its lifetime. While exempt
from the ACL and AM requirements, FMPs or FMP amendments for these
stocks must have SDC, MSY, OY, ABC, and an ABC control rule.
(ii) International fishery agreements. Section 303(a)(15) of the
Magnuson-Stevens Act applies ``unless otherwise provided for under an
international agreement in which the United States participates''
(Magnuson-Stevens Act section 303 note). This exception applies to
stocks or stock complexes subject to management under an international
agreement, which is defined as ``any bilateral or multilateral treaty,
convention, or agreement which relates to fishing and to which the
United States is a party'' (see Magnuson-Stevens Act section 3(24)).
These stocks would still need to have SDC and MSY.
(3) Flexibility in application of NS1 guidelines. There are limited
circumstances that may not fit the standard approaches to specification
of reference points and management measures set forth in these
guidelines. These include, among other things, conservation and
management of Endangered Species Act listed species, harvests from
aquaculture operations, and stocks with unusual life history
characteristics (e.g., Pacific salmon, where the spawning potential for
a stock is spread over a multi-year period). In these circumstances,
Councils may propose alternative approaches for satisfying the NS1
requirements of the Magnuson-Stevens Act than those set forth in these
guidelines. Councils must document their rationale for any alternative
approaches for these limited circumstances in an FMP or FMP amendment,
which will be reviewed for consistency with the Magnuson-Stevens Act.
(i) Fisheries data. In their FMPs, or associated public documents
such as SAFE reports as appropriate, Councils must describe general data
collection methods, as well as any specific data collection methods used
for all stocks in the fishery, and EC species, including:
(1) Sources of fishing mortality (both landed and discarded),
including commercial and recreational catch and bycatch in other
fisheries;
(2) Description of the data collection and estimation methods used
to quantify total catch mortality in each fishery, including information
on the management tools used (i.e., logbooks, vessel monitoring systems,
observer programs, landings reports, fish tickets, processor reports,
dealer reports, recreational angler surveys, or other methods); the
frequency with which data are collected and updated; and the scope of
sampling coverage for each fishery; and
(3) Description of the methods used to compile catch data from
various catch data collection methods and how those data are used to
determine the relationship between total catch at a given point in time
and the ACL for stocks and stock complexes that are part of a fishery.
(j) Council actions to address overfishing and rebuilding for stocks
and stock complexes in the fishery--(1) Notification. The Secretary will
immediately notify in writing a Regional Fishery Management Council
whenever it is determined that:
(i) Overfishing is occurring;
(ii) A stock or stock complex is overfished;
(iii) A stock or stock complex is approaching an overfished
condition; or
(iv) Existing remedial action taken for the purpose of ending
previously identified overfishing or rebuilding a previously identified
overfished stock or stock complex has not resulted in adequate progress.
(2) Timing of actions--(i) If a stock or stock complex is undergoing
overfishing. FMPs or FMP amendments must establish ACL and AM mechanisms
in 2010, for stocks and stock complexes determined to be subject to
overfishing, and in 2011, for all other stocks and stock complexes (see
paragraph (b)(2)(iii) of this section). To address practical
implementation aspects of the FMP and FMP amendment process, paragraphs
[[Page 42]]
(j)(2)(i)(A) through (C) of this section clarifies the expected timing
of actions.
(A) In addition to establishing ACL and AM mechanisms, the ACLs and
AMs themselves must be specified in FMPs, FMP amendments, implementing
regulations, or annual specifications beginning in 2010 or 2011, as
appropriate.
(B) For stocks and stock complexes still determined to be subject to
overfishing at the end of 2008, ACL and AM mechanisms and the ACLs and
AMs themselves must be effective in fishing year 2010.
(C) For stocks and stock complexes determined to be subject to
overfishing during 2009, ACL and AM mechanisms and ACLs and AMs
themselves should be effective in fishing year 2010, if possible, or in
fishing year 2011, at the latest.
(ii) If a stock or stock complex is overfished or approaching an
overfished condition. (A) For notifications that a stock or stock
complex is overfished or approaching an overfished condition made before
July 12, 2009, a Council must prepare an FMP, FMP amendment, or proposed
regulations within one year of notification. If the stock or stock
complex is overfished, the purpose of the action is to specify a time
period for ending overfishing and rebuilding the stock or stock complex
that will be as short as possible as described under section 304(e)(4)
of the Magnuson-Stevens Act. If the stock or stock complex is
approaching an overfished condition, the purpose of the action is to
prevent the biomass from declining below the MSST.
(B) For notifications that a stock or stock complex is overfished or
approaching an overfished condition made after July 12, 2009, a Council
must prepare and implement an FMP, FMP amendment, or proposed
regulations within two years of notification, consistent with the
requirements of section 304(e)(3) of the Magnuson-Stevens Act. Council
actions should be submitted to NMFS within 15 months of notification to
ensure sufficient time for the Secretary to implement the measures, if
approved. If the stock or stock complex is overfished and overfishing is
occurring, the rebuilding plan must end overfishing immediately and be
consistent with ACL and AM requirements of the Magnuson-Stevens Act.
(3) Overfished fishery. (i) Where a stock or stock complex is
overfished, a Council must specify a time period for rebuilding the
stock or stock complex based on factors specified in Magnuson-Stevens
Act section 304(e)(4). This target time for rebuilding
(Ttarget) shall be as short as possible, taking into account:
The status and biology of any overfished stock, the needs of fishing
communities, recommendations by international organizations in which the
U.S. participates, and interaction of the stock within the marine
ecosystem. In addition, the time period shall not exceed 10 years,
except where biology of the stock, other environmental conditions, or
management measures under an international agreement to which the U.S.
participates, dictate otherwise. SSCs (or agency scientists or peer
review processes in the case of Secretarial actions) shall provide
recommendations for achieving rebuilding targets (see Magnuson-Stevens
Act section 302(g)(1)(B)). The above factors enter into the
specification of Ttarget as follows:
(A) The ``minimum time for rebuilding a stock'' (Tmin)
means the amount of time the stock or stock complex is expected to take
to rebuild to its MSY biomass level in the absence of any fishing
mortality. In this context, the term ``expected'' means to have at least
a 50 percent probability of attaining the Bmsy.
(B) For scenarios under paragraph (j)(2)(ii)(A) of this section, the
starting year for the Tmin calculation is the first year that
a rebuilding plan is implemented. For scenarios under paragraph
(j)(2)(ii)(B) of this section, the starting year for the Tmin
calculation is 2 years after notification that a stock or stock complex
is overfished or the first year that a rebuilding plan is implemented,
whichever is sooner.
(C) If Tmin for the stock or stock complex is 10 years or
less, then the maximum time allowable for rebuilding (Tmax)
that stock to its Bmsy is 10 years.
(D) If Tmin for the stock or stock complex exceeds 10
years, then the maximum time allowable for rebuilding a
[[Page 43]]
stock or stock complex to its Bmsy is Tmin plus
the length of time associated with one generation time for that stock or
stock complex. ``Generation time'' is the average length of time between
when an individual is born and the birth of its offspring.
(E) Ttarget shall not exceed Tmax, and should
be calculated based on the factors described in this paragraph (j)(3).
(ii) If a stock or stock complex reached the end of its rebuilding
plan period and has not yet been determined to be rebuilt, then the
rebuilding F should not be increased until the stock or stock complex
has been demonstrated to be rebuilt. If the rebuilding plan was based on
a Ttarget that was less than Tmax, and the stock
or stock complex is not rebuilt by Ttarget, rebuilding
measures should be revised, if necessary, such that the stock or stock
complex will be rebuilt by Tmax. If the stock or stock
complex has not rebuilt by Tmax, then the fishing mortality
rate should be maintained at Frebuild or 75 percent of the
MFMT, whichever is less.
(iii) Council action addressing an overfished fishery must allocate
both overfishing restrictions and recovery benefits fairly and equitably
among sectors of the fishery.
(iv) For fisheries managed under an international agreement, Council
action addressing an overfished fishery must reflect traditional
participation in the fishery, relative to other nations, by fishermen of
the United States.
(4) Emergency actions and interim measures. The Secretary, on his/
her own initiative or in response to a Council request, may implement
interim measures to reduce overfishing or promulgate regulations to
address an emergency (Magnuson-Stevens Act section 304(e)(6) or 305(c)).
In considering a Council request for action, the Secretary would
consider, among other things, the need for and urgency of the action and
public interest considerations, such as benefits to the stock or stock
complex and impacts on participants in the fishery.
(i) These measures may remain in effect for not more than 180 days,
but may be extended for an additional 186 days if the public has had an
opportunity to comment on the measures and, in the case of Council-
recommended measures, the Council is actively preparing an FMP, FMP
amendment, or proposed regulations to address the emergency or
overfishing on a permanent basis.
(ii) Often, these measures need to be implemented without prior
notice and an opportunity for public comment, as it would be
impracticable to provide for such processes given the need to act
quickly and also contrary to the public interest to delay action.
However, emergency regulations and interim measures that do not qualify
for waivers or exceptions under the Administrative Procedure Act would
need to follow proposed notice and comment rulemaking procedures.
(k) International overfishing. If the Secretary determines that a
fishery is overfished or approaching a condition of being overfished due
to excessive international fishing pressure, and for which there are no
management measures (or no effective measures) to end overfishing under
an international agreement to which the United States is a party, then
the Secretary and/or the appropriate Council shall take certain actions
as provided under Magnuson-Stevens Act section 304(i). The Secretary, in
cooperation with the Secretary of State, must immediately take
appropriate action at the international level to end the overfishing. In
addition, within one year after the determination, the Secretary and/or
appropriate Council shall:
(1) Develop recommendations for domestic regulations to address the
relative impact of the U.S. fishing vessels on the stock. Council
recommendations should be submitted to the Secretary.
(2) Develop and submit recommendations to the Secretary of State,
and to the Congress, for international actions that will end overfishing
in the fishery and rebuild the affected stocks, taking into account the
relative impact of vessels of other nations and vessels of the United
States on the relevant stock. Councils should, in consultation with the
Secretary, develop recommendations that take into consideration relevant
provisions of the Magnuson-Stevens Act and NS1 guidelines, including
section 304(e) of the Magnuson-
[[Page 44]]
Stevens Act and paragraph (j)(3)(iv) of this section, and other
applicable laws. For highly migratory species in the Pacific,
recommendations from the Western Pacific, North Pacific, or Pacific
Councils must be developed and submitted consistent with Magnuson-
Stevens Reauthorization Act section 503(f), as appropriate.
(3) Considerations for assessing ``relative impact.'' ``Relative
impact'' under paragraphs (k)(1) and (2) of this section may include
consideration of factors that include, but are not limited to: Domestic
and international management measures already in place, management
history of a given nation, estimates of a nation's landings or catch
(including bycatch) in a given fishery, and estimates of a nation's
mortality contributions in a given fishery. Information used to
determine relative impact must be based upon the best available
scientific information.
(l) Relationship of National Standard 1 to other national
standards--General. National Standards 2 through 10 provide further
requirements for conservation and management measures in FMPs, but do
not alter the requirement of NS1 to prevent overfishing and rebuild
overfished stocks.
(1) National Standard 2 (see Sec. 600.315). Management measures and
reference points to implement NS1 must be based on the best scientific
information available. When data are insufficient to estimate reference
points directly, Councils should develop reasonable proxies to the
extent possible (also see paragraph (e)(1)(iv) of this section). In
cases where scientific data are severely limited, effort should also be
directed to identifying and gathering the needed data. SSCs should
advise their Councils regarding the best scientific information
available for fishery management decisions.
(2) National Standard 3 (see Sec. 600.320). Reference points should
generally be specified in terms of the level of stock aggregation for
which the best scientific information is available (also see paragraph
(e)(1)(iii) of this section). Also, scientific assessments must be based
on the best information about the total range of the stock and potential
biological structuring of the stock into biological sub-units, which may
differ from the geographic units on which management is feasible.
(3) National Standard 6 (see Sec. 600.335). Councils must build
into the reference points and control rules appropriate consideration of
risk, taking into account uncertainties in estimating harvest, stock
conditions, life history parameters, or the effects of environmental
factors.
(4) National Standard 8 (see Sec. 600.345). National Standard 8
directs the Councils to apply economic and social factors towards
sustained participation of fishing communities and to the extent
practicable, minimize adverse economic impacts on such communities
within the context of preventing overfishing and rebuilding overfished
stocks as required under National Standard 1. Therefore, calculation of
OY as reduced from MSY should include economic and social factors, but
the combination of management measures chosen to achieve the OY must
principally be designed to prevent overfishing and rebuild overfished
stocks.
(5) National Standard 9 (see Sec. 600.350). Evaluation of stock
status with respect to reference points must take into account mortality
caused by bycatch. In addition, the estimation of catch should include
the mortality of fish that are discarded.
(m) Exceptions to requirements to prevent overfishing. Exceptions to
the requirement to prevent overfishing could apply under certain limited
circumstances. Harvesting one stock at its optimum level may result in
overfishing of another stock when the two stocks tend to be caught
together (This can occur when the two stocks are part of the same
fishery or if one is bycatch in the other's fishery). Before a Council
may decide to allow this type of overfishing, an analysis must be
performed and the analysis must contain a justification in terms of
overall benefits, including a comparison of benefits under alternative
management measures, and an analysis of the risk of any stock or stock
complex falling below its MSST. The Council may decide to allow this
type of overfishing if the fishery is not overfished and the analysis
demonstrates that all of the following conditions are satisfied:
[[Page 45]]
(1) Such action will result in long-term net benefits to the Nation;
(2) Mitigating measures have been considered and it has been
demonstrated that a similar level of long-term net benefits cannot be
achieved by modifying fleet behavior, gear selection/configuration, or
other technical characteristic in a manner such that no overfishing
would occur; and
(3) The resulting rate of fishing mortality will not cause any stock
or stock complex to fall below its MSST more than 50 percent of the time
in the long term, although it is recognized that persistent overfishing
is expected to cause the affected stock to fall below its
Bmsy more than 50 percent of the time in the long term.
[74 FR 3204, Jan. 16, 2009]
Sec. 600.315 National Standard 2--Scientific Information.
(a) Standard 2. Conservation and management measures shall be based
upon the best scientific information available.
(b) FMP development. The fact that scientific information concerning
a fishery is incomplete does not prevent the preparation and
implementation of an FMP (see related Sec. Sec. 600.320(d)(2) and
600.340(b).
(1) Scientific information includes, but is not limited to,
information of a biological, ecological, economic, or social nature.
Successful fishery management depends, in part, on the timely
availability, quality, and quantity of scientific information, as well
as on the thorough analysis of this information, and the extent to which
the information is applied. If there are conflicting facts or opinions
relevant to a particular point, a Council may choose among them, but
should justify the choice.
(2) FMPs must take into account the best scientific information
available at the time of preparation. Between the initial drafting of an
FMP and its submission for final review, new information often becomes
available. This new information should be incorporated into the final
FMP where practicable; but it is unnecessary to start the FMP process
over again, unless the information indicates that drastic changes have
occurred in the fishery that might require revision of the management
objectives or measures.
(c) FMP implementation. (1) An FMP must specify whatever information
fishermen and processors will be required or requested to submit to the
Secretary. Information about harvest within state boundaries, as well as
in the EEZ, may be collected if it is needed for proper implementation
of the FMP and cannot be obtained otherwise. The FMP should explain the
practical utility of the information specified in monitoring the
fishery, in facilitating inseason management decisions, and in judging
the performance of the management regime; it should also consider the
effort, cost, or social impact of obtaining it.
(2) An FMP should identify scientific information needed from other
sources to improve understanding and management of the resource, marine
ecosystem, and the fishery (including fishing communities).
(3) The information submitted by various data suppliers should be
comparable and compatible, to the maximum extent possible.
(d) FMP amendment. FMPs should be amended on a timely basis, as new
information indicates the necessity for change in objectives or
management measures.
(e) SAFE Report. (1) The SAFE report is a document or set of
documents that provides Councils with a summary of information
concerning the most recent biological condition of stocks and the marine
ecosystems in the FMU and the social and economic condition of the
recreational and commercial fishing interests, fishing communities, and
the fish processing industries. It summarizes, on a periodic basis, the
best available scientific information concerning the past, present, and
possible future condition of the stocks, marine ecosystems, and
fisheries being managed under Federal regulation.
(i) The Secretary has the responsibility to assure that a SAFE
report or similar document is prepared, reviewed annually, and changed
as necessary for each FMP. The Secretary or Councils may utilize any
combination of talent from Council, state, Federal, university, or other
sources to acquire and
[[Page 46]]
analyze data and produce the SAFE report.
(ii) The SAFE report provides information to the Councils for
determining annual harvest levels from each stock, documenting
significant trends or changes in the resource, marine ecosystems, and
fishery over time, and assessing the relative success of existing state
and Federal fishery management programs. Information on bycatch and
safety for each fishery should also be summarized. In addition, the SAFE
report may be used to update or expand previous environmental and
regulatory impact documents, and ecosystem and habitat descriptions.
(iii) Each SAFE report must be scientifically based, and cite data
sources and interpretations.
(2) Each SAFE report should contain information on which to base
harvest specifications.
(3) Each SAFE report should contain a description of the maximum
fishing mortality threshold and the minimum stock size threshold for
each stock or stock complex, along with information by which the Council
may determine:
(i) Whether overfishing is occurring with respect to any stock or
stock complex, whether any stock or stock complex is overfished, whether
the rate or level of fishing mortality applied to any stock or stock
complex is approaching the maximum fishing mortality threshold, and
whether the size of any stock or stock complex is approaching the
minimum stock size threshold.
(ii) Any management measures necessary to provide for rebuilding an
overfished stock or stock complex (if any) to a level consistent with
producing the MSY in such fishery.
(4) Each SAFE report may contain additional economic, social,
community, essential fish habitat, and ecological information pertinent
to the success of management or the achievement of objectives of each
FMP.
(5) Each SAFE report may contain additional economic, social, and
ecological information pertinent to the success of management or the
achievement of objectives of each FMP.
[61 FR 32540, June 24, 1996, as amended at 63 FR 24233, May 1, 1998]
Sec. 600.320 National Standard 3--Management Units.
(a) Standard 3. To the extent practicable, an individual stock of
fish shall be managed as a unit throughout its range, and interrelated
stocks of fish shall be managed as a unit or in close coordination.
(b) General. The purpose of this standard is to induce a
comprehensive approach to fishery management. The geographic scope of
the fishery, for planning purposes, should cover the entire range of the
stocks(s) of fish, and not be overly constrained by political
boundaries. Wherever practicable, an FMP should seek to manage
interrelated stocks of fish.
(c) Unity of management. Cooperation and understanding among
entities concerned with the fishery (e.g., Councils, states, Federal
Government, international commissions, foreign nations) are vital to
effective management. Where management of a fishery involves multiple
jurisdictions, coordination among the several entities should be sought
in the development of an FMP. Where a range overlaps Council areas, one
FMP to cover the entire range is preferred. The Secretary designates
which Council(s) will prepare the FMP, under section 304(f) of the
Magnuson-Stevens Act.
(d) Management unit. The term ``management unit'' means a fishery or
that portion of a fishery identified in an FMP as relevant to the FMP's
management objectives.
(1) Basis. The choice of a management unit depends on the focus of
the FMP's objectives, and may be organized around biological,
geographic, economic, technical, social, or ecological perspectives. For
example:
(i) Biological--could be based on a stock(s) throughout its range.
(ii) Geographic--could be an area.
(iii) Economic--could be based on a fishery supplying specific
product forms.
(iv) Technical--could be based on a fishery utilizing a specific
gear type or similar fishing practices.
(v) Social--could be based on fishermen as the unifying element,
such as when the fishermen pursue different species in a regular pattern
throughout the year.
[[Page 47]]
(vi) Ecological--could be based on species that are associated in
the ecosystem or are dependent on a particular habitat.
(2) Conservation and management measures. FMPs should include
conservation and management measures for that part of the management
unit within U.S. waters, although the Secretary can ordinarily implement
them only within the EEZ. The measures need not be identical for each
geographic area within the management unit, if the FMP justifies the
differences. A management unit may contain, in addition to regulated
species, stocks of fish for which there is not enough information
available to specify MSY and OY or to establish management measures, so
that data on these species may be collected under the FMP.
(e) Analysis. To document that an FMP is as comprehensive as
practicable, it should include discussions of the following:
(1) The range and distribution of the stocks, as well as the
patterns of fishing effort and harvest.
(2) Alternative management units and reasons for selecting a
particular one. A less-than-comprehensive management unit may be
justified if, for example, complementary management exits or is planned
for a separate geographic area or for a distinct use of the stocks, or
if the unmanaged portion of the resource is immaterial to proper
management.
(3) Management activities and habitat programs of adjacent states
and their effects on the FMP's objectives and management measures. Where
state action is necessary to implement measures within state waters to
achieve FMP objectives, the FMP should identify what state action is
necessary, discuss the consequences of state inaction or contrary
action, and make appropriate recommendations. The FMP should also
discuss the impact that Federal regulations will have on state
management activities.
(4) Management activities of other countries having an impact on the
fishery, and how the FMP's management measures are designed to take into
account these impacts. International boundaries may be dealt with in
several ways. For example:
(i) By limiting the management unit's scope to that portion of the
stock found in U.S. waters;
(ii) By estimating MSY for the entire stock and then basing the
determination of OY for the U.S. fishery on the portion of the stock
within U.S. waters; or
(iii) By referring to treaties or cooperative agreements.
[61 FR 32540, June 24, 1996, as amended at 63 FR 24234, May 1, 1998]
Sec. 600.325 National Standard 4--Allocations.
(a) Standard 4. Conservation and management measures shall not
discriminate between residents of different states. If it becomes
necessary to allocate or assign fishing privileges among various U.S.
fishermen, such allocation shall be:
(1) Fair and equitable to all such fishermen.
(2) Reasonably calculated to promote conservation.
(3) Carried out in such manner that no particular individual,
corporation, or other entity acquires an excessive share of such
privileges.
(b) Discrimination among residents of different states. An FMP may
not differentiate among U.S. citizens, nationals, resident aliens, or
corporations on the basis of their state of residence. An FMP may not
incorporate or rely on a state statute or regulation that discriminates
against residents of another state. Conservation and management measures
that have different effects on persons in various geographic locations
are permissible if they satisfy the other guidelines under Standard 4.
Examples of these precepts are:
(1) An FMP that restricted fishing in the EEZ to those holding a
permit from state X would violate Standard 4 if state X issued permits
only to its own citizens.
(2) An FMP that closed a spawning ground might disadvantage
fishermen living in the state closest to it, because they would have to
travel farther to an open area, but the closure could be justified under
Standard 4 as a conservation measure with no discriminatory intent.
[[Page 48]]
(c) Allocation of fishing privileges. An FMP may contain management
measures that allocate fishing privileges if such measures are necessary
or helpful in furthering legitimate objectives or in achieving the OY,
and if the measures conform with paragraphs (c)(3)(i) through
(c)(3)(iii) of this section.
(1) Definition. An ``allocation'' or ``assignment'' of fishing
privileges is a direct and deliberate distribution of the opportunity to
participate in a fishery among identifiable, discrete user groups or
individuals. Any management measure (or lack of management) has
incidental allocative effects, but only those measures that result in
direct distributions of fishing privileges will be judged against the
allocation requirements of Standard 4. Adoption of an FMP that merely
perpetuates existing fishing practices may result in an allocation, if
those practices directly distribute the opportunity to participate in
the fishery. Allocations of fishing privileges include, for example,
per-vessel catch limits, quotas by vessel class and gear type, different
quotas or fishing seasons for recreational and commercial fishermen,
assignment of ocean areas to different gear users, and limitation of
permits to a certain number of vessels or fishermen.
(2) Analysis of allocations. Each FMP should contain a description
and analysis of the allocations existing in the fishery and of those
made in the FMP. The effects of eliminating an existing allocation
system should be examined. Allocation schemes considered, but rejected
by the Council, should be included in the discussion. The analysis
should relate the recommended allocations to the FMP's objectives and OY
specification, and discuss the factors listed in paragraph (c)(3) of
this section.
(3) Factors in making allocations. An allocation of fishing
privileges must be fair and equitable, must be reasonably calculated to
promote conservation, and must avoid excessive shares. These tests are
explained in paragraphs (c)(3)(i) through (c)(3)(iii) of this section:
(i) Fairness and equity. (A) An allocation of fishing privileges
should be rationally connected to the achievement of OY or with the
furtherance of a legitimate FMP objective. Inherent in an allocation is
the advantaging of one group to the detriment of another. The motive for
making a particular allocation should be justified in terms of the
objectives of the FMP; otherwise, the disadvantaged user groups or
individuals would suffer without cause. For instance, an FMP objective
to preserve the economic status quo cannot be achieved by excluding a
group of long-time participants in the fishery. On the other hand, there
is a rational connection between an objective of harvesting shrimp at
their maximum size and closing a nursery area to trawling.
(B) An allocation of fishing privileges may impose a hardship on one
group if it is outweighed by the total benefits received by another
group or groups. An allocation need not preserve the status quo in the
fishery to qualify as ``fair and equitable,'' if a restructuring of
fishing privileges would maximize overall benefits. The Council should
make an initial estimate of the relative benefits and hardships imposed
by the allocation, and compare its consequences with those of
alternative allocation schemes, including the status quo. Where
relevant, judicial guidance and government policy concerning the rights
of treaty Indians and aboriginal Americans must be considered in
determining whether an allocation is fair and equitable.
(ii) Promotion of conservation. Numerous methods of allocating
fishing privileges are considered ``conservation and management''
measures under section 303 of the Magnuson-Stevens Act. An allocation
scheme may promote conservation by encouraging a rational, more easily
managed use of the resource. Or, it may promote conservation (in the
sense of wise use) by optimizing the yield in terms of size, value,
market mix, price, or economic or social benefit of the product. To the
extent that rebuilding plans or other conservation and management
measures that reduce the overall harvest in a fishery are necessary, any
harvest restrictions or recovery benefits must be allocated fairly and
equitably among the commercial, recreational, and charter fishing
sectors of the fishery.
[[Page 49]]
(iii) Avoidance of excessive shares. An allocation scheme must be
designed to deter any person or other entity from acquiring an excessive
share of fishing privileges, and to avoid creating conditions fostering
inordinate control, by buyers or sellers, that would not otherwise
exist.
(iv) Other factors. In designing an allocation scheme, a Council
should consider other factors relevant to the FMP's objectives. Examples
are economic and social consequences of the scheme, food production,
consumer interest, dependence on the fishery by present participants and
coastal communities, efficiency of various types of gear used in the
fishery, transferability of effort to and impact on other fisheries,
opportunity for new participants to enter the fishery, and enhancement
of opportunities for recreational fishing.
[61 FR 32540, June 24, 1996, as amended at 63 FR 24234, May 1, 1998]
Sec. 600.330 National Standard 5--Efficiency.
(a) Standard 5. Conservation and management measures shall, where
practicable, consider efficiency in the utilization of fishery
resources; except that no such measure shall have economic allocation as
its sole purpose.
(b) Efficiency in the utilization of resources--(1) General. The
term ``utilization'' encompasses harvesting, processing, marketing, and
non-consumptive uses of the resource, since management decisions affect
all sectors of the industry. In considering efficient utilization of
fishery resources, this standard highlights one way that a fishery can
contribute to the Nation's benefit with the least cost to society: Given
a set of objectives for the fishery, an FMP should contain management
measures that result in as efficient a fishery as is practicable or
desirable.
(2) Efficiency. In theory, an efficient fishery would harvest the OY
with the minimum use of economic inputs such as labor, capital,
interest, and fuel. Efficiency in terms of aggregate costs then becomes
a conservation objective, where ``conservation'' constitutes wise use of
all resources involved in the fishery, not just fish stocks.
(i) In an FMP, management measures may be proposed that allocate
fish among different groups of individuals or establish a system of
property rights. Alternative measures examined in searching for an
efficient outcome will result in different distributions of gains and
burdens among identifiable user groups. An FMP should demonstrate that
management measures aimed at efficiency do not simply redistribute gains
and burdens without an increase in efficiency.
(ii) Management regimes that allow a fishery to operate at the
lowest possible cost (e.g., fishing effort, administration, and
enforcement) for a particular level of catch and initial stock size are
considered efficient. Restrictive measures that unnecessarily raise any
of those costs move the regime toward inefficiency. Unless the use of
inefficient techniques or the creation of redundant fishing capacity
contributes to the attainment of other social or biological objectives,
an FMP may not contain management measures that impede the use of cost-
effective techniques of harvesting, processing, or marketing, and should
avoid creating strong incentives for excessive investment in private
sector fishing capital and labor.
(c) Limited access. A ``system for limiting access,'' which is an
optional measure under section 303(b) of the Magnuson-Stevens Act, is a
type of allocation of fishing privileges that may be considered to
contribute to economic efficiency or conservation. For example, limited
access may be used to combat overfishing, overcrowding, or
overcapitalization in a fishery to achieve OY. In an unutilized or
underutilized fishery, it may be used to reduce the chance that these
conditions will adversely affect the fishery in the future, or to
provide adequate economic return to pioneers in a new fishery. In some
cases, limited entry is a useful ingredient of a conservation scheme,
because it facilitates application and enforcement of other management
measures.
(1) Definition. Limited access (or limited entry) is a management
technique that attempts to limit units of effort in a fishery, usually
for the purpose of reducing economic waste, improving net
[[Page 50]]
economic return to the fishermen, or capturing economic rent for the
benefit of the taxpayer or the consumer. Common forms of limited access
are licensing of vessels, gear, or fishermen to reduce the number of
units of effort, and dividing the total allowable catch into fishermen's
quotas (a stock-certificate system). Two forms (i.e., Federal fees for
licenses or permits in excess of administrative costs, and taxation) are
not permitted under the Magnuson-Stevens Act, except for fees allowed
under section 304(d)(2).
(2) Factors to consider. The Magnuson-Stevens Act ties the use of
limited access to the achievement of OY. An FMP that proposes a limited
access system must consider the factors listed in section 303(b)(6) of
the Magnuson-Stevens Act and in Sec. 600.325(c)(3). In addition, it
should consider the criteria for qualifying for a permit, the nature of
the interest created, whether to make the permit transferable, and the
Magnuson-Stevens Act's limitations on returning economic rent to the
public under section 304(d). The FMP should also discuss the costs of
achieving an appropriate distribution of fishing privileges.
(d) Analysis. An FMP should discuss the extent to which
overcapitalization, congestion, economic waste, and inefficient
techniques in the fishery reduce the net benefits derived from the
management unit and prevent the attainment and appropriate allocation of
OY. It should also explain, in terms of the FMP's objectives, any
restriction placed on the use of efficient techniques of harvesting,
processing, or marketing. If, during FMP development, the Council
considered imposing a limited-entry system, the FMP should analyze the
Council's decision to recommend or reject limited access as a technique
to achieve efficient utilization of the resources of the fishing
industry.
(e) Economic allocation. This standard prohibits only those measures
that distribute fishery resources among fishermen on the basis of
economic factors alone, and that have economic allocation as their only
purpose. Where conservation and management measures are recommended that
would change the economic structure of the industry or the economic
conditions under which the industry operates, the need for such measures
must be justified in light of the biological, ecological, and social
objectives of the FMP, as well as the economic objectives.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 63
FR 24234, May 1, 1998]
Sec. 600.335 National Standard 6--Variations and Contingencies.
(a) Standard 6. Conservation and management measures shall take into
account and allow for variations among, and contingencies in, fisheries,
fishery resources, and catches.
(b) Conservation and management. Each fishery exhibits unique
uncertainties. The phrase ``conservation and management'' implies the
wise use of fishery resources through a management regime that includes
some protection against these uncertainties. The particular regime
chosen must be flexible enough to allow timely response to resource,
industry, and other national and regional needs. Continual data
acquisition and analysis will help the development of management
measures to compensate for variations and to reduce the need for
substantial buffers. Flexibility in the management regime and the
regulatory process will aid in responding to contingencies.
(c) Variations. (1) In fishery management terms, variations arise
from biological, social, and economic occurrences, as well as from
fishing practices. Biological uncertainties and lack of knowledge can
hamper attempts to estimate stock size and strength, stock location in
time and space, environmental/habitat changes, and ecological
interactions. Economic uncertainty may involve changes in foreign or
domestic market conditions, changes in operating costs, drifts toward
overcapitalization, and economic perturbations caused by changed fishing
patterns. Changes in fishing practices, such as the introduction of new
gear, rapid increases or decreases in harvest effort, new fishing
strategies, and the effects of new management techniques, may also
create uncertainties. Social changes could involve increases or
decreases in recreational fishing, or the
[[Page 51]]
movement of people into or out of fishing activities due to such factors
as age or educational opportunities.
(2) Every effort should be made to develop FMPs that discuss and
take into account these vicissitudes. To the extent practicable, FMPs
should provide a suitable buffer in favor of conservation. Allowances
for uncertainties should be factored into the various elements of an
FMP. Examples are:
(i) Reduce OY. Lack of scientific knowledge about the condition of a
stock(s) could be reason to reduce OY.
(ii) Establish a reserve. Creation of a reserve may compensate for
uncertainties in estimating domestic harvest, stock conditions, or
environmental factors.
(iii) Adjust management techniques. In the absence of adequate data
to predict the effect of a new regime, and to avoid creating unwanted
variations, a Council could guard against producing drastic changes in
fishing patterns, allocations, or practices.
(iv) Highlight habitat conditions. FMPs may address the impact of
pollution and the effects of wetland and estuarine degradation on the
stocks of fish; identify causes of pollution and habitat degradation and
the authorities having jurisdiction to regulate or influence such
activities; propose recommendations that the Secretary will convey to
those authorities to alleviate such problems; and state the views of the
Council on unresolved or anticipated issues.
(d) Contingencies. Unpredictable events--such as unexpected resource
surges or failures, fishing effort greater than anticipated, disruptive
gear conflicts, climatic conditions, or environmental catastrophes--are
best handled by establishing a flexible management regime that contains
a range of management options through which it is possible to act
quickly without amending the FMP or even its regulations.
(1) The FMP should describe the management options and their
consequences in the necessary detail to guide the Secretary in
responding to changed circumstances, so that the Council preserves its
role as policy-setter for the fishery. The description should enable the
public to understand what may happen under the flexible regime, and to
comment on the options.
(2) FMPs should include criteria for the selection of management
measures, directions for their application, and mechanisms for timely
adjustment of management measures comprising the regime. For example, an
FMP could include criteria that allow the Secretary to open and close
seasons, close fishing grounds, or make other adjustments in management
measures.
(3) Amendment of a flexible FMP would be necessary when
circumstances in the fishery change substantially, or when a Council
adopts a different management philosophy and objectives.
Sec. 600.340 National Standard 7--Costs and Benefits.
(a) Standard 7. Conservation and management measures shall, where
practicable, minimize costs and avoid unnecessary duplication.
(b) Necessity of Federal management--(1) General. The principle that
not every fishery needs regulation is implicit in this standard. The
Magnuson-Stevens Act requires Councils to prepare FMPs only for
overfished fisheries and for other fisheries where regulation would
serve some useful purpose and where the present or future benefits of
regulation would justify the costs. For example, the need to collect
data about a fishery is not, by itself, adequate justification for
preparation of an FMP, since there are less costly ways to gather the
data (see Sec. 600.320(d)(2). In some cases, the FMP preparation
process itself, even if it does not culminate in a document approved by
the Secretary, can be useful in supplying a basis for management by one
or more coastal states.
(2) Criteria. In deciding whether a fishery needs management through
regulations implementing an FMP, the following general factors should be
considered, among others:
(i) The importance of the fishery to the Nation and to the regional
economy.
(ii) The condition of the stock or stocks of fish and whether an FMP
can improve or maintain that condition.
[[Page 52]]
(iii) The extent to which the fishery could be or is already
adequately managed by states, by state/Federal programs, by Federal
regulations pursuant to FMPs or international commissions, or by
industry self-regulation, consistent with the policies and standards of
the Magnuson-Stevens Act.
(iv) The need to resolve competing interests and conflicts among
user groups and whether an FMP can further that resolution.
(v) The economic condition of a fishery and whether an FMP can
produce more efficient utilization.
(vi) The needs of a developing fishery, and whether an FMP can
foster orderly growth.
(vii) The costs associated with an FMP, balanced against the
benefits (see paragraph (d) of this section as a guide).
(c) Alternative management measures. Management measures should not
impose unnecessary burdens on the economy, on individuals, on private or
public organizations, or on Federal, state, or local governments.
Factors such as fuel costs, enforcement costs, or the burdens of
collecting data may well suggest a preferred alternative.
(d) Analysis. The supporting analyses for FMPs should demonstrate
that the benefits of fishery regulation are real and substantial
relative to the added research, administrative, and enforcement costs,
as well as costs to the industry of compliance. In determining the
benefits and costs of management measures, each management strategy
considered and its impacts on different user groups in the fishery
should be evaluated. This requirement need not produce an elaborate,
formalistic cost/benefit analysis. Rather, an evaluation of effects and
costs, especially of differences among workable alternatives, including
the status quo, is adequate. If quantitative estimates are not possible,
qualitative estimates will suffice.
(1) Burdens. Management measures should be designed to give
fishermen the greatest possible freedom of action in conducting business
and pursuing recreational opportunities that are consistent with
ensuring wise use of the resources and reducing conflict in the fishery.
The type and level of burden placed on user groups by the regulations
need to be identified. Such an examination should include, for example:
Capital outlays; operating and maintenance costs; reporting costs;
administrative, enforcement, and information costs; and prices to
consumers. Management measures may shift costs from one level of
government to another, from one part of the private sector to another,
or from the government to the private sector. Redistribution of costs
through regulations is likely to generate controversy. A discussion of
these and any other burdens placed on the public through FMP regulations
should be a part of the FMP's supporting analyses.
(2) Gains. The relative distribution of gains may change as a result
of instituting different sets of alternatives, as may the specific type
of gain. The analysis of benefits should focus on the specific gains
produced by each alternative set of management measures, including the
status quo. The benefits to society that result from the alternative
management measures should be identified, and the level of gain
assessed.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 63
FR 24234, May 1, 1998]
Sec. 600.345 National Standard 8--Communities.
(a) Standard 8. Conservation and management measures shall,
consistent with the conservation requirements of the Magnuson-Stevens
Act (including the prevention of overfishing and rebuilding of
overfished stocks), take into account the importance of fishery
resources to fishing communities by utilizing economic and social data
that are based upon the best scientific information available in order
to:
(1) Provide for the sustained participation of such communities; and
(2) To the extent practicable, minimize adverse economic impacts on
such communities.
(b) General. (1) This standard requires that an FMP take into
account the importance of fishery resources to fishing
[[Page 53]]
communities. This consideration, however, is within the context of the
conservation requirements of the Magnuson-Stevens Act. Deliberations
regarding the importance of fishery resources to affected fishing
communities, therefore, must not compromise the achievement of
conservation requirements and goals of the FMP. Where the preferred
alternative negatively affects the sustained participation of fishing
communities, the FMP should discuss the rationale for selecting this
alternative over another with a lesser impact on fishing communities.
All other things being equal, where two alternatives achieve similar
conservation goals, the alternative that provides the greater potential
for sustained participation of such communities and minimizes the
adverse economic impacts on such communities would be the preferred
alternative.
(2) This standard does not constitute a basis for allocating
resources to a specific fishing community nor for providing preferential
treatment based on residence in a fishing community.
(3) The term ``fishing community'' means a community that is
substantially dependent on or substantially engaged in the harvest or
processing of fishery resources to meet social and economic needs, and
includes fishing vessel owners, operators, and crew, and fish processors
that are based in such communities. A fishing community is a social or
economic group whose members reside in a specific location and share a
common dependency on commercial, recreational, or subsistence fishing or
on directly related fisheries-dependent services and industries (for
example, boatyards, ice suppliers, tackle shops).
(4) The term ``sustained participation'' means continued access to
the fishery within the constraints of the condition of the resource.
(c) Analysis. (1) FMPs must examine the social and economic
importance of fisheries to communities potentially affected by
management measures. For example, severe reductions of harvests for
conservation purposes may decrease employment opportunities for
fishermen and processing plant workers, thereby adversely affecting
their families and communities. Similarly, a management measure that
results in the allocation of fishery resources among competing sectors
of a fishery may benefit some communities at the expense of others.
(2) An appropriate vehicle for the analyses under this standard is
the fishery impact statement required by section 303(a)(9) of the
Magnuson-Stevens Act. Qualitative and quantitative data may be used,
including information provided by fishermen, dealers, processors, and
fisheries organizations and associations. In cases where data are
severely limited, effort should be directed to identifying and gathering
needed data.
(3) To address the sustained participation of fishing communities
that will be affected by management measures, the analysis should first
identify affected fishing communities and then assess their differing
levels of dependence on and engagement in the fishery being regulated.
The analysis should also specify how that assessment was made. The best
available data on the history, extent, and type of participation of
these fishing communities in the fishery should be incorporated into the
social and economic information presented in the FMP. The analysis does
not have to contain an exhaustive listing of all communities that might
fit the definition; a judgment can be made as to which are primarily
affected. The analysis should discuss each alternative's likely effect
on the sustained participation of these fishing communities in the
fishery.
(4) The analysis should assess the likely positive and negative
social and economic impacts of the alternative management measures, over
both the short and the long term, on fishing communities. Any particular
management measure may economically benefit some communities while
adversely affecting others. Economic impacts should be considered both
for individual communities and for the group of all affected communities
identified in the FMP. Impacts of both consumptive and non-consumptive
uses of fishery resources should be considered.
(5) A discussion of social and economic impacts should identify
those
[[Page 54]]
alternatives that would minimize adverse impacts on these fishing
communities within the constraints of conservation and management goals
of the FMP, other national standards, and other applicable law.
[63 FR 24234, May 1, 1998, as amended at 73 FR 67810, Nov. 17, 2008]
Sec. 600.350 National Standard 9--Bycatch.
(a) Standard 9. Conservation and management measures shall, to the
extent practicable:
(1) Minimize bycatch; and
(2) To the extent bycatch cannot be avoided, minimize the mortality
of such bycatch.
(b) General. This national standard requires Councils to consider
the bycatch effects of existing and planned conservation and management
measures. Bycatch can, in two ways, impede efforts to protect marine
ecosystems and achieve sustainable fisheries and the full benefits they
can provide to the Nation. First, bycatch can increase substantially the
uncertainty concerning total fishing-related mortality, which makes it
more difficult to assess the status of stocks, to set the appropriate OY
and define overfishing levels, and to ensure that OYs are attained and
overfishing levels are not exceeded. Second, bycatch may also preclude
other more productive uses of fishery resources.
(c) Definition--Bycatch. The term ``bycatch'' means fish that are
harvested in a fishery, but that are not sold or kept for personal use.
(1) Inclusions. Bycatch includes the discard of whole fish at sea or
elsewhere, including economic discards and regulatory discards, and
fishing mortality due to an encounter with fishing gear that does not
result in capture of fish (i.e., unobserved fishing mortality).
(2) Exclusions. Bycatch excludes the following:
(i) Fish that legally are retained in a fishery and kept for
personal, tribal, or cultural use, or that enter commerce through sale,
barter, or trade.
(ii) Fish released alive under a recreational catch-and-release
fishery management program. A catch-and-release fishery management
program is one in which the retention of a particular species is
prohibited. In such a program, those fish released alive would not be
considered bycatch.
(iii) Fish harvested in a commercial fishery managed by the
Secretary under Magnuson-Stevens Act sec. 304(g) or the Atlantic Tunas
Convention Act of 1975 (16 U.S.C. 971d) or highly migratory species
harvested in a commercial fishery managed by a Council under the
Magnuson-Stevens Act or the Western and Central Pacific Fisheries
Convention Implementation Act, that are not regulatory discards and that
are tagged and released alive under a scientific tagging and release
program established by the Secretary.
(d) Minimizing bycatch and bycatch mortality. The priority under
this standard is first to avoid catching bycatch species where
practicable. Fish that are bycatch and cannot be avoided must, to the
extent practicable, be returned to the sea alive. Any proposed
conservation and management measure that does not give priority to
avoiding the capture of bycatch species must be supported by appropriate
analyses. In their evaluation, the Councils must consider the net
benefits to the Nation, which include, but are not limited to: Negative
impacts on affected stocks; incomes accruing to participants in directed
fisheries in both the short and long term; incomes accruing to
participants in fisheries that target the bycatch species; environmental
consequences; non-market values of bycatch species, which include non-
consumptive uses of bycatch species and existence values, as well as
recreational values; and impacts on other marine organisms. To evaluate
conservation and management measures relative to this and other national
standards, as well as to evaluate total fishing mortality, Councils
must--
(1) Promote development of a database on bycatch and bycatch
mortality in the fishery to the extent practicable. A review and, where
necessary, improvement of data collection methods, data sources, and
applications of data must be initiated for each fishery to determine the
amount, type, disposition, and other characteristics of bycatch and
bycatch mortality in each fishery for purposes of this standard and of
section
[[Page 55]]
303(a)(11) and (12) of the Magnuson-Stevens Act. Bycatch should be
categorized to focus on management responses necessary to minimize
bycatch and bycatch mortality to the extent practicable. When
appropriate, management measures, such as at-sea monitoring programs,
should be developed to meet these information needs.
(2) For each management measure, assess the effects on the amount
and type of bycatch and bycatch mortality in the fishery. Most
conservation and management measures can affect the amounts of bycatch
or bycatch mortality in a fishery, as well as the extent to which
further reductions in bycatch are practicable. In analyzing measures,
including the status quo, Councils should assess the impacts of
minimizing bycatch and bycatch mortality, as well as consistency of the
selected measure with other national standards and applicable laws. The
benefits of minimizing bycatch to the extent practicable should be
identified and an assessment of the impact of the selected measure on
bycatch and bycatch mortality provided. Due to limitations on the
information available, fishery managers may not be able to generate
precise estimates of bycatch and bycatch mortality or other effects for
each alternative. In the absence of quantitative estimates of the
impacts of each alternative, Councils may use qualitative measures.
Information on the amount and type of bycatch should be summarized in
the SAFE reports.
(3) Select measures that, to the extent practicable, will minimize
bycatch and bycatch mortality. (i) A determination of whether a
conservation and management measure minimizes bycatch or bycatch
mortality to the extent practicable, consistent with other national
standards and maximization of net benefits to the Nation, should
consider the following factors:
(A) Population effects for the bycatch species.
(B) Ecological effects due to changes in the bycatch of that species
(effects on other species in the ecosystem).
(C) Changes in the bycatch of- other species of fish and the
resulting population and ecosystem effects.
(D) Effects on marine mammals and birds.
(E) Changes in fishing, processing, disposal, and marketing costs.
(F) Changes in fishing practices and behavior of fishermen.
(G) Changes in research, administration, and enforcement costs and
management effectiveness.
(H) Changes in the economic, social, or cultural value of fishing
activities and nonconsumptive uses of fishery resources.
(I) Changes in the distribution of benefits and costs.
(J) Social effects.
(ii) The Councils should adhere to the precautionary approach found
in the Food and Agriculture Organization of the United Nations (FAO)
Code of Conduct for Responsible Fisheries (Article 6.5), which is
available from the Director, Publications Division, FAO, Viale delle
Terme di Caracalla, 00100 Rome, Italy, when faced with uncertainty
concerning any of the factors listed in this paragraph (d)(3).
(4) Monitor selected management measures. Effects of implemented
measures should be evaluated routinely. Monitoring systems should be
established prior to fishing under the selected management measures.
Where applicable, plans should be developed and coordinated with
industry and other concerned organizations to identify opportunities for
cooperative data collection, coordination of data management for cost
efficiency, and avoidance of duplicative effort.
(e) Other considerations. Other applicable laws, such as the MMPA,
the ESA, and the Migratory Bird Treaty Act, require that Councils
consider the impact of conservation and management measures on living
marine resources other than fish; i.e., marine mammals and birds.
[63 FR 24235, May 1, 1998, as amended at 73 FR 67811, Nov. 17, 2008]
Sec. 600.355 National Standard 10--Safety of Life at Sea.
(a) Standard 10. Conservation and management measures shall, to the
extent practicable, promote the safety of human life at sea.
(b) General. (1) Fishing is an inherently dangerous occupation where
not all hazardous situations can be foreseen or avoided. The standard
directs
[[Page 56]]
Councils to reduce that risk in crafting their management measures, so
long as they can meet the other national standards and the legal and
practical requirements of conservation and management. This standard is
not meant to give preference to one method of managing a fishery over
another.
(2) The qualifying phrase ``to the extent practicable'' recognizes
that regulation necessarily puts constraints on fishing that would not
otherwise exist. These constraints may create pressures on fishermen to
fish under conditions that they would otherwise avoid. This standard
instructs the Councils to identify and avoid those situations, if they
can do so consistent with the legal and practical requirements of
conservation and management of the resource.
(3) For the purposes of this national standard, the safety of the
fishing vessel and the protection from injury of persons aboard the
vessel are considered the same as ``safety of human life at sea. The
safety of a vessel and the people aboard is ultimately the
responsibility of the master of that vessel. Each master makes many
decisions about vessel maintenance and loading and about the
capabilities of the vessel and crew to operate safely in a variety of
weather and sea conditions. This national standard does not replace the
judgment or relieve the responsibility of the vessel master related to
vessel safety. The Councils, the USCG, and NMFS, through the
consultation process of paragraph (d) of this section, will review all
FMPs, amendments, and regulations during their development to ensure
they recognize any impact on the safety of human life at sea and
minimize or mitigate that impact where practicable.
(c) Safety considerations. The following is a non-inclusive list of
safety considerations that should be considered in evaluating management
measures under national standard 10.
(1) Operating environment. Where and when a fishing vessel operates
is partly a function of the general climate and weather patterns of an
area. Typically, larger vessels can fish farther offshore and in more
adverse weather conditions than smaller vessels. An FMP should try to
avoid creating situations that result in vessels going out farther,
fishing longer, or fishing in weather worse than they generally would
have in the absence of management measures. Where these conditions are
unavoidable, management measures should mitigate these effects,
consistent with the overall management goals of the fishery.
(2) Gear and vessel loading requirements. A fishing vessel operates
in a very dynamic environment that can be an extremely dangerous place
to work. Moving heavy gear in a seaway creates a dangerous situation on
a vessel. Carrying extra gear can also significantly reduce the
stability of a fishing vessel, making it prone to capsizing. An FMP
should consider the safety and stability of fishing vessels when
requiring specific gear or requiring the removal of gear from the water.
Management measures should reflect a sensitivity to these issues and
provide methods of mitigation of these situations wherever possible.
(3) Limited season and area fisheries. Fisheries where time
constraints for harvesting are a significant factor and with no
flexibility for weather, often called ``derby'' fisheries, can create
serious safety problems. To participate fully in such a fishery,
fishermen may fish in bad weather and overload their vessel with catch
and/or gear. Where these conditions exist, FMPs should attempt to
mitigate these effects and avoid them in new management regimes, as
discussed in paragraph (e) of this section.
(d) Consultation. During preparation of any FMP, FMP amendment, or
regulation that might affect safety of human life at sea, the Council
should consult with the USCG and the fishing industry as to the nature
and extent of any adverse impacts. This consultation may be done through
a Council advisory panel, committee, or other review of the FMP, FMP
amendment, or regulations. Mitigation, to the extent practicable, and
other safety considerations identified in paragraph (c) of this section
should be included in the FMP.
(e) Mitigation measures. There are many ways in which an FMP may
avoid or provide alternative measures to reduce potential impacts on
safety of human life at sea. The following is a
[[Page 57]]
list of some factors that could be considered when management measures
are developed:
(1) Setting seasons to avoid hazardous weather.
(2) Providing for seasonal or trip flexibility to account for bad
weather (weather days).
(3) Allowing for pre- and post-season ``soak time'' to deploy and
pick up fixed gear, so as to avoid overloading vessels with fixed gear.
(4) Tailoring gear requirements to provide for smaller or lighter
gear for smaller vessels.
(5) Avoiding management measures that require hazardous at-sea
inspections or enforcement if other comparable enforcement could be
accomplished as effectively.
(6) Limiting the number of participants in the fishery.
(7) Spreading effort over time and area to avoid potential gear and/
or vessel conflicts.
(8) Implementing management measures that reduce the race for fish
and the resulting incentives for fishermen to take additional risks with
respect to vessel safety.
[63 FR 24236, May 1, 1998]
Subpart E_Confidentiality of Statistics
Sec. 600.405 Types of statistics covered.
NOAA is authorized under the Magnuson-Stevens Act and other statutes
to collect proprietary or confidential commercial or financial
information. This part applies to all pertinent data required to be
submitted to the Secretary with respect to any FMP including, but not
limited to, information regarding the type and quantity of fishing gear
used, catch by species in numbers of fish or weight thereof, areas in
which fishing occurred, time of fishing, number of hauls, and the
estimated processing capacity of, and the actual processing capacity
utilized by, U.S. fish processors.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.410 Collection and maintenance of statistics.
(a) General. (1) All statistics required to be submitted to the
Secretary are provided to the Assistant Administrator.
(2) After receipt, the Assistant Administrator will remove all
identifying particulars from the statistics if doing so is consistent
with the needs of NMFS and good scientific practice.
(3) Appropriate safeguards as specified by NOAA Directives, or other
NOAA or NMFS internal procedures, apply to the collection and
maintenance of all statistics, whether separated from identifying
particulars or not, so as to ensure their confidentiality.
(b) Collection agreements with states. (1) The Assistant
Administrator may enter into an agreement with a state authorizing the
state to collect statistics on behalf of the Secretary.
(2) NMFS will not enter into a cooperative collection agreement with
a state unless the state has authority to protect the statistics from
disclosure in a manner at least as protective as these regulations.
Sec. 600.415 Access to statistics.
(a) General. In determining whether to grant a request for access to
confidential data, the following information will be taken into
consideration (also see Sec. 600.130):
(1) The specific types of data required.
(2) The relevance of the data to conservation and management issues.
(3) The duration of time access will be required: continuous,
infrequent, or one-time.
(4) An explanation of why the availability of aggregate or non-
confidential summaries of data from other sources would not satisfy the
requested needs.
(b) Federal employees. Statistics submitted as a requirement of an
FMP and that reveal the identity of the submitter will only be
accessible to the following:
(1) Personnel within NMFS responsible for the collection,
processing, and storage of the statistics.
(2) Federal employees who are responsible for FMP development,
monitoring, and enforcement.
[[Page 58]]
(3) Personnel within NMFS performing research that requires
confidential statistics.
(4) Other NOAA personnel on a demonstrable need-to-know basis.
(5) NOAA/NMFS contractors or grantees who require access to
confidential statistics to perform functions authorized by a Federal
contract or grant.
(c) State personnel. Upon written request, confidential statistics
will only be accessible if:
(1) State employees demonstrate a need for confidential statistics
for use in fishery conservation and management.
(2) The state has entered into a written agreement between the
Assistant Administrator and the head of the state's agency that manages
marine and/or anadromous fisheries. The agreement shall contain a
finding by the Assistant Administrator that the state has
confidentiality protection authority comparable to the Magnuson-Stevens
Act and that the state will exercise this authority to limit subsequent
access and use of the data to fishery management and monitoring
purposes.
(d) Councils. Upon written request by the Council Executive
Director, access to confidential data will be granted to:
(1) Council employees who are responsible for FMP development and
monitoring.
(2) A Council for use by the Council for conservation and management
purposes, with the approval of the Assistant Administrator. In addition
to the information described in paragraph (a) of this section, the
Assistant Administrator will consider the following in deciding whether
to grant access:
(i) The possibility that Council members might gain personal or
competitive advantage from access to the data.
(ii) The possibility that the suppliers of the data would be placed
at a competitive disadvantage by public disclosure of the data at
Council meetings or hearings.
(3) A contractor of the Council for use in such analysis or studies
necessary for conservation and management purposes, with approval of the
Assistant Administrator and execution of an agreement with NMFS as
described by NOAA Administrative Order (NAO) 216-100.
(e) Prohibitions. Persons having access to these data are prohibited
from unauthorized use or disclosure and are subject to the provisions of
18 U.S.C. 1905, 16 U.S.C. 1857, and NOAA/NMFS internal procedures,
including NAO 216-100.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.420 Control system.
(a) The Assistant Administrator maintains a control system to
protect the identity of submitters of statistics required by an FMP. The
control system:
(1) Identifies those persons who have access to the statistics.
(2) Contains procedures to limit access to confidential data to
authorized users.
(3) Provides for safeguarding the data.
(b) This system requires that all persons who have authorized access
to the data be informed of the confidentiality of the data. These
persons are required to sign a statement that they:
(1) Have been informed that the data are confidential.
(2) Have reviewed and are familiar with the procedures to protect
confidential statistics.
Sec. 600.425 Release of statistics.
(a) The Assistant Administrator will not release to the public any
statistics required to be submitted under an FMP in a form that would
identify the submitter, except as required by law.
(b) All requests from the public for statistics submitted in
response to a requirement of an FMP will be processed consistent with
the NOAA FOIA regulations (15 CFR part 903), NAO 205-14, Department of
Commerce Administrative Orders 205-12 and 205-14 and 15 CFR part 4.
(c) NOAA does not release or allow access to confidential
information in its possession to members of Council advisory groups,
except as provided by law.
[[Page 59]]
Subpart F_Foreign Fishing
Sec. 600.501 Vessel permits.
(a) General. (1) Each FFV fishing under the Magnuson-Stevens Act
must have on board a permit issued under this section, unless it is
engaged only in recreational fishing.
(2) Permits issued under this section do not authorize FFV's or
persons to harass, capture, or kill marine mammals. No marine mammals
may be taken in the course of fishing unless that vessel has on board a
currently valid Authorization Certificate under the MMPA. Regulations
governing the taking of marine mammals incidental to commercial fishing
operations are contained in 50 CFR part 229 of this title.
(b) Responsibility of owners and operators. The owners and operators
of each FFV are jointly and severally responsible for compliance with
the Magnuson-Stevens Act, the applicable GIFA, this subpart, and any
permit issued under the Magnuson-Stevens Act and this subpart. The
owners and operators of each FFV bear civil responsibility for the acts
of their employees and agents constituting violations, regardless of
whether the specific acts were authorized or even forbidden by the
employer or principal, and regardless of knowledge concerning the
occurrence.
(c) Activity codes. Permits to fish under this subpart may be issued
by the Assistant Administrator for the activities described in this
paragraph, but the permits may be modified by regulations of this
subpart and by the conditions and restrictions attached to the permit
(see paragraphs (e)(1)(v) and (l) of this section). The Assistant
Administrator may issue a permit, as appropriate, for one or more of the
activity codes listed. Only vessels of nations having a GIFA with the
United States may be issued permits for activity codes 1 through 9. A
GIFA is not required for a vessel to be issued a permit for activity
code 10. The activity codes are described as follows:
(1) Activity Code 1. Catching, scouting, processing, transshipping,
and supporting foreign vessels. Activity is limited to fish harvested or
to be harvested by foreign vessels in the EEZ.
(2) Activity Code 2. Processing, scouting, transshipping, and
supporting foreign vessels. Activity is limited to fish harvested or to
be harvested by foreign vessels in the EEZ.
(3) Activity Code 3. Transshipping, scouting, and supporting foreign
vessels. Activity is limited to fish harvested or to be harvested by
foreign vessels in the EEZ.
(4) Activity Code 4. Processing, scouting, transshipping, and
supporting U.S. vessels delivering fish to foreign vessels. Activity is
limited to the receipt of unprocessed fish harvested or to be harvested
by U.S. vessels.
(5) Activity Code 5. Transshipping, scouting, and supporting foreign
vessels. Transshipment limited to fish received or to be received from
foreign vessels processing fish from U.S. harvesting vessels.
(6) Activity Code 6. Transshipping, scouting, and supporting U.S.
vessels. Transshipment limited to U.S.-harvested fish processed on board
U.S. vessels.
(7) Activity Code 7. Processing, transshipping, and supporting
foreign vessels. Activity limited to fish harvested or to be harvested
by foreign vessels seaward of the EEZ.
(8) Activity Code 8. Transshipping and supporting foreign vessels.
Activity is limited to fish harvested or to be harvested seaward of the
EEZ by foreign vessels or fish duly authorized for processing in the
internal waters of one of the states.
(9) Activity Code 9. Supporting U.S. fishing vessels and U.S. fish
processing vessels and any foreign fishing vessels authorized under any
activity code under paragraph (c) of this subpart.
(10) Activity Code 10. Transshipping at sea for the purpose of
transporting fish or fish products from a point within the EEZ or, with
the concurrence of a state, within the boundaries of that state, to a
point outside the United States.
(d) Application. (1) Applications for FFV permits authorizing
activity codes 1 through 9 must be submitted by an official
representative of a foreign nation to the DOS. Applications for permits
authorizing activity codes 1 through 9 are available from, and should be
submitted to, DOS, OES/
[[Page 60]]
OMC, Washington, DC 20520. Applications for FFV permits authorizing
activity code 10 may be submitted by any person to the Assistant
Administrator. Applications for permits authorizing activity code 10 are
available from NMFS, Attn: International Fisheries Division, 1315 East
West Highway, Silver Spring, Maryland 20910. All applicants should allow
90 days for review and comment by the public, involved governmental
agencies, and appropriate Councils and for processing before the
anticipated date to begin fishing. The permit application fee must be
paid at the time of application according to Sec. 600.518.
(2) Applicants must provide complete and accurate information
requested on the permit application form.
(3) Applicants for FFV's that will support U.S. vessels in joint
ventures (Activity Code 4) must provide the additional information
specified by the permit application form.
(4) Each applicant may request to substitute one FFV for another of
the same flag by submitting a new application form and a short
explanation of the reason for the substitution to the appropriate
address listed at paragraph (d)(1) of this section. Each substitution is
considered a new application, and a new application fee must be paid.
NMFS will promptly process an application for a vessel replacing a
permitted FFV that is disabled or decommissioned, once the appropriate
Council(s) and governmental agencies have been notified of the
substituted application.
(e) Issuance. (1) Permits may be issued to an FFV by the Assistant
Administrator after--
(i) The Assistant Administrator determines that the fishing
described in the application will meet the requirements of the Magnuson-
Stevens Act and approves the permit application.
(ii) The applicant has paid the fees and provided any assurances
required by the Secretary in accordance with the provisions of Sec.
600.518.
(iii) The applicant has appointed an agent.
(iv) The applicant has identified a designated representative.
(v) The applicant has accepted the general ``conditions and
restrictions'' of receiving permits, as required by section 204(b)(7) of
the Magnuson-Stevens Act, and any ``additional restrictions'' attached
to the permit for the conservation and management of fishery resources
or for the prevention of significant impairment of the national defense
or security interests.
(2) The DOS will provide permits for activity codes 1 through 9 to
the official representative of the applicant foreign nation. The
Assistant Administrator will provide permits for activity code 10
directly to the applicant.
(3) An approved permit will contain--
(i) The name and IRCS of the FFV and its permit number.
(ii) The permitted fisheries and/or activity codes.
(iii) The date of issuance and expiration date, if other than
December 31.
(iv) All conditions and restrictions, and any additional
restrictions and technical modifications appended to the permit.
(4) Permits are not issued for boats that are launched from larger
vessels. Any enforcement action that results from the activities of a
launched boat will be taken against the permitted vessel.
(f) Duration. A permit is valid from its date of issuance to its
date of expiration, unless it is revoked or suspended or the nation
issuing the FFV's documents does not accept amendments to the permit
made by the Assistant Administrator in accordance with the procedures of
paragraph (l) of this section. The permit will be valid for no longer
than the calendar year in which it was issued.
(g) Transfer. Permits are not transferable or assignable. A permit
is valid only for the FFV to which it is issued.
(h) Display. Each FFV operator must have a properly completed permit
form available on board the FFV when engaged in fishing activities and
must produce it at the request of an authorized officer or observer.
(i) Suspension and revocation. NMFS may apply sanctions to an FFV's
permit by revoking, suspending, or imposing additional permit
restrictions on the permit under 15 CFR part 904, if the vessel is
involved in the commission of any violation of the Magnuson-Stevens Act,
the GIFA, or this subpart; if an
[[Page 61]]
agent and a designated representative are not maintained in the United
States; if a civil penalty or criminal fine imposed under the Magnuson-
Stevens Act has become overdue; or as otherwise specified in the
Magnuson-Stevens Act.
(j) Fees. Permit application fees are described in Sec. 600.518.
(k) Change in application information. The applicant must report, in
writing, any change in the information supplied under paragraph (d) of
this section to the Assistant Administrator within 15 calendar days
after the date of the change. Failure to report a change in the
ownership from that described in the current application within the
specified time frame voids the permit, and all penalties involved will
accrue to the previous owner.
(l) Permit amendments. (1) The Assistant Administrator may amend a
permit by adding ``additional restrictions'' for the conservation and
management of fishery resources covered by the permit, or for the
national defense or security if the Assistant Administrator determines
that such interests would be significantly impaired without such
restrictions. Compliance with the added additional restrictions is a
condition of the permit. Violations of added additional restrictions
will be treated as violations of this subpart.
(2) The Assistant Administrator may make proposed additional
restrictions effective immediately, if necessary, to prevent substantial
harm to a fishery resource of the United States, to allow for the
continuation of ongoing fishing operations, or to allow for fishing to
begin at the normal time for opening of the fishery.
(3) The Assistant Administrator will send proposed additional
restrictions to each Nation whose vessels are affected (via the
Secretary of State), to the appropriate Councils, and to the Commandant
of the Coast Guard. NMFS will, at the same time, publish a document of
any significant proposed additional restrictions in the Federal
Register. The document will include a summary of the reasons underlying
the proposal, and the reasons that any proposed additional restrictions
are made effective immediately.
(4) The Nation whose vessels are involved, the owners of the
affected vessels, their representatives, the agencies specified in
paragraph (l)(3) of this section, and the public may submit written
comments on the proposed additional restrictions within 30 days after
publication in the Federal Register.
(5) The Assistant Administrator will make a final decision regarding
the proposed additional restrictions as soon as practicable after the
end of the comment period. The Assistant Administrator will provide the
final additional restrictions to the Nation whose vessels are affected
(via the Secretary of State) according to the procedures of paragraph
(e) of this section. The Assistant Administrator will include with the
final additional restrictions to the Nation, a response to comments
submitted.
(6) Additional restrictions may be modified by following the
procedures of paragraphs (l)(2) through (l)(5) of this section.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 64
FR 39019, July 21, 1999]
Sec. 600.502 Vessel reports.
(a) The operator of each FFV must report the FFV's activities to the
USCG and NMFS as specified in this section.
(b) All reports required by this section must be in English and in
the formats specified in the permit additions and restrictions. Reports
must be delivered via private or commercial communications facilities,
facsimile, or other electronic means acceptable to NMFS and the USCG,
directly to the appropriate NMFS Region or Center and USCG commander.
Weekly reports must also be delivered directly to the appropriate NMFS
Region or Center (see tables 1 and 2 of this section). (The required
reports may be delivered to the closest USCG communication station as
indicated in table 3 of this section or other USCG communication station
only if adequate private or commercial communications facilities have
not been successfully contacted.) Radio reports must be made via
radiotelegraphy, Telex, or facsimile where
[[Page 62]]
available. For the purposes of this section, a message is considered
``transmitted'' when its receipt is acknowledged by a communications
facility and considered ``delivered'' upon its receipt by the offices of
the appropriate USCG commander, NMFS Regional Office, or NMFS Center
identified in table 2 of this section. Reports required by this section
may be submitted by the vessel's designated representative; however, the
operator of the FFV is responsible for the correct and timely filing of
all required reports.
(c) Activity reports. The operator of each FFV must report the FFV's
movements and activities before or upon the event, as specified in this
paragraph (c). Appropriate forms, instructions, codes, and examples are
contained in the conditions and restrictions of the FFV's permit. Each
FFV report must contain the following information: The message
identifier ``VESREP'' to indicate it is a vessel activity report, FFV
name, international radio call sign IRCS, date (month and day based on
GMT), time (hour and minute GMT), position (latitude and longitude to
the nearest degree and minute) where required, area (by fishing area
code) where required, the appropriate action code, confirmation codes
where required, and the other information specified in paragraphs (c)(1)
through (c)(11) of this section.
(1) ``BEGIN''. Each operator must specify the date, time, position,
and area the FFV will actually ``BEGIN'' fishing in the EEZ and the
species (by species code), product (by product code), and quantity of
all fish and fish products (by product weight to the nearest hundredth
of a metric ton) on board when entering the EEZ (action code ``BEGIN'').
The message must be delivered at least 24 hours before the vessel begins
to fish.
(2) ``DEPART''. Each operator must specify the date, time, position,
and area the FFV will ``DEPART'' the EEZ to embark or debark an
observer, to visit a U.S. port, to conduct a joint venture in internal
waters, or to otherwise temporarily leave an authorized fishing area,
but not depart the seaward limit of the EEZ (action code ``DEPART'').
The message must be transmitted before the FFV departs the present
fishing area and delivered within 24 hours of its transmittal.
(3) ``RETURN''. Each operator must specify the date, time, position,
and area the FFV will ``RETURN'' to the EEZ following a temporary
departure, and the species (by species code), product (by product code),
and quantity of all fish and fish products (by product weight to the
nearest hundredth of a metric ton) on board that were received in a
joint venture in internal waters (action code ``RETURN''). The message
must be transmitted before returning to the EEZ and delivered within 24
hours of its transmittal.
(4) ``SHIFT''. Each operator must report each SHIFT in fishing area
(as described for each fishery) by specifying the date, time, and
position the FFV will start fishing, and the new area (action code
``SHIFT''). The message must be transmitted before leaving the original
area and delivered within 24 hours of its transmittal. If a foreign
vessel operates within 20 nautical miles (37.04 km) of a fishing area
boundary, its operator may submit in one message the shift reports for
all fishing area shifts occurring during 1 fishing day (0001-2400 GMT).
This message must be transmitted prior to the last shift expected to be
made in the day and delivered within 24 hours of its transmittal.
(5) ``JV OPS''. Each operator must specify the date, time, position,
and area at which the FFV will ``START'' joint venture operations
(action code ``START JV OPS'') or ``END'' joint venture operations
(action code ``END JV OPS''). These reports must be made in addition to
other activity reports made under this section. Each message must be
transmitted before the event and delivered within 24 hours of its
transmittal.
(6) ``TRANSFER''. The operator of each FFV that anticipates a
transshipping operation in which the FFV will receive fish or fisheries
products must specify the date, time, position and area the FFV will
conduct the ``TRANSFER'' and the name and IRCS of the other FFV or U.S.
vessel involved (action code ``TRANSFER''). The report must include the
permit activity code under which the transfer will be made. The message
must be transmitted prior to the transfer and
[[Page 63]]
delivered within 24 hours of its transmittal. The movement of raw fish
from a permitted foreign catching vessel or, under an Activity Code 4,
from a U.S. fishing vessel to the reporting processing vessel and the
return of nets or codends is not considered a transfer.
(7) ``OFFLOADED''. Each operator must specify the date, time,
position, and area the FFV ``OFFLOADED'' fish or fisheries products TO
another FFV or a U.S. vessel in a transfer, the other FFV's or U.S.
vessel's name, IRCS, Permit Activity Code under which the transfer was
made, species (by species code) and quantity of fish and fisheries
products (by product code and by product weight, to the nearest
hundredth of a metric ton) offloaded (action code ``OFFLOADED TO''). The
message must be transmitted within 12 hours after the transfer is
completed and delivered within 24 hours of its transmittal and before
the FFV ceases fishing in the EEZ.
(8) ``RECEIVED''. Each operator must specify the date, time,
position and area the vessel ``RECEIVED'' fish or fisheries products
FROM another FFV in a transfer, the other FFV's or U.S. vessel's name,
IRCS, Permit Activity Code under which the receipt was made, species (by
species code) and quantity of fish and fisheries products (by product
code and by product weight, to the nearest hundredth of a metric ton)
received (action code ``RECEIVED FROM''). The message must be
transmitted within 12 hours after the transfer is completed and
delivered within 24 hours of its transmittal and before the vessel
ceases fishing in the EEZ.
(9) ``CEASE''. Each operator must specify the date, time, position,
and area the FFV will ``CEASE'' fishing in order to leave the EEZ
(action code ``CEASE''). The message must be delivered at least 24 hours
before the FFV's departure.
(10) ``CHANGE''. Each operator must report any ``CHANGE'' TO the
FFV's operations if the position or time of an event specified in an
activity report will vary more than 5 nautical miles (9.26 km) or 4
hours from that previously reported, by sending a revised message
inserting the word ``CHANGE'' in front of the previous report, repeating
the name, IRCS, date, and time of the previous report, adding the word
``TO'' and the complete revised text of the new report (action code
``CHANGE TO''). Changes to reports specifying an early beginning of
fishing by an FFV or other changes to reports contained in paragraphs
(c)(1) through (c)(9) of this section must be transmitted and delivered
as if the ``CHANGE'' report were the original message.
(11) ``CANCEL''. Each operator wanting to ``CANCEL'' a previous
report may do so by sending a revised message, and inserting the word
``CANCEL'' in front of the previous report's vessel name, IRCS, date,
time and action code canceled (action code ``CANCEL''). The message must
be transmitted and delivered prior to the date and time of the event in
the original message.
(d) The operator of an FFV will be in violation of paragraphs (c)(1)
through (c)(9) of this section if the FFV does not pass within 5
nautical miles (9.26 km) of the position given in the report within 4
hours of the time given in the report.
(e) The notices required by this section may be provided for
individual or groups of FFV's (on a vessel-by-vessel basis) by
authorized persons. An FFV operator may retransmit reports on the behalf
of another FFV, if authorized by that FFV's operator. This does not
relieve the individual vessel operator of the responsibility of filing
required reports. In these cases, the message format should be modified
so that each line of text under ``VESREP'' is a separate vessel report.
(f) Weekly reports. (1) The operator of each FFV in the EEZ must
submit appropriate weekly reports through the Nation's designated
representative. The report must arrive at the address and time specified
in paragraph (g) of this section. The reports may be sent by facsimile
or Telex, but a completed copy of the report form must be mailed or hand
delivered to confirm the Telex. Appropriate forms, instructions, codes,
and examples are contained in the conditions and restrictions of the
FFV's permit. Designated representatives may include more than one
vessel report in a facsimile or Telex message, if
[[Page 64]]
the information is submitted on a vessel-by-vessel basis. Requests for
corrections to previous reports must be submitted through the Nation's
designated representative and mailed or hand-delivered, together with a
written explanation of the reasons for the errors. The appropriate
Regional Administrator or Science and Research Director may accept or
reject any correction and initiate any appropriate civil penalty
actions.
(2) Weekly catch report (CATREP). The operator of each FFV must
submit a weekly catch report stating any catch (Activity Code 1) in
round weight of each species or species group allocated to that Nation
by area and days fished in each area for the weekly period Sunday
through Saturday, GMT, as modified by the fishery in which the FFV is
engaged. Foreign vessels delivering unsorted, unprocessed fish to a
processing vessel are not required to submit CATREP's, if that
processing vessel (Activity Code 2) submits consolidated CATREP's for
all fish received during each weekly period. No report is required for
FFV's that do not catch or receive foreign-caught fish during the
reporting period.
(3) Weekly receipts report (RECREP). The operator of each FFV must
submit a weekly report stating any receipts of U.S.-harvested fish in a
joint venture (Activity Code 4) for the weekly period Sunday through
Saturday, GMT, as modified by the fishery in which the FFV is engaged,
for each fishing area, by authorized or prohibited species or species
group; days fish received; round weight retained or returned to the U.S.
fishing vessel; number of codends received; and number of vessels
transferring codends. The report must also include the names of U.S.
fishing vessels transferring codends during the week. No report is
required for FFV's that do not receive any U.S.-harvested fish during
the reporting period.
(4) Marine mammal report (MAMREP). The operator of each FFV must
submit a weekly report stating any incidental catch or receipt of marine
mammals (Activity Codes 1 or 2 and/or 4), the geographical position
caught, the condition of the animal, number caught (if more than one of
the same species and condition), and nationality of the catching vessel
for the period Sunday through Saturday, GMT, as modified by the fishery
in which the vessel is engaged. Foreign catching vessels delivering
unsorted, unprocessed fish to processing vessel are not required to
submit MAMREP's, provided that the processing or factory vessel
(Activity Code 2) submits consolidated MAMREP's for all fish received
during each weekly period. FFV's receiving U.S.-harvested fish in a
joint venture (Activity Code 4) must submit consolidated reports for
U.S. vessels operating in the joint venture. No report is required for
FFV's that do not catch or receive marine mammals during the reporting
period.
(g) Submission instructions for weekly reports. The designated
representative for each FFV must submit weekly reports in the prescribed
format to the appropriate Regional Administrator or Science and Research
Director of NMFS by 1900 GMT on the Wednesday following the end of the
reporting period. However, by agreement with the appropriate Regional
Administrator or Science and Research Director, the designated
representative may submit weekly reports to some other facility of NMFS.
(h) Alternative reporting procedures. As an alternative to the use
of the specific procedures provided, an applicant may submit proposed
reporting procedures for a general type of fishery operation (i.e.,
transshipments under Activity Code 10) to the appropriate Regional
Administrator and the USCG commander (see tables 1 and 2 to Sec.
600.502 of this chapter). With the agreement of the USCG commander, the
Regional Administrator may authorize the use of alternative reporting
procedures.
[[Page 65]]
Table 1 to Sec. 600.502--Addresses
------------------------------------------------------------------------
NMFS science and U.S. Coast Guard
NMFS regional administrators research directors commanders
------------------------------------------------------------------------
Administrator, Northeast Director, Northeast Commander, Atlantic
Region, National Marine Fisheries Science Area, U.S. Coast
Fisheries Service, NOAA, Center, National Guard, 431 Crawford
One Blackburn Drive, Marine Fisheries St., Portsmouth, VA
Gloucester, MA 01930-2298. Service, NOAA, 166 23704.
Water St., Woods
Hole, MA 02543-1097.
Administrator, Southeast Director, Southeast Commander, Atlantic
Region, National Marine Fisheries Science Area, U.S. Coast
Fisheries Service, 9721 Center, National Guard, Governor's
Exec. Center Drive N., St. Marine Fisheries Island, New York
Petersburg, FL 33702. Service, NOAA, 75 10004.
Virginia Beach
Drive, Miami, FL
33149-1003.
Administrator, Northwest Director, Northwest Commander, Pacific
Region, National Marine Fisheries Science Area, U.S. Coast
Fisheries Service, NOAA, Center, National Guard, Government
7600 Sand Point Way, NE, Marine Fisheries Island, Alameda, CA
BIN C15700, Bldg. 1, Service, NOAA, 2725 94501.
Seattle, WA 98115. Montlake Blvd.
East, Seattle, WA
98112-2097.
Administrator, Alaska Director, Alaska Commander,
Region, National Marine Fisheries Science Seventeenth Coast
Fisheries Service, NOAA, Center, National Guard District,
P.O. Box 21668, Juneau, AK Marine Fisheries P.O. Box 25517,
99802-1668. Service, NOAA, 7600 Juneau, AK 99802.
Sand Point Way, NE,
BIN C15700, Bldg.
4, Seattle, WA
98115-0070.
Administrator, Southwest Director, Southwest Commander,
Region, National Marine Fisheries Science Fourteenth Coast
Fisheries Service, NOAA, Center, National Guard District, 300
501 West Ocean Blvd., Suite Marine Fisheries Ala Moana Blvd.,
4200, Long Beach, CA 90802- Service, NOAA, P.O. Honolulu, HI 96850.
4213. Box 271, La Jolla,
CA 92038-0271.
Administrator, Pacific Director, Pacific Commander,
Islands Region, National Islands Fisheries Fourteenth Coast
Marine Fisheries Service, Science Center, Guard District, 300
NOAA, 1601 Kapiolani Blvd., National Marine Ala Moana Blvd.,
Suite 1110, Honolulu, HI Fisheries Service, Honolulu, HI 96850.
96814. NOAA, 2570 Dole
Street, Honolulu,
HI 96822.
------------------------------------------------------------------------
Table 2 to Sec. 600.502--Areas of Responsibility of NMFS and U.S.
Coast Guard Offices
------------------------------------------------------------------------
Area of responsibility/ National Marine
fishery Fisheries Service U.S. Coast Guard
------------------------------------------------------------------------
Atlantic Ocean North of Cape Director, Northeast Commander, Atlantic
Hatteras. Science Center, Area.
Attn: Observer
Program.
Atlantic Ocean South of Cape Director, Northeast Commander, Atlantic
Hatteras. Science Center, Area.
Attn: Observer
Program.
Atlantic Tunas, Swordfish, Director, Office of Commander, Atlantic
Billfish and Sharks. Sustainable Area.
Fisheries.
Gulf of Mexico and Caribbean Administrator, Commander, Atlantic
Sea. Southeast Region. Area.
Pacific Ocean off the States Administrator, Commander, Pacific
of California, Oregon, and Northwest Region. Area.
Washington.
North Pacific Ocean and Administrator, Commander,
Bering Sea off Alaska. Alaska Region. Seventeenth Coast
Guard District.
Pacific Ocean off Hawaii, Administrator, Commander,
American Samoa, Guam, Pacific Islands Fourteenth Coast
Commonwealth of the Region. Guard District.
Northern Mariana Islands,
and U.S. Insular
Possessions in the Central
and Western Pacific.
------------------------------------------------------------------------
Table 3 to Sec. 600.502--U.S. Coast Guard Communications Stations and Frequencies
----------------------------------------------------------------------------------------------------------------
Radiotelephone
U.S. Coast Guard communications ---------------------------------------------------------------------------
station IRCS Channel \1\ GMT time
----------------------------------------------------------------------------------------------------------------
Boston.............................. NMF A-E 2330-1100.
...................... B,C All.
...................... D 1100-2330.
...................... E (On request).
CAMSLANT Chesapeake (Portsmouth, VA) NMN A 2330-1100.
...................... B,C All.
...................... D 1100-2330.
...................... E (On request).
New Orleans......................... NMG A 2330-1100.
...................... B,C All.
...................... D 1100-2330.
...................... E (On request).
CAMSPAC Point Reyes (San Francisco, NMC A-D All.
CA).
...................... E (On request).
Honolulu............................ NMO A-D All.
...................... E (On request).
Kodiak.............................. NOJ A-D All.
[[Page 66]]
...................... E (On request).
----------------------------------------------------------------------------------------------------------------
\1\ Carrier frequencies of duplex, high-frequency single-sideband channels are:
------------------------------------------------------------------------
Letter Shore transmit Ship transmit
------------------------------------------------------------------------
A................................. 4426.0 4134.0
B................................. 6501.0 6200.0
C................................. 8764.0 8240.0
D................................. 13089.0 12242.0
E................................. 17314.0 16432.0
------------------------------------------------------------------------
[61 FR 32540, June 24, 1996, as amended at 63 FR 7073, Feb. 12, 1998; 64
FR 39020, July 21, 1999; 69 FR 8341, Feb. 24, 2004]
Sec. 600.503 Vessel and gear identification.
(a) Vessel identification. (1) The operator of each FFV assigned an
IRCS must display that call sign amidships on both the port and
starboard sides of the deckhouse or hull, so that it is visible from an
enforcement vessel, and on an appropriate weather deck so it is visible
from the air.
(2) The operator of each FFV not assigned an IRCS, such as a small
trawler associated with a mothership or one of a pair of trawlers, must
display the IRCS of the associated vessel, followed by a numerical
suffix. (For example, JCZM-1, JCZM-2, etc., would be displayed on small
trawlers not assigned an IRCS operating with a mothership whose IRCS is
JCZM; JANP-1 would be displayed by a pair trawler not assigned an IRCS
operating with a trawler whose IRCS is JANP.)
(3) The vessel identification must be in a color in contrast to the
background and must be permanently affixed to the FFV in block Roman
alphabet letters and Arabic numerals at least 1 m in height for FFV's
over 20 m in length, and at least 0.5 m in height for all other FFV's.
(b) Navigational lights and shapes. Each FFV must display the lights
and shapes prescribed by the International Regulations for Preventing
Collisions at Sea, 1972 (TIAS 8587, and 1981 amendment TIAS 10672), for
the activity in which the FFV is engaged (as described at 33 CFR part
81).
(c) Gear identification. (1) The operator of each FFV must ensure
that all deployed fishing gear that is not physically and continuously
attached to an FFV:
(i) Is clearly marked at the surface with a buoy displaying the
vessel identification of the FFV (see paragraph (a) of this section) to
which the gear belongs.
(ii) Has attached a light visible for 2 nautical miles (3.70 km) at
night in good visibility.
(iii) Has a radio buoy.
Trawl codends passed from one vessel to another are considered
continuously attached gear and are not required to be marked.
(2) The operator of each FFV must ensure that deployed longlines,
strings of traps or pots, and gillnets are marked at the surface at each
terminal end with: (see paragraphs (c)(1)(i) through (c)(1)(iii) of this
section).
(3) Additional requirements may be specified for the fishery in
which the vessel is engaged.
(4) Unmarked or incorrectly identified fishing gear may be
considered abandoned and may be disposed of in accordance with
applicable Federal regulations by any authorized officer.
(d) Maintenance. The operator of each FFV must--
(1) Keep the vessel and gear identification clearly legible and in
good repair.
(2) Ensure that nothing on the FFV obstructs the view of the
markings from an enforcement vessel or aircraft.
[[Page 67]]
(3) Ensure that the proper navigational lights and shapes are
displayed for the FFV's activity and are properly functioning.
Sec. 600.504 Facilitation of enforcement.
(a) General. (1) The owner, operator, or any person aboard any FFV
subject to this subpart must immediately comply with instructions and
signals issued by an authorized officer to stop the FFV; to move the FFV
to a specified location; and to facilitate safe boarding and inspection
of the vessel, its gear, equipment, records, and fish and fish products
on board for purposes of enforcing the Magnuson-Stevens Act and this
subpart.
(2) The operator of each FFV must provide vessel position or other
information when requested by an authorized officer within the time
specified in the request.
(b) Communications equipment. (1) Each FFV must be equipped with a
VHF-FM radiotelephone station located so that it may be operated from
the wheelhouse. Each operator must maintain a continuous listening watch
on channel 16 (156.8 mHz).
(2) Each FFV must be equipped with a radiotelephone station capable
of communicating via 2182 kHz (SSB) radiotelephony and at least one set
of working frequencies identified in table 3 to Sec. 600.502
appropriate to the fishery in which the FFV is operating. Each operator
must monitor and be ready to communicate via 2182 kHz (SSB)
radiotelephone each day from 0800 GMT to 0830 GMT and 2000 to 2030 GMT,
and in preparation for boarding.
(3) FFV's that are not equipped with processing facilities and that
deliver all catches to a foreign processing vessel are exempt from the
requirements of paragraph (b)(2) of this section.
(4) FFV's with no IRCS that do not catch fish and are used as
auxiliary vessels to handle codends, nets, equipment, or passengers for
a processing vessel are exempt from the requirements of paragraphs
(b)(1) and (b)(2) of this section.
(5) The appropriate Regional Administrator, with the agreement of
the appropriate USCG commander, may, upon request by a foreign nation,
accept alternatives to the radio requirements of this section to certain
FFV's or types of FFV's operating in a fishery, provided they are
adequate for the communications needs of the fishery.
(c) Communications procedures. (1) Upon being approached by a USCG
vessel or aircraft, or other vessel or aircraft with an authorized
officer aboard, the operator of any FFV subject to this subpart must be
alert for communications conveying enforcement instructions. The
enforcement unit may communicate by channel 16 VHF-FM radiotelephone,
2182 kHz (SSB) radiotelephone, message block from an aircraft, flashing
light or flag signals from the International Code of Signals, hand
signal, placard, loudhailer, or other appropriate means. The following
signals, extracted from the International Code of Signals, are among
those that may be used.
(i) ``AA, AA, AA, etc.'', which is the call for an unknown station.
The signaled vessel should respond by identifying itself or by
illuminating the vessel identification required by Sec. 600.505.
(ii) ``RY-CY'', meaning ``You should proceed at slow speed, a boat
is coming to you''.
(iii) ``SQ3'', meaning ``You should stop or heave to; I am going to
board you''.
(iv) ``L'', meaning ``You should stop your vessel instantly.''
(2) Failure of an FFV's operator to stop the vessel when directed to
do so by an authorized officer using VHF-FM radiotelephone (channel 16),
2182 kHz (SSB) radiotelephone (where required), message block from an
aircraft, flashing light signal, flaghoist, or loudhailer constitutes a
violation of this subpart.
(3) The operator of or any person aboard an FFV who does not
understand a signal from an enforcement unit and who is unable to obtain
clarification by radiotelephone or other means must consider the signal
to be a command to stop the FFV instantly.
(d) Boarding. The operator of an FFV signaled for boarding must--
(1) Monitor 2182 kHz (SSB) radiotelephone and channel 16 (156.8 mHz)
VHF-FM radiotelephone.
(2) Stop immediately and lay to or maneuver in such a way as to
maintain the safety of the FFV and facilitate
[[Page 68]]
boarding by the authorized officer and the boarding party or an
observer.
(3) Provide the authorized officer, boarding party, or observer a
safe pilot ladder. The operator must ensure the pilot ladder is securely
attached to the FFV and meets the construction requirements of
Regulation 17, Chapter V of the International Convention for the Safety
of Life at Sea (SOLAS), 1974 (TIAS 9700 and 1978 Protocol, TIAS 10009),
or a substantially equivalent national standard approved by letter from
the Assistant Administrator, with agreement with the USCG. Safe pilot
ladder standards are summarized below:
(i) The ladder must be of a single length of not more than 9 m (30
ft), capable of reaching the water from the point of access to the FFV,
accounting for all conditions of loading and trim of the FFV and for an
adverse list of 15[deg]. Whenever the distance from sea level to the
point of access to the ship is more than 9 m (30 ft), access must be by
means of an accommodation ladder or other safe and convenient means.
(ii) The steps of the pilot ladder must be--
(A) Of hardwood, or other material of equivalent properties, made in
one piece free of knots, having an efficient non-slip surface; the four
lowest steps may be made of rubber of sufficient strength and stiffness
or of other suitable material of equivalent characteristics.
(B) Not less than 480 mm (19 inches) long, 115 mm (4.5 inches) wide,
and 25 mm (1 inch) in depth, excluding any non-slip device.
(C) Equally spaced not less than 300 millimeters (12 inches) nor
more than 380 mm (15 inches) apart and secured in such a manner that
they will remain horizontal.
(iii) No pilot ladder may have more than two replacement steps that
are secured in position by a method different from that used in the
original construction of the ladder.
(iv) The side ropes of the ladder must consist of two uncovered
manila ropes not less than 60 mm (2.25 inches) in circumference on each
side (or synthetic ropes of equivalent size and equivalent or greater
strength). Each rope must be continuous, with no joints below the top
step.
(v) Battens made of hardwood, or other material of equivalent
properties, in one piece and not less than 1.80 m (5 ft 10 inches) long
must be provided at such intervals as will prevent the pilot ladder from
twisting. The lowest batten must be on the fifth step from the bottom of
the ladder and the interval between any batten and the next must not
exceed nine steps.
(vi) Where passage onto or off the ship is by means of a bulwark
ladder, two handhold stanchions must be fitted at the point of boarding
or leaving the FFV not less than 0.70 m (2 ft 3 inches) nor more than
0.80 m (2 ft 7 inches) apart, not less than 40 mm (2.5 inches) in
diameter, and must extend not less than 1.20 m (3 ft 11 inches) above
the top of the bulwark.
(4) When necessary to facilitate the boarding or when requested by
an authorized officer or observer, provide a manrope, safety line, and
illumination for the ladder; and
(5) Take such other actions as necessary to ensure the safety of the
authorized officer and the boarding party and to facilitate the boarding
and inspection.
(e) Access and records. (1) The owner and operator of each FFV must
provide authorized officers access to all spaces where work is conducted
or business papers and records are prepared or stored, including but not
limited to, personal quarters and areas within personal quarters.
(2) The owner and operator of each FFV must provide to authorized
officers all records and documents pertaining to the fishing activities
of the vessel, including but not limited to, production records, fishing
logs, navigation logs, transfer records, product receipts, cargo stowage
plans or records, draft or displacement calculations, customs documents
or records, and an accurate hold plan reflecting the current structure
of the vessel's storage and factory spaces.
(f) Product storage. The operator of each permitted FFV storing fish
or fish products in a storage space must ensure that all non-fish
product items are neither stowed beneath nor covered by
[[Page 69]]
fish products, unless required to maintain the stability and safety of
the vessel. These items include, but are not limited to, portable
conveyors, exhaust fans, ladders, nets, fuel bladders, extra bin boards,
or other movable non-product items. These items may be in the space when
necessary for safety of the vessel or crew or for storage of the
product. Lumber, bin boards, or other dunnage may be used for shoring or
bracing of product to ensure safety of crew and to prevent shifting of
cargo within the space.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.505 Prohibitions.
(a) It is unlawful for any person to do any of the following:
(1) Ship, transport, offer for sale, sell, purchase, import, export,
or have custody, control, or possession of any fish taken or retained in
violation of the Magnuson-Stevens Act, the applicable GIFA, this
subpart, or any permit issued under this subpart;
(2) Refuse to allow an authorized officer to board an FFV for
purposes of conducting any search or inspection in connection with the
enforcement of the Magnuson-Stevens Act, the applicable GIFA, this
subpart, or any other permit issued under this subpart;
(3) Assault, resist, oppose, impede, intimidate, or interfere with
any authorized officer in the conduct of any inspection or search
described in paragraph (a)(2) of this section;
(4) Resist a lawful arrest for any act prohibited by the Magnuson-
Stevens Act, the applicable GIFA, this subpart, or any permit issued
under this subpart;
(5) Interfere with, delay, or prevent by any means the apprehension
or arrest of another person with the knowledge that such other person
has committed any act prohibited by the Magnuson-Stevens Act, the
applicable GIFA, this subpart, or any permit issued under this subpart;
(6) Interfere with, obstruct, delay, oppose, impede, intimidate, or
prevent by any means any boarding, investigation or search, wherever
conducted, in the process of enforcing the Magnuson-Stevens Act, the
applicable GIFA, this subpart, or any permit issued under this subpart;
(7) Engage in any fishing activity for which the FFV does not have a
permit as required under Sec. 600.501;
(8) Engage in any fishing activity within the EEZ without a U.S.
observer aboard the FFV, unless the requirement has been waived by the
Assistant Administrator or appropriate Regional Administrator;
(9) Retain or attempt to retain, directly or indirectly, any U.S.
harvested fish, unless the FFV has a permit for Activity Codes 4, 6, or
10;
(10) Use any fishing vessel to engage in fishing after the
revocation, or during the period of suspension, of an applicable permit
issued under this subpart;
(11) Violate any provision of the applicable GIFA;
(12) Falsely or incorrectly complete (including by omission) a
permit application or permit form as specified in Sec. 600.501 (d) and
(k);
(13) Fail to report to the Assistant Administrator within 15 days
any change in the information contained in the permit application for a
FFV, as specified in Sec. 600.501(k);
(14) Assault, resist, oppose, impede, intimidate, or interfere with
an observer placed aboard an FFV under this subpart;
(15) Interfere with or bias the sampling procedure employed by an
observer, including sorting or discarding any catch prior to sampling,
unless the observer has stated that sampling will not occur; or tamper
with, destroy, or discard an observer's collected samples, equipment,
records, photographic film, papers, or effects without the express
consent of the observer;
(16) Prohibit or bar by command, impediment, threat, coercion, or
refusal of reasonable assistance, an observer from collecting samples,
conducting product recovery rate determinations, making observations, or
otherwise performing the observer's duties;
(17) Harass or sexually harass an authorized officer or observer;
(18) Fail to provide the required assistance to an observer as
described at Sec. 600.506 (c) and (e);
(19) Fail to identify, falsely identify, fail to properly maintain,
or obscure
[[Page 70]]
the identification of the FFV or its gear as required by this subpart;
(20) Falsify or fail to make, keep, maintain, or submit any record
or report required by this subpart;
(21) Fail to return to the sea or fail to otherwise treat prohibited
species as required by this subpart;
(22) Fail to report or falsely report any gear conflict;
(23) Fail to report or falsely report any loss, jettisoning, or
abandonment of fishing gear or other article into the EEZ that might
interfere with fishing, obstruct fishing gear or vessels, or cause
damage to any fishery resource or marine mammals;
(24) Continue Activity Codes 1 through 4 after those activity codes
have been canceled under Sec. 600.511;
(25) Fail to maintain health and safety standards set forth in Sec.
600.506(d);
(26) Violate any provisions of regulations for specific fisheries of
this subpart;
(27) On a scientific research vessel, engage in fishing other than
recreational fishing authorized by applicable state, territorial, or
Federal regulations;
(28) Violate any provision of this subpart, the Magnuson-Stevens
Act, the applicable GIFA, any notice issued under this subpart or any
permit issued under this subpart; or
(29) Attempt to do any of the foregoing.
(b) It is unlawful for any FFV, and for the owner or operator of any
FFV except an FFV engaged only in recreational fishing, to fish--
(1) Within the boundaries of any state, unless:
(i) The fishing is authorized by the Governor of that state as
permitted by section 306(c) of the Magnuson-Stevens Act to engage in a
joint venture for processing and support with U.S. fishing vessels in
the internal waters of that state; or
(ii) The fishing is authorized by, and conducted in accordance with,
a valid permit issued under Sec. 600.501, and the Governor of that
state has indicated concurrence to allow fishing consisting solely of
transporting fish or fish products from a point within the boundaries of
that state to a point outside the United States; or
(2) Within the EEZ, or for any anadromous species or continental
shelf fishery resources beyond the EEZ, unless the fishing is authorized
by, and conducted in accordance with, a valid permit issued under Sec.
600.501.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 64
FR 39020, July 21, 1999]
Sec. 600.506 Observers.
(a) General. To carry out such scientific, compliance monitoring,
and other functions as may be necessary or appropriate to carry out the
purposes of the Magnuson-Stevens Act, the appropriate Regional
Administrator or Science and Research Director (see table 2 to Sec.
600.502) may assign U.S. observers to FFV's. Except as provided for in
section 201(h)(2) of the Magnuson-Stevens Act, no FFV may conduct
fishing operations within the EEZ unless a U.S. observer is aboard.
(b) Effort plan. To ensure the availability of an observer as
required by this section, the owners and operators of FFV's wanting to
fish within the EEZ will submit to the appropriate Regional
Administrator or Science and Research Director and also to the Chief,
Financial Services Division, NMFS, 1315 East West Highway, Silver
Spring, MD 20910 a schedule of fishing effort 30 days prior to the
beginning of each quarter. A quarter is a time period of 3 consecutive
months beginning January 1, April 1, July 1, and October 1 of each year.
The schedule will contain the name and IRCS of each FFV intending to
fish within the EEZ during the upcoming quarter, and each FFV's expected
date of arrival and expected date of departure.
(1) The appropriate Regional Administrator or Science and Research
Director must be notified immediately of any substitution of vessels or
any cancellation of plans to fish in the EEZ for FFV's listed in the
effort plan required by this section.
(2) If an arrival date of an FFV will vary more than 5 days from the
date listed in the quarterly schedule, the appropriate Regional
Administrator or Science and Research Director must be notified at least
10 days in advance of the rescheduled date of arrival. If the notice
required by this paragraph (b)(2)
[[Page 71]]
is not given, the FFV may not engage in fishing until an observer is
available and has been placed aboard the vessel or the requirement has
been waived by the appropriate Regional Administrator or Science and
Research Director.
(c) Assistance to observers. To assist the observer in the
accomplishment of his or her assigned duties, the owner and operator of
an FFV to which an observer is assigned must--
(1) Provide, at no cost to the observer or the United States,
accommodations for the observer aboard the FFV that are equivalent to
those provided to the officers of that vessel.
(2) Cause the FFV to proceed to such places and at such times as may
be designated by the appropriate Regional Administrator or Science and
Research Director for the purpose of embarking and debarking the
observer.
(3) Allow the observer to use the FFV's communications equipment and
personnel upon demand for the transmission and receipt of messages.
(4) Allow the observer access to and use of the FFV's navigation
equipment and personnel upon demand to determine the vessel's position.
(5) Allow the observer free and unobstructed access to the FFV's
bridge, trawl, or working decks, holding bins, processing areas, freezer
spaces, weight scales, cargo holds and any other space that may be used
to hold, process, weigh, or store fish or fish products at any time.
(6) Allow the observer to inspect and copy the FFV's daily log,
communications log, transfer log, and any other log, document, notice,
or record required by these regulations.
(7) Provide the observer copies of any records required by these
regulations upon demand.
(8) Notify the observer at least 15 minutes before fish are brought
on board or fish or fish products are transferred from the FFV to allow
sampling the catch or observing the transfer, unless the observer
specifically requests not to be notified.
(9) Provide all other reasonable assistance to enable the observer
to carry out his or her duties.
(d) Health and safety standards. All foreign fishing vessels to
which an observer is deployed must maintain, at all times that the
vessel is in the EEZ, the following:
(1) At least one working radar.
(2) Functioning navigation lights as required by international law.
(3) A watch on the bridge by appropriately trained and experienced
personnel while the vessel is underway.
(4) Lifeboats and/or inflatable life rafts with a total carrying
capacity equal to or greater than the number of people aboard the
vessel. Lifeboats and inflatable life rafts must be maintained in good
working order and be readily available.
(5) Life jackets equal or greater in number to the total number of
persons aboard the vessel. Life jackets must be stowed in readily
accessible and plainly marked positions throughout the vessel, and
maintained in a state of good repair.
(6) At least one ring life buoy for each 25 ft (7.6 m) of vessel
length, equipped with automatic water lights. Ring life buoys must have
an outside diameter of not more than 32 inches (81.3 cm) nor less than
30 inches (76.2 cm), and must be maintained in a state of good repair.
Ring life buoys must be readily available, but not positioned so they
pose a threat of entanglement in work areas. They must be secured in
such a way that they can be easily cast loose in the event of an
emergency.
(7) At least one VHF-FM radio with a functioning channel 16 (156.8
mHz), International Distress, Safety and Calling Frequency, and one
functioning AM radio (SSB-Single Side Band) capable of operating at 2182
kHz (SSB). Radios will be maintained in a radio room, chartroom, or
other suitable location.
(8) At least one Emergency Position Indicating Radio Beacon (EPIRB),
approved by the USCG for offshore commercial use, stowed in a location
so as to make it readily available in the event of an emergency.
(9) At least six hand-held, rocket-propelled, parachute, red-flare
distress signals, and three orange-smoke distress signals stowed in the
pilothouse or navigation bridge in portable watertight containers.
(10) All lights, shapes, whistles, foghorns, fog bells and gongs
required by and maintained in accordance with
[[Page 72]]
the International Regulations for Preventing Collisions at Sea.
(11) Clean and sanitary conditions in all living spaces, food
service and preparation areas and work spaces aboard the vessel.
(e) Observer transfers. (1) The operator of the FFV must ensure that
transfers of observers at sea via small boat or raft are carried out
during daylight hours as weather and sea conditions allow, and with the
agreement of the observer involved. The FFV operator must provide the
observer 3 hours advance notice of at-sea transfers, so that the
observer may collect personal belongings, equipment, and scientific
samples.
(2) The FFV's involved must provide a safe pilot ladder and conduct
the transfer according to the procedures of Sec. 600.504(d) to ensure
the safety of the during the transfer.
(3) An experienced crew member must assist the observer in the small
boat or raft in which the transfer is made.
(f) Supplementary observers. In the event funds are not available
from Congressional appropriations of fees collected to assign an
observer to a foreign fishing vessel, the appropriate Regional
Administrator or Science and Research Director will assign a
supplementary observer to that vessel. The costs of supplementary
observers will be paid for by the owners and operators of foreign
fishing vessels as provided for in paragraph (h) of this section.
(g) Supplementary observer authority and duties. (1) A supplementary
observer aboard a foreign fishing vessel has the same authority and must
be treated in all respects as an observer who is employed by NMFS,
either directly or under contract.
(2) The duties of supplementary observers and their deployment and
work schedules will be specified by the appropriate Regional
Administrator or Science and Research Director.
(3) All data collected by supplementary observers will be under the
exclusive control of the Assistant Administrator.
(h) Supplementary observer payment--(1) Method of payment. The
owners and operators of foreign fishing vessels must pay directly to the
contractor the costs of supplementary observer coverage. Payment must be
made to the contractor supplying supplementary observer coverage either
by letter of credit or certified check drawn on a federally chartered
bank in U.S. dollars, or other financial institution acceptable to the
contractor. The letter of credit used to pay supplementary observer fees
to contractors must be separate and distinct from the letter of credit
required by Sec. 600.518(b)(2). Billing schedules will be specified by
the terms of the contract between NOAA and the contractors. Billings for
supplementary observer coverage will be approved by the appropriate
Regional Administrator or Science and Research Director and then
transmitted to the owners and operators of foreign fishing vessels by
the appropriate designated representative. Each country will have only
one designated representative to receive observer bills for all vessels
of that country, except as provided for by the Assistant Administrator.
All bills must be paid within 10 working days of the billing date.
Failure to pay an observer bill will constitute grounds to revoke
fishing permits. All fees collected under this section will be
considered interim in nature and subject to reconciliation at the end of
the fiscal year in accordance with paragraph (h)(4) of this section and
Sec. 600.518(d).
(2) Contractor costs. The costs charged for supplementary observer
coverage to the owners and operators of foreign fishing vessels may not
exceed the costs charged to NMFS for the same or similar services,
except that contractors may charge to the owners and operators of
foreign fishing vessels an additional fee to cover the administrative
costs of the program not ordinarily part of contract costs charged to
NMFS. The costs charged foreign fishermen for supplementary observers
may include, but are not limited to the following:
(i) Salary and benefits, including overtime, for supplementary
observers.
(ii) The costs of post-certification training required by paragraph
(j)(2) of this section.
(iii) The costs of travel, transportation, and per diem associated
with deploying supplementary observers to foreign fishing vessels
including the
[[Page 73]]
cost of travel, transportation, and per diem from the supplementary
observer's post of duty to the point of embarkation to the foreign
fishing vessel, and then from the point of disembarkation to the post of
duty from where the trip began. For the purposes of these regulations,
the appropriate Regional Administrator or Science and Research Director
will designate posts of duty for supplementary observers.
(iv) The costs of travel, transportation, and per diem associated
with the debriefing following deployment of a supplementary observer by
NMFS officials.
(v) The administrative and overhead costs incurred by the contractor
and, if appropriate, a reasonable profit.
(3) NMFS costs. The owners and operators of foreign fishing vessels
must also pay to NMFS as part of the surcharge required by section
201(i)(4) of the Magnuson-Stevens Act, the following costs:
(i) The costs of certifying applicants for the position of
supplementary observer.
(ii) The costs of any equipment, including safety equipment,
sampling equipment, operations manuals, or other texts necessary to
perform the duties of a supplementary observer. The equipment will be
specified by the appropriate Regional Administrator or Science and
Research Director according to the requirements of the fishery to which
the supplementary observer will be deployed.
(iii) The costs associated with communications with supplementary
observers for transmission of data and routine messages.
(iv) For the purposes of monitoring the supplementary observer
program, the costs for the management and analysis of data.
(v) The costs for data editing and entry.
(vi) Any costs incurred by NMFS to train, deploy or debrief a
supplementary observer.
(vii) The cost for U.S. Customs inspection for supplementary
observers disembarking after deployment.
(4) Reconciliation. Fees collected by the contractor in excess of
the actual costs of supplementary observer coverage will be refunded to
the owners and operators of foreign fishing vessels, or kept on deposit
to defray the costs of future supplementary observer coverage. Refunds
will be made within 60 days after final costs are determined and
approved by NMFS.
(i) Supplementary observer contractors--(1) Contractor eligibility.
Supplementary observers will be obtained by NMFS from persons or firms
having established contracts to provide NMFS with observers. In the
event no such contract is in place, NMFS will use established,
competitive contracting procedures to select persons or firms to provide
supplementary observers. The services supplied by the supplementary
observer contractors will be as described within the contract and as
specified below.
(2) Supplementary observer contractors must submit for the approval
of the Assistant Administrator the following:
(i) A copy of any contract, including all attachments, amendments,
and enclosures thereto, between the contractor and the owners and
operators of foreign fishing vessels for whom the contractor will
provide supplementary observer services.
(ii) All application information for persons whom the contractor
desires to employ as certified supplementary observers.
(iii) Billing schedules and billings to the owners and operators of
foreign fishing vessels for further transmission to the designated
representative of the appropriate foreign nation.
(iv) All data on costs.
(j) Supplementary observers--certification, training--(1)
Certification. The appropriate Regional Administrator or Science and
Research Director will certify persons as qualified for the position of
supplementary observer once the following conditions are met:
(i) The candidate is a citizen or national of the United States.
(ii) The candidate has education or experience equivalent to the
education or experience required of persons used as observers by NMFS as
either Federal personnel or contract employees. The education and
experience required for certification may vary according to the
requirements of managing the foreign fishery in which the supplementary
observer is to be deployed.
[[Page 74]]
Documentation of U.S. citizenship or nationality, and education or
experience will be provided from personal qualification statements on
file with NMFS contractors who provide supplementary observer services,
and will not require the submission of additional information to NMFS.
(2) Training. Prior to deployment to foreign fishing vessels,
certified supplementary observers must also meet the following
conditions:
(i) Each certified supplementary observer must satisfactorily
complete a course of training approved by the appropriate Regional
Administrator or Science and Research Director as equivalent to that
received by persons used as observers by NMFS as either Federal
personnel or contract employees. The course of training may vary
according to the foreign fishery in which the supplementary observer is
to be deployed.
(ii) Each certified supplementary observer must agree in writing to
abide by standards of conduct as set forth in Department of Commerce
Administrative Order 202-735 (as provided by the contractor).
(k) Supplementary observer certification suspension or revocation.
(1) Certification of a supplementary observer may be suspended or
revoked by the Assistant Administrator under the following conditions:
(i) A supplementary observer fails to perform the duties specified
in paragraph (g)(2) of this section.
(ii) A supplementary observer fails to abide by the standards of
conduct described by Department of Commerce Administrative Order 202-
735.
(2) The suspension or revocation of the certification of a
supplementary observer by the Assistant Administrator may be based on
the following:
(i) Boarding inspection reports by authorized officers of the USCG
or NMFS, or other credible information, that indicate a supplementary
observer has failed to abide by the established standards of conduct; or
(ii) An analysis by NMFS of the data collected by a supplementary
observer indicating improper or incorrect data collection or recording.
The failure to properly collect or record data is sufficient to justify
decertification of supplementary observers; no intent to defraud need be
demonstrated.
(3) The Assistant Administrator will notify the supplementary
observer, in writing, of the Assistant Administrator's intent to suspend
or revoke certification, and the reasons therefor, and provide the
supplementary observer a reasonable opportunity to respond. If the
Assistant Administrator determines that there are disputed questions of
material fact, then the Assistant Administrator may in this respect
appoint an examiner to make an informal fact-finding inquiry and prepare
a report and recommendations.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7074, 7075, Feb. 12,
1998; 64 FR 39020, July 21, 1999]
Sec. 600.507 Recordkeeping.
(a) General. The owner and operator of each FFV must maintain timely
and accurate records required by this section as modified by the
regulations for the fishery in which the FFV is engaged.
(1) The owner and operator of each FFV must maintain all required
records in English, based on Greenwich mean time (GMT) unless otherwise
specified in the regulation, and make them immediately available for
inspection upon the request of an authorized officer or observer.
(2) The owner and operator of each FFV must retain all required
records on board the FFV whenever it is in the EEZ, for 3 years after
the end of the permit period.
(3) The owner and operator of each FFV must retain the required
records and make them available for inspection upon the request of an
authorized officer at any time during the 3 years after the end of the
permit period, whether or not such records are on board the vessel.
(4) The owner and operator of each FFV must provide to the Assistant
Administrator, in the form and at the times prescribed, any other
information requested that the Assistant Administrator determines is
necessary to fulfill the fishery conservation, management and
enforcement purposes of the Magnuson-Stevens Act.
(b) Communications log. The owner and operator of each FFV must
record
[[Page 75]]
in a separate communications log, at the time of transmittal, the time
and content of each notification made under Sec. 600.504.
(c) Transfer log. Except for the transfer of unsorted, unprocessed
fish via codend from a catching vessel to a processing vessel (Activity
Code 2 or 4), the owner and operator of each FFV must record, in a
separate transfer log, each transfer or receipt of any fish or fishery
product, including quantities transferred or offloaded outside the EEZ.
The operator must record in the log within 12 hours of the completion of
the transfer:
(1) The time and date (GMT) and location (in geographic coordinates)
the transfer began and was completed.
(2) The product weight, by species and product (use species and
product codes), of all fish transferred, to the nearest 0.01 mt.
(3) The name, IRCS, and permit number of both the FFV offloading the
fish and the FFV receiving the fish.
(d) Daily fishing log. (1) The owner or operator of each FFV
authorized to catch fish (Activity Code 1) must maintain a daily fishing
log of the effort, catch and production of the FFV, as modified by
paragraph (d)(2) of this section and the regulations for the fishery in
which the FFV is engaged. The operator must maintain on a daily and
cumulative basis for the permit period a separate log for each fishery
(see table 2 to Sec. 600.502) in which the FFV is engaged according to
this section and in the format specified in the instructions provided
with the permit or other format authorized under paragraph (i) of this
section. Daily effort entries are required for each day the vessel
conducts fishing operations within the EEZ. Daily entries are not
required whenever the FFV is in port or engaged in a joint venture in
the internal waters of a state. Each page of log may contain entries
pertaining to only one day's fishing operations or one gear set,
whichever is longer.
(2) The owner or operator of each FFV authorized to catch fish
(Activity Code 1) and that delivers all catches to a processing vessel,
must maintain only ``SECTION ONE-EFFORT'', of the daily fishing log,
provided the processing vessel maintains a daily consolidated fishing
log as described in paragraphs (f) and (g) of this section.
(e) Daily fishing log--contents. The daily fishing log must contain
the following information, as modified by paragraph (d)(2) of this
section and the regulations for the fishery in which the FFV is engaged,
and be completed according to the format and instructions provided with
the permit or other format authorized under paragraph (i) of this
section.
(1) ``SECTION ONE-EFFORT'' must contain on a daily basis--
(i) A consecutive page number, beginning with the first day the
vessel started fishing operations within the EEZ and continuing
throughout the log.
(ii) The date (based on GMT).
(iii) The FFV's name.
(iv) The FFV's IRCS.
(v) The FFV's U.S. permit number.
(vi) The FFV's noon (1200 GMT) position in geographic coordinates.
(vii) The master or operator's signature or title.
(2) ``SECTION ONE-EFFORT'' must contain, for each trawl or set, as
appropriate to the gear type employed--
(i) The consecutive trawl or set number, beginning with the first
set of the calendar year.
(ii) The fishing area in which the trawl or set was completed.
(iii) The gear type.
(iv) The time the gear was set.
(v) The position of the set.
(vi) The course of the set.
(vii) The sea depth.
(viii) The depth of the set.
(ix) The duration of the set.
(x) The hauling time.
(xi) The position of the haul.
(xii) The number of pots or longline units (where applicable).
(xiii) The average number of hooks per longline unit (where
applicable).
(xiv) The trawl speed (where applicable).
(xv) The mesh size of the trawl's codend (where applicable).
(xvi) The estimated total weight of the catch for the trawl of set,
to at least the nearest metric ton round weight.
(3) ``SECTION TWO-CATCH'' must contain, for each trawl or set--
(i) The consecutive set or trawl number from ``SECTION ONE''.
[[Page 76]]
(ii) The catch of each allocated species or species group to at
least the nearest 0.1 mt round weight.
(iii) The prohibited species catch to at least the nearest 0.1 mt
round weight or by number, as required by the regulations for the
fishery in which the FFV is engaged.
(iv) The species code of each marine mammal caught and its condition
when released.
(4) ``SECTION TWO-CATCH'' must contain, on a daily basis--
(i) The species codes for all allocated or prohibited species or
species groups caught.
(ii) For each allocated species--the amount, to at least the nearest
0.1 mt, and the daily disposition, either processed for human
consumption, used for fishmeal, or discarded; the daily catch by fishing
area; the daily catch for all fishing areas; and the cumulative total
catch.
(iii) For the total catch of allocated species--the amount to at
least the nearest 0.1 mt and the daily disposition, daily total catch by
fishing area, daily total catch for all fishing areas, and cumulative
total catch.
(iv) The catch by fishing area, daily total, and cumulative total of
each prohibited species.
(5) ``SECTION THREE--PRODUCTION'' must contain, on a daily basis,
for each allocated species caught and product produced--
(i) The product by species code and product type.
(ii) The daily product recovery rate of each species and product.
(iii) The daily total product produced by species to at least the
nearest 0.01 mt.
(iv) The cumulative total of each product to at least the nearest
0.01 mt.
(v) The cumulative amount of product transferred.
(vi) The balance of product remaining aboard the FFV.
(vii) The total daily amount, cumulative amount, transferred product
and balance of frozen product aboard the FFV to the nearest 0.01 mt.
(viii) Transferred amount and balance of fishmeal and fish oil
aboard to at least the nearest 0.01 mt.
(f) Daily consolidated fishing or joint venture log. The operator of
each FFV that receives unsorted, unprocessed fish from foreign catching
vessels (Activity Code 2) for processing or receives U.S.-harvested fish
from U.S. fishing vessels in a joint venture (Activity Code 4) must
maintain a daily joint venture log of the effort, catch and production
of its associated U.S. or foreign fishing vessels and the processing
vessel as modified by the regulations for the fishery in which the FFV
is engaged. This log is separate and in addition to the log required by
paragraph (d) of this section. The operator must maintain a separate log
for each fishery in which the FFV is engaged, on a daily and cumulative
basis, according to this section and in the format specified in the
instructions provided with the permit or other format authorized under
paragraph (i) of this section. Receipts of fish caught outside the EEZ
must be included. Each page of the log may contain entries pertaining to
only one day's fishing operations.
(g) Daily joint venture log--contents. Daily joint venture logs must
contain the following information, as modified by the fishery in which
the vessel is engaged, and be completed according to the format and
instructions provided with the permit or other format authorized under
paragraph (i) of this section.
(1) ``SECTION ONE-EFFORT'' must contain, on a daily basis, that
information required in paragraph (e)(1) of this section.
(2) ``SECTION ONE-EFFORT'' must contain for each receipt of a
codend--
(i) The consecutive codend number, beginning with the first codend
received for the calendar year.
(ii) The name of the U.S. fishing vessel or the name and IRCS of the
foreign fishing vessel the codend was received from.
(iii) The fishing area where the codend was received.
(iv) The time the codend was received.
(v) The position the codend was received.
(vi) The estimated weight of the codend to at least the nearest
metric ton round weight.
(3) ``SECTION TWO-CATCH'' must contain, for each codend received--
[[Page 77]]
(i) The consecutive codend number from ``SECTION ONE''.
(ii) The receipts of each authorized species or species group and
its disposition, either processed for human consumption, used for
fishmeal, discarded, or returned to the U.S. fishing vessel, to at least
the nearest 0.1 mt round weight.
(iii) The estimated receipts of each prohibited species or species
group and its disposition, either discarded or returned to the U.S.
fishing vessel if authorized in the fishery in which the U.S. vessel is
engaged, to at least the nearest 0.1 mt round weight.
(iv) The species code of each marine mammal received and its
condition when released.
(4) ``SECTION TWO-CATCH'' must contain on a daily basis--
(i) The species codes of all authorized or prohibited species or
species groups received.
(ii) The daily disposition, as described in paragraph (g)(3)(ii) of
this section, daily total, and cumulative total receipts of each
authorized species or species groups.
(iii) The daily disposition, daily total and cumulative total
receipts of all authorized species or species groups.
(iv) The daily and cumulative total receipts of prohibited species
groups and their disposition as described in paragraph (g)(3)(iii) of
this section.
(5) ``SECTION THREE--PRODUCTION'' must contain, on a daily basis,
for each authorized species or species group received and product
produced, that information required in paragraph (e)(5) of this section.
(h) Daily log maintenance. The logs required by paragraphs (e)
through (g) of this section must be maintained separately for each
fishery (see table 2 to Sec. 600.502).
(1) The effort section (all of ``SECTION ONE'') of the daily logs
must be updated within 2 hours of the hauling or receipt time. The catch
or receipt by trawl or set (``SECTION TWO'') must be entered within 12
hours of the hauling or receipt time. The daily and cumulative total
catch or receipts (``SECTION TWO'') and the production portion
(``SECTION THREE'') of the log must be updated within 12 hours of the
end of the day on which the catch was taken. The date of catch is the
day and time (GMT) the gear is hauled.
(2) Entries for total daily and cumulative catch or receipt weights
(disposition ``C'' or ``M'') must be based on the most accurate method
available to the vessel, either scale round weights or factory weights
converted to round weights. Entries for daily and cumulative weights of
discarded or returned fish (disposition ``D'' or ``R'') must be based on
the most accurate method available to the vessel, either actual count,
scale round weight, or estimated deck weights. Entries for product
weights must be based on the number of production units (pans, boxes,
blocks, trays, cans, or bags) and the average weight of the production
unit, with reasonable allowances for water added. Allowances for water
added cannot exceed 5 percent of the unit weight. Product weights cannot
be based on the commercial or arbitrary wholesale weight of the product,
but must be based on the total actual weight of the product as
determined by representative samples.
(3) The owner or operator must make all entries in indelible ink,
with corrections to be accomplished by lining out and rewriting, rather
than erasure.
(i) Alternative log formats. As an alternative to the use of the
specific formats provided, a Nation may submit a proposed log format for
FFV's of that Nation for a general type of fishery operation in a
fishery (i.e., joint venture operations) to the appropriate Regional
Administrator and the USCG commander (see tables 1 and 2 to Sec.
600.502). With the agreement of the USCG commander, the Regional
Administrator may authorize the use of that log format for vessels of
the requesting Nation.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.508 Fishing operations.
(a) Catching. Each FFV authorized for activity code 1 may catch
fish. An FFV may retain its catch of any species or species group for
which there is an unfilled national allocation. All fish caught will be
counted against the national allocation, even if the fish are discarded,
unless exempted by the regulations of the fishery in which the
[[Page 78]]
FFV is engaged. Catching operations may be conducted as specified by the
regulations of the fishery in which the FFV is engaged and as modified
by the FFV's permit.
(b) Scouting. Each FFV authorized for Activity Codes 1 through 6 may
scout for fish. Scouting may be conducted only in the fisheries area
authorized by the scouting vessel's permit and under such other
circumstances as may be designated in this subpart or the permit.
(c) Processing. Each FFV with Activity Code 1 or 2 may process fish.
Processing may only be conducted whenever and wherever catching
operations for FFV's of that Nation are permitted, whenever and wherever
joint venture operations are authorized by an FFV's permit under
Activity Code 4, and under such other circumstances as may be designated
in this subpart or the permit.
(d) Support. Each FFV with Activity Codes 1, 2, 3, 5, or 8 may
support other permitted FFV's. Each FFV with Activity Codes 4 or 6 may
support U.S. vessels. Support operations may be conducted only in the
fisheries areas authorized by the supporting vessel's permit, and under
such other circumstances as may be designated in this subpart or the
permit.
(e) Joint ventures. Each FFV with Activity Code 4 in addition to
Activity Codes 1 or 2 may also conduct operations with U.S. fishing
vessels. These joint venture operations with U.S. fishing vessels may be
conducted throughout the EEZ, and under such other circumstances as may
be designated in these regulations or the permit. FFV's with activity
code 4 may continue operations assisting U.S. fishing vessels, despite
closures under Sec. 600.511(a).
(f) Internal waters. For FFV's authorized under section 306(c) of
the Magnuson-Stevens Act:
(1) Each FFV may engage in fish processing and support of U.S.
fishing vessels within the internal waters of that state in compliance
with terms and conditions set by the authorizing Governor.
(2) The owner or operator of each FFV must submit weekly reports on
the amount of fish received from vessels of the United States and the
location(s) where such fish were harvested.
(i) Reports must include:
(A) Vessel identification information for the FFV.
(B) Date of each receipt of fish.
(C) Amount of fish received, by species.
(D) Location(s) from which the fish received were harvested and the
name and official number of the vessel of the United States that
harvested the fish.
(ii) Owners or operators of FFV's processing fish in internal waters
under the provisions of this paragraph (f) must request, from the
Regional Administrator, the requirements regarding timing and submission
of the reports, at least 15 days prior to the first receipt of fish from
a vessel of the United States. The Regional Administrator shall
stipulate the timing and submission requirements in writing.
(g) Transshipping. Each FFV with Activity Code 1, 2, 3, 4, 5, 6, 7,
8, or 10 may transship in accordance with this subpart and the vessel's
permit.
[61 FR 32540, June 24, 1996, as amended at 62 FR 27183, May 19, 1997; 62
FR 34397, June 26, 1997; 64 FR 39020, July 21, 1999]
Sec. 600.509 Prohibited species.
(a) The owner or operator of each FFV must minimize its catch or
receipt of prohibited species.
(b) After allowing for sampling by an observer (if any), the owner
or operator of each FFV must sort its catch of fish received as soon as
possible and return all prohibited species and species parts to the sea
immediately with a minimum of injury, regardless of condition, unless a
different procedure is specified by the regulations for the fishery in
which the FFV is engaged. All prohibited species must be recorded in the
daily fishing log and other fishing logs as specified by the regulations
for the fishery in which the FFV is engaged.
(c) All species of fish that an FFV has not been specifically
allocated or authorized under this subpart to retain, including fish
caught or received in excess of any allocation or authorization, are
prohibited species.
(d) It is a rebuttable presumption that any prohibited species or
species part found on board an FFV was caught
[[Page 79]]
and retained in violation of this section.
Sec. 600.510 Gear avoidance and disposal.
(a) Vessel and gear avoidance. (1) FFV's arriving on fishing grounds
where fishing vessels are already fishing or have set their gear for
that purpose must ascertain the position and extent of gear already
placed in the sea and must not place themselves or their fishing gear so
as to interfere with or obstruct fishing operations already in progress.
Vessels using mobile gear must avoid fixed fishing gear.
(2) The operator of each FFV must maintain on its bridge a current
plot of broadcast fixed-gear locations for the area in which it is
fishing, as required by the regulations for the fishery in which the FFV
is engaged.
(b) Gear conflicts. The operator of each FFV that is involved in a
conflict or that retrieves the gear of another vessel must immediately
notify the appropriate USCG commander identified in tables 1 and 2 to
Sec. 600.502 and request disposal instructions. Each report must
include:
(1) The name of the reporting vessel.
(2) A description of the incident and articles retrieved, including
the amount, type of gear, condition, and identification markings.
(3) The location of the incident.
(4) The date and time of the incident.
(c) Disposal of fishing gear and other articles. (1) The operator of
an FFV in the EEZ may not dump overboard, jettison or otherwise discard
any article or substance that may interfere with other fishing vessels
or gear, or that may catch fish or cause damage to any marine resource,
including marine mammals and birds, except in cases of emergency
involving the safety of the ship or crew, or as specifically authorized
by communication from the appropriate USCG commander or other authorized
officer. These articles and substances include, but are not limited to,
fishing gear, net scraps, bale straps, plastic bags, oil drums,
petroleum containers, oil, toxic chemicals or any manmade items
retrieved in an FFV's gear.
(2) The operator of an FFV may not abandon fishing gear in the EEZ.
(3) If these articles or substances are encountered, or in the event
of accidental or emergency placement into the EEZ, the vessel operator
must immediately report the incident to the appropriate USCG Commander
indicated in tables 1 and 2 to Sec. 600.502, and give the information
required in paragraph (b) of this section.
Sec. 600.511 Fishery closure procedures.
(a) Activity Codes 1 and 2 for a fishery are automatically canceled
in the following cases, unless otherwise specified by regulations
specific to a fishery, when--
(1) The OY for any allocated species or species group has been
reached in that fishery;
(2) The TALFF or catch allowance for any allocated species or
species group has been reached in that fishery;
(3) The foreign nation's allocation for any allocated species or
species group has been reached; or
(4) The letter of credit required in Sec. 600.518(b)(2) is not
established and maintained.
(b) Activity Code 4 is automatically canceled when--
(1) The OY for a species with a JVP amount is reached;
(2) The JVP amount for a species or species group is reached; or
(3) The letter of credit required in Sec. 600.518(b)(2) is not
established and maintained.
(c) Notification. (1) The Regional Administrator is authorized to
close a fishery on behalf of NMFS. The Regional Administrator will
notify each FFV's designated representative of closures.
(2) If possible, notice will be given 48 hours before the closure.
However, each Nation and the owners and operators of all FFV's of that
Nation are responsible for ending fishing operations when an allocation
is reached.
(d) Catch reconciliation. Vessel activity reports, U.S. surveillance
observations, observer reports, and foreign catch and effort reports
will be used to make the determination listed in paragraphs (a) and (b)
of this section. If NMFS estimates of catch or other values made during
the season differ from
[[Page 80]]
those reported by the foreign fleets, efforts may be initiated by the
designated representative of each Nation to resolve such differences
with NMFS. If, however, differences still persist after such efforts
have been made, NMFS estimates will be the basis for decisions and will
prevail.
(e) Duration. Any closure under this section will remain in effect
until an applicable new or increased allocation or JVP becomes available
or the letter of credit required by Sec. 600.518(b)(2) is
reestablished.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.512 Scientific research.
(a) Scientific research activity. Persons planning to conduct
scientific research activities on board a scientific research vessel in
the EEZ that may be confused with fishing are encouraged to submit to
the appropriate Regional Administrator or Director, 60 days or as soon
as practicable prior to its start, a scientific research plan for each
scientific activity. The Regional Administrator or Director will
acknowledge notification of scientific research activity by issuing to
the operator or master of that vessel, or to the sponsoring institution,
a Letter of Acknowledgment. This Letter of Acknowledgment is separate
and distinct from any permit or consultation required under the MMPA,
the ESA, or any other applicable law. The Regional Administrator or
Director will include text in the Letter of Acknowledgment informing the
applicant that such permits may be required and should be obtained from
the agency prior to embarking on the activity. If the Regional
Administrator or Director, after review of a research plan, determines
that it does not constitute scientific research activity but rather
fishing, the Regional Administrator or Director will inform the
applicant as soon as practicable and in writing. In making this
determination, the Regional Administrator, Director, or designee shall
consider: the merits of the individual proposal and the institution(s)
involved; whether the proposed activity meets the definition of
scientific research activity; and whether the vessel meets all the
requirements for a scientific research vessel. Foreign vessels that
qualify as scientific research vessels and which are engaged in a
scientific research activity may only engage in compensation fishing
during the scientific research cruise and in accordance with the
applicable scientific research plan. The Regional Administrator or
Director may also make recommendations to revise the research plan to
ensure the activity will be considered to be a scientific research
activity. The Regional Administrator or Director may designate a Science
and Research Director, or the Assistant Regional Administrator for
Sustainable Fisheries, to receive scientific research plans and issue
Letters of Acknowledgment. In order to facilitate identification of the
activity as scientific research, persons conducting scientific research
activities are advised to carry a copy of the scientific research plan
and the Letter of Acknowledgment on board the scientific research vessel
and to make it available for inspection upon the request of any
authorized officer. It is recommended that for any scientific research
activity, any fish, or parts thereof, retained pursuant to such activity
be accompanied, during any ex-vessel activities, by a copy of the Letter
of Acknowledgment. Activities conducted in accordance with a scientific
research plan acknowledged by such a Letter of Acknowledgment are
presumed to be scientific research activities. An authorized officer may
overcome this presumption by showing that an activity does not fit the
definition of scientific research activity or is outside the scope of
the scientific research plan.
(b) Reports. Persons conducting scientific research are requested to
submit a copy of any cruise report or other publication created as a
result of the cruise, including the amount, composition, and disposition
of their catch, to the appropriate Science and Research Director.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 74
FR 42793, Aug. 25, 2009]
Sec. 600.513 Recreational fishing.
(a) Foreign vessels conducting recreational fishing must comply only
with this section, and Sec. Sec. 600.10,
[[Page 81]]
600.504(a)(1), and 600.505 (as applicable). Such vessels may conduct
recreational fishing within the EEZ and within the boundaries of a
state. Any fish caught may not be sold, bartered, or traded.
(b) The owners or operator and any other person aboard any foreign
vessel conducting recreational fishing must comply with any Federal laws
or regulations applicable to the domestic fishery while in the EEZ, and
any state laws or regulations applicable while in state waters.
Sec. 600.514 Relation to other laws.
(a) Persons affected by these regulations should be aware that other
Federal and state statutes may apply to their activities.
(b) Fishing vessel operators must exercise due care in the conduct
of fishing activities near submarine cables. Damage to submarine cables
resulting from intentional acts or from the failure to exercise due care
in the conduct of fishing operations subjects the fishing vessel
operator to enforcement action under the International Convention for
the Protection of Submarine Cables, and to the criminal penalties
prescribed by the Submarine Cable Act (47 U.S.C. 21) and other laws that
implement that Convention. Fishing vessel operators also should be aware
that the Submarine Cable Act prohibits fishing operations at a distance
of less than 1 nautical mile (1.85 km) from a vessel engaged in laying
or repairing a submarine cable; or at a distance of less than 0.25
nautical mile (0.46 km) from a buoy or buoys intended to mark the
position of a cable when being laid, or when out of order, or broken.
Sec. 600.515 Interpretation of 16 U.S.C. 1857(4).
Section 307(4) of the Magnuson-Stevens Act prohibits any fishing
vessel other than a vessel of the United States (foreign fishing vessel)
from operating in the EEZ if all of the fishing gear on board the vessel
is not stowed in compliance with that section ``unless such vessel is
authorized to engage in fishing in the area in which the vessel is
operating.'' If such a vessel has a permit authorization that is limited
to fishing activities other than catching, taking or harvesting (such as
support, scouting or processing activities), it must have all of its
fishing gear stowed at all times while it is in the EEZ. If such a
vessel has a permit authorization to engage in catching, taking or
harvesting activities, but such authorization is limited to a specific
area within the EEZ, and/or to a specific period of time, the vessel
must have all of its fishing gear stowed while it is in the EEZ, except
when it is in the specific area authorized, and/or during the specific
period of time authorized.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.516 Total allowable level of foreign fishing (TALFF).
(a) The TALFF, if any, with respect to any fishery subject to the
exclusive fishery management authority of the United States, is that
portion of the OY of such fishery, which cannot or will not be harvested
by vessels of the United States. Allocations of TALFF are discretionary,
except that the total allowable level shall be zero for fisheries
determined by the Secretary to have adequate or excess domestic harvest
capacity.
(b) Each specification of OY and each assessment of the anticipated
U.S. harvest will be reviewed during each fishing season. Adjustments to
TALFF's will be made based on updated information relating to status of
stocks, estimated and actual performance of domestic and foreign fleets,
and other relevant factors.
(c) Specifications of OY and the initial estimates of U.S. harvests
and TALFF's at the beginning of the relevant fishing year will be
published in the Federal Register. Adjustments to those numbers will be
published in the Federal Register upon occasion or as directed by
regulations implementing FMPs. For current apportionments, contact the
appropriate Regional Administrator or the Director.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 73
FR 67811, Nov. 17, 2008]
Sec. 600.517 Allocations.
The Secretary of State, in cooperation with the Secretary,
determines the allocation among foreign nations of fish species and
species groups. The
[[Page 82]]
Secretary of State officially notifies each foreign nation of its
allocation. The burden of ascertaining and accurately transmitting
current allocations and status of harvest of an applicable allocation to
fishing vessels is upon the foreign nation and the owner or operator of
the FFV.
Sec. 600.518 Fee schedule for foreign fishing.
(a) Permit application fees. Each vessel permit application
submitted under Sec. 600.501 must be accompanied by a fee. The amount
of the fee will be determined in accordance with the procedures for
determining administrative costs of each special product or service
contained in the NOAA Finance Handbook, which is available upon request
from the International Fisheries Division (see address at Sec.
600.501(d)(1)). The fee is specified with the application form. At the
time the application is submitted, a check for the fees, drawn on a U.S.
bank, payable to the order of ``Department of Commerce, NOAA,'' must be
sent to the Assistant Administrator. The permit fee payment must be
accompanied by a list of the vessels for which the payment is made. In
the case of applications for permits authorizing activity code 10, the
permit application fee will be waived if the applicant provides
satisfactory documentary proof to the Assistant Administrator that the
foreign nation under which the vessel is registered does not collect a
fee from a vessel of the United States engaged in similar activities in
the waters of such foreign nation. The documentation presented (e.g.,
copy of foreign fishing regulations applicable to vessels of the United
States) must clearly exempt vessels of the United States from such a
fee.
(b) Poundage fees--(1) Rates. If a Nation chooses to accept an
allocation, poundage fees must be paid at the rate specified in the
following table.
Table--Species and Poundage Fees
[Dollars per metric ton]
------------------------------------------------------------------------
Poundage
Species fees
------------------------------------------------------------------------
Northwest Atlantic Ocean fisheries:
1. Butterfish.............................................. 277.96
2. Herring, Atlantic....................................... 25.75
3. Herring, River.......................................... 49.59
4. Mackerel, Atlantic...................................... 64.76
5. Other finfish........................................... 45.48
6. Squid, Illex............................................ 97.56
7. Squid, Loligo........................................... 321.68
------------------------------------------------------------------------
(2) Method of payment of poundage fees and observer fees. (i) If a
Nation chooses to accept an allocation, a revolving letter of credit (L/
C) must be established and maintained to cover the poundage fees for at
least 25 percent of the previous year's total allocation at the rate in
paragraph (b)(1) of this section, or as determined by the Assistant
Administrator, plus the observer fees required by paragraph (c) of this
section. The L/C must--
(A) Be irrevocable.
(B) Be with a bank subscribing to ICC Pub. 290.
(C) Designate ``Department of Commerce, NOAA'' as beneficiary;
(D) Allow partial withdrawals.
(E) Be confirmed by a U.S. bank.
(ii) The customer must pay all commissions, transmission, and
service charges. No fishing will be allowed until the L/C is
established, and authorized written notice of its issuance is provided
to the Assistant Administrator.
(3) Assessment of poundage fees. Poundage fees will be assessed
quarterly for the actual catch during January through March, April
through June, July through September, and October through December. The
appropriate Regional Administrator will reconcile catch figures with
each country following the procedures of Sec. 600.511(d). When the
catch figures are agreed upon, NOAA will present a bill for collection
as the documentary demand for payment to the confirming bank. If, after
45 days from the end of the quarter, catches have not been reconciled,
the estimate of the Regional Administrator will stand and a bill will be
issued for that amount. If necessary, the catch figures may be refined
by the Regional Administrator during the next 60 days, and any
modifications will be reflected in the next quarter's bill.
[[Page 83]]
(c) Observer fees. The Assistant Administrator will notify the
owners or operators of FFV's of the estimated annual costs of placing
observers aboard their vessels. The owners or operators of any such
vessel must provide for repayment of those costs by including one-fourth
of the estimated annual observer fee as determined by the Assistant
Administrator in a L/C as prescribed in Sec. 600.518(b)(2). During the
fiscal year, payment will be withdrawn from the L/C as required to cover
anticipated observer coverage for the upcoming fishery. The Assistant
Administrator will reconcile any differences between the estimated cost
and actual costs of observer coverage within 90 days after the end of
the fiscal year.
(d) Financial assurances. (1) A foreign nation, or the owners and
operators of certain vessels of that foreign nation, may be required by
the Assistant Administrator to provide financial assurances. Such
assurances may be required if--
(i) Civil and criminal penalties assessed against fishing vessels of
the Nation have not effectively deterred violations;
(ii) Vessels of that Nation have engaged in fishing in the EEZ
without proper authorization to conduct such activities;
(iii) The Nation's vessel owners have refused to answer
administrative charges or summons to appear in court; or
(iv) Enforcement of Magnuson-Stevens Act civil or criminal judgments
in the courts of a foreign nation is unattainable.
(2) The level of financial assurances will be guided by the level of
penalties assessed and costs to the U.S. Government.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 64
FR 39020, July 21, 1999; 66 FR 28132, May 22, 2001]
Sec. 600.520 Northwest Atlantic Ocean fishery.
(a) Purpose. Sections 600.520 and 600.525 regulate all foreign
fishing conducted under a GIFA within the EEZ in the Atlantic Ocean
north of 35[deg]00[min] N. lat.
(b) Authorized fishery--(1) Allocations. Foreign vessels may engage
in fishing only in accordance with applicable national allocations.
(2) Time and area restrictions. (i) Fishing, including processing,
scouting, and support of foreign or U.S. vessels, is prohibited south of
35[deg]00[min] N. lat., and north and east of a line beginning at the
shore at 44[deg]22[min] N. lat., 67[deg]52[min] W. long. and
intersecting the boundary of the EEZ at 44[deg]11[min]12[sec] N. lat.,
67[deg]16[min]46[sec] W. long.
(ii) The Regional Administrator will consult with the Council prior
to giving notice of any area or time restriction. NMFS will also consult
with the USCG if the restriction is proposed to reduce gear conflicts.
If NMFS determines after such consultation that the restriction appears
to be appropriate, NMFS will publish the proposed restriction in the
Federal Register, together with a summary of the information on which
the restriction is based. Following a 30-day comment period, NMFS will
publish a final action.
(iii) The Regional Administrator may rescind any restriction if he/
she determines that the basis for the restriction no longer exists.
(iv) Any notice of restriction shall operate as a condition imposed
on the permit issued to the foreign vessels involved in the fishery.
(3) TALFF. The TALFFs for the fisheries of the Northwest Atlantic
Ocean are published in the Federal Register. Current TALFFs are also
available from the Regional Administrator.
(4) Species definitions. The category ``other finfish'' used in
TALFFs and in allocations includes all species except:
(i) The other allocated species, namely: Short-finned squid, long-
finned squid, Atlantic herring, Atlantic mackerel, river herring
(includes alewife, blueback herring, and hickory shad), and butterfish.
(ii) The prohibited species, namely: American plaice, American shad,
Atlantic cod, Atlantic menhaden, Atlantic redfish, Atlantic salmon, all
marlin, all spearfish, sailfish, swordfish, black sea bass, bluefish,
croaker, haddock, ocean pout, pollock, red hake, scup, sea turtles,
sharks (except dogfish), silver hake, spot, striped bass, summer
flounder, tilefish, yellowtail flounder, weakfish, white hake,
windowpane flounder, winter flounder,
[[Page 84]]
witch flounder, Continental Shelf fishery resources, and other
invertebrates (except nonallocated squids).
(5) Closures. The taking of any species for which a Nation has an
allocation is permitted, provided that:
(i) The vessels of the foreign nation have not caught the allocation
of that Nation for any species or species group (e.g., ``other
finfish''). When vessels of a foreign nation have caught an applicable
allocation of any species, all further fishing other than scouting,
processing, or support by vessels of that Nation must cease, even if
other allocations have not been reached. Therefore, it is essential that
foreign nations plan their fishing strategy to ensure that the reaching
of an allocation for one species does not result in the premature
closing of a Nation's fishery for other allocated species.
(ii) The fishery has not been closed for other reasons under Sec.
600.511.
(6) Allocation utilization. Foreign fishing vessels may elect to
retain or discard allocated species; however, the computation of
allocation utilization and fee refunds will be based on the total
quantity of that species that was caught. Prohibited species must always
be returned to the sea as required under Sec. 600.509.
(c) Fishing areas. For the purposes of the Northwest Atlantic Ocean
fishery, fishing areas are that portion of the EEZ shown inside the
boundaries of the ``three digit statistical areas'' described in Figure
1 to this section.
[[Page 85]]
[GRAPHIC] [TIFF OMITTED] TR24JN96.000
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.525 Applicability of subpart F to Canadian Albacore Fishing Vessels
off the West Coast.
Fishing by vessels of Canada under the 1981 Treaty Between the
Government of the United States of America and the Government of Canada
on Pacific Coast Albacore Tuna Vessels and Port Privileges is regulated
only under this section and Sec. 600.530 of this subpart F, and is
exempt from any other requirements of this subpart F. Regulations
governing fishing by U.S. vessels in waters under the fisheries
jurisdiction of the Canada more than 12 nautical miles from the baseline
from which the territorial sea is measured
[[Page 86]]
are found at Sec. Sec. 300.170-300.176 of chapter II of this title.
[69 FR 31535, June 4, 2004]
Sec. 600.530 Pacific albacore fishery.
(a) Purpose and scope. This section regulates fishing by Canadian
vessels under the 1981 Treaty Between the Government of the United
States of America and the Government of Canada on Pacific Coast Albacore
Tuna Vessels and Port Privileges as amended in 2002. Notwithstanding any
other provision of this subpart F, fishing vessels of Canada may be
authorized to fish in waters under the fisheries jurisdiction of the
United States more than 12 nautical miles from the baseline from which
the territorial sea is measured in accordance with the Treaty and this
section, pursuant to Public Law 108-219 (118 Stat. 616; 16 U.S.C. 1821
note).
(b) Definitions. In addition to the definitions in the Magnuson-
Stevens Fishery Conservation and Management Act and Sec. 600.10, the
terms used in this subpart have the following meanings:
Fishing under the Treaty as amended in 2002 means to engage in
fishing for albacore tuna in waters under the fisheries jurisdiction of
the United States seaward of 12 nautical miles from the baseline from
which the territorial sea is measured.
Regional Administrator means the Regional Administrator, Southwest
Region, NMFS, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802-
4213, or a designee.
Reporting Office means the office designated by the Regional
Administrator to take hail-in and hail-out reports from U.S. and
Canadian vessel operators.
Treaty means the 1981 Treaty Between the Government of the United
States of America and the Government of Canada on Pacific Coast Albacore
Tuna Vessels and Port Privileges as amended in 2002.
(c) Vessel list. A Canadian vessel is not eligible to fish for
albacore in U.S. waters under the Treaty as amended in 2002 unless the
vessel is on the list provided to NMFS by the Government of Canada of
vessels authorized by Canada to fish under the Treaty as amended in
2002.
(d) Vessel identification. A Canadian vessel fishing under the
Treaty as amended in 2002 must clearly display its Canadian vessel
registration number followed by the letter C in the same height and size
as the numerals, consistent with Canadian vessel marking requirements.
(e) Hail-in reports. The operator of a Canadian Vessel eligible to
fish for albacore in U.S. waters under the Treaty as amended in 2002
must file a hail-in report with the Reporting Office at least 24 hours
prior to beginning any such fishing.
(f) Hail-out Reports. The operator of a Canadian vessel that has
been fishing in U.S. waters under the Treaty as amended in 2002 must
file a hail-out report with the Reporting Office at least 24 hours prior
to exiting from U.S. waters.
(g) Prohibitions. It is prohibited for the operator of a Canadian
vessel to engage in fishing in U.S. waters if the vessel:
(1) Is not on the vessel list in paragraph (c) of this section;
(2) Has not filed a hail-in report to advise of an intent to fish
under the Treaty as amended in 2002 prior to engaging in such fishing;
or
(3) Is not clearly marked in accordance with paragraph (d) of this
section.
[69 FR 31535, June 4, 2004]
Subpart G_Preemption of State Authority Under Section 306(b)
Sec. 600.605 General policy.
It is the policy of the Secretary that preemption proceedings will
be conducted expeditiously. The administrative law judge and counsel or
other representative for each party are encouraged to make every effort
at each stage of the proceedings to avoid delay.
Sec. 600.610 Factual findings for Federal preemption.
(a) The two factual findings for Federal preemption of state
management authority over a fishery are:
(1) The fishing in a fishery that is covered by an FMP implemented
under the Magnuson-Stevens Act is engaged in predominately within the
EEZ and beyond such zone.
[[Page 87]]
(2) A state has taken any action, or omitted to take any action, the
results of which will substantially and adversely affect the carrying
out of such FMP.
(b) Whether fishing is engaged in ``predominately'' within or beyond
the EEZ will be determined after consideration of relevant factors,
including but not limited to, the catch (based on numbers, value, or
weight of fish caught, or other relevant factors) or fishing effort
during the appropriate period, and in light of historical patterns of
the distribution of catch or fishing effort for such stock or stocks of
fish.
(c) Whether relevant effects are substantial will be determined
after consideration of the magnitude of such actual or potential
effects. Relevant to this determination are various factors, including
but not limited to, the proportion of the fishery (stock or stocks of
fish and fishing for such stocks) that is subject to the effects of a
particular state's action or omission, the characteristics and status
(including migratory patterns and biological condition) of the stock or
stocks of fish in the fishery, and the similarity or dissimilarity
between the goals, objectives, or policies of the state's action or
omission and the management goals or objectives specified in the FMP for
the fishery or between the state and Federal conservation and management
measures of the fishery.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.615 Commencement of proceedings.
(a) Notice of proposed preemption. (1) If a proceeding under this
part is deemed necessary, the Administrator must issue a notice of
proposed preemption to the Attorney General of the State or States
concerned. The notice will contain:
(i) A recital of the legal authority and jurisdiction for
instituting the proceeding.
(ii) A concise statement of the Sec. 600.610 factual findings for
Federal preemption upon which the notice is based.
(iii) The time, place, and date of the hearing.
(2) The notice of proposed preemption will also be published in the
Federal Register. This notification may be combined with any notice of
proposed rulemaking published under paragraph (d)(1) of this section.
(b) Response. The state will have the opportunity to respond in
writing to the notice of proposed preemption.
(c) Amendment. The Administrator may, at any time prior to the
Secretary's decision, withdraw the notice of proposed preemption. Upon
motion of either party before the record is closed, the administrative
law judge may amend the notice of proposed preemption.
(d) Proposed regulations--(1) In general. If additional regulations
are required to govern fishing within the boundaries of a state, the
Administrator may publish proposed regulations in the Federal Register
concurrently with issuing the notification indicated in paragraph (a) of
this section.
(2) Emergency actions. Nothing in this section will prevent the
Secretary from taking emergency action under section 305(c) of the
Magnuson-Stevens Act.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.620 Rules pertaining to the hearing.
(a) The civil procedure rules of the NOAA currently set forth in 15
CFR part 904, subpart C (or as subsequently amended), apply to the
proceeding after its commencement by service of notice (pursuant to
Sec. 600.615) and prior to the Secretary's decision (Sec. 600.625),
except that the following sections will not apply:
(1) 15 CFR 904.201 (Definitions);
(2) 15 CFR 904.206(a)(1) (Duties and powers of Judge); and
(3) 15 CFR 904.272 (Administrative review of decision).
(b) Additional duties and powers of judge--(1) Time periods. The
administrative law judge is authorized to modify all time periods
pertaining to the course of the hearing (under Sec. Sec. 600.615 and
600.620) to expedite the proceedings, upon application and appropriate
showing of need or emergency circumstances by a party.
(2) Intervention. Intervention by persons not parties is not
allowed.
[[Page 88]]
Sec. 600.625 Secretary's decision.
(a) The Secretary will, on the basis of the hearing, record the
administrative law judge's recommended decision:
(1) Accept or reject any of the findings or conclusions of the
administrative law judge and decide whether the factual findings exist
for Federal preemption of a state's authority within its boundaries
(other than in its internal waters) with respect to the fishery in
question;
(2) Reserve decision on the merits or withdraw the notice of
proposed preemption; or
(3) Remand the case to the administrative law judge for further
proceedings as may be appropriate, along with a statement of reasons for
the remand.
(b) Notification. (1) If the factual findings for Federal preemption
are determined to exist, the Secretary will notify in writing the
Attorney General of that state and the appropriate Council(s) of the
preemption of that state's authority. The Secretary will also direct the
Administrator to promulgate appropriate regulations proposed under Sec.
600.615(d) and otherwise to begin regulating the fishery within the
state's boundaries (other than in its internal waters).
(2) If the factual findings for Federal preemption are determined
not to exist, the Secretary will notify, in writing, the Attorney
General of the state and the appropriate Council(s) of that
determination. The Secretary will also direct the Administrator to issue
a notice withdrawing any regulations proposed under Sec. 600.615(d).
Sec. 600.630 Application for reinstatement of state authority.
(a) Application or notice. (1) At any time after the promulgation of
regulations under Sec. 600.625(b)(1) to regulate a fishery within a
state's boundaries, the affected state may apply to the Secretary for
reinstatement of state authority. The Secretary may also serve upon such
state a notice of intent to terminate such Federal regulation. A state's
application must include a clear and concise statement of:
(i) The action taken by the State to correct the action or omission
found to have substantially and adversely affected the carrying out of
the FMP; or
(ii) Any changed circumstances that affect the relationship of the
state's action or omission to take action to the carrying out of the FMP
(including any amendment to such plan); and
(iii) Any laws, regulations, or other materials that the state
believes support the application.
(2) Any such application received by the Secretary or notice issued
to the State will be published in the Federal Register.
(b) Informal response. The Secretary has sole discretion to accept
or reject the application or response. If the Secretary accepts the
application or rejects any responses and finds that the reasons for
regulation of the fishery within the boundaries of the state no longer
prevail, the Secretary will promptly terminate such regulation and
publish in the Federal Register any regulatory amendments necessary to
accomplish that end.
(c) Hearing. The Secretary has sole discretion to direct the
Administrator to schedule hearings for the receipt of evidence by an
administrative law judge. Hearings before the administrative law judge
to receive such evidence will be conducted in accordance with Sec.
600.620. Upon conclusion of such hearings, the administrative law judge
will certify the record and a recommended decision to the Secretary. If
the Secretary, upon consideration of the state's application or any
response to the notice published under Sec. 600.630(a)(2), the hearing
record, the recommended decision, and any other relevant materials finds
that the reasons for regulation of the fishery within the boundaries of
the state no longer prevail, the Secretary will promptly terminate such
regulation and publish in the Federal Register any regulatory amendments
necessary to accomplish that end.
Subpart H_General Provisions for Domestic Fisheries
Sec. 600.705 Relation to other laws.
(a) General. Persons affected by these regulations should be aware
that other Federal and state statutes and regulations may apply to their
activities.
[[Page 89]]
Vessel operators may wish to refer to USCG regulations found in the Code
of Federal Regulations title 33--Navigation and Navigable Waters and
46--Shipping; 15 CFR part 904, subpart D--Permit Sanctions and Denials;
and title 43--Public Lands (in regard to marine sanctuaries).
(b) State responsibilities. Certain responsibilities relating to
data collection and enforcement may be performed by authorized state
personnel under a state/Federal agreement for data collection and a
tripartite agreement among the state, the USCG, and the Secretary for
enforcement.
(c) Submarine cables. Fishing vessel operators must exercise due
care in the conduct of fishing activities near submarine cables. Damage
to the submarine cables resulting from intentional acts or from the
failure to exercise due care in the conduct of fishing operations
subjects the fishing vessel operator to the criminal penalties
prescribed by the Submarine Cable Act (47 U.S.C. 21) which implements
the International Convention for the Protection of Submarine Cables.
Fishing vessel operators also should be aware that the Submarine Cable
Act prohibits fishing operations at a distance of less than 1 nautical
mile (1.85 km) from a vessel engaged in laying or repairing a submarine
cable; or at a distance of less than 0.25 nautical mile (0.46 km) from a
buoy or buoys intended to mark the position of a cable when being laid
or when out of order or broken.
(d) Marine mammals. Regulations governing exemption permits and the
recordkeeping and reporting of the incidental take of marine mammals are
set forth in part 229 of this title.
(e) Halibut fishing. Fishing for halibut is governed by regulations
of the International Pacific Halibut Commission set forth at part 300 of
this title.
(f) Marine sanctuaries. All fishing activity, regardless of species
sought, is prohibited under 15 CFR part 924 in the U.S.S. Monitor Marine
Sanctuary, which is located approximately 15 miles southwest of Cape
Hatteras off the coast of North Carolina.
Sec. 600.710 Permits.
Regulations pertaining to permits required for certain fisheries are
set forth in the parts of this chapter governing those fisheries.
Sec. 600.715 Recordkeeping and reporting.
Regulations pertaining to records and reports required for certain
fisheries are set forth in the parts of this chapter governing those
fisheries.
Sec. 600.720 Vessel and gear identification.
Regulations pertaining to special vessel and gear markings required
for certain fisheries are set forth in the parts of this chapter
governing those fisheries.
Sec. 600.725 General prohibitions.
It is unlawful for any person to do any of the following:
(a) Possess, have custody or control of, ship, transport, offer for
sale, sell, purchase, land, import, or export, any fish or parts thereof
taken or retained in violation of the Magnuson-Stevens Act or any other
statute administered by NOAA and/or any regulation or permit issued
under the Magnuson-Stevens Act.
(b) Transfer or attempt to transfer, directly or indirectly, any
U.S.-harvested fish to any foreign fishing vessel, while such vessel is
in the EEZ, unless the foreign fishing vessel has been issued a permit
under section 204 of the Magnuson-Stevens Act, which authorizes the
receipt by such vessel of U.S.- harvested fish.
(c) Fail to comply immediately with enforcement and boarding
procedures specified in Sec. 600.730.
(d) Refuse to allow an authorized officer to board a fishing vessel
or to enter areas of custody for purposes of conducting any search,
inspection, or seizure in connection with the enforcement of the
Magnuson-Stevens Act or any other statute administered by NOAA.
(e) Dispose of fish or parts thereof or other matter in any manner,
after any communication or signal from an authorized officer, or after
the approach by an authorized officer or an enforcement vessel or
aircraft.
(f) Assault, resist, oppose, impede, intimidate, threaten, or
interfere with any authorized officer in the conduct of
[[Page 90]]
any search, inspection, or seizure in connection with enforcement of the
Magnuson-Stevens Act or any other statute administered by NOAA.
(g) Interfere with, delay, or prevent by any means, the apprehension
of another person, knowing that such person has committed any act
prohibited by the Magnuson-Stevens Act or any other statute administered
by NOAA.
(h) Resist a lawful arrest for any act prohibited under the
Magnuson-Stevens Act or any other statute administered by NOAA.
(i) Make any false statement, oral or written, to an authorized
officer concerning the taking, catching, harvesting, landing, purchase,
sale, offer of sale, possession, transport, import, export, or transfer
of any fish, or attempts to do any of the above.
(j) Interfere with, obstruct, delay, or prevent by any means an
investigation, search, seizure, or disposition of seized property in
connection with enforcement of the Magnuson-Stevens Act or any other
statute administered by NOAA.
(k) Fish in violation of the terms or conditions of any permit or
authorization issued under the Magnuson-Stevens Act or any other statute
administered by NOAA.
(l) Fail to report catches as required while fishing pursuant to an
exempted fishing permit.
(m) On a scientific research vessel, engage in fishing other than
recreational fishing authorized by applicable state or Federal
regulations.
(n) Trade, barter, or sell; or attempt to trade, barter, or sell
fish possessed or retained while fishing pursuant to an authorization
for an exempted educational activity.
(o) Harass or sexually harass an authorized officer or an observer.
(p) Fail to show proof of passing the USCG Commercial Fishing Vessel
Safety Examination or the alternate NMFS safety equipment examination,
or fail to maintain the vessel safety conditions necessary to pass the
examination, when required by NMFS pursuant to Sec. 600.746.
(q) Fail to display a Commercial Fishing Vessel Safety Examination
decal or a valid certificate of compliance or inspection pursuant to
Sec. 600.746.
(r) Fail to provide to an observer, a NMFS employee, or a designated
observer provider information that has been requested pursuant to Sec.
600.746, or fail to allow an observer, a NMFS employee, or a designated
observer provider to inspect any item described at Sec. 600.746.
(s) Fish without an observer when the vessel is required to carry an
observer.
(t) Assault, oppose, impede, intimidate, or interfere with a NMFS-
approved observer.
(u)(1) Prohibit or bar by command, impediment, threat, coercion,
interference, or refusal of reasonable assistance, an observer from
conducting his or her duties as an observer; or
(2) Tamper with or destroy samples or equipment.
(v) The use of any gear or participation in a fishery not on the
following list of authorized fisheries and gear is prohibited after
December 1, 1999. A fish, regardless whether targeted, may be retained
only if it is taken within a listed fishery, is taken with a gear
authorized for that fishery, and is taken in conformance with all other
applicable regulations. Listed gear can only be used in a manner that is
consistent with existing laws and regulations. The list of fisheries and
authorized gear does not, in any way, alter or supersede any definitions
or regulations contained elsewhere in this chapter. A person or vessel
is prohibited from engaging in fishing or employing fishing gear when
such fishing gear is prohibited or restricted by regulation under an FMP
or other applicable law. However, after December 1, 1999, an individual
fisherman may notify the appropriate Council, or the Director, in the
case of Atlantic highly migratory species, of the intent to use a gear
or participate in a fishery not already on the list. Ninety days after
such notification, the individual may use the gear or participate in
that fishery unless regulatory action is taken to prohibit the use of
the gear or participate in the fishery (e.g., through emergency or
interim regulations). The list of authorized fisheries and gear is as
follows:
[[Page 91]]
------------------------------------------------------------------------
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 A. Gillnet.
fishery.
B. North Atlantic bottom trawl B. Trawl.
fishery.
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 B. Trawl.
fishery.
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 A. Longline, handline.
fishery.
B. Seine fishery..................... B. Purse seine, seine.
C. Mixed species pot and trap fishery C. Pot, trap.
D. Bluefish, croaker, flounder trawl D. Trawl.
fishery.
E. Gillnet fishery................... E. Gillnet.
F. Dredge fishery.................... F. Dredge.
G. Recreational fishery.............. G. Rod and reel, handline,
trap, pot, spear.
10. Atlantic Mackerel, Squid and
Butterfish Fishery (FMP managed by the
MAFMC):
A. Mackerel, squid, and butterfish A. Trawl.
trawl fishery.
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.
[[Page 92]]
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 C. Rod and reel, handline,
fishery. hook and line.
D. Trawl fishery..................... D. Trawl.
E. Spear fishery..................... E. Spear.
F. Fyke net fishery.................. F. Fyke net.
G. Recreational fishery.............. G. Rod and reel, hook and
line, handline, spear.
22. Recreational Fishery (Non-FMP) Rod and reel, handline,
spear, hook and line, hand
harvest, bandit gear,
powerhead, gillnet, cast
net, pot, trap, dip net,
bully net, snare.
23. Commercial Fishery (Non-FMP) Trawl, pot, trap, gillnet,
pound net, dredge, seine,
handline, longline, hook and
line, rod and reel, hand
harvest, purse seine, spear,
bandit gear, powerhead, dip
net, bully net, snare, cast
net, barrier net, slurp gun,
allowable chemicals.
24. Dolphin/wahoo fishery (FMP managed by Automatic reel, bandit gear,
SAFMC) 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 B. Longline, handline, rod
fishery. 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 A. Trawl.
trawl fishery.
B. Pelagic longline and hook and line B. Longline, handline, bandit
fishery. 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 A. Trawl.
trawl fishery.
B. Gillnet fishery................... B. Gillnet.
C. Longline and hook-and-line fishery C. Longline, handline, rod
and reel.
[[Page 93]]
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- Trawl.
FMP)
9. American Lobster Fishery (FMP managed
by NEFMC):
A. Pot and trap fishery.............. A. Pot, trap.
B. Hand harvest fishery.............. B. Hand harvest.
C. Trawl fishery..................... C. Trawl.
D. Dredge fishery.................... D. Dredge.
E. Gillnet fishery................... E. Gillnet.
F. Recreational fishery.............. F. Pot, trap, hand harvest.
10. Weakfish Fishery (Non-FMP):
A. Commercial fishery................ A. Trawl, gillnet, hook and
line, rod and reel.
B. Recreational fishery.............. B. Hook and line, spear.
11. Whelk Fishery (Non-FMP):
A. Trawl fishery..................... A. Trawl.
B. Pot and trap fishery.............. B. Pot, trap.
C. Dredge............................ C. Dredge.
D. Pound net, gillnet, seine......... D. Pound net, gillnet, seine.
E. Recreational fishery.............. E. Hand harvest.
12. Monkfish Fishery (FMP jointly managed
by NEFMC and MAFMC):
A. Trawl fishery..................... A. Trawl.
B. Longline fishery.................. B. Longline, rod and reel.
C. Gillnet fishery................... C. Gillnet.
D. Dredge fishery.................... D. Dredge.
E. Trap and pot fishery.............. E. Trap and pot.
F. Recreational fishery.............. F. Rod and reel, spear.
13. Tilefish Fishery (Non-FMP):
A. Groundfish hook-and-line fishery.. A. Longline, handline, rod
and fishery reel.
B. Trawl fishery..................... B. Trawl.
C. Recreational fishery.............. C. Rod and reel, spear.
14. Spiny Dogfish Fishery (FMP jointly
managed by MAFMC and NEFMC):
A. Gillnet fishery................... A. Gillnet.
B. Trawl fishery..................... B. Trawl.
C. Hook and line fishery............. C. Hook and line, rod and
reel, spear.
D. Dredge fishery.................... D. Dredge.
E. Longline fishery.................. E. Longline.
F. Recreational fishery.............. F. Hook and line, rod and
reel, spear.
15. Tautog Fishery (Non-FMP):
A. Gillnet fishery................... A. Gillnet.
B. Pot and trap fishery.............. B. Pot, trap.
C. Rod and reel, hook and line C. Rod and reel, hook and
handline fishery. 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 A. Gillnet.
fishery.
B. North Atlantic bottom trawl B. Trawl.
fishery.
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.
[[Page 94]]
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 B. Pot, trap.
fishery.
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 A. Handline, rod and reel,
fishery. bandit gear, gillnet, cast
net.
B. Commercial king mackerel fishery.. B. Handline, rod and reel,
bandit gear.
C. Other commercial coastal migratory C. Longline, handline, rod
pelagics fishery. 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 Automatic reel, bandit gear,
SAFMC) handline, pelagic longline,
rod and reel, spear
(including powerheads).
------------------------------------------------------------------------
III. South Atlantic Fishery Management Council
------------------------------------------------------------------------
1. Golden Crab Fishery (FMP) Trap.
2. Crab Fishery (Non-FMP):
A. Dredge fishery.................... A. Dredge.
B. Trawl fishery..................... B. Trawl.
C. Trap and pot fishery.............. C. Trap, pot.
3. Atlantic Red Drum Fishery (FMP) No harvest or possession in
the EEZ.
4. Coral and Coral Reef Fishery (FMP):
A. Octocoral commercial fishery...... Hand harvest.
B. Live rock aquaculture fishery..... Hand harvest.
5. South Atlantic Shrimp Fishery (FMP) Trawl.
6. South Atlantic Snapper-Grouper
Fishery (FMP):
A. Commercial fishery................ A. Longline, rod and reel,
bandit gear, handline,
spear, powerhead.
B. Black sea bass pot fishery........ B. Pot.
C. Wreckfish fishery................. C. Rod and reel, bandit gear,
handline.
D. Recreational fishery.............. D. Handline, rod and reel,
bandit gear, spear,
powerhead.
7. South Atlantic Spiny Lobster Fishery
(FMP):
A. Commercial fishery................ A. Trap, pot, dip net, bully
net, snare, hand harvest.
B. Recreational fishery.............. B. Trap, pot, dip net, bully
net, snare, hand harvest.
8. South Atlantic Coastal Migratory
Pelagics Fishery (FMP):
A. Commercial Spanish mackerel A. Handline, rod and reel,
fishery. bandit gear, gillnet, cast
net.
B. Commercial king mackerel fishery.. B. Handline, rod and reel,
bandit gear.
C. Other commercial coastal migratory C. Longline, handline, rod
pelagics fishery. and reel, bandit gear.
[[Page 95]]
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 Trawl.
Butterfish Trawl Fishery (Non-FMP)
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- Dip net, slurp gun, barrier
FMP) 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 Trawl, gillnet.
and Gillnet Fishery (Bluefish FMP
managed by MAFMC)
20. Commercial Fishery (Non-FMP) Trawl, gillnet, longline,
handline, hook and line, rod
and reel, bandit gear, cast
net, pot, trap, lampara net,
spear.
21. Recreational Fishery (Non-FMP) Rod and reel, handline,
spear, hook and line, hand
harvest, bandit gear,
powerhead, gillnet, cast
net.
22. Sargassum Fishery (Non-FMP) Trawl.
23. Octopus Fishery (Non-FMP) Trap, pot.
24. Dolphin/wahoo fishery (FMP) Automatic reel, bandit gear,
handline, pelagic longline,
rod and reel, spear
(including powerheads).
------------------------------------------------------------------------
IV. Gulf of Mexico Fishery Management Council
------------------------------------------------------------------------
1. Gulf of Mexico Red Drum Fishery (FMP) No harvest or possession in
the EEZ.
2. Coral Reef Fishery (FMP):
A. Commercial fishery................ A. Hand harvest.
B. Recreational fishery.............. B. Hand harvest.
3. Gulf of Mexico Reef Fish Fishery
(FMP):
A. Snapper-Grouper reef fish longline A. Longline, handline, bandit
and hook and line fishery. 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 B. Gillnet.
fishery.
C. Pelagic hook and line fishery..... C. Bandit gear, handline, rod
and reel.
[[Page 96]]
D. Pelagic species purse seine D. Purse seine.
fishery.
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- Gillnet.
FMP)
11. Octopus Fishery (Non-FMP) Trap, pot.
12. Marine Life Aquarium Fishery (Non- Dip net, slurp gun, barrier
FMP) net, drop net, allowable
chemical, trap, pot, trawl.
13. Coastal Herring Trawl Fishery (Non- Trawl.
FMP)
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 Purse seine.
Fishery (Non-FMP)
17. Sardine Purse Seine Fishery (Non-FMP) Purse seine.
18. Oyster Fishery (Non-FMP) Dredge, tongs.
19. Commercial Fishery (Non-FMP) Trawl, gillnet, hook and
line, longline, handline,
rod and reel, bandit gear,
cast net, lampara net,
spear.
20. Recreational Fishery (Non-FMP) Bandit gear, handline, rod
and reel, spear, bully net,
gillnet, dip net, longline,
powerhead, seine, slurp gun,
trap, trawl, harpoon, cast
net, hoop net, hook and
line, hand harvest.
------------------------------------------------------------------------
V. Caribbean Fishery Management Council
------------------------------------------------------------------------
1. Caribbean Spiny Lobster Fishery
(FMP):
A. Trap/pot fishery.................. A. Trap/pot.
B. Dip net fishery................... B. Dip net.
C. Hand harvest fishery.............. C. Hand harvest, snare.
D. Recreational fishery.............. D. Dip net, trap, pot.
2. Caribbean Shallow Water Reef Fish
Fishery (FMP):
A. Longline/hook and line fishery.... A. Longline, hook and line.
B. Trap/pot fishery.................. B. Trap, pot.
C. Recreational fishery.............. C. Dip net, handline, rod and
reel, slurp gun, spear.
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 B. Longline/hook and line.
fishery.
C. Recreational fishery.............. C. Spear, handline, longline,
rod and reel.
6. Commercial Fishery (Non-FMP) Trawl, gillnet, hook and
line, longline, handline,
rod and reel, bandit gear,
cast net, spear.
7. Recreational Fishery (Non-FMP) Rod and reel, hook and line,
spear, powerhead, handline,
hand harvest, cast net.
------------------------------------------------------------------------
VI. Pacific Fishery Management Council
------------------------------------------------------------------------
1. Washington, Oregon, and California
Salmon Fisheries (FMP):
A. Salmon set gillnet fishery........ A. Gillnet.
B. Salmon hook and line fishery...... B. Hook and line.
C. Trawl fishery..................... C. Trawl.
D. Recreational fishery.............. D. Rod and reel.
2. West Coast Groundfish Fisheries
(FMP):
A. Pacific groundfish trawl fishery.. A. Trawl.
B. Set gillnet fishery............... B. Gillnet.
C. Groundfish longline and setline C. Longline.
fishery.
[[Page 97]]
D. Groundfish handline and hook and D. Handline, hook and line.
line fishery.
E. Groundfish pot and trap fishery... E. Pot, trap.
F. Recreational fishery.............. F. Rod and reel, handline,
spear, hook and line.
3. Northern Anchovy Fishery (FMP) Purse seine, lampara net.
4. Angel Shark, White Croaker, Gillnet.
California Halibut, White Sea Bass,
Pacific Mackerel Large-Mesh Set Net
Fishery (Non-FMP)
5. Thresher Shark and Swordfish Drift Gillnet.
Gillnet Fishery (Non-FMP)
6. Pacific Shrimp and Prawn Fishery (Non-
FMP):
A. Pot and trap fishery.............. A. Pot, trap.
B. Trawl fishery..................... B. Trawl.
7. Lobster and Rock Crab Pot and Trap Pot, trap.
Fishery (Non-FMP)
8. Pacific Halibut Fishery (Non-FMP):
A. Longline and setline fishery...... A. Longline.
B. Hook-and-line fishery............. B. Hook and line.
9. California Halibut Trawl and Trammel Trawl, trammel net.
Net Fishery
10. Shark and Bonito Longline and Setline Longline.
Fishery (Non-FMP)
11. Dungeness Crab Pot and Trap Fishery Pot, trap.
(Non-FMP)
12. Hagfish Pot and Trap Fishery (Non- Pot, trap.
FMP)
13. Pacific Albacore and Other Tuna Hook- Hook and line.
and-line Fishery (Non-FMP)
14. Pacific Swordfish Harpoon Fishery Harpoon.
(Non-FMP)
15. Pacific Scallop Dredge Fishery (Non- Dredge.
FMP)
16. Pacific Yellowfin, Skipjack Tuna, Purse seine.
Purse Seine Fishery, (Non-FMP)
17. Market Squid Fishery (Non-FMP) Purse seine, dip net.
18. Pacific Sardine, Pacific Mackerel, Purse seine.
Pacific Saury, Pacific Bonito, and Jack
Mackerel Purse Seine Fishery (Non-FMP)
19. Finfish and Shellfish Live Trap, Hook- Trap, handline, hook and
and-line, and Handline Fishery (Non-FMP) line.
20. Recreational Fishery (Non-FMP) Spear, trap, handline, pot,
hook and line, rod and reel,
hand harvest.
21. Commercial Fishery (Non-FMP) Trawl, gillnet, hook and
line, longline, handline,
rod and reel, bandit gear,
cast net, spear.
------------------------------------------------------------------------
VII. North Pacific Fishery Management Council
------------------------------------------------------------------------
1. Alaska Scallop Fishery (FMP) Dredge.
2. Bering Sea (BS) and Aleutian Islands
(AI) King and Tanner Crab Fishery (FMP):
Pot fishery.......................... Pot.
3. Bering Sea (BS) and Aleutian Islands
(AI) King and Tanner Crab Fishery (FMP):
Recreational fishery................. Pot.
4. BS and AI Groundfish Fishery (FMP):
A. Groundfish trawl fishery.......... A. Trawl.
B. Bottomfish hook-and-line, and B. Hook and line, handline.
handline fishery.
C. Longline fishery.................. C. Longline.
D. BS and AI pot and trap fishery.... D. Pot, trap.
5. BS and AI Groundfish Recreational Handline, rod and reel, hook
Fishery (Non-FMP) and line, pot, trap.
6. Gulf of Alaska (GOA) Groundfish
Fishery (FMP):
A. Groundfish trawl fishery.......... A. Trawl.
B. Bottomfish hook-and-line and B. Hook and line, handline.
handline fishery.
C. Longline fishery.................. C. Longline.
D. GOA pot and trap fishery.......... D. Pot, trap.
E. Recreational fishery.............. E. Handline, rod and reel,
hook and line, pot, trap.
7. Pacific Halibut Fishery (Non-FMP):
A. Commercial (IFQ and CDQ).......... A. Hook and line.
B. Recreational...................... B. Single line with no more
than 2 hooks attached or
spear.
C. Subsistence....................... C. Setline gear and hand held
gear of not more than 30
hooks, including longline,
handline, rod and reel,
spear, jig, and hand-troll
gear.
8. Alaska High Seas Salmon Hook and Line
Fishery:
(FMP)................................ Hook and line.
9. Alaska Salmon Fishery (Non-FMP):
A. Hook-and-line fishery............. A. Hook and line.
B. Gillnet fishery................... B. Gillnet.
C. Purse seine fishery............... C. Purse seine.
D. Recreational fishery.............. D. Handline, rod and reel,
hook and line.
10. Finfish Purse Seine Fishery (Non-FMP) Purse seine.
11. Octopus/Squid Longline Fishery (Non- Longline.
FMP)
12. Finfish Handline and Hook-and-line Handline, hook and line.
Fishery (Non-FMP)
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.
------------------------------------------------------------------------
[[Page 98]]
VIII. Western Pacific Fishery Management Council
------------------------------------------------------------------------
1. Western Pacific Crustacean Fishery Trap, hand harvest, hoop net.
(FMP)
2. Western Pacific Crustacean Fishery
(Non-FMP):
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 (FMP):
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 Hand harvest, submersible,
Fishery (Non-FMP) tangle net dredge.
5. Western Pacific Bottomfish and
Seamount Groundfish Fishery (FMP):
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-FMP):
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
(FMP):
A. Longline Fisher................... 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.
8. Western Pacific Pelagics Fishery (Non-
FMP):
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 Bandit gear, buoy gear, dip
Fishery (Non-FMP) net, gillnet, handline, hook
and line, hoop net, lampara
net, purse seine, rod and
reel, spear.
10. Western Pacific Squid and Octopus Bandit gear, hand harvest,
Fishery (Non-FMP) hook and line, rod and reel,
spear, trap.
11. Western Pacific Coral Reef Fishery Allowable chemical, barrier
(Non-FMP) net, dip net, gillnet, hand
harvest, seine, slurp gun,
trap, spear, rod and reel,
hook and line.
12. Recreational Fishery (Non-FMP) Rod and reel, hook and line,
handline, hand harvest,
spear.
13. Commercial Fishery (Non-FMP) Trawl, gillnet, hook and
line, longline, handline,
rod and reel, bandit gear,
cast net, spear.
------------------------------------------------------------------------
IX. Secretary of Commerce
------------------------------------------------------------------------
1. Atlantic Highly Migratory Species
Fisheries (FMP):
A. Swordfish handgear fishery........ A. Rod and reel, harpoon,
handline, bandit gear, buoy
gear.
B. Swordfish recreational fishery.... B. Rod and reel, handline.
C. Pelagic longline fishery.......... C. Longline.
D. Shark gillnet fishery............. D. Gillnet
E. Shark bottom longline fishery..... E. Longline.
F. Shark handgear fishery............ F. Rod and reel, handline,
bandit gear.
G. Shark recreational fishery........ G. Rod and reel, handline.
H. Tuna purse seine fishery.......... H. Purse seine.
I. Tuna recreational fishery......... I. Speargun gear (for bigeye,
albacore, yellowfin, and
skipjack tunas only); Rod
and reel, handline (all
tunas); green-stick gear
(HMS Charter/Headboat
Category only).
J. Tuna handgear fishery............. J. Rod and reel, harpoon,
handline, bandit gear.
[[Page 99]]
K. Tuna harpoon fishery.............. K. Harpoon.
L. Atlantic billfish recreational L. Rod and reel.
fishery.
M. Tuna green-stick fishery.......... M. Green-stick gear.
2. Commercial Fisheries (Non-FMP) Rod and reel, handline,
longline, gillnet, harpoon,
bandit gear, purse seine,
green-stick gear.
------------------------------------------------------------------------
(w) Fail to maintain safe conditions for the protection of observers
including compliance with all U.S. Coast Guard and other applicable
rules, regulations, or statutes applicable to the vessel and which
pertain to safe operation of the vessel.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 63
FR 27217; May 18, 1998; 64 FR 4037, Jan. 27, 1999; 64 FR 29134, May 28,
1999; 64 FR 67516, Dec. 2, 1999; 68 FR 18161, Apr. 15, 2003; 68 FR
26230, May 15, 2003; 68 FR 74784, Dec. 24, 2003; 69 FR 30240, May 27,
2004; 70 FR 62080, Oct. 28, 2005; 71 FR 58163, Oct. 2, 2006; 72 FR
61818, Nov. 1, 2007; 73 FR 409, Jan. 3, 2008; 73 FR 54733, Sept. 23,
2008]
Sec. 600.730 Facilitation of enforcement.
(a) General. The operator of, or any other person aboard, any
fishing vessel subject to parts 622 through 699 of this chapter must
immediately comply with instructions and signals issued by an authorized
officer to stop the vessel and with instructions to facilitate safe
boarding and inspection of the vessel, its gear, equipment, fishing
record (where applicable), and catch for purposes of enforcing the
Magnuson-Stevens Act or any other statute administered by NOAA and this
chapter.
(1) For the purposes of this section ``freeboard'' means the working
distance between the top rail of the gunwale of a vessel and the water's
surface. Where cut-outs are provided in the bulwarks for the purpose of
boarding personnel, freeboard means the distance between the threshold
of the bulwark cut-out and the water's surface.
(2) For the purposes of this section, ``pilot ladder'' means a
flexible ladder constructed and approved to meet the U.S. Coast Guard
standards for pilot ladders at 46 CFR subpart 163.003 entitled Pilot
Ladder.
(b) Communications. (1) Upon being approached by a USCG vessel or
aircraft, or other vessel or aircraft with an authorized officer aboard,
the operator of a fishing vessel must be alert for communications
conveying enforcement instructions.
(2) VHF-FM radiotelephone is the preferred method for communicating
between vessels. If the size of the vessel and the wind, sea, and
visibility conditions allow, a loudhailer may be used instead of the
radio. Hand signals, placards, high frequency radiotelephone, or voice
may be employed by an authorized officer, and message blocks may be
dropped from an aircraft.
(3) If other communications are not practicable, visual signals may
be transmitted by flashing light directed at the vessel signaled. USCG
units will normally use the flashing light signal ``L'' as the signal to
stop. In the International Code of Signals, ``L'' (.-..) means ``you
should stop your vessel instantly.'' (Period (.) means a short flash of
light; dash (-) means a long flash of light.)
(4) Failure of a vessel's operator promptly to stop the vessel when
directed to do so by an authorized officer using loudhailer,
radiotelephone, flashing light signal, or other means constitutes prima
facie evidence of the offense of refusal to permit an authorized officer
to board.
(5) The operator of a vessel who does not understand a signal from
an enforcement unit and who is unable to obtain clarification by
loudhailer or radiotelephone must consider the signal to be a command to
stop the vessel instantly.
(c) Boarding. The operator of a vessel directed to stop must:
(1) Guard Channel 16, VHF-FM, if so equipped.
(2) Stop immediately and lay to or maneuver in such a way as to
allow the authorized officer and his/her party to come aboard.
(3) Except for fishing vessels with a freeboard of 4 feet (1.25 m)
or less, provide, when requested by an authorized officer or observer
personnel, a pilot ladder capable of being used for the
[[Page 100]]
purpose of enabling personnel to embark and disembark the vessel safely.
The pilot ladder must be maintained in good condition and kept clean.
(4) When necessary to facilitate the boarding or when requested by
an authorized officer or observer, provide a manrope or safety line, and
illumination for the pilot ladder.
(5) Take such other actions as necessary to facilitate boarding and
to ensure the safety of the authorized officer and the boarding party.
(d) Signals. The following signals, extracted from the International
Code of Signals, may be sent by flashing light by an enforcement unit
when conditions do not allow communications by loudhailer or
radiotelephone. Knowledge of these signals by vessel operators is not
required. However, knowledge of these signals and appropriate action by
a vessel operator may preclude the necessity of sending the signal ``L''
and the necessity for the vessel to stop instantly. (Period (.) means a
short flash of light; dash (-) means a long flash of light.)
(1) ``AA'' repeated (.-.-) is the call to an unknown station. The
operator of the signaled vessel should respond by identifying the vessel
by radiotelephone or by illuminating the vessel's identification.
(2) ``RY-CY'' (.-. -.-- -.-. -.--) means ``you should proceed at
slow speed, a boat is coming to you.'' This signal is normally employed
when conditions allow an enforcement boarding without the necessity of
the vessel being boarded coming to a complete stop, or, in some cases,
without retrieval of fishing gear which may be in the water.
(3) ``SQ3'' (... --.- ...--) means ``you should stop or heave to; I
am going to board you.''
[61 FR 32540, June 24, 1996, as amended at 61 FR 37225, July 17, 1996;
63 FR 7075, Feb. 12, 1998; 73 FR 67809, Nov. 17, 2008]
Sec. 600.735 Penalties.
Any person committing, or fishing vessel used in the commission of a
violation of the Magnuson-Stevens Act or any other statute administered
by NOAA and/or any regulation issued under the Magnuson-Stevens Act, is
subject to the civil and criminal penalty provisions and civil
forfeiture provisions of the Magnuson-Stevens Act, to this section, to
15 CFR part 904 (Civil Procedures), and to other applicable law.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.740 Enforcement policy.
(a) The Magnuson-Stevens Act provides four basic enforcement
remedies for violations, in ascending order of severity, as follows:
(1) Issuance of a citation (a type of warning), usually at the scene
of the offense (see 15 CFR part 904, subpart E).
(2) Assessment by the Administrator of a civil money penalty.
(3) For certain violations, judicial forfeiture action against the
vessel and its catch.
(4) Criminal prosecution of the owner or operator for some offenses.
It shall be the policy of NMFS to enforce vigorously and equitably the
provisions of the Magnuson-Stevens Act by utilizing that form or
combination of authorized remedies best suited in a particular case to
this end.
(b) Processing a case under one remedial form usually means that
other remedies are inappropriate in that case. However, further
investigation or later review may indicate the case to be either more or
less serious than initially considered, or may otherwise reveal that the
penalty first pursued is inadequate to serve the purposes of the
Magnuson-Stevens Act. Under such circumstances, the Agency may pursue
other remedies either in lieu of or in addition to the action originally
taken. Forfeiture of the illegal catch does not fall within this general
rule and is considered in most cases as only the initial step in
remedying a violation by removing the ill-gotten gains of the offense.
(c) If a fishing vessel for which a permit has been issued under the
Magnuson-Stevens Act is used in the commission of an offense prohibited
by section 307 of the Magnuson-Stevens Act, NOAA may impose permit
sanctions, whether or not civil or criminal action has been undertaken
against the vessel or its owner or operator. In some cases, the
Magnuson-Stevens Act requires
[[Page 101]]
permit sanctions following the assessment of a civil penalty or the
imposition of a criminal fine. In sum, the Magnuson-Stevens Act treats
sanctions against the fishing vessel permit to be the carrying out of a
purpose separate from that accomplished by civil and criminal penalties
against the vessel or its owner or operator.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.745 Scientific research activity, exempted fishing, and exempted
educational activity.
(a) Scientific research activity. Nothing in this part is intended
to inhibit or prevent any scientific research activity conducted by a
scientific research vessel. Persons planning to conduct scientific
research activities on board a scientific research vessel in the EEZ are
encouraged to submit to the appropriate Regional Administrator or
Director, 60 days or as soon as practicable prior to its start, a
scientific research plan for each scientific activity. The Regional
Administrator or Director will acknowledge notification of scientific
research activity by issuing to the operator or master of that vessel,
or to the sponsoring institution, a Letter of Acknowledgment. This
Letter of Acknowledgment is separate and distinct from any permit or
consultation required by the MMPA, the ESA, or any other applicable law.
The Regional Administrator or Director will include text in the Letter
of Acknowledgment informing the applicant that such a permit may be
required and should be obtained from the agency prior to embarking on
the activity. If the Regional Administrator or Director, after review of
a research plan, determines that it does not constitute scientific
research but rather fishing, the Regional Administrator or Director will
inform the applicant as soon as practicable and in writing. In making
this determination, the Regional Administrator, Director, or designee
shall consider: the merits of the individual proposal and the
institution(s) involved; whether the proposed activity meets the
definition of scientific research activity; and whether the vessel meets
all the requirements for a scientific research vessel. The Regional
Administrator or Director may also make recommendations to revise the
research plan to ensure the activity will be considered to be scientific
research activity or recommend the applicant request an EFP. The
Regional Administrator or Director may designate a Science and Research
Director, or the Assistant Regional Administrator for Sustainable
Fisheries, to receive scientific research plans and issue Letters of
Acknowledgment. In order to facilitate identification of the activity as
scientific research, persons conducting scientific research activities
are advised to carry a copy of the scientific research plan and the
Letter of Acknowledgment on board the scientific research vessel and to
make it available for inspection upon the request of any authorized
officer. It is recommended that for any scientific research activity,
any fish, or parts thereof, retained pursuant to such activity be
accompanied, during any ex-vessel activities, by a copy of the Letter of
Acknowledgment. Activity conducted in accordance with a scientific
research plan acknowledged by such a Letter of Acknowledgment is
presumed to be scientific research activity. An authorized officer may
overcome this presumption by showing that an activity does not fit the
definition of scientific research activity or is outside the scope of
the scientific research plan.
(b) Exempted fishing--(1) General. A NMFS Regional Administrator or
Director may authorize, for limited testing, public display, data
collection, exploratory fishing, compensation fishing, conservation
engineering, health and safety surveys, environmental cleanup, and/or
hazard removal purposes, the target or incidental harvest of species
managed under an FMP or fishery regulations that would otherwise be
prohibited. Exempted fishing may not be conducted unless authorized by
an EFP issued by a Regional Administrator or Director in accordance with
the criteria and procedures specified in this section. Compensation
fishing must be conducted under an EFP if the activity would otherwise
be prohibited by applicable regulations unless the activity is
specifically authorized under an FMP or a scientific
[[Page 102]]
research permit. Conservation engineering that does not meet the
definition of scientific research activity, but does meet the definition
of fishing must be conducted under an EFP if the activity would
otherwise be prohibited by applicable regulations. Data collection
designed to capture and land quantities of fish for product development,
market research, and/or public display must be permitted under exempted
fishing procedures. An EFP exempts a vessel only from those regulations
specified in the EFP. All other applicable regulations remain in effect.
The Regional Administrator or Director may charge a fee to recover the
administrative expenses of issuing an EFP. The amount of the fee will be
calculated, at least annually, in accordance with procedures of the NOAA
Handbook for determining administrative costs of each special product or
service; the fee may not exceed such costs. Persons may contact the
appropriate Regional Administrator or Director to determine the
applicable fee.
(2) Application. An applicant for an EFP shall submit a completed
application package to the appropriate Regional Administrator or
Director, as soon as practicable and at least 60 days before the desired
effective date of the EFP. Submission of an EFP application less than 60
days before the desired effective date of the EFP may result in a
delayed effective date because of review requirements. The application
package must include payment of any required fee as specified by
paragraph (b)(1) of this section, and a written application that
includes, but is not limited to, the following information:
(i) The date of the application.
(ii) The applicant's name, mailing address, and telephone number.
(iii) A statement of the purposes and goals of the exempted fishery
for which an EFP is needed, including justification for issuance of the
EFP.
(iv) For each vessel to be covered by the EFP, as soon as the
information is available and before operations begin under the EFP:
(A) A copy of the USCG documentation, state license, or registration
of each vessel, or the information contained on the appropriate
document.
(B) The current name, address, and telephone number of the owner and
master, if not included on the document provided for the vessel.
(v) The species (target and incidental) expected to be harvested
under the EFP, the amount(s) of such harvest necessary to conduct the
exempted fishing, the arrangements for disposition of all regulated
species harvested under the EFP, and any anticipated impacts on the
environment, including impacts on fisheries, marine mammals, threatened
or endangered species, and EFH.
(vi) For each vessel covered by the EFP, the approximate time(s) and
place(s) fishing will take place, and the type, size, and amount of gear
to be used.
(vii) The signature of the applicant.
(viii) The Regional Administrator or Director, as appropriate, may
request from an applicant additional information necessary to make the
determinations required under this section. An incomplete application or
an application for which the appropriate fee has not been paid will not
be considered until corrected in writing and the fee paid. An applicant
for an EFP need not be the owner or operator of the vessel(s) for which
the EFP is requested.
(3) Issuance. (i) The Regional Administrator or Director, as
appropriate, will review each application and will make a preliminary
determination whether the application contains all of the required
information and constitutes an activity appropriate for further
consideration. If the Regional Administrator or Director finds that any
application does not warrant further consideration, both the applicant
and the affected Council(s) will be notified in writing of the reasons
for the decision. If the Regional Administrator or Director determines
that any application warrants further consideration, notification of
receipt of the application will be published in the Federal Register
with a brief description of the proposal. Interested persons will be
given a 15- to 45-day opportunity to comment on the notice of receipt of
the EFP application. In addition, comments may be requested during
public testimony at a Council meeting. If the Council intends to take
comments on
[[Page 103]]
EFP applications at a Council meeting, it must include a statement to
this effect in the Council meeting notice and meeting agenda. Multiple
applications for EFPs may be published in the same Federal Register
document and may be discussed under a single Council agenda item. The
notification may establish a cut-off date for receipt of additional
applications to participate in the same, or a similar, exempted fishing
activity. The Regional Administrator or Director will also forward
copies of the application to the Council(s), the U.S. Coast Guard, and
the appropriate fishery management agencies of affected states,
accompanied by the following information:
(A) The effect of the proposed EFP on the target and incidental
species, including the effect on any TAC.
(B) A citation of the regulation or regulations that, without the
EFP, would prohibit the proposed activity.
(C) Biological information relevant to the proposal, including
appropriate statements of environmental impacts, including impacts on
fisheries, marine mammals, threatened or endangered species, and EFH.
(ii) If the application is complete and warrants additional
consultation, the Regional Administrator or Director may consult with
the appropriate Council(s) concerning the permit application during the
period in which comments have been requested. The Council(s) or the
Regional Administrator or Director shall notify the applicant in advance
of any public meeting at which the application will be considered, and
offer the applicant the opportunity to appear in support of the
application.
(iii) As soon as practicable after receiving a complete application,
including all required analyses and consultations (e.g., NEPA, EFH, ESA
and MMPA), and having received responses from the public, the agencies
identified in paragraph (b)(3)(i) of this section, and/or after the
consultation, if any, described in paragraph (b)(3)(ii) of this section,
the Regional Administrator or Director shall issue the EFP or notify the
applicant in writing of the decision to deny the EFP and the reasons for
the denial. Grounds for denial of an EFP include, but are not limited
to, the following:
(A) The applicant has failed to disclose material information
required, or has made false statements as to any material fact, in
connection with his or her application; or
(B) According to the best scientific information available, the
harvest to be conducted under the permit would detrimentally affect the
well-being of the stock of any regulated species of fish, marine mammal,
threatened or endangered species, or EFH; or
(C) Issuance of the EFP would have economic allocation as its sole
purpose (other than compensation fishing); or
(D) Activities to be conducted under the EFP would be inconsistent
with the intent of this section, the management objectives of the FMP,
or other applicable law; or
(E) The applicant has failed to demonstrate a valid justification
for the permit; or
(F) The activity proposed under the EFP could create a significant
enforcement problem.
(iv) The decision of a Regional Administrator or Director to grant
or deny an EFP is the final action of NMFS. If the permit, as granted,
is significantly different from the original application, or is denied,
NMFS may publish notification in the Federal Register describing the
exempted fishing to be conducted under the EFP or the reasons for
denial.
(v) The Regional Administrator or Director should attach, as
applicable, terms and conditions to the EFP, consistent with the purpose
of the exempted fishing and as otherwise necessary for the conservation
and management of the fishery resources and the marine environment,
including, but not limited to:
(A) The maximum amount of each regulated species that can be
harvested and landed during the term of the EFP, including trip
limitations, where appropriate.
(B) The number, size(s), name(s), and identification number(s) of
the vessel(s) authorized to conduct fishing activities under the EFP.
(C) A citation of the regulations from which the vessel is exempted.
(D) The time(s) and place(s) where exempted fishing may be
conducted.
[[Page 104]]
(E) The type, size, and amount of gear that may be used by each
vessel operated under the EFP.
(F) Whether observers, a vessel monitoring system, or other
electronic equipment must be carried on board vessels operating under
the EFP, and any necessary conditions, such as predeployment
notification requirements.
(G) Data reporting requirements necessary to document the
activities, including catches and incidental catches, and to determine
compliance with the terms and conditions of the EFP and established time
frames and formats for submission of the data to NMFS.
(H) Other conditions as may be necessary to assure compliance with
the purposes of the EFP, consistent with the objectives of the FMP and
other applicable law.
(I) Provisions for public release of data obtained under the EFP
that are consistent with NOAA confidentiality of statistics procedures
at set out in subpart E. An applicant may be required to waive the right
to confidentiality of information gathered while conducting exempted
fishing as a condition of an EFP.
(4) Acknowledging permit conditions. Upon receipt of an EFP, the
permit holder must date and sign the permit, and retain the permit on
board the vessel(s). The permit is not valid until signed by the permit
holder. In signing the permit, the permit holder:
(i) Agrees to abide by all terms and conditions set forth in the
permit, and all restrictions and relevant regulations; and
(ii) Acknowledges that the authority to conduct certain activities
specified in the permit is conditional and subject to authorization and
revocation by the Regional Administrator or Director.
(5) Duration. Unless otherwise specified in the EFP or a superseding
notice or regulation, an EFP is valid for no longer than 1 year. EFPs
may be renewed following the application procedures in this section.
(6) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(7) Inspection. Any EFP issued under this section must be carried on
board the vessel(s) for which it was issued. The EFP must be presented
for inspection upon request of any authorized officer. Any fish, or
parts thereof, retained pursuant to an EFP issued under this paragraph
must be accompanied, during any ex-vessel activities, by a copy of the
EFP.
(8) Inspection. Any EFP issued under this section must be carried on
board the vessel(s) for which it was issued. The EFP must be presented
for inspection upon request of any authorized officer.
(9) Sanctions. Failure of a permittee to comply with the terms and
conditions of an EFP may be grounds for revocation, suspension, or
modification of the EFP with respect to all persons and vessels
conducting activities under the EFP. Any action taken to revoke,
suspend, or modify an EFP for enforcement purposes will be governed by
15 CFR part 904, subpart D.
(c) Reports. (1) NMFS requests that persons conducting scientific
research activities from scientific research vessels submit a copy of
any report or other publication created as a result of the activity,
including the amount, composition, and disposition of their catch, to
the appropriate Science and Research Director and Regional Administrator
or Director.
(2) Upon completion of the activities of the EFP, or periodically as
required by the terms and conditions of the EFP, persons fishing under
an EFP must submit a report of their catches and any other information
required, to the appropriate Regional Administrator or Director, in the
manner and within the time frame specified in the EFP, but no later than
6 months after concluding the exempted fishing activity. Persons
conducting EFP activities are also requested to submit a copy of any
publication prepared as a result of the EFP activity.
(d) Exempted educational activities--(1) General. A NMFS Regional
Administrator or Director may authorize, for educational purposes, the
target or incidental harvest of species managed under an FMP or fishery
regulations that would otherwise be prohibited. The trade, barter or
sale of fish taken under this authorization is prohibited. The decision
of a Regional Administrator or Director to grant or deny an
[[Page 105]]
exempted educational activity authorization is the final action of NMFS.
Exempted educational activities may not be conducted unless authorized
in writing by a Regional Administrator or Director in accordance with
the criteria and procedures specified in this section. Such
authorization will be issued without charge.
(2) Application. An applicant for an exempted educational activity
authorization shall submit to the appropriate Regional Administrator or
Director, at least 15 days before the desired effective date of the
authorization, a written application that includes, but is not limited
to, the following information:
(i) The date of the application.
(ii) The applicant's name, mailing address, and telephone number.
(iii) A brief statement of the purposes and goals of the exempted
educational activity for which authorization is requested, including a
general description of the arrangements for disposition of all species
collected.
(iv) Evidence that the sponsoring institution is a valid educational
institution, such as accreditation by a recognized national or
international accreditation body.
(v) The scope and duration of the activity.
(vi) For each vessel to be covered by the authorization:
(A) A copy of the U.S. Coast Guard documentation, state license, or
registration of the vessel, or the information contained on the
appropriate document.
(B) The current name, address, and telephone number of the owner and
master, if not included on the document provided for the vessel.
(vii) The species and amounts expected to be caught during the
exempted educational activity, and any anticipated impacts on the
environment, including impacts on fisheries, marine mammals, threatened
or endangered species, and EFH.
(viii) For each vessel covered by the authorization, the approximate
time(s) and place(s) fishing will take place, and the type, size, and
amount of gear to be used.
(ix) The signature of the applicant.
(x) The Regional Administrator or Director may request from an
applicant additional information necessary to make the determinations
required under this section. An incomplete application will not be
considered until corrected in writing.
(3) Issuance. (i) The Regional Administrator or Director, as
appropriate, will review each application and will make a determination
whether the application contains all of the required information, is
consistent with the goals, objectives, and requirements of the FMP or
regulations and other applicable law, and constitutes a valid exempted
educational activity. The applicant will be notified in writing of the
decision within 5 working days of receipt of the application.
(ii) The Regional Administrator or Director should attach, as
applicable, terms and conditions to the authorization, consistent with
the purpose of the exempted educational activity and as otherwise
necessary for the conservation and management of the fishery resources
and the marine environment, including, but not limited to:
(A) The maximum amount of each regulated species that may be
harvested.
(B) A citation of the regulations from which the vessel is being
exempted.
(C) The time(s) and place(s) where the exempted educational activity
may be conducted.
(D) The type, size, and amount of gear that may be used by each
vessel operated under the authorization.
(E) Data reporting requirements necessary to document the activities
and to determine compliance with the terms and conditions of the
exempted educational activity.
(F) Such other conditions as may be necessary to assure compliance
with the purposes of the authorization, consistent with the objectives
of the FMP or regulations.
(G) Provisions for public release of data obtained under the
authorization, consistent with NOAA confidentiality of statistics
procedures in subpart E. An applicant may be required to waive the right
to confidentiality of information gathered while conducting exempted
educational activities as a condition of the authorization.
[[Page 106]]
(iii) The authorization will specify the scope of the authorized
activity and will include, at a minimum, the duration, vessel(s),
persons, species, and gear involved in the activity, as well as any
additional terms and conditions specified under paragraph (d)(3)(ii) of
this section.
(4) Duration. Unless otherwise specified, authorization for an
exempted educational activity is effective for no longer than 1 year,
unless revoked, suspended, or modified. Authorizations may be renewed
following the application procedures in this section.
(5) Alteration. Any authorization that has been altered, erased, or
mutilated is invalid.
(6) Transfer. Authorizations issued under this paragraph (d) are not
transferable or assignable.
(7) Inspection. Any authorization issued under this paragraph (d)
must be carried on board the vessel(s) for which it was issued, or be in
the possession of at least one of the persons identified in the
authorization, who must be present while the exempted educational
activity is being conducted. The authorization must be presented for
inspection upon request of any authorized officer. Activities that meet
the definition of ``fishing,'' despite an educational purpose, are
fishing. An authorization may allow covered fishing activities; however,
fishing activities conducted outside the scope of an authorization for
exempted educational activities are illegal. Any fish, or parts thereof,
retained pursuant to an authorization issued under this paragraph must
be accompanied, during any ex-vessel activities, by a copy of the
authorization.
(e) Observers. NMFS-sanctioned observers or biological technicians
conducting activities within NMFS-approved sea sampling and/or observer
protocols are exempt from the requirement to obtain an EFP. For purposes
of this section, NMFS-sanctioned observers or biological technicians
include NMFS employees, NMFS observers, observers who are employees of
NMFS-contracted observer providers, and observers who are employees of
NMFS-permitted observer providers.
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998; 74
FR 42794, Aug. 25, 2009]
Sec. 600.746 Observers.
(a) Applicability. This section applies to any fishing vessel
required to carry an observer as part of a mandatory observer program or
carrying an observer as part of a voluntary observer program under the
Magnuson-Stevens Act, MMPA (16 U.S.C. 1361 et seq.), the ATCA (16 U.S.C.
971 et seq.), the South Pacific Tuna Act of 1988 (16 U.S.C. 973 et
seq.), or any other U.S. law.
(b) Observer safety. An observer will not be deployed on, or stay
aboard, a vessel that is inadequate for observer deployment as described
in paragraph (c) of this section.
(c) Vessel inadequate for observer deployment. A vessel is
inadequate for observer deployment if it:
(1) Does not comply with the applicable regulations regarding
observer accommodations (see 50 CFR parts 229, 285, 300, 600, 622, 635,
648, 660, and 679), or
(2) Has not passed a USCG Commercial Fishing Vessel Safety
Examination, or for vessels less than 26 ft (8 m) in length, has not
passed an alternate safety equipment examination, as described in
paragraph (g) of this section.
(d) Display or show proof. A vessel that has passed a USCG
Commercial Fishing Vessel Safety Examination must display or show proof
of a valid USCG Commercial Fishing Vessel Safety Examination decal that
certifies compliance with regulations found in 33 CFR Chapter 1 and 46
CFR Chapter 1, and which was issued within the last 2 years or at a time
interval consistent with current USCG regulations or policy.
(1) In situations of mitigating circumstances, which may prevent a
vessel from displaying a valid safety decal (broken window, etc.), NMFS,
the observer, or NMFS' designated observer provider may accept the
following associated documentation as proof of the missing safety decal
described in paragraph (d) of this section:
(i) A certificate of compliance issued pursuant to 46 CFR 28.710;
(ii) A certificate of inspection pursuant to 46 U.S.C. 3311; or
(iii) For vessels not required to obtain the documents identified in
(d)(1)(i) and (d)(1)(ii) of this section, a
[[Page 107]]
dockside examination report form indicating the decal number and date
and place of issue.
(e) Visual inspection. Upon request by an observer, a NMFS employee,
or a designated observer provider, a vessel owner or operator must
provide correct information concerning any item relating to any safety
or accommodation requirement prescribed by law or regulation, in a
manner and according to a timeframe as directed by NMFS. A vessel owner
or operator must also allow an observer, a NMFS employee, or a
designated observer provider to visually examine any such item.
(f) Vessel safety check. Prior to the initial deployment, the vessel
owner or operator or the owner or operator's designee must accompany the
observer in a walk through the vessel's major spaces to ensure that no
obviously hazardous conditions exist. This action may be a part of the
vessel safety orientation to be provided by the vessel to the observer
as required by 46 CFR 28.270. The vessel owner or operator or the owner
or operator's designee must also accompany the observer in checking the
following major items as required by applicable USCG regulations:
(1) Personal flotation devices/ immersion suits;
(2) Ring buoys;
(3) Distress signals;
(4) Fire extinguishing equipment;
(5) Emergency position indicating radio beacon (EPIRB), when
required, shall be registered to the vessel at its documented homeport;
(6) Survival craft, when required, with sufficient capacity to
accommodate the total number of persons, including the observer(s), that
will embark on the voyage; and
(7) Other fishery-area and vessel specific items required by the
USCG.
(g) Alternate safety equipment examination. If a vessel is under 26
ft (8 m) in length, and in a remote location, and NMFS has determined
that the USCG cannot provide a USCG Commercial Fishing Vessel Safety
Examination due to unavailability of inspectors or to unavailability of
transportation to or from an inspection station, the vessel will be
adequate for observer deployment if it passes an alternate safety
equipment examination conducted by a NMFS certified observer, observer
provider, or a NMFS observer program employee, using a checklist of USCG
safety requirements for commercial fishing vessels under 26 ft (8 m) in
length. Passage of the alternative examination will only be effective
for the single trip selected for observer coverage.
(h) Duration. The vessel owner or operator is required to comply
with the requirements of this section when the vessel owner or operator
is notified orally or in writing by an observer, a NMFS employee, or a
designated observer provider, that his or her vessel has been selected
to carry an observer. The requirements of this section continue to apply
through the time of the observer's boarding, at all times the observer
is aboard, and at the time the observer disembarks from the vessel at
the end of the observed trip.
(i) Effect of inadequate status. A vessel that would otherwise be
required to carry an observer, but is inadequate for the purposes of
carrying an observer, as described in paragraph (c) of this section, and
for allowing operation of normal observer functions, is prohibited from
fishing without observer coverage.
[63 FR 27217, May 18, 1998, as amended at 67 FR 64312, Oct. 18, 2002; 72
FR 61818, Nov. 1, 2007]
Sec. 600.747 Guidelines and procedures for determining new fisheries and
gear.
(a) General. Section 305(a) of the Magnuson-Stevens Act requires the
Secretary to prepare a list of all fisheries under the authority of each
Council, or the Director in the case of Atlantic highly migratory
species, and all gear used in such fisheries. This section contains
guidelines in paragraph (b) for determining when fishing gear or a
fishery is sufficiently different from those listed in Sec. 600.725(v)
as to require notification of a Council or the Director in order to use
the gear or participate in the unlisted fishery. This section also
contains procedures in paragraph (c) for notification of a Council or
the Director of potentially new fisheries or gear, and for amending the
list of fisheries and gear.
(b) Guidelines. The following guidance establishes the basis for
determining
[[Page 108]]
when fishing gear or a fishery is sufficiently different from those
listed to require notification of the appropriate Council or the
Director.
(1) The initial step in the determination of whether a fishing gear
or fishery is sufficiently different to require notification is to
compare the gear or fishery in question to the list of authorized
fisheries and gear in Sec. 600.725(v) and to the existing gear
definitions in Sec. 600.10.
(2) If the gear in question falls within the bounds of a definition
in Sec. 600.10 for an allowable gear type within that fishery, as
listed under Sec. 600.725(v), then the gear is not considered
different, is considered allowable gear, and does not require
notification of the Council or Secretary 90 days before it can be used
in that fishery.
(3) If, for any reason, the gear is not consistent with a gear
definition for a listed fishery as described in paragraph (b)(2) of this
section, the gear is considered different and requires Council or
Secretarial notification as described in paragraph (c) of this section
90 days before it can be used in that fishery.
(4) If a fishery falls within the bounds of the list of authorized
fisheries and gear in Sec. 600.725(v) under the Council's or
Secretary's authority, then the fishery is not considered different, is
considered an allowable fishery and does not require notification of the
Council or Director before that fishery can occur.
(5) If a fishery is not already listed in the list of authorized
fisheries and gear in Sec. 600.725(v), then the fishery is considered
different and requires notification as described in paragraph (c) of
this section 90 days before it can occur.
(c) Procedures. If a gear or fishery does not appear on the list in
Sec. 600.725(v), or if the gear is different from that defined in Sec.
600.10, the process for notification, and consideration by a Council or
the Director, is as follows:
(1) Notification. After July 26, 1999, no person or vessel may
employ fishing gear or engage in a fishery not included on the list of
approved gear types in Sec. 600.725(v) without notifying the
appropriate Council or the Director at least 90 days before the intended
use of that gear.
(2) Notification procedures. (i) A signed return receipt for the
notice serves as adequate evidence of the date that the notification was
received by the appropriate Council or the Director, in the case of
Atlantic highly migratory species, and establishes the beginning of the
90-day notification period, unless required information in the
notification is incomplete.
(ii) The notification must include:
(A) Name, address, and telephone number of the person submitting the
notification.
(B) Description of the gear.
(C) The fishery or fisheries in which the gear is or will be used.
(D) A diagram and/or photograph of the gear, as well as any
specifications and dimensions necessary to define the gear.
(E) The season(s) in which the gear will be fished.
(F) The area(s) in which the gear will be fished.
(G) The anticipated bycatch species associated with the gear,
including protected species, such as marine mammals, sea turtles, sea
birds, or species listed as endangered or threatened under the ESA.
(H) How the gear will be deployed and fished, including the portions
of the marine environment where the gear will be deployed (surface,
midwater, and bottom).
(iii) Failure to submit complete and accurate information will
result in a delay in beginning the 90-day notification period. The 90-
day notification period will not begin until the information received is
determined to be accurate and complete.
(3) Action upon receipt of notification--(i) Species other than
Atlantic Highly Migratory Species. (A) Upon signing a return receipt of
the notification by certified mail regarding an unlisted fishery or
gear, a Council must immediately begin consideration of the notification
and send a copy of the notification to the appropriate Regional
Administrator.
(B) If the Council finds that the use of an unlisted gear or
participation in a new fishery would not compromise the effectiveness of
conservation and management efforts, it shall:
[[Page 109]]
(1) Recommend to the RA that the list be amended;
(2) Provide rationale and supporting analysis, as necessary, for
proper consideration of the proposed amendment; and
(3) Provide a draft proposed rule for notifying the public of the
proposed addition, with a request for comment.
(C) If the Council finds that the proposed gear or fishery will be
detrimental to conservation and management efforts, it will recommend to
the RA that the authorized list of fisheries and gear not be amended,
that a proposed rule not be published, give reasons for its
recommendation of a disapproval, and may request NMFS to publish
emergency or interim regulations, and begin preparation of an FMP or
amendment to an FMP, if appropriate.
(D) After considering information in the notification and Council's
recommendation, NMFS will decide whether to publish a proposed rule. If
information on the new gear or fishery being considered indicates it is
likely that it will compromise conservation and management efforts under
the Magnuson-Stevens Act, and no additional new information is likely to
be gained from a public comment period, then a proposed rule will not be
published and NMFS will notify the appropriate Council. In such an
instance, NMFS will publish emergency or interim regulations to prohibit
or restrict use of the gear or participation in the fishery. If NMFS
determines that the proposed amendment is not likely to compromise
conservation and management efforts under the Magnuson-Stevens Act, NMFS
will publish a proposed rule in the Federal Register with a request for
public comment.
(ii) Atlantic Highly Migratory Species. (A) Upon signing a return
receipt of the notification by certified mail regarding an unlisted
fishery or gear for Atlantic highly migratory species (HMS), NMFS will
immediately begin consideration of the notification.
(B) Based on information in the notification and submitted by the
Council, NMFS will make a determination whether the use of an unlisted
gear or participation in an unlisted HMS fishery will compromise the
effectiveness of conservation and management efforts under the Magnuson-
Stevens Act. If it is determined that the proposed amendment will not
compromise conservation and management efforts, NMFS will publish a
proposed rule.
(C) If NMFS finds that the proposed gear or fishery will be
detrimental to conservation and management efforts in this initial stage
of review, it will not publish a proposed rule and notify the applicant
of the negative determination with the reasons therefor.
(4) Final determination and publication of a final rule. Following
public comment, NMFS will approve or disapprove the amendment to the
list of gear and fisheries.
(i) If approved, NMFS will publish a final rule in the Federal
Register and notify the applicant and the Council, if appropriate, of
the final approval.
(ii) If disapproved, NMFS will withdraw the proposed rule, notify
the applicant and the Council, if appropriate, of the disapproval;
publish emergency or interim regulations, if necessary, to prohibit or
restrict the use of gear or the participation in a fishery; and either
notify the Council of the need to amend an FMP or prepare an amendment
to an FMP in the case of Atlantic highly migratory species.
[64 FR 4043, Jan. 27, 1999]
Subpart I_Fishery Negotiation Panels
Source: 62 FR 23669, May 1, 1997, unless otherwise noted.
Sec. 600.750 Definitions.
Consensus means unanimous concurrence among the members on a Fishery
Negotiation Panel established under this rule, unless such Panel:
(1) Agrees to define such term to mean a general but not unanimous
concurrence; or
(2) agrees upon another specified definition.
Fishery negotiation panel (FNP) means an advisory committee
established by one or more Councils or the Secretary in accordance with
these regulations to assist in the development of fishery conservation
and management measures.
[[Page 110]]
Interest means, with respect to an issue or matter, multiple parties
that have a similar point of view or that are likely to be affected in a
similar manner.
Report means a document submitted by an FNP in accordance with the
Magnuson-Stevens Act.
[62 FR 23669, May 1, 1997, as amended at 63 FR 7075, Feb. 12, 1998]
Sec. 600.751 Determination of need for a fishery negotiation panel.
A Council or NMFS may establish an FNP to assist in the development
of specific fishery conservation and management measures. In determining
whether to establish an FNP, NMFS or the Council, as appropriate, shall
consider whether:
(a) There is a need for specific fishery conservation and management
measures.
(b) There are a limited number of identifiable interests that will
be significantly affected by the conservation and management measure.
(c) There is a reasonable likelihood that an FNP can be convened
with a balanced representation of persons who:
(1) Can adequately represent the interests identified under
paragraph (b) of this section.
(2) Are willing to negotiate in good faith to reach a consensus on a
report regarding the issues presented.
(d) There is a reasonable likelihood that an FNP will reach
a consensus on a report regarding the issues presented within 1 year
from date of establishment of the FNP.
(e) The use of an FNP will not unreasonably delay Council or NMFS
fishery management plan development or rulemaking procedures.
(f) The costs of establishment and operation of an FNP are
reasonable when compared to fishery management plan development or
rulemaking procedures that do not use FNP procedures.
(g) The Council or NMFS has adequate resources and is willing to
commit such resources, including technical assistance, to an FNP.
(h) The use of an FNP is in the public interest.
Sec. 600.752 Use of conveners and facilitators.
(a) Purposes of conveners. A Council or NMFS may use the services of
a trained convener to assist the Council or NMFS in: (1) Conducting
discussions to identify the issues of concern, and to ascertain whether
the establishment of an FNP regarding such matter is feasible and
appropriate.
(2) Identifying persons who will be significantly affected by the
issues presented in paragraph (a)(1) of this section.
(b) Duties of conveners. The convener shall report findings under
paragraph (a)(2) of this section and shall make recommendations to the
Council or NMFS. Upon request of the Council or NMFS, the convener shall
ascertain the names of persons who are willing and qualified to
represent interests that will be significantly affected by the potential
conservation and management measures relevant to the issues to be
negotiated. The report and any recommendations of the convener shall be
made available to the public upon request.
(c) Selection of facilitator. Notwithstanding section 10(e) of the
Federal Advisory Committee Act (FACA), a Council or NMFS may nominate a
person trained in facilitation either from the Federal Government or
from outside the Federal Government to serve as an impartial, neutral
facilitator for the negotiations of the FNP, subject to the approval of
the FNP, by consensus. The facilitator may be the same person as the
convener used under paragraph (a) of this section. If the FNP does not
approve the nominee of the Council or NMFS for facilitator, the FNP
shall submit a substitute nomination. If an FNP does not approve any
nominee of the Council or NMFS for facilitator, the FNP shall select, by
consensus, a person to serve as facilitator. A person designated to
represent the Council or NMFS in substantive issues may not serve as
facilitator or otherwise chair the FNP.
(d) Roles and duties of facilitator. A facilitator shall:
(1) Chair the meetings of the FNP in an impartial manner.
[[Page 111]]
(2) Impartially assist the members of the FNP in conducting
discussions and negotiations.
(3) Manage the keeping of minutes and records as required under
section 10(b) and (c) of FACA.
Sec. 600.753 Notice of intent to establish a fishery negotiation panel.
(a) Publication of notice. If, after considering the report of a
convener or conducting its own assessment, a Council or NMFS decides to
establish an FNP, NMFS shall publish in the Federal Register and, as
appropriate, in trade or other specialized publications, a document that
shall include:
(1) An announcement that the Council or NMFS intends to establish an
FNP to negotiate and develop a report concerning specific conservation
and management measures.
(2) A description of the subject and scope of the conservation and
management measure, and the issues to be considered.
(3) A list of the interests that are likely to be significantly
affected by the conservation and management measure.
(4) A list of the persons proposed to represent such interests and
the person or persons proposed to represent the Council or NMFS.
(5) A proposed agenda and schedule for completing the work of the
FNP.
(6) A description of administrative support for the FNP to be
provided by the Council or NMFS, including technical assistance.
(7) A solicitation for comments on the proposal to establish the
FNP, and the proposed membership of the FNP.
(8) An explanation of how a person may apply or nominate another
person for membership on the FNP, as provided under paragraph (b) of
this section.
(b) Nomination of members and public comment. Persons who may be
significantly affected by the development of conservation and management
measure and who believe that their interests will not be adequately
represented by any person specified in a document under paragraph (a)(4)
of this section may apply for, or nominate another person for,
membership on the FNP to represent such interests. Each application or
nomination shall include:
(1) The name of the applicant or nominee and a description of the
interests such person shall represent.
(2) Evidence that the applicant or nominee is authorized to
represent parties related to the interests the person proposes to
represent.
(3) A written commitment that the applicant or nominee shall
actively participate in good faith in the development of the
conservation and management measure under consideration.
(4) The reasons that the persons specified in the document under
paragraph (a)(4) of this section do not adequately represent the
interests of the person submitting the application or nomination.
(c) Public comment. The Council or NMFS shall provide at least 30
calendar days for the submission of comments and applications under this
section.
Sec. 600.754 Decision to establish a fishery negotiation panel.
(a) Determination to establish an FNP. If, after considering
comments and applications submitted under Sec. 600.753, the Council or
NMFS determines that an FNP can adequately represent the interests that
will be significantly affected and that it is feasible and appropriate
in the particular case, the Council or NMFS may establish an FNP.
(b) Determination not to establish FNP. If, after considering such
comments and applications, the Council or NMFS decides not to establish
an FNP, the Council or NMFS shall promptly publish notification of such
decision and the reasons therefor in the Federal Register and, as
appropriate, in trade or other specialized publications, a copy of which
shall be sent to any person who applied for, or nominated another person
for membership on the FNP to represent such interests with respect to
the issues of concern.
Sec. 600.755 Establishment of a fishery negotiation panel.
(a) General authority. (1) A Council may establish an FNP to assist
in the development of specific conservation and management measures for
a fishery under its authority.
[[Page 112]]
(2) NMFS may establish an FNP to assist in the development of
specific conservation and management measures required for:
(i) A fishery for which the Secretary has authority under section
304(e)(5) of the Magnuson-Stevens Act, regarding rebuilding of
overfished fisheries;
(ii) A fishery for which the Secretary has authority under 16 U.S.C.
section 304(g), regarding highly migratory species; or
(iii) Any fishery with the approval of the appropriate Council.
(b) Federal Advisory Committee Act (FACA) In establishing and
administering such an FNP, the Council or NMFS shall comply with the
FACA with respect to such FNP.
(c) Balance. Each potentially affected organization or individual
does not necessarily have to have its own representative, but each
interest must be adequately represented. The intent is to have a group
that as a whole reflects a proper balance and mix of interests.
Representatives must agree, in writing, to negotiate in good faith.
(d) Membership. The Council or NMFS shall limit membership on an FNP
to no more than 25 members, unless the Council or NMFS determines that a
greater number of members is necessary for the functioning of the FNP or
to achieve balanced membership. Each FNP shall include at least one
person representing the Council in addition to at least one person
representing NMFS.
Sec. 600.756 Conduct and operation of a fishery negotiation panel.
(a) Roles and duties of an FNP. Each FNP shall consider the issue
proposed by the Council or NMFS for consideration and shall attempt to
reach a consensus concerning a report to assist in the development of a
conservation and management measure with respect to such matter and any
other matter the FNP determines is relevant to the development of a
conservation and management measure. An FNP may adopt procedures for the
operation of the FNP.
(b) Roles and duties of representative of the council or NMFS. The
person or persons representing the Council or NMFS on an FNP shall
participate in the deliberations and activities of the FNP with the same
rights and responsibilities as other members of the FNP, and shall be
authorized to fully represent the Council or NMFS in the discussions and
negotiations of the FNP.
Sec. 600.757 Operational protocols.
(a) Services of conveners and facilitators. A Council or NMFS may
employ or enter into contracts for the services of an individual or
organization to serve as a convener or facilitator for an FNP
established under Sec. 600.755, or may use the services of a government
employee to act as a convener or a facilitator for such an FNP.
(b) Councils. For an FNP proposed and established by one or more
Councils approved expenses shall be paid out of the Council's operating
budget.
(c) Expenses of FNP members. Members of an FNP shall be responsible
for their own expenses of participation in such an FNP, except that NMFS
or the Council may, in accordance with section 7(d) of FACA, pay for a
member's reasonable travel and per diem expenses, and a reasonable rate
of compensation, if:
(1) Such member certifies a lack of adequate financial resources to
participate in the FNP.
(2) The Council or NMFS determines that such member's participation
in the FNP is necessary to assure an adequate representation of the
member's interest.
(d) Administrative support. The Council or NMFS shall provide
appropriate administrative support to an FNP including technical
assistance.
Sec. 600.758 Preparation of report.
(a) At the conclusion of the negotiations, an FNP may submit a
report. Such report shall specify:
(1) All the areas where consensus was reached by the FNP, including,
if appropriate, proposed conservation and management measures.
(2) Any other information submitted by members of the FNP.
(b) Upon receipt of the report, the Council or NMFS shall publish
such report in the Federal Register for public comment.
[[Page 113]]
Sec. 600.759 Use of report.
A Council or NMFS may, at its discretion, use all or a part of a
report prepared in accordance with Sec. 600.758 in the development of
conservation and management measures. Neither a Council nor NMFS,
whichever is appropriate, is required to use such report.
Sec. 600.760 Fishery Negotiation Panel lifetime.
(a) An FNP shall terminate upon either:
(1) Submission of a report prepared in accordance with Sec.
600.758; or
(2) Submission of a written statement from the FNP to the Council or
NMFS that no consensus can be reached.
(b) In no event shall an FNP exist for longer than 1 year from the
date of establishment unless granted an extension. Upon written request
by the FNP to the Council or NMFS, and written authorization from the
Council or NMFS (whichever is appropriate), the Secretary may authorize
an extension for a period not to exceed 6 months. No more than one
extension may be granted per FNP.
Subpart J_Essential Fish Habitat (EFH)
Source: 67 FR 2376, Jan. 17, 2002, unless otherwise noted.
Sec. 600.805 Purpose and scope.
(a) Purpose. This subpart provides guidelines for Councils and the
Secretary to use in adding the required EFH provisions to an FMP, i.e.,
description and identification of EFH, adverse effects on EFH (including
minimizing, to the extent practicable, adverse effects from fishing),
and actions to conserve and enhance EFH.
(b) Scope--(1) Species covered. An EFH provision in an FMP must
include all fish species in the fishery management unit (FMU). An FMP
may describe, identify, and protect the habitat of species not in an
FMU; however, such habitat may not be considered EFH for the purposes of
sections 303(a)(7) and 305(b) of the Magnuson-Stevens Act.
(2) Geographic. EFH may be described and identified in waters of the
United States, as defined in 33 CFR 328.3, and in the exclusive economic
zone, as defined in Sec. 600.10. Councils may describe, identify, and
protect habitats of managed species beyond the exclusive economic zone;
however, such habitat may not be considered EFH for the purposes of
sections 303(a)(7) and 305(b) of the Magnuson-Stevens Act. Activities
that may adversely affect such habitat can be addressed through any
process conducted in accordance with international agreements between
the United States and the foreign nation(s) undertaking or authorizing
the action.
Sec. 600.810 Definitions and word usage.
(a) Definitions. In addition to the definitions in the Magnuson-
Stevens Act and Sec. 600.10, the terms in this subpart have the
following meanings:
Adverse effect means any impact that reduces quality and/or quantity
of EFH. Adverse effects may include direct or indirect physical,
chemical, or biological alterations of the waters or substrate and loss
of, or injury to, benthic organisms, prey species and their habitat, and
other ecosystem components, if such modifications reduce the quality
and/or quantity of EFH. Adverse effects to EFH may result from actions
occurring within EFH or outside of EFH and may include site-specific or
habitat-wide impacts, including individual, cumulative, or synergistic
consequences of actions.
Council includes the Secretary, as applicable, when preparing FMPs
or amendments under sections 304(c) and (g) of the Magnuson-Stevens Act.
Ecosystem means communities of organisms interacting with one
another and with the chemical and physical factors making up their
environment.
Habitat areas of particular concern means those areas of EFH
identified pursuant to Sec. 600.815(a)(8).
Healthy ecosystem means an ecosystem where ecological productive
capacity is maintained, diversity of the flora and fauna is preserved,
and the ecosystem retains the ability to regulate itself. Such an
ecosystem should be similar to comparable, undisturbed ecosystems with
regard to standing crop, productivity, nutrient dynamics,
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trophic structure, species richness, stability, resilience,
contamination levels, and the frequency of diseased organisms.
Overfished means any stock or stock complex, the status of which is
reported as overfished by the Secretary pursuant to section 304(e)(1) of
the Magnuson-Stevens Act.
(b) Word usage. The terms ``must'', ``shall'', ``should'', ``may'',
``may not'', ``will'', ``could'', and ``can'' are used in the same
manner as in Sec. 600.305(c).
Sec. 600.815 Contents of Fishery Management Plans.
(a) Mandatory contents--(1) Description and identification of EFH--
(i) Overview. FMPs must describe and identify EFH in text that clearly
states the habitats or habitat types determined to be EFH for each life
stage of the managed species. FMPs should explain the physical,
biological, and chemical characteristics of EFH and, if known, how these
characteristics influence the use of EFH by the species/life stage. FMPs
must identify the specific geographic location or extent of habitats
described as EFH. FMPs must include maps of the geographic locations of
EFH or the geographic boundaries within which EFH for each species and
life stage is found.
(ii) Habitat information by life stage. (A) Councils need basic
information to understand the usage of various habitats by each managed
species. Pertinent information includes the geographic range and habitat
requirements by life stage, the distribution and characteristics of
those habitats, and current and historic stock size as it affects
occurrence in available habitats. FMPs should summarize the life history
information necessary to understand each species' relationship to, or
dependence on, its various habitats, using text, tables, and figures, as
appropriate. FMPs should document patterns of temporal and spatial
variation in the distribution of each major life stage (defined by
developmental and functional shifts) to aid in understanding habitat
needs. FMPs should summarize (e.g., in tables) all available information
on environmental and habitat variables that control or limit
distribution, abundance, reproduction, growth, survival, and
productivity of the managed species. The information should be supported
with citations.
(B) Councils should obtain information to describe and identify EFH
from the best available sources, including peer-reviewed literature,
unpublished scientific reports, data files of government resource
agencies, fisheries landing reports, and other sources of information.
Councils should consider different types of information according to its
scientific rigor. FMPs should identify species-specific habitat data
gaps and deficits in data quality (including considerations of scale and
resolution; relevance; and potential biases in collection and
interpretation). FMPs must demonstrate that the best scientific
information available was used in the description and identification of
EFH, consistent with national standard 2.
(iii) Analysis of habitat information. (A) The following approach
should be used to organize the information necessary to describe and
identify EFH.
(1) Level 1: Distribution data are available for some or all
portions of the geographic range of the species. At this level, only
distribution data are available to describe the geographic range of a
species (or life stage). Distribution data may be derived from
systematic presence/absence sampling and/or may include information on
species and life stages collected opportunistically. In the event that
distribution data are available only for portions of the geographic area
occupied by a particular life stage of a species, habitat use can be
inferred on the basis of distributions among habitats where the species
has been found and on information about its habitat requirements and
behavior. Habitat use may also be inferred, if appropriate, based on
information on a similar species or another life stage.
(2) Level 2: Habitat-related densities of the species are available.
At this level, quantitative data (i.e., density or relative abundance)
are available for the habitats occupied by a species or life stage.
Because the efficiency of sampling methods is often affected by habitat
characteristics, strict quality assurance criteria should be used to
ensure that density estimates are comparable among methods and habitats.
[[Page 115]]
Density data should reflect habitat utilization, and the degree that a
habitat is utilized is assumed to be indicative of habitat value. When
assessing habitat value on the basis of fish densities in this manner,
temporal changes in habitat availability and utilization should be
considered.
(3) Level 3: Growth, reproduction, or survival rates within habitats
are available. At this level, data are available on habitat-related
growth, reproduction, and/or survival by life stage. The habitats
contributing the most to productivity should be those that support the
highest growth, reproduction, and survival of the species (or life
stage).
(4) Level 4: Production rates by habitat are available. At this
level, data are available that directly relate the production rates of a
species or life stage to habitat type, quantity, quality, and location.
Essential habitats are those necessary to maintain fish production
consistent with a sustainable fishery and the managed species'
contribution to a healthy ecosystem.
(B) Councils should strive to describe habitat based on the highest
level of detail (i.e., Level 4). If there is no information on a given
species or life stage, and habitat usage cannot be inferred from other
means, such as information on a similar species or another life stage,
EFH should not be designated.
(iv) EFH determination. (A) Councils should analyze available
ecological, environmental, and fisheries information and data relevant
to the managed species, the habitat requirements by life stage, and the
species' distribution and habitat usage to describe and identify EFH.
The information described in paragraphs (a)(1)(ii) and (iii) of this
section will allow Councils to assess the relative value of habitats.
Councils should interpret this information in a risk-averse fashion to
ensure adequate areas are identified as EFH for managed species. Level 1
information, if available, should be used to identify the geographic
range of the species at each life stage. If only Level 1 information is
available, distribution data should be evaluated (e.g., using a
frequency of occurrence or other appropriate analysis) to identify EFH
as those habitat areas most commonly used by the species. Level 2
through 4 information, if available, should be used to identify EFH as
the habitats supporting the highest relative abundance; growth,
reproduction, or survival rates; and/or production rates within the
geographic range of a species. FMPs should explain the analyses
conducted to distinguish EFH from all habitats potentially used by a
species.
(B) FMPs must describe EFH in text, including reference to the
geographic location or extent of EFH using boundaries such as longitude
and latitude, isotherms, isobaths, political boundaries, and major
landmarks. If there are differences between the descriptions of EFH in
text, maps, and tables, the textual description is ultimately
determinative of the limits of EFH. Text and tables should explain
pertinent physical, chemical, and biological characteristics of EFH for
the managed species and explain any variability in habitat usage
patterns, but the boundaries of EFH should be static.
(C) If a species is overfished and habitat loss or degradation may
be contributing to the species being identified as overfished, all
habitats currently used by the species may be considered essential in
addition to certain historic habitats that are necessary to support
rebuilding the fishery and for which restoration is technologically and
economically feasible. Once the fishery is no longer considered
overfished, the EFH identification should be reviewed and amended, if
appropriate.
(D) Areas described as EFH will normally be greater than or equal to
aquatic areas that have been identified as ``critical habitat'' for any
managed species listed as threatened or endangered under the Endangered
Species Act.
(E) Ecological relationships among species and between the species
and their habitat require, where possible, that an ecosystem approach be
used in determining the EFH of a managed species. EFH must be designated
for each managed species, but, where appropriate, may be designated for
assemblages of species or life stages that have similar habitat needs
and requirements. If grouping species or using species assemblages for
the purpose of designating EFH, FMPs must include a justification and
scientific rationale.
[[Page 116]]
The extent of the EFH should be based on the judgment of the Secretary
and the appropriate Council(s) regarding the quantity and quality of
habitat that are necessary to maintain a sustainable fishery and the
managed species' contribution to a healthy ecosystem.
(F) If degraded or inaccessible aquatic habitat has contributed to
reduced yields of a species or assemblage and if, in the judgment of the
Secretary and the appropriate Council(s), the degraded conditions can be
reversed through such actions as improved fish passage techniques (for
stream or river blockages), improved water quality measures (removal of
contaminants or increasing flows), and similar measures that are
technologically and economically feasible, EFH should include those
habitats that would be necessary to the species to obtain increased
yields.
(v) EFH mapping requirements. (A) FMPs must include maps that
display, within the constraints of available information, the geographic
locations of EFH or the geographic boundaries within which EFH for each
species and life stage is found. Maps should identify the different
types of habitat designated as EFH to the extent possible. Maps should
explicitly distinguish EFH from non-EFH areas. Councils should confer
with NMFS regarding mapping standards to ensure that maps from different
Councils can be combined and shared efficiently and effectively.
Ultimately, data used for mapping should be incorporated into a
geographic information system (GIS) to facilitate analysis and
presentation.
(B) Where the present distribution or stock size of a species or
life stage is different from the historical distribution or stock size,
then maps of historical habitat boundaries should be included in the
FMP, if known.
(C) FMPs should include maps of any habitat areas of particular
concern identified under paragraph (a)(8) of this section.
(2) Fishing activities that may adversely affect EFH--(i)
Evaluation. Each FMP must contain an evaluation of the potential adverse
effects of fishing on EFH designated under the FMP, including effects of
each fishing activity regulated under the FMP or other Federal FMPs.
This evaluation should consider the effects of each fishing activity on
each type of habitat found within EFH. FMPs must describe each fishing
activity, review and discuss all available relevant information (such as
information regarding the intensity, extent, and frequency of any
adverse effect on EFH; the type of habitat within EFH that may be
affected adversely; and the habitat functions that may be disturbed),
and provide conclusions regarding whether and how each fishing activity
adversely affects EFH. The evaluation should also consider the
cumulative effects of multiple fishing activities on EFH. The evaluation
should list any past management actions that minimize potential adverse
effects on EFH and describe the benefits of those actions to EFH. The
evaluation should give special attention to adverse effects on habitat
areas of particular concern and should identify for possible designation
as habitat areas of particular concern any EFH that is particularly
vulnerable to fishing activities. Additionally, the evaluation should
consider the establishment of research closure areas or other measures
to evaluate the impacts of fishing activities on EFH. In completing this
evaluation, Councils should use the best scientific information
available, as well as other appropriate information sources. Councils
should consider different types of information according to its
scientific rigor.
(ii) Minimizing adverse effects. Each FMP must minimize to the
extent practicable adverse effects from fishing on EFH, including EFH
designated under other Federal FMPs. Councils must act to prevent,
mitigate, or minimize any adverse effects from fishing, to the extent
practicable, if there is evidence that a fishing activity adversely
affects EFH in a manner that is more than minimal and not temporary in
nature, based on the evaluation conducted pursuant to paragraph
(a)(2)(i) of this section and/or the cumulative impacts analysis
conducted pursuant to paragraph (a)(5) of this section. In such cases,
FMPs should identify a range of potential new actions that could be
taken to address adverse effects on EFH, include an analysis of
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the practicability of potential new actions, and adopt any new measures
that are necessary and practicable. Amendments to the FMP or to its
implementing regulations must ensure that the FMP continues to minimize
to the extent practicable adverse effects on EFH caused by fishing. FMPs
must explain the reasons for the Council's conclusions regarding the
past and/or new actions that minimize to the extent practicable the
adverse effects of fishing on EFH.
(iii) Practicability. In determining whether it is practicable to
minimize an adverse effect from fishing, Councils should consider the
nature and extent of the adverse effect on EFH and the long and short-
term costs and benefits of potential management measures to EFH,
associated fisheries, and the nation, consistent with national standard
7. In determining whether management measures are practicable, Councils
are not required to perform a formal cost/benefit analysis.
(iv) Options for managing adverse effects from fishing. Fishery
management options may include, but are not limited to:
(A) Fishing equipment restrictions. These options may include, but
are not limited to: seasonal and areal restrictions on the use of
specified equipment, equipment modifications to allow escapement of
particular species or particular life stages (e.g., juveniles),
prohibitions on the use of explosives and chemicals, prohibitions on
anchoring or setting equipment in sensitive areas, and prohibitions on
fishing activities that cause significant damage to EFH.
(B) Time/area closures. These actions may include, but are not
limited to: closing areas to all fishing or specific equipment types
during spawning, migration, foraging, and nursery activities and
designating zones for use as marine protected areas to limit adverse
effects of fishing practices on certain vulnerable or rare areas/
species/life stages, such as those areas designated as habitat areas of
particular concern.
(C) Harvest limits. These actions may include, but are not limited
to, limits on the take of species that provide structural habitat for
other species assemblages or communities and limits on the take of prey
species.
(3) Non-Magnuson-Stevens Act fishing activities that may adversely
affect EFH. FMPs must identify any fishing activities that are not
managed under the Magnuson-Stevens Act that may adversely affect EFH.
Such activities may include fishing managed by state agencies or other
authorities.
(4) Non-fishing related activities that may adversely affect EFH.
FMPs must identify activities other than fishing that may adversely
affect EFH. Broad categories of such activities include, but are not
limited to: dredging, filling, excavation, mining, impoundment,
discharge, water diversions, thermal additions, actions that contribute
to non-point source pollution and sedimentation, introduction of
potentially hazardous materials, introduction of exotic species, and the
conversion of aquatic habitat that may eliminate, diminish, or disrupt
the functions of EFH. For each activity, the FMP should describe known
and potential adverse effects to EFH.
(5) Cumulative impacts analysis. Cumulative impacts are impacts on
the environment that result from the incremental impact of an action
when added to other past, present, and reasonably foreseeable future
actions, regardless of who undertakes such actions. Cumulative impacts
can result from individually minor, but collectively significant actions
taking place over a period of time. To the extent feasible and
practicable, FMPs should analyze how the cumulative impacts of fishing
and non-fishing activities influence the function of EFH on an ecosystem
or watershed scale. An assessment of the cumulative and synergistic
effects of multiple threats, including the effects of natural stresses
(such as storm damage or climate-based environmental shifts) and an
assessment of the ecological risks resulting from the impact of those
threats on EFH, also should be included.
(6) Conservation and enhancement. FMPs must identify actions to
encourage the conservation and enhancement of EFH, including recommended
options to avoid, minimize, or compensate for the adverse effects
identified pursuant to paragraphs (a)(3)
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through (5) of this section, especially in habitat areas of particular
concern.
(7) Prey species. Loss of prey may be an adverse effect on EFH and
managed species because the presence of prey makes waters and substrate
function as feeding habitat, and the definition of EFH includes waters
and substrate necessary to fish for feeding. Therefore, actions that
reduce the availability of a major prey species, either through direct
harm or capture, or through adverse impacts to the prey species' habitat
that are known to cause a reduction in the population of the prey
species, may be considered adverse effects on EFH if such actions reduce
the quality of EFH. FMPs should list the major prey species for the
species in the fishery management unit and discuss the location of prey
species' habitat. Adverse effects on prey species and their habitats may
result from fishing and non-fishing activities.
(8) Identification of habitat areas of particular concern. FMPs
should identify specific types or areas of habitat within EFH as habitat
areas of particular concern based on one or more of the following
considerations:
(i) The importance of the ecological function provided by the
habitat.
(ii) The extent to which the habitat is sensitive to human-induced
environmental degradation.
(iii) Whether, and to what extent, development activities are, or
will be, stressing the habitat type.
(iv) The rarity of the habitat type.
(9) Research and information needs. Each FMP should contain
recommendations, preferably in priority order, for research efforts that
the Councils and NMFS view as necessary to improve upon the description
and identification of EFH, the identification of threats to EFH from
fishing and other activities, and the development of conservation and
enhancement measures for EFH.
(10) Review and revision of EFH components of FMPs. Councils and
NMFS should periodically review the EFH provisions of FMPs and revise or
amend EFH provisions as warranted based on available information. FMPs
should outline the procedures the Council will follow to review and
update EFH information. The review of information should include, but
not be limited to, evaluating published scientific literature and
unpublished scientific reports; soliciting information from interested
parties; and searching for previously unavailable or inaccessible data.
Councils should report on their review of EFH information as part of the
annual Stock Assessment and Fishery Evaluation (SAFE) report prepared
pursuant to Sec. 600.315(e). A complete review of all EFH information
should be conducted as recommended by the Secretary, but at least once
every 5 years.
(b) Development of EFH recommendations for Councils. After reviewing
the best available scientific information, as well as other appropriate
information, and in consultation with the Councils, participants in the
fishery, interstate commissions, Federal agencies, state agencies, and
other interested parties, NMFS will develop written recommendations to
assist each Council in the identification of EFH, adverse impacts to
EFH, and actions that should be considered to ensure the conservation
and enhancement of EFH for each FMP. NMFS will provide such
recommendations for the initial incorporation of EFH information into an
FMP and for any subsequent modification of the EFH components of an FMP.
The NMFS EFH recommendations may be provided either before the Council's
development of a draft EFH document or later as a review of a draft EFH
document developed by a Council, as appropriate.
(c) Relationship to other fishery management authorities. Councils
are encouraged to coordinate with state and interstate fishery
management agencies where Federal fisheries affect state and interstate
managed fisheries or where state or interstate fishery regulations
affect the management of Federal fisheries. Where a state or interstate
fishing activity adversely affects EFH, NMFS will consider that action
to be an adverse effect on EFH pursuant to paragraph (a)(3) of this
section and will provide EFH Conservation Recommendations to the
appropriate state or interstate fishery management agency on that
activity.
[[Page 119]]
Subpart K_EFH Coordination, Consultation, and Recommendations
Source: 67 FR 2376, Jan. 17, 2002, unless otherwise noted.
Sec. 600.905 Purpose, scope, and NMFS/Council cooperation.
(a) Purpose. These procedures address the coordination,
consultation, and recommendation requirements of sections 305(b)(1)(D)
and 305(b)(2-4) of the Magnuson-Stevens Act. The purpose of these
procedures is to promote the protection of EFH in the review of Federal
and state actions that may adversely affect EFH.
(b) Scope. Section 305(b)(1)(D) of the Magnuson-Stevens Act requires
the Secretary to coordinate with, and provide information to, other
Federal agencies regarding the conservation and enhancement of EFH.
Section 305(b)(2) requires all Federal agencies to consult with the
Secretary on all actions or proposed actions authorized, funded, or
undertaken by the agency that may adversely affect EFH. Sections
305(b)(3) and (4) direct the Secretary and the Councils to provide
comments and EFH Conservation Recommendations to Federal or state
agencies on actions that affect EFH. Such recommendations may include
measures to avoid, minimize, mitigate, or otherwise offset adverse
effects on EFH resulting from actions or proposed actions authorized,
funded, or undertaken by that agency. Section 305(b)(4)(B) requires
Federal agencies to respond in writing to such comments. The following
procedures for coordination, consultation, and recommendations allow all
parties involved to understand and implement the requirements of the
Magnuson-Stevens Act.
(c) Cooperation between Councils and NMFS. The Councils and NMFS
should cooperate closely to identify actions that may adversely affect
EFH, to develop comments and EFH Conservation Recommendations to Federal
and state agencies, and to provide EFH information to Federal and state
agencies. NMFS will work with each Council to share information and to
coordinate Council and NMFS comments and recommendations on actions that
may adversely affect EFH. However, NMFS and the Councils also have the
authority to act independently.
Sec. 600.910 Definitions and word usage.
(a) Definitions. In addition to the definitions in the Magnuson-
Stevens Act and Sec. 600.10, the terms in this subpart have the
following meanings:
Adverse effect means any impact that reduces quality and/or quantity
of EFH. Adverse effects may include direct or indirect physical,
chemical, or biological alterations of the waters or substrate and loss
of, or injury to, benthic organisms, prey species and their habitat, and
other ecosystem components, if such modifications reduce the quality
and/or quantity of EFH. Adverse effects to EFH may result from actions
occurring within EFH or outside of EFH and may include site-specific or
habitat-wide impacts, including individual, cumulative, or synergistic
consequences of actions.
Anadromous fishery resource under Council authority means an
anadromous species managed under an FMP.
Federal action means any action authorized, funded, or undertaken,
or proposed to be authorized, funded, or undertaken by a Federal agency.
Habitat areas of particular concern means those areas of EFH
identified pursuant to Sec. 600.815(a)(8).
State action means any action authorized, funded, or undertaken, or
proposed to be authorized, funded, or undertaken by a state agency.
(b) Word usage. The terms ``must'', ``shall'', ``should'', ``may'',
``may not'', ``will'', ``could'', and ``can'' are used in the same
manner as in Sec. 600.305(c).
Sec. 600.915 Coordination for the conservation and enhancement of EFH.
To further the conservation and enhancement of EFH in accordance
with section 305(b)(1)(D) of the Magnuson-Stevens Act, NMFS will compile
and make available to other Federal and state agencies, and the general
public, information on the locations of EFH, including maps and/or
narrative descriptions. NMFS will also provide information on ways to
improve ongoing
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Federal operations to promote the conservation and enhancement of EFH.
Federal and state agencies empowered to authorize, fund, or undertake
actions that may adversely affect EFH are encouraged to contact NMFS and
the Councils to become familiar with areas designated as EFH, potential
threats to EFH, and opportunities to promote the conservation and
enhancement of EFH.
Sec. 600.920 Federal agency consultation with the Secretary.
(a) Consultation generally--(1) Actions requiring consultation.
Pursuant to section 305(b)(2) of the Magnuson-Stevens Act, Federal
agencies must consult with NMFS regarding any of their actions
authorized, funded, or undertaken, or proposed to be authorized, funded,
or undertaken that may adversely affect EFH. EFH consultation is not
required for actions that were completed prior to the approval of EFH
designations by the Secretary, e.g., issued permits. Consultation is
required for renewals, reviews, or substantial revisions of actions if
the renewal, review, or revision may adversely affect EFH. Consultation
on Federal programs delegated to non-Federal entities is required at the
time of delegation, review, and renewal of the delegation. EFH
consultation is required for any Federal funding of actions that may
adversely affect EFH. NMFS and Federal agencies responsible for funding
actions that may adversely affect EFH should consult on a programmatic
level under paragraph (j) of this section, if appropriate, with respect
to these actions. Consultation is required for emergency Federal actions
that may adversely affect EFH, such as hazardous material clean-up,
response to natural disasters, or actions to protect public safety.
Federal agencies should contact NMFS early in emergency response
planning, but may consult after-the-fact if consultation on an expedited
basis is not practicable before taking the action.
(2) Approaches for conducting consultation. Federal agencies may use
one of the five approaches described in paragraphs (f) through (j) of
this section to fulfill the EFH consultation requirements. The selection
of a particular approach for handling EFH consultation depends on the
nature and scope of the actions that may adversely affect EFH. Federal
agencies should use the most efficient approach for EFH consultation
that is appropriate for a given action or actions. The five approaches
are: use of existing environmental review procedures, General
Concurrence, abbreviated consultation, expanded consultation, and
programmatic consultation.
(3) Early notification and coordination. The Federal agency should
notify NMFS in writing as early as practicable regarding actions that
may adversely affect EFH. Notification will facilitate discussion of
measures to conserve EFH. Such early coordination should occur during
pre-application planning for projects subject to a Federal permit or
license and during preliminary planning for projects to be funded or
undertaken directly by a Federal agency.
(b) Designation of lead agency. If more than one Federal agency is
responsible for a Federal action, the consultation requirements of
sections 305(b)(2) through (4) of the Magnuson-Stevens Act may be
fulfilled through a lead agency. The lead agency should notify NMFS in
writing that it is representing one or more additional agencies.
Alternatively, if one Federal agency has completed an EFH consultation
for an action and another Federal agency acts separately to authorize,
fund, or undertake the same activity (such as issuing a permit for an
activity that was funded via a separate Federal action), the completed
EFH consultation may suffice for both Federal actions if it adequately
addresses the adverse effects of the actions on EFH. Federal agencies
may need to consult with NMFS separately if, for example, only one of
the agencies has the authority to implement measures necessary to
minimize adverse effects on EFH and that agency does not act as the lead
agency.
(c) Designation of non-Federal representative. A Federal agency may
designate a non-Federal representative to conduct an EFH consultation by
giving written notice of such designation to NMFS. If a non-Federal
representative
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is used, the Federal action agency remains ultimately responsible for
compliance with sections 305(b)(2) and 305(b)(4)(B) of the Magnuson-
Stevens Act.
(d) Best available information. The Federal agency and NMFS must use
the best scientific information available regarding the effects of the
action on EFH and the measures that can be taken to avoid, minimize, or
offset such effects. Other appropriate sources of information may also
be considered.
(e) EFH Assessments--(1) Preparation requirement. For any Federal
action that may adversely affect EFH, Federal agencies must provide NMFS
with a written assessment of the effects of that action on EFH. For
actions covered by a General Concurrence under paragraph (g) of this
section, an EFH Assessment should be completed during the development of
the General Concurrence and is not required for the individual actions.
For actions addressed by a programmatic consultation under paragraph (j)
of this section, an EFH Assessment should be completed during the
programmatic consultation and is not required for individual actions
implemented under the program, except in those instances identified by
NMFS in the programmatic consultation as requiring separate EFH
consultation. Federal agencies are not required to provide NMFS with
assessments regarding actions that they have determined would not
adversely affect EFH. Federal agencies may incorporate an EFH Assessment
into documents prepared for other purposes such as Endangered Species
Act (ESA) Biological Assessments pursuant to 50 CFR part 402 or National
Environmental Policy Act (NEPA) documents and public notices pursuant to
40 CFR part 1500. If an EFH Assessment is contained in another document,
it must include all of the information required in paragraph (e)(3) of
this section and be clearly identified as an EFH Assessment. The
procedure for combining an EFH consultation with other environmental
reviews is set forth in paragraph (f) of this section.
(2) Level of detail. The level of detail in an EFH Assessment should
be commensurate with the complexity and magnitude of the potential
adverse effects of the action. For example, for relatively simple
actions involving minor adverse effects on EFH, the assessment may be
very brief. Actions that may pose a more serious threat to EFH warrant a
correspondingly more detailed EFH Assessment.
(3) Mandatory contents. The assessment must contain:
(i) A description of the action.
(ii) An analysis of the potential adverse effects of the action on
EFH and the managed species.
(iii) The Federal agency's conclusions regarding the effects of the
action on EFH.
(iv) Proposed mitigation, if applicable.
(4) Additional information. If appropriate, the assessment should
also include:
(i) The results of an on-site inspection to evaluate the habitat and
the site-specific effects of the project.
(ii) The views of recognized experts on the habitat or species that
may be affected.
(iii) A review of pertinent literature and related information.
(iv) An analysis of alternatives to the action. Such analysis should
include alternatives that could avoid or minimize adverse effects on
EFH.
(v) Other relevant information.
(5) Incorporation by reference. The assessment may incorporate by
reference a completed EFH Assessment prepared for a similar action,
supplemented with any relevant new project specific information,
provided the proposed action involves similar impacts to EFH in the same
geographic area or a similar ecological setting. It may also incorporate
by reference other relevant environmental assessment documents. These
documents must be provided to NMFS with the EFH Assessment.
(f) Use of existing environmental review procedures--(1) Purpose and
criteria. Consultation and commenting under sections 305(b)(2) and
305(b)(4) of the Magnuson-Stevens Act should be consolidated, where
appropriate, with interagency consultation, coordination, and
environmental review procedures required by other statutes, such as
NEPA, the Fish and Wildlife Coordination Act, Clean Water Act, ESA, and
Federal Power Act. The requirements
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of sections 305(b)(2) and 305(b)(4) of the Magnuson-Stevens Act,
including consultations that would be considered to be abbreviated or
expanded consultations under paragraphs (h) and (i) of this section, can
be combined with existing procedures required by other statutes if such
processes meet, or are modified to meet, the following criteria:
(i) The existing process must provide NMFS with timely notification
of actions that may adversely affect EFH. The Federal agency should
notify NMFS according to the same timeframes for notification (or for
public comment) as in the existing process. Whenever possible, NMFS
should have at least 60 days notice prior to a final decision on an
action, or at least 90 days if the action would result in substantial
adverse impacts. NMFS and the action agency may agree to use shorter
timeframes provided that they allow sufficient time for NMFS to develop
EFH Conservation Recommendations.
(ii) Notification must include an assessment of the impacts of the
action on EFH that meets the requirements for EFH Assessments contained
in paragraph (e) of this section. If the EFH Assessment is contained in
another document, the Federal agency must identify that section of the
document as the EFH Assessment.
(iii) NMFS must have made a finding pursuant to paragraph (f)(3) of
this section that the existing process can be used to satisfy the
requirements of sections 305(b)(2) and 305(b)(4) of the Magnuson-Stevens
Act.
(2) NMFS response to Federal agency. If an existing environmental
review process is used to fulfill the EFH consultation requirements, the
comment deadline for that process should apply to the submittal of NMFS
EFH Conservation Recommendations under section 305(b)(4)(A) of the
Magnuson-Stevens Act, unless NMFS and the Federal agency agree to a
different deadline. If NMFS EFH Conservation Recommendations are
combined with other NMFS or NOAA comments on a Federal action, such as
NOAA comments on a draft Environmental Impact Statement, the EFH
Conservation Recommendations will be clearly identified as such (e.g., a
section in the comment letter entitled ``EFH Conservation
Recommendations'') and a Federal agency response pursuant to section
305(b)(4)(B) of the Magnuson-Stevens Act is required for only the
identified portion of the comments.
(3) NMFS finding. A Federal agency with an existing environmental
review process should contact NMFS at the appropriate level (regional
offices for regional processes, headquarters office for national
processes) to discuss how to combine the EFH consultation requirements
with the existing process, with or without modifications. If, at the
conclusion of these discussions, NMFS determines that the existing or
modified process meets the criteria of paragraph (f)(1) of this section,
NMFS will make a finding that the process can be used to satisfy the EFH
consultation requirements of the Magnuson-Stevens Act. If NMFS does not
make such a finding, or if there are no existing consultation processes
relevant to the Federal agency's actions, the agency and NMFS should
follow one of the approaches for consultation discussed in the following
sections.
(g) General Concurrence--(1) Purpose. A General Concurrence
identifies specific types of Federal actions that may adversely affect
EFH, but for which no further consultation is generally required because
NMFS has determined, through an analysis of that type of action, that it
will likely result in no more than minimal adverse effects individually
and cumulatively. General Concurrences may be national or regional in
scope.
(2) Criteria. (i) For Federal actions to qualify for General
Concurrence, NMFS must determine that the actions meet all of the
following criteria:
(A) The actions must be similar in nature and similar in their
impact on EFH.
(B) The actions must not cause greater than minimal adverse effects
on EFH when implemented individually.
(C) The actions must not cause greater than minimal cumulative
adverse effects on EFH.
(ii) Actions qualifying for General Concurrence must be tracked to
ensure that their cumulative effects are no more than minimal. In most
cases,
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tracking actions covered by a General Concurrence will be the
responsibility of the Federal agency. However, NMFS may agree to track
such actions. Tracking should include numbers of actions and the amount
and type of habitat adversely affected, and should specify the baseline
against which the actions will be tracked. The agency responsible for
tracking such actions should make the information available to NMFS, the
applicable Council(s), and to the public on an annual basis.
(iii) Categories of Federal actions may also qualify for General
Concurrence if they are modified by appropriate conditions that ensure
the actions will meet the criteria in paragraph (g)(2)(i) of this
section. For example, NMFS may provide General Concurrence for
additional actions contingent upon project size limitations, seasonal
restrictions, or other conditions.
(iv) If a General Concurrence is proposed for actions that may
adversely affect habitat areas of particular concern, the General
Concurrence should be subject to a higher level of scrutiny than a
General Concurrence not involving a habitat area of particular concern.
(3) General Concurrence development. A Federal agency may request a
General Concurrence for a category of its actions by providing NMFS with
an EFH Assessment containing a description of the nature and approximate
number of the actions, an analysis of the effects of the actions on EFH,
including cumulative effects, and the Federal agency's conclusions
regarding the magnitude of such effects. If NMFS agrees that the actions
fit the criteria in paragraph (g)(2)(i) of this section, NMFS will
provide the Federal agency with a written statement of General
Concurrence that further consultation is not required. If NMFS does not
agree that the actions fit the criteria in paragraph (g)(2)(i) of this
section, NMFS will notify the Federal agency that a General Concurrence
will not be issued and that another type of consultation will be
required. If NMFS identifies specific types of Federal actions that may
meet the requirements for a General Concurrence, NMFS may initiate and
complete a General Concurrence.
(4) Further consultation. NMFS may request notification for actions
covered under a General Concurrence if NMFS concludes there are
circumstances under which such actions could result in more than a
minimal impact on EFH, or if it determines that there is no process in
place to adequately assess the cumulative impacts of actions covered
under the General Concurrence. NMFS may request further consultation for
these actions on a case-by-case basis. Each General Concurrence should
establish specific procedures for further consultation, if appropriate.
(5) Notification. After completing a General Concurrence, NMFS will
provide a copy to the appropriate Council(s) and will make the General
Concurrence available to the public by posting the document on the
internet or through other appropriate means.
(6) Revisions. NMFS will periodically review and revise its General
Concurrences, as appropriate.
(h) Abbreviated consultation procedures--(1) Purpose and criteria.
Abbreviated consultation allows NMFS to determine quickly whether, and
to what degree, a Federal action may adversely affect EFH. Federal
actions that may adversely affect EFH should be addressed through the
abbreviated consultation procedures when those actions do not qualify
for a General Concurrence, but do not have the potential to cause
substantial adverse effects on EFH. For example, the abbreviated
consultation procedures should be used when the adverse effect(s) of an
action could be alleviated through minor modifications.
(2) Notification by agency and submittal of EFH Assessment.
Abbreviated consultation begins when NMFS receives from the Federal
agency an EFH Assessment in accordance with paragraph (e) of this
section and a written request for consultation.
(3) NMFS response to Federal agency. If NMFS determines, contrary to
the Federal agency's assessment, that an action would not adversely
affect EFH, or if NMFS determines that no EFH Conservation
Recommendations are needed, NMFS will notify the Federal agency either
informally or in writing of its determination. If NMFS believes
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that the action may result in substantial adverse effects on EFH, or
that additional analysis is needed to assess the effects of the action,
NMFS will request in writing that the Federal agency initiate expanded
consultation. Such request will explain why NMFS believes expanded
consultation is needed and will specify any new information needed. If
expanded consultation is not necessary, NMFS will provide EFH
Conservation Recommendations, if appropriate, pursuant to section
305(b)(4)(A) of the Magnuson-Stevens Act.
(4) Timing. The Federal agency must submit its EFH Assessment to
NMFS as soon as practicable, but at least 60 days prior to a final
decision on the action. NMFS must respond in writing within 30 days.
NMFS and the Federal agency may agree to use a compressed schedule in
cases where regulatory approvals or emergency situations cannot
accommodate 30 days for consultation, or to conduct consultation earlier
in the planning cycle for actions with lengthy approval processes.
(i) Expanded consultation procedures--(1) Purpose and criteria.
Expanded consultation allows maximum opportunity for NMFS and the
Federal agency to work together to review the action's impacts on EFH
and to develop EFH Conservation Recommendations. Expanded consultation
procedures must be used for Federal actions that would result in
substantial adverse effects to EFH. Federal agencies are encouraged to
contact NMFS at the earliest opportunity to discuss whether the adverse
effects of an action make expanded consultation appropriate.
(2) Notification by agency and submittal of EFH Assessment. Expanded
consultation begins when NMFS receives from the Federal agency an EFH
Assessment in accordance with paragraph (e) of this section and a
written request for expanded consultation. Federal agencies are
encouraged to provide in the EFH Assessment the additional information
identified under paragraph (e)(4) of this section to facilitate review
of the effects of the action on EFH.
(3) NMFS response to Federal agency. NMFS will:
(i) Review the EFH Assessment, any additional information furnished
by the Federal agency, and other relevant information.
(ii) Conduct a site visit, if appropriate, to assess the quality of
the habitat and to clarify the impacts of the Federal agency action.
Such a site visit should be coordinated with the Federal agency and
appropriate Council(s), if feasible.
(iii) Coordinate its review of the action with the appropriate
Council(s).
(iv) Discuss EFH Conservation Recommendations with the Federal
agency and provide such recommendations to the Federal agency, pursuant
to section 305(b)(4)(A) of the Magnuson-Stevens Act.
(4) Timing. The Federal agency must submit its EFH Assessment to
NMFS as soon as practicable, but at least 90 days prior to a final
decision on the action. NMFS must respond within 60 days of submittal of
a complete EFH Assessment unless consultation is extended by agreement
between NMFS and the Federal agency. NMFS and Federal agencies may agree
to use a compressed schedule in cases where regulatory approvals or
emergency situations cannot accommodate 60 days for consultation, or to
conduct consultation earlier in the planning cycle for actions with
lengthy approval processes.
(5) Extension of consultation. If NMFS determines that additional
data or analysis would provide better information for development of EFH
Conservation Recommendations, NMFS may request additional time for
expanded consultation. If NMFS and the Federal agency agree to an
extension, the Federal agency should provide the additional information
to NMFS, to the extent practicable. If NMFS and the Federal agency do
not agree to extend consultation, NMFS must provide EFH Conservation
Recommendations to the Federal agency using the best scientific
information available to NMFS.
(j) Programmatic consultation--(1) Purpose. Programmatic
consultation provides a means for NMFS and a Federal agency to consult
regarding a potentially large number of individual actions that may
adversely affect EFH.
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Programmatic consultation will generally be the most appropriate option
to address funding programs, large-scale planning efforts, and other
instances where sufficient information is available to address all
reasonably foreseeable adverse effects on EFH of an entire program,
parts of a program, or a number of similar individual actions occurring
within a given geographic area.
(2) Process. A Federal agency may request programmatic consultation
by providing NMFS with an EFH Assessment in accordance with paragraph
(e) of this section. The description of the proposed action in the EFH
Assessment should describe the program and the nature and approximate
number (annually or by some other appropriate time frame) of the
actions. NMFS may also initiate programmatic consultation by requesting
pertinent information from a Federal agency.
(3) NMFS response to Federal agency. NMFS will respond to the
Federal agency with programmatic EFH Conservation Recommendations and,
if applicable, will identify any potential adverse effects that could
not be addressed programmatically and require project-specific
consultation. NMFS may also determine that programmatic consultation is
not appropriate, in which case all EFH Conservation Recommendations will
be deferred to project-specific consultations. If appropriate, NMFS'
response may include a General Concurrence for activities that qualify
under paragraph (g) of this section.
(k) Responsibilities of Federal agency following receipt of EFH
Conservation Recommendations--(1) Federal agency response. As required
by section 305(b)(4)(B) of the Magnuson-Stevens Act, the Federal agency
must provide a detailed response in writing to NMFS and to any Council
commenting on the action under section 305(b)(3) of the Magnuson-Stevens
Act within 30 days after receiving an EFH Conservation Recommendation
from NMFS. Such a response must be provided at least 10 days prior to
final approval of the action if the response is inconsistent with any of
NMFS' EFH Conservation Recommendations, unless NMFS and the Federal
agency have agreed to use alternative time frames for the Federal agency
response. The response must include a description of measures proposed
by the agency for avoiding, mitigating, or offsetting the impact of the
activity on EFH. In the case of a response that is inconsistent with
NMFS Conservation Recommendations, the Federal agency must explain its
reasons for not following the recommendations, including the scientific
justification for any disagreements with NMFS over the anticipated
effects of the action and the measures needed to avoid, minimize,
mitigate, or offset such effects.
(2) Further review of decisions inconsistent with NMFS or Council
recommendations. If a Federal agency decision is inconsistent with a
NMFS EFH Conservation Recommendation, the Assistant Administrator for
Fisheries may request a meeting with the head of the Federal agency, as
well as with any other agencies involved, to discuss the action and
opportunities for resolving any disagreements. If a Federal agency
decision is also inconsistent with a Council recommendation made
pursuant to section 305(b)(3) of the Magnuson-Stevens Act, the Council
may request that the Assistant Administrator initiate further review of
the Federal agency's decision and involve the Council in any interagency
discussion to resolve disagreements with the Federal agency. The
Assistant Administrator will make every effort to accommodate such a
request. NMFS may develop written procedures to further define such
review processes.
(l) Supplemental consultation. A Federal agency must reinitiate
consultation with NMFS if the agency substantially revises its plans for
an action in a manner that may adversely affect EFH or if new
information becomes available that affects the basis for NMFS EFH
Conservation Recommendations.
Sec. 600.925 NMFS EFH Conservation Recommendations to Federal and state
agencies.
(a) General. Under section 305(b)(4)(A) of the Magnuson-Stevens Act,
NMFS is required to provide EFH Conservation Recommendations to Federal
and state
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agencies for actions that would adversely affect EFH. NMFS will not
recommend that state or Federal agencies take actions beyond their
statutory authority.
(b) Recommendations to Federal agencies. For Federal actions, EFH
Conservation Recommendations will be provided to Federal agencies as
part of EFH consultations conducted pursuant to Sec. 600.920. If NMFS
becomes aware of a Federal action that would adversely affect EFH, but
for which a Federal agency has not initiated an EFH consultation, NMFS
may request that the Federal agency initiate EFH consultation, or NMFS
will provide EFH Conservation Recommendations based on the information
available.
(c) Recommendations to state agencies--(1) Establishment of
procedures. The Magnuson-Stevens Act does not require state agencies to
consult with the Secretary regarding EFH. NMFS will use existing
coordination procedures or establish new procedures to identify state
actions that may adversely affect EFH, and to determine the most
appropriate method for providing EFH Conservation Recommendations to
state agencies.
(2) Coordination with states on recommendations to Federal agencies.
When an action that would adversely affect EFH is authorized, funded, or
undertaken by both Federal and state agencies, NMFS will provide the
appropriate state agencies with copies of EFH Conservation
Recommendations developed as part of the Federal consultation procedures
in Sec. 600.920. NMFS will also seek agreements on sharing information
and copies of recommendations with Federal or state agencies conducting
similar consultation and recommendation processes to ensure coordination
of such efforts.
(d) Coordination with Councils. NMFS will coordinate with each
Council to identify the types of actions on which Councils intend to
comment pursuant to section 305(b)(3) of the Magnuson-Stevens Act. For
such actions NMFS will share pertinent information with the Council,
including copies of NMFS' EFH Conservation Recommendations.
Sec. 600.930 Council comments and recommendations to Federal and state
agencies.
Under section 305(b)(3) of the Magnuson-Stevens Act, Councils may
comment on and make recommendations to the Secretary and any Federal or
state agency concerning any activity or proposed activity authorized,
funded, or undertaken by the agency that, in the view of the Council,
may affect the habitat, including EFH, of a fishery resource under its
authority. Councils must provide such comments and recommendations
concerning any activity that, in the view of the Council, is likely to
substantially affect the habitat, including EFH, of an anadromous
fishery resource under Council authority.
(a) Establishment of procedures. Each Council should establish
procedures for reviewing Federal or state actions that may adversely
affect the habitat, including EFH, of a species under its authority.
Each Council may receive information on actions of concern by methods
such as directing Council staff to track proposed actions, recommending
that the Council's habitat committee identify actions of concern, or
entering into an agreement with NMFS to have the appropriate Regional
Administrator notify the Council of actions of concern that would
adversely affect EFH. Federal and state actions often follow specific
timetables which may not coincide with Council meetings. Therefore,
Councils should consider establishing abbreviated procedures for the
development of Council recommendations.
(b) Early involvement. Councils should provide comments and
recommendations on proposed state and Federal actions of concern as
early as practicable in project planning to ensure thorough
consideration of Council concerns by the action agency. Each Council
should provide NMFS with copies of its comments and recommendations to
state and Federal agencies.
Subpart L_Fishing Capacity Reduction Framework
Authority: 16 U.S.C. 1861a(b)-(e).
Source: 65 FR 31443, May 18, 2000, unless otherwise noted.
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Sec. 600.1000 Definitions.
In addition to the definitions in the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act) and in Sec.
600.10 of this title, the terms used in this subpart have the following
meanings:
Address of Record means the business address of a person,
partnership, or corporation. Addresses listed on permits or other NMFS
records are presumed to be business addresses, unless clearly indicated
otherwise.
Bid means the price a vessel owner or reduction fishery permit
holder requests for reduction of his/her fishing capacity. It is an
irrevocable offer in response to the invitation to bid in Sec.
600.1009.
Borrower means, individually and collectively, each post-reduction
fishing permit holder and/or fishing vessel owner fishing in the
reduction fishery.
Business plan means the document containing the information
specified in Sec. 600.1003(n) and required to be submitted with a
request for a financed program.
Business week means a 7-day period, Saturday through Friday.
Controlling fishery management plan or program (CFMP) means either
any fishery management plan or any state fishery management plan or
program, including amendments to the plan or program, pursuant to which
a fishery is managed.
Delivery value means:
(1) For unprocessed fish, all compensation that a fish buyer pays to
a fish seller in exchange for fee fish; and
(2) For processed fish, all compensation that a fish buyer would
have paid to a fish seller in exchange for fee fish if the fee fish had
been unprocessed fish instead of processed fish.
Delivery value encompasses fair market value, as defined herein, and
includes the value of all in-kind compensation or all other goods or
services exchanged in lieu of cash. It is synonymous with the statutory
term ``ex-vessel value'' as used in section 312 of the Magnuson Act.
Deposit principal means all collected fee revenue that a fish buyer
deposits in a segregated account maintained at a federally insured
financial institution for the sole purpose of aggregating collected fee
revenue before sending the fee revenue to NMFS for repaying a reduction
loan.
Fair market value means the amount that a buyer pays a seller in an
arm's length transaction or, alternatively, would pay a seller if the
transaction were at arm's length.
Fee means the amount that fish buyers deduct from the delivery value
under a financed reduction program. The fee is the delivery value times
the reduction fishery's applicable fee rate under section 600.1013.
Fee fish means all fish harvested from a reduction fishery involving
a financed program during the period in which any amount of the
reduction loan remains unpaid. The term fee fish excludes fish harvested
incidentally while fishing for fish not included in the reduction
fishery.
Final development plan means the document NMFS prepares, under Sec.
600.1006(b) and based on the preliminary development plan the requester
submits, for a subsidized program.
Financed means funded, in any part, by a reduction loan.
Fish buyer means the first ex-vessel party who:
(1) In an arm's--length transaction, purchases fee fish from a fish
seller;
(2) Takes fish on consignment from a fish seller; or
(3) Otherwise receives fish from a fish seller in a non arm's-length
transaction.
Fish delivery means the point at which a fish buyer first purchases
fee fish or takes possession of fee fish from a fish seller.
Fishing capacity reduction specifications means the minimum amount
of fishing capacity reduction and the maximum amount of reduction loan
principal specified in a business plan.
Fish seller means the party who harvests and first sells or
otherwise delivers fee fish to a fish buyer.
Fishery Management Plan (FMP) means any Federal fishery management
plan, including amendments to the plan, that the Secretary of Commerce
approves or adopts pursuant to section 303 of the Magnuson-Stevens Act.
Fund means the Fishing Capacity Reduction Fund, and each subaccount
for
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each program, established in the U.S. Treasury for the deposit into, and
disbursement from, all funds, including all reduction loan capital and
all fee revenue, involving each program.
Implementation plan means the plan in Sec. 600.1008 for carrying
out each program.
Implementation regulations mean the regulations in Sec. 600.1008
for carrying out each program.
Net delivery value means the delivery value minus the fee.
Post-bidding referendum means a referendum that follows bidding
under Sec. 600.1009.
Post-reduction means after a program reduces fishing capacity in a
reduction fishery.
Pre-bidding referendum means a referendum that occurs at any time
after a request for a financed program but before a proposal under Sec.
600.1008 of an implementation plan and implementation regulations.
Preliminary development plan means the document specified in Sec.
600.1005(g) and required to be submitted with a request for a subsidized
program.
Processed fish means fish in any form different from the form in
which the fish existed at the time the fish was first harvested, unless
any such difference in form represents, in the reduction fishery
involved, the standard ex-vessel form upon which fish sellers and fish
buyers characteristically base the delivery value of unprocessed fish.
Program means each instance of reduction under this subpart, in each
reduction fishery--starting with a request and ending, for a financed
program, with full reduction loan repayment.
Reduction means the act of reducing fishing capacity under any
program.
Reduction amendment means any amendment, or, where appropriate,
framework adjustment, to a CFMP that may be necessary for a program to
meet the requirements of this subpart.
Reduction amendment specifications mean the reduction amendment to a
CFMP specified in a business plan.
Reduction contract means the invitation to bid under Sec. 600.1009,
together with each bidder's irrevocable offer and NMFS' conditional or
non-conditional acceptance of each such bid under Sec. 600.1009.
Reduction cost means the total dollar amount of all reduction
payments to fishing permit owners, fishing vessel owners, or both, in a
reduction fishery.
Reduction fishery means the fishery or portion of a fishery to which
a program applies. The reduction fishery must specify each included
species, as well as any limitations by gear type, fishing vessel size,
geographic area, and any other relevant factor(s).
Reduction loan means a loan, under section 1111 and section 1112 of
Title XI of the Merchant Marine Act, 1936, as amended (46 U.S.C. 1279f
and g App.), for financing any portion, or all, of a financed program's
reduction cost and repayable by a fee under, and in accordance with,
Sec. 600.1012, Sec. 600.1013, and Sec. 600.1014.
Reduction payment means the Federal Government's fishing capacity
reduction payment to a fishing permit owner, fishing vessel owner, or
both, under a reduction contract. Additionally, it is payment for
reduction to each bidder whose bid NMFS accepts under Sec. 600.1009. In
a financed program each reduction payment constitutes a disbursement of
a reduction loan's proceeds and is for either revoking a fishing permit
or both revoking a fishing permit and withdrawing a vessel from fishing
either by scrapping or title restriction.
Reduction permit means any fishing permit revoked in a program in
exchange for a reduction payment under a reduction contract.
Reduction vessel means any fishing vessel withdrawn from fishing
either by scrapping or title restriction in exchange for a reduction
payment under a reduction contract.
Referendum means the voting process under Sec. 600.1010 for
approving the fee system for repaying a reduction loan.
Request means a request, under Sec. 600.1001, for a program.
Requester means a Council for a fishery identified in Sec.
600.1001(c), a state governor for a fishery identified in Sec.
600.1001(d), or the Secretary for a fishery identified in Sec.
600.1001(e).
Scrap means to completely and permanently reduce a fishing vessel's
hull,
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superstructures, and other fixed structural components to fragments
having value, if any, only as raw materials for reprocessing or for
other non-fisheries use.
Subsidized means wholly funded by anything other than a reduction
loan.
Treasury percentage means the annual percentage rate at which NMFS
must pay interest to the U.S. Treasury on any principal amount that NMFS
borrows from the U.S. Treasury in order to generate the funds with which
to later disburse a reduction loan's principal amount.
Unprocessed fish means fish in the same form as the fish existed at
the time the fish was harvested, unless any difference in form
represents, in the reduction fishery involved, the standard ex-vessel
form upon which fish sellers and fish buyers characteristically base the
delivery value of unprocessed fish.
Vote means a vote in a referendum.
Sec. 600.1001 Requests.
(a) A Council or the Governor of a State under whose authority a
proposed reduction fishery is subject may request that NMFS conduct a
program in that fishery. Each request shall be in writing and shall be
submitted to the Director, Office of Sustainable Fisheries, NMFS. Each
request shall satisfy the requirements of Sec. 600.1003 or Sec.
600.1005, as applicable, and enable NMFS to make the determinations
required by Sec. 600.1004 or Sec. 600.1006, as applicable.
(b) NMFS cannot conduct a program in any fishery subject to the
jurisdiction of a Council or a state unless NMFS first receives a
request from the Council or the governor to whose jurisdiction the
fishery is subject.
(c) For a fishery subject to the jurisdiction of a Council, only
that Council can or must make the request. If the fishery is subject to
the jurisdiction of two or more Councils, those Councils must make a
joint request. No Council may make a request, or join in making a
request, until after the Council conducts a public hearing about the
request.
(d) For a fishery subject to the jurisdiction of a State, only the
Governor of that State can make the request. If the fishery is subject
to the jurisdiction of two or more states, the Governors of those States
shall make a joint request. No Governor of a State may make a request,
or join in making a request, until the State conducts a public hearing
about the request.
(e) For a fishery under the direct management authority of the
Secretary, NMFS may conduct a program on NMFS' own motion by fulfilling
the requirements of this subpart that reasonably apply to a program not
initiated by a request.
(f) Where necessary to accommodate special circumstances in a
particular fishery, NMFS may waive, as NMFS deems necessary and
appropriate, compliance with any specific requirements under this
subpart not required by statute.
Sec. 600.1002 General requirements.
(a) Each program must be:
(1) Necessary to prevent or end overfishing, rebuild stocks of fish,
or achieve measurable and significant improvements in the conservation
and management of the reduction fishery;
(2) Accompanied by the appropriate environmental, economic and/or
socioeconomic analyses, in accordance with applicable statutes,
regulations, or other authorities; and
(3) Consistent with the CFMP, including any reduction amendment, for
the reduction fishery.
(b) Each CFMP for a reduction fishery must:
(1) Prevent the replacement of fishing capacity removed by the
program through a moratorium on new entrants, restrictions on vessel
upgrades, and other effort control measures, taking into account the
full potential fishing capacity of the fleet;
(2) Establish a specified or target total allowable catch or other
measures that trigger closure of the fishery or adjustments to reduce
catch; and
(3) Include, for a financed program in a reduction fishery involving
only a portion of a fishery, appropriate provisions for the post-
reduction allocation of fish between the reduction fishery and the rest
of the fishery that both protect the borrower's reduction investment in
the program and support the borrower's ability to repay the reduction
loan.
[[Page 130]]
Sec. 600.1003 Content of a request for a financed program.
A request for a financed program shall:
(a) Specify the reduction fishery.
(b) Project the amount of the reduction and specify what a reduction
of that amount achieves in the reduction fishery.
(c) Specify whether the program is to be wholly or partially
financed and, if the latter, specify the amount and describe the
availability of all funding from sources other than a reduction loan.
(d) Project the availability of all Federal appropriation authority
or other funding, if any, that the financed program requires, including
the time at which funding from each source will be available and how
that relates to the time at which elements of the reduction process are
projected to occur.
(e) Demonstrate how the program meets, or will meet after an
appropriate reduction amendment, the requirements in Sec. 600.1002(a).
(f) Demonstrate how the CFMP meets, or will meet after an
appropriate reduction amendment, the requirements in Sec. 600.1002(b).
(g) If a reduction amendment is necessary, include an actual
reduction amendment or the requester's endorsement in principle of the
reduction amendment specifications in the business plan. Endorsement in
principle is non-binding.
(h) Request that NMFS conduct, at the appropriate time, a referendum
under Sec. 600.1010 of this subpart.
(i) List the names and addresses of record of all fishing permit or
fishing vessel owners who are currently authorized to harvest fish from
the reduction fishery, excluding those whose authority is limited to
incidentally harvesting fish from the reduction fishery during directed
fishing for fish not in the reduction fishery. The list shall be based
on the best information available to the requester. The list shall take
into account any limitation by type of fishing gear operated, size of
fishing vessel operated, geographic area of operation, or other factor
that the proposed program involves. The list may include any relevant
information that NMFS may supply to the requester.
(j) Specify the aggregate total allowable catch in the reduction
fishery during each of the preceding 5 years and the aggregate portion
of such catch harvested by the parties listed under paragraph (i) of
this section.
(k) Specify the criteria for determining the types and number of
fishing permits or fishing permits and fishing vessels that are eligible
for reduction under the program. The criteria shall take into account:
(1) The characteristics of the fishery;
(2) Whether the program is limited to a particular gear type within
the reduction fishery or is otherwise limited by size of fishing vessel
operated, geographic area of operation, or other factor;
(3) Whether the program is limited to fishing permits or involves
both fishing permits and fishing vessels;
(4) The reduction amendment required;
(5) The needs of fishing communities;
(6) Minimizing the program's reduction cost; and
(7) All other relevant factors.
(l) Include the requester's assessment of the program's potential
impact on fisheries other than the reduction fishery, including an
evaluation of the likely increase in participation or effort in such
other fisheries, the general economic impact on such other fisheries,
and recommendations that could mitigate, or enable such other fisheries
to mitigate, any undesirable impacts.
(m) Include any other information or guidance that would assist NMFS
in developing an implementation plan and implementation regulations.
(n) Include a business plan, prepared by, or on behalf of,
knowledgeable and concerned harvesters in the reduction fishery, that:
(1) Specifies a detailed reduction methodology that accomplishes the
maximum sustained reduction in the reduction fishery's fishing capacity
at the least reduction cost and in the minimum period of time, and
otherwise achieves the program result that the requester specifies under
paragraph (b) of this section. The methodology shall:
(i) Establish the appropriate point for NMFS to conduct a pre-
bidding referendum and be sufficiently detailed to enable NMFS to
readily:
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(A) Design, propose, and adopt a timely and reliable implementation
plan,
(B) Propose and issue timely and reliable implementation
regulations,
(C) Invite bids,
(D) Accept or reject bids, and
(E) Complete a program in accordance with this subpart, and
(ii) Address, consistently with this subpart:
(A) The contents and terms of invitations to bid,
(B) Bidder eligibility,
(C) The type of information that bidders shall supply,
(D) The criteria for accepting or rejecting bids,
(E) The terms of bid acceptances,
(F) Any referendum procedures in addition to, but consistent with,
those in Sec. 600.1010, and
(G) All other technical matters necessary to conduct a program;
(2) Projects and supports the reduction fishery's annual delivery
value during the reduction loan's repayment period based on documented
analysis of actual representative experience for a reasonable number of
past years in the reduction fishery;
(3) Includes the fishing capacity reduction specifications upon
which both the pre-bidding referendum and the bidding under Sec.
600.1009 will be based. The reduction loan's maximum principal amount
cannot, at the interest rate projected to prevail at the time of
reduction, exceed the principal amount that can be amortized in 20 years
by 5 percent of the projected delivery value;
(4) States the reduction loan's repayment term and the fee rate, or
range of fee rates, prospectively necessary to amortize the reduction
loan over its repayment term;
(5) Analyzes and demonstrates the ability to repay the reduction
loan at the minimum reduction level and at various reduction-level
increments reasonably greater than the minimum one, based on the:
(i) Best and most representative historical fishing revenue and
expense data and any other relevant productivity measures available in
the reduction fishery, and
(ii) Projected effect of the program on the post-reduction operating
economics of typical harvesters in the reduction fishery, with
particular emphasis on the extent to which the reduction increases the
ratio of delivery value to fixed cost and improves harvesting's other
relevant productivity measures;
(6) Demonstrates how the business plan's proposed program meets, or
will meet after an appropriate reduction amendment, the requirements in
Sec. 600.1002(a);
(7) Demonstrates how the CFMP meets, or will meet after an
appropriate reduction amendment, the requirements in Sec. 600.1002(b);
(8) Includes, if a reduction amendment is necessary, the reduction
amendment specifications upon which the pre-bidding referendum will be
based;
(9) Includes an assessment of the program's potential impact on
fisheries other than the reduction fishery, including an evaluation of
the likely increase in participation or effort in such other fisheries,
the general economic impact on such other fisheries, and recommendations
that could mitigate, or enable such other fisheries to mitigate, any
undesirable impacts;
(10) Specifies the names and addresses of record of all fish buyers
who can, after reduction, reasonably be expected to receive deliveries
of fee fish. This shall be based on the best information available,
including any information that NMFS may be able to supply to the
business planners;
(11) Specifies, after full consultation with fish buyers, any
special circumstances in the reduction fishery that may require the
implementing regulations to contain provisions in addition to, or
different from, those contained in Sec. 600.1013 and/or Sec. 600.1014
in order to accommodate the circumstances of, and practices in, the
reduction fishery while still fulfilling the intent and purpose of Sec.
600.1013 and/or Sec. 600.1014--including, but not limited to:
(i) In the case of reduction fisheries in which state data
confidentiality laws or other impediments may negatively affect the
efficient and effective conduct of the same, specification of who needs
to take what action to resolve any such impediments, and
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(ii) In the case of reduction fisheries in which some fish sellers
sell unprocessed, and other fish sellers sell processed fish to fish
buyers, specification of an accurate and efficient method of
establishing the delivery value of processed fish; and
(12) Demonstrates by a survey of potential voters, or by any other
convincing means, a substantial degree of potential voter support for
the business plan and confidence in its feasibility.
(o) Include the requester's statement of belief that the business
plan, the CFMP, the reduction amendment specifications, and all other
request aspects constitute a complete, realistic, and practical prospect
for successfully completing a program in accordance with this subpart.
Sec. 600.1004 Accepting a request for, and determinations about initiating, a
financed program.
(a) Accepting a request. Once it receives a request, NMFS will
review any request for a financed program to determine whether the
request conforms with the requirements of Sec. 600.1003. If the request
does not conform, NMFS will return the request with guidance on how to
make the request conform. If the request conforms, NMFS shall accept it
and publish a notice in the Federal Register requesting public comments
on the request. Such notice shall state the name and address of record
of each eligible voter, as well as the basis for having determined the
eligibility of those voters. This shall constitute notice and
opportunity to respond about adding eligible voters, deleting ineligible
voters, and/or correcting any voter's name and address of record. If, in
NMFS' discretion, the comments received in response to such notice
warrants it, or other good cause warrants it, NMFS may modify such list
by publishing another notice in the Federal Register.
(b) Determination about initiating a financed program. After receipt
of a conforming request for a financed program, NMFS will, after
reviewing and responding to any public comments received in response to
the notice published in the Federal Register under paragraph (a) of this
section, initiate the program if NMFS determines that:
(1) The program meets, or will meet after an appropriate reduction
amendment, the requirements in Sec. 600.1002(a);
(2) The CFMP meets, or will meet after an appropriate reduction
amendment, the requirements in Sec. 600.1002(b);
(3) The program, if successfully implemented, is cost effective;
(4) The reduction requested constitutes a realistic and practical
prospect for successfully completing a program in accordance with this
subpart and the borrower is capable of repaying the reduction loan. This
includes enabling NMFS to readily design, propose, and adopt a timely
and reliable implementation plan as well as propose and issue timely and
reliable implementation regulations and otherwise complete the program
in accordance with this subpart; and
(5) The program accords with all other applicable law.
Sec. 600.1005 Content of a request for a subsidized program.
A request for a subsidized program shall:
(a) Specify the reduction fishery.
(b) Project the amount of the reduction and specify what a reduction
of that amount achieves in the reduction fishery.
(c) Project the reduction cost, the amount of reduction cost to be
funded by Federal appropriations, and the amount, if any, to be funded
by other sources.
(d) Project the availability of Federal appropriations or other
funding, if any, that completion of the program requires, including the
time at which funding from each source will be available and how that
relates to the time at which elements of the reduction process are
projected to occur.
(e) List the names and addresses of record of all fishing permit or
fishing vessel owners who are currently authorized to harvest fish from
the reduction fishery, excluding those whose authority is limited to
incidentally harvesting fish from the reduction fishery during directed
fishing for fish not in the reduction fishery. The list shall be based
on the best information available to the requester, including any
information that NMFS may supply to the requester, and take into account
any
[[Page 133]]
limitation by type of fishing gear operated, size of fishing vessel
operated, geographic area of operation, or other factor that the
proposed program involves.
(f) Specify the aggregate total allowable catch in the reduction
fishery during each of the preceding 5 years and the aggregate portion
of such catch harvested by the parties listed under paragraph (e) of
this section.
(g) Include a preliminary development plan that:
(1) Specifies a detailed reduction methodology that accomplishes the
maximum sustained reduction in the reduction fishery's fishing capacity
at the least cost and in a minimum period of time, and otherwise
achieves the program result that the requester specifies under paragraph
(b) of this section. The methodology shall:
(i) Be sufficiently detailed to enable NMFS to prepare a final
development plan to serve as the basis for NMFS to readily design,
propose, and adopt a timely and reliable implementation plan and propose
and issue timely and reliable implementation regulations, and
(ii) Include:
(A) The contents and terms of invitations to bid,
(B) Eligible bidders,
(C) The type of information that bidders shall supply,
(D) The criteria for accepting or rejecting bids, and
(E) The terms of bid acceptances;
(2) Specifies the criteria for determining the types and numbers of
fishing permits or fishing permits and fishing vessels that are eligible
for reduction under the program. The criteria shall take into account:
(i) The characteristics of the fishery,
(ii) Whether the program is limited to a particular gear type within
the reduction fishery, or is otherwise limited by size of fishing vessel
operated, geographic area of operation, or other factor,
(iii) Whether the program is limited to fishing permits or involves
both fishing permits and fishing vessels,
(iv) The reduction amendment required,
(v) The needs of fishing communities, and
(vi) The need to minimize the program's reduction cost; and
(3) Demonstrates the program's cost effectiveness.
(h) Demonstrate how the program meets, or will meet after an
appropriate reduction amendment, the requirements in Sec. 600.1002(a).
(i) Demonstrate how the CFMP meets, or will meet after an
appropriate reduction amendment, the requirements in Sec.
600.1002(b)(1) and (2).
(j) Specify any other information or guidance that assists NMFS in
preparing a final development plan and a proposed implementation plan
and proposed implementation regulations.
(k) Include the requester's statement of belief that the program
constitutes a reasonably realistic and practical prospect for
successfully completing a program in accordance with this subpart.
Sec. 600.1006 Accepting a request for, and determinations about conducting, a
subsidized program.
(a) Accepting a request. NMFS will review any request for a
subsidized program submitted to NMFS to determine whether the request
conforms with the requirements of Sec. 600.1005. If the request does
not conform, NMFS will return it with guidance on how to make the
request conform. If the request conforms, NMFS shall accept it and
publish a notice in the Federal Register requesting public comments
about the request.
(b) Final development plan. After receipt of a conforming request,
NMFS will prepare a final development plan if NMFS determines that the
reduction requested constitutes a realistic and practical prospect for
successfully completing a program in accordance with this subpart. This
includes enabling NMFS to readily design, propose, and adopt a timely
and reliable implementation plan as well as propose and issue timely and
reliable implementation regulations and otherwise complete the program
in accordance with this subpart. NMFS will, as far as possible, base the
final development plan on the requester's preliminary development plan.
Before completing the final development plan, NMFS will consult, as NMFS
deems necessary, with the requester, Federal agencies, state and
regional authorities, affected fishing
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communities, participants in the reduction fishery, conservation
organizations, and other interested parties in preparing the final
development plan.
(c) Reaffirmation of the request. After completing the final
development plan, NMFS will submit the plan to the requester for the
requester's reaffirmation of the request. Based on the final development
plan, the reaffirmation shall: (1) Certify that the final development
plan meets, or will meet after an appropriate reduction amendment, the
requirements in Sec. 600.1002(a);
(2) Certify that the CFMP meets, or will meet after an appropriate
reduction amendment, the requirements in Sec. 600.1002(b)(1) and (2);
and
(3) Project the date on which the requester will forward any
necessary reduction amendment and, if the requester is a Council,
proposed regulations to implement the reduction amendment. The requester
shall base any necessary reduction amendment on the final development
plan.
(d) Determinations about conducting a subsidized program. After
NMFS' receipt of the requester's reaffirmation, any required reduction
amendment, and any proposed regulations required to implement the
amendment, NMFS will initiate the program if NMFS determines that:
(1) The program meets, or will meet after an appropriate reduction
amendment, the requirements in Sec. 600.1002(a);
(2) The CFMP meets, or will meet after an appropriate reduction
amendment, the requirements in Sec. 600.1002(b)(1) and (2); and
(3) The program is reasonably capable of being successfully
implemented;
(4) The program, if successfully implemented, will be cost
effective; and
(5) The program is in accord with all other applicable provisions of
the Magnuson-Stevens Act and this subpart.
Sec. 600.1007 Reduction amendments.
(a) Each reduction amendment may contain provisions that are either
dependent upon or independent of a program. Each provision of a
reduction amendment is a dependent provision unless the amendment
expressly designates the provision as independent.
(b) Independent provisions are effective without regard to any
subsequent program actions.
(c) Dependent provisions are initially effective for the sole
limited purpose of enabling initiation and completion of the pre-
reduction processing stage of a program.
(d) All dependent provisions of a reduction amendment for a financed
program are fully in force and effect for all other purposes only when
NMFS either:
(1) For bidding results that conform to the fishing capacity
reduction specifications and are not subject to any other condition,
notifies bidders, under Sec. 600.1009(e)(3), that reduction contracts
then exist between the bidders and the United States; or
(2) For bidding results that do not conform to the fishing capacity
reduction specifications or are subject to any other condition, notifies
bidders whose bids NMFS had conditionally accepted, under Sec. 600.1010
(d)(8)(iii), that the condition pertaining to the reduction contracts
between them and the United States is fulfilled.
(e) If NMFS does not, in accordance with this subpart and any
special provisions in the implementation regulations, subsequently make
all reduction payments that circumstances, in NMFS' judgment, reasonably
permit NMFS to make and, thus, complete a program, no dependent
provisions shall then have any further force or effect for any purpose
and all final regulations involving such dependent provisions shall then
be repealed.
Sec. 600.1008 Implementation plan and implementation regulations.
(a) As soon as practicable after deciding to initiate a program,
NMFS will prepare and publish, for a 60-day public comment period, a
proposed implementation plan and implementation regulations. During the
public comment period, NMFS will conduct a public hearing of the
proposed implementation plan and implementation regulations in each
state that the program affects.
(b) To the greatest extent practicable, NMFS will base the
implementation plan and implementation regulations for a financed
program on the business plan. The implementation
[[Page 135]]
plan for a financed program will describe in detail all relevant aspects
of implementing the program, including:
(1) The reduction fishery;
(2) The reduction methodology;
(3) The maximum reduction cost;
(4) The maximum reduction loan amount, if different from the maximum
reduction cost;
(5) The reduction cost funding, if any, other than a reduction loan;
(6) The minimum acceptable reduction level;
(7) The potential amount of the fee;
(8) The criteria for determining the types and number of fishing
permits or fishing permits and fishing vessels eligible to participate
in the program;
(9) The invitation to bid and bidding procedures;
(10) The criteria for determining bid acceptance;
(11) The referendum procedures; and
(12) Any relevant post-referendum reduction procedures other than
those in the implementation regulations or this subpart.
(c) NMFS will base each implementation plan and implementation
regulations for a subsidized program on the final development plan. The
implementation plan will describe in detail all relevant aspects of
implementing the program, including:
(1) The reduction fishery;
(2) The reduction methodology;
(3) The maximum reduction cost;
(4) The reduction-cost funding, if any, other than Federal
appropriations;
(5) The criteria for determining the types and number of fishing
permits or fishing permits and fishing vessels eligible to participate
in the program;
(6) The invitation to bid and bidding procedures;
(7) The criteria for determining bid acceptance; and
(8) Any relevant post-bidding program procedures other than those in
the implementation regulations or this subpart.
(d) The implementation regulations will:
(1) Specify, for invitations to bid, bids, and reduction contracts
under Sec. 600.1009:
(i) Bidder eligibility,
(ii) Bid submission requirements and procedures,
(iii) A bid opening date, before which a bidder may not bid, and a
bid closing date, after which a bidder may not bid,
(iv) A bid expiration date after which the irrevocable offer
contained in each bid expires unless NMFS, before that date, accepts the
bid by mailing a written acceptance notice to the bidder at the bidder's
address of record,
(v) The manner of bid submission and the information each bidder
shall supply for NMFS to deem a bid responsive,
(vi) The conditions under which NMFS will accept or reject a bid,
(vii) The manner in which NMFS will accept or reject a bid, and
(viii) The manner in which NMFS will notify each bidder of bid
acceptance or rejection;
(2) Specify any other special referendum procedures or criteria; and
(3) Specify such other provisions, in addition to and consistent
with those in this subpart, necessary to regulate the individual terms
and conditions of each program and reduction loan. This includes, but is
not limited to:
(i) Provisions for the payment of costs and penalties for non-
payment, non-collection, non-deposit, and/or non-disbursement of the fee
in accordance with Sec. 600.1013 and Sec. 600.1014,
(ii) Prospective fee rate determinations, and
(iii) Any other aspect of fee payment, collection, deposit,
disbursement, accounting, record keeping, and/or reporting.
(e) NMFS will issue final implementation regulations and adopt a
final implementation plan within 45 days of the close of the public-
comment period.
(f) NMFS may repeal the final implementation regulations for any
program if:
(1) For a financed program, the bidding results do not conform to
the fishing capacity reduction specifications or a post-bidding
referendum does not subsequently approve an industry fee system based on
the bidding results;
(2) For a subsidized program, NMFS does not accept bids; and
(3) For either a financed program or a subsidized program, if NMFS
is unable to make all reduction payments due to a material adverse
change.
[[Page 136]]
Sec. 600.1009 Bids.
(a) Each invitation to bid, bid, bid acceptance, reduction contract,
and bidder--or any other party in any way affected by any of the
foregoing--under this subpart is subject to the terms and conditions in
this section:
(1) Each invitation to bid constitutes the entire terms and
conditions of a reduction contract under which:
(i) Each bidder makes an irrevocable offer to the United States of
fishing capacity for reduction, and
(ii) NMFS accepts or rejects, on behalf of the United States, each
bidder's offer;
(2) NMFS may, at any time before the bid expiration date, accept or
reject any or all bids;
(3) For a financed program in which bidding results do not conform
to the fishing capacity reduction specifications, NMFS' acceptance of
any bid is subject to the condition that the industry fee system
necessary to repay the reduction loan is subsequently approved by a
successful post-bidding referendum conducted under Sec. 600.1010.
Approval or disapproval of the industry fee system by post-bidding
referendum is an event that neither the United States nor the bidders
can control. Disapproval of the industry fee system by an unsuccessful
post-bidding referendum fully excuses both parties from any performance
and fully discharges all duties under any reduction contract;
(4) For a financed program in one reduction fishery that is being
conducted under appropriate implementation regulations simultaneously
with another financed program in another reduction fishery, where the
acceptance of bids for each financed program is conditional upon
successful post-bidding referenda approving industry fee systems for
both financed programs, NMFS' acceptance of all bids is, in addition to
any condition under paragraph (a)(3) of this section, also subject to
the additional conditions that both referenda approve the industry fee
systems required for both financed programs--all as otherwise provided
in paragraph (a)(3) of this section;
(5) Upon NMFS' acceptance of the bid and tender of a reduction
payment, the bidder consents to:
(i) The revocation, by NMFS, of any reduction permit, and
(ii) Where the program also involves the withdrawal of reduction
vessels from fishing:
(A) Title restrictions imposed by the U.S. Coast Guard on any
reduction vessel that is federally documented to forever prohibit and
effectively prevent any future use of the reduction vessel for fishing
in any area subject to the jurisdiction of the United States or any
state, territory, commonwealth, or possession of the United States, or
(B) Where reduction vessel scrapping is involved and the reduction
vessel's owner does not comply with the owner's obligation under the
reduction contract to scrap the reduction vessel, take such measures as
necessary to cause the reduction vessel's prompt scrapping. The
scrapping will be at the reduction vessel owner's risk and expense. Upon
completion of scrapping, NMFS will take such action as may be necessary
to recover from the reduction vessel owner any cost or expense NMFS
incurred in causing the reduction vessel to be scrapped and any other
damages NMFS may have incurred and such owner shall be liable to the
United States for such cost, expenses, and damages;
(6) Money damages not being an adequate remedy for a bidder's breach
of a reduction contract, the United States is, in all particulars,
entitled to specific performance of each reduction contract. This
includes, but is not limited to, the scrapping of a reduction vessel;
(7) Any reduction payment is available, upon timely and adequately
documented notice to NMFS, to satisfy liens, as allowed by law, against
any reduction permit/and or reduction vessel; provided, however, that:
(i) No reduction payment to any bidder either relieves the bidder of
responsibility to discharge the obligation which gives rise to any lien
or relieves any lien holder of responsibility to protect the lien
holder's interest,
(ii) No reduction payment in any way gives rise to any liability of
the United States for the obligation underlying any lien,
(iii) No lien holder has any right or standing, not otherwise
provided by
[[Page 137]]
law, against the United States in connection with the revocation of any
reduction permit or the title restriction or scrapping of any reduction
vessel under this subpart, and
(iv) This subpart does not provide any lien holder with any right or
standing to seek to set aside any revocation of any reduction permit or
the title restriction or scrapping of any reduction vessel for which the
United States made, or has agreed to make, any reduction payment. A lien
holder is limited to recovery against the holder of the reduction permit
or the owner of the reduction vessel as otherwise provided by law; and
(8) Each invitation to bid may specify such other terms and
conditions as NMFS believes necessary to enforce specific performance of
each reduction contract or otherwise to ensure completing each program.
This includes, but is not limited to, each bidder's certification,
subject to the penalties in Sec. 600.1017, of the bidder's full
authority to submit each bid and to dispose of the property involved in
the bid in the manner contemplated by each invitation to bid.
(b) NMFS will not invite bids for any program until NMFS determines
that:
(1) Any necessary reduction amendment is fully and finally approved
and all provisions except those dependent on the completion of reduction
are implemented;
(2) The final implementation plan is adopted and the final
implementation regulations are issued;
(3) All required program funding is approved and in place, including
all Federal appropriation and apportionment authority;
(4) Any reduction loan involved is fully approved;
(5) Any non-Federal funding involved is fully available at the
required time for NMFS disbursement as reduction payments; and
(6) All other actions necessary to disburse reduction payments,
except for matters involving bidding and post-bidding referenda, are
completed.
(c) After making the affirmative determinations required under
paragraph (b) of this section, NMFS will publish a Federal Register
notice inviting eligible bidders to offer to the United States, under
this subpart, fishing capacity for reduction.
(d) NMFS may extend a bid closing date and/or a bid expiration date
for a reasonable period. NMFS may also issue serial invitations to bid
if the result of previous bidding, in NMFS' judgment, warrant this.
(e) After the bid expiration date, NMFS will:
(1) Analyze responsive bids;
(2) Determine which bids, if any, NMFS accepts; and
(3) Notify, by U.S. mail at each bidder's address of
record, those bidders whose bids NMFS accepts that a reduction
contract now exists between them and the United States--subject, where
appropriate, to the conditions provided for elsewhere in this subpart.
(f) NMFS will keep confidential the identity of all bidders whose
bids NMFS does not accept. In financed programs where bidding results do
not conform to the fishing capacity reduction specifications, NMFS also
will keep confidential the identity of all bidders whose bids NMFS does
accept until after completing a successful post-bidding referendum under
Sec. 600.1010.
Sec. 600.1010 Referenda.
(a) Referendum success. A referendum is successful if at least two-
thirds of the ballots that qualify to be counted as referendum votes
under subparagraph (d)(6) of this section are cast in favor of an
industry fee system.
(b) Pre-bidding referendum--(1) Initial referendum. An initial pre-
bidding referendum shall be conducted for each financed program. The
business plan shall, subject to this subpart, determine the
chronological relationship of the initial pre-bidding referendum to
other pre-bidding aspects of the reduction process sequence. The initial
pre-bidding referendum shall be based on the fishing capacity reduction
specifications. If the initial pre-bidding referendum precedes the
adoption of any necessary reduction amendment, the initial pre-bidding
referendum shall also be based on the reduction amendment
specifications. If the initial pre-
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bidding referendum follows the adoption of any necessary reduction
amendment, the initial pre-bidding referendum shall also be based on the
adopted reduction amendment;
(2) Successful initial pre-bidding referendum. If the initial pre-
bidding referendum is successful, the reduction process will proceed as
follows:
(i) If the initial pre-bidding referendum follows reduction
amendment adoption, no second pre-bidding referendum shall be conducted,
(ii) If the initial pre-bidding referendum precedes reduction
amendment adoption, a second pre-bidding referendum shall be conducted
if, in NMFS' judgment, the reduction amendment subsequently adopted
differs, in any respect materially affecting the borrower's reduction
investment in the program and the borrower's ability to repay the
reduction loan, from the reduction amendment specifications upon which
the initial pre-bidding referendum successfully occurred. The sole
purpose of any second pre-bidding referendum shall be to determine
whether the voters authorize an industry fee system despite any such
difference between the reduction amendment specifications and a
subsequently adopted reduction amendment.
(3) Unsuccessful initial pre-bidding referendum. If the initial pre-
bidding referendum is unsuccessful, the reduction process will either
cease or NMFS may suspend the process pending an appropriate amendment
of the business plan and the request.
(c) Post-bidding referendum. A post-bidding referendum shall occur
only if, in NMFS' judgment, the result of bidding under Sec. 600.1009
does not conform, in any material respect, to the fishing capacity
reduction specifications and such result justifies, in NMFS' judgment,
conducting a post-bidding referendum. Bidding that results in reducing
fishing capacity in any amount not less than the minimum fishing
capacity reduction amount for any reduction loan amount not more than
the maximum reduction loan amount, and otherwise achieves all material
requirements of the fishing capacity reduction specifications, shall
conform to the fishing capacity reduction specifications. The sole
purpose of any post-bidding referendum shall be to determine whether
voters authorize an industry fee system for bidding that results in
reducing fishing capacity in any amount materially less than the minimum
amount in the fishing capacity reduction specifications.
(d) NMFS will conduct referenda in accordance with the following:
(1) Eligible voters. The parties eligible to vote in each referendum
are the parties whose names are listed as being eligible to vote in the
notice published in the Federal Register under Sec. 600.1004(a);
(2) Ballot issuance. NMFS will mail, by U.S. certified mail, return
receipt requested, a ballot to each eligible voter. Each ballot will
bear a randomly derived, 5-digit number assigned to each eligible voter.
Each ballot will contain a place for the voter to vote for or against
the proposed industry fee system and a place, adjacent to the 5-digit
number, for the signature of the fishing permit or fishing vessel owner
to whom the ballot is addressed or, if the fishing permit or fishing
vessel owner is an organization, the person having authority to vote and
cast the ballot on the organization's behalf. Each ballot will contain a
place for the person signing the ballot to print his or her name. NMFS
will enclose with each ballot a specially-marked, postage-paid, pre-
addressed envelope that each voter shall use to return the ballot to
NMFS;
(3) Voter certification. Each ballot will contain a certification,
subject to the penalties set forth in Sec. 600.1017, that the person
signing the ballot is the fishing permit or fishing vessel owner to whom
the ballot is addressed or, if the fishing permit or fishing vessel
owner is an organization, the person having authority to vote and cast
the ballot on the organization's behalf;
(4) Information included on a ballot. Each ballot mailing will:
(i) Summarize the referendum's nature and purpose,
(ii) Specify the date by which NMFS must receive a ballot in order
for the ballot to be counted as a qualified vote,
(iii) Identify the place on the ballot for the voter to vote for or
against the proposed industry fee system, the place on the ballot where
the voter shall sign
[[Page 139]]
the ballot, and the purpose of the return envelope,
(iv) For each pre-bidding referendum, state:
(A) The fishing capacity reduction specifications,
(B) The reduction loan's repayment term, and
(C) The fee rate, or range of fee rates, prospectively necessary to
amortize the reduction loan over the loan's term,
(v) For each initial pre-bidding referendum that precedes reduction
amendment adoption, state the reduction amendment specifications,
(vi) For each initial pre-bidding referendum that follows reduction
amendment adoption, summarize the material aspects of the reduction
amendment adopted,
(vii) For each second pre-bidding referendum, summarize how the
adopted reduction amendment materially differs from the reduction
amendment specifications upon which a successful initial pre-bidding
referendum occurred and how this material difference affects the
borrower's reduction investment in the program and the borrower's
ability to repay the reduction loan,
(viii) For each post-bidding referendum, specify the actual bidding
results that do not conform to the fishing capacity reduction
specifications, and
(ix) State or include whatever else NMFS deems appropriate;
(5) Enclosures to accompany a ballot. Each ballot mailing will
include:
(i) A specially-marked, postage-paid, and pre-addressed envelope
that a voter must use to return the original of a ballot to NMFS by
whatever means of delivery the voter chooses, and
(ii) Such other materials as NMFS deems appropriate;
(6) Vote qualification. A completed ballot qualifies to be counted
as a vote if the ballot:
(i) Is physically received by NMFS on or before the last day NMFS
specifies for receipt of the ballot,
(ii) Is cast for or against the proposed industry fee system,
(iii) Is signed by the voter,
(iv) Is the original ballot NMFS sent to the voter bearing the same
5-digit number that NMFS assigned to the voter, and
(v) Was returned to NMFS in the specially-marked envelope that NMFS
provided for the ballot's return;
(6) Vote tally and notification. NMFS will:
(i) Tally all ballots qualified to be counted as referendum votes,
(ii) Notify, by U.S. mail at the address of record, all eligible
voters who received ballots of:
(A) The number of potential voters,
(B) The number of actual voters who returned a ballot,
(C) The number of returned ballots that qualified to be counted as
referendum votes,
(D) The number of votes for and the number of votes against the
industry fee system, and
(E) Whether the referendum was successful and approved the industry
fee system or unsuccessful and disapproved the industry fee system, and
(iii) If a successful referendum is a post-bidding referendum, NMFS
will, at the same time and in the same manner, also notify the bidders
whose bids were conditionally accepted that the condition pertaining to
the reduction contracts between them and the United States is fulfilled;
(7) Conclusiveness of referendum determinations. NMFS'
determinations about ballot qualifications and about all other
referendum matters, including, but not limited to, eligible voters and
their addresses of record, are conclusive and final as of the date NMFS
makes such determinations. No matter respecting such determinations
shall impair, invalidate, avoid, or otherwise render unenforceable any
referendum, reduction contract, reduction loan, or fee payment and
collection obligation under Sec. 600.1013 and Sec. 600.1014 necessary
to repay any reduction loan;
(8) Ballot confidentiality. NMFS will not voluntarily release the
name of any party who voted. NMFS will restrict the availability of all
voter information to the maximum extent allowed by law; and
(9) Conclusive authorization of industry fee system. Each successful
referendum conclusively authorizes NMFS' imposition of an industry fee
system--including the fee payment, collection, and
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other provisions regarding fee payment and collection under Sec.
600.1013 and Sec. 600.1014--to repay the reduction loan for each
financed program that NMFS conducts under this subpart.
Sec. 600.1011 Reduction methods and other conditions.
(a) Reduction permits or reduction permits and reduction vessels.
Each program may involve either the surrender and revocation of
reduction permits or both the surrender and revocation of reduction
permits and the withdrawal from fishing either by title restriction or
by scrapping of reduction vessels. No financed program may, however,
require such title restriction or scrapping of reduction vessels unless
the business plan voluntarily includes the same.
(b) Reduction permit revocation and surrender. Each reduction permit
is, upon NMFS' tender of the reduction payment for the reduction permit,
forever revoked. Each reduction permit holder shall, upon NMFS' tender
of the reduction payment, surrender the original reduction permit to
NMFS. The reduction permit holder, upon NMFS' tender of the reduction
payment, forever relinquishes any claim associated with the reduction
permit and with the fishing vessel that was used to harvest fishery
resources under the reduction permit that could qualify the reduction
permit holder or the fishing vessel owner for any present or future
limited access system fishing permit in the reduction fishery.
(c) Reduction vessel title restriction or scrapping. For each
program that involves reduction vessel title restriction or scrapping:
(1) Each reduction vessel that is subject to title restriction only
and is thus not required to be scrapped, is, upon NMFS' tender of the
reduction payment, forever prohibited from any future use for fishing in
any area subject to the jurisdiction of the United States or any State,
territory, possession, or commonwealth of the United States. NMFS will
request that the U.S. Coast Guard permanently restrict each such
reduction vessel's title to exclude the reduction vessel's future use
for fishing in any such area;
(2) Each reduction vessel owner whose reduction vessel is required
to be scrapped shall, upon NMFS' tender of the reduction payment,
immediately cease all further use of the reduction vessel and arrange,
without delay and at the reduction vessel owner's expense, to scrap the
reduction vessel to NMFS' satisfaction, including adequate provision for
NMFS to document the physical act of scrapping; and
(3) Each reduction vessel owner, upon NMFS' tender of the reduction
payment, forever relinquishes any claim associated with the reduction
vessel and with the reduction permit that could qualify the reduction
vessel owner or the reduction permit holder for any present or future
limited access system fishing permit in the reduction fishery.
(d) Fishing permits in a non-reduction fishery. A financed program
that does not involve the withdrawal from fishing or scrapping of
reduction vessels may not require any holder of a reduction permit in a
reduction fishery to surrender any fishing permit in any non-reduction
fishery or restrict or revoke any fishing permit other than a reduction
permit in the reduction fishery, except those fishing permits
authorizing the incidental harvesting of species in any non-reduction
fishery during, and as a consequence of, directed fishing for species in
the reduction fishery.
(e) Reduction vessels disposition. Where a business plan requires
the withdrawal from fishing of reduction vessels as well as the
revocation of reduction permits:
(1) Each reduction vessel that is not documented under Federal law
must in every case always be scrapped, without regard to whether a
program is a financed program or a subsidized program;
(2) No financed program may require any disposition of a reduction
vessel documented under Federal law other than the title restriction in
paragraph (b) of this section unless the business plan volunteers to do
otherwise; and
(3) Any subsidized program may require the scrapping of reduction
vessels documented under Federal law.
(f) Reduction payments. NMFS will disburse all reduction payments in
the amount and in the manner prescribed
[[Page 141]]
in reduction contracts, except reduction payments that a bidder's
reduction-contract nonperformance prevents NMFS from disbursing. In
financed programs, the reduction loan's principal amount is the total
amount of all reduction payments that NMFS disburses from the proceeds
of a reduction loan. Any reduction payment that NMFS, because of a
bidder's reduction-contract nonperformance, disburses but subsequently
recovers, shall reduce the principal amount of the reduction loan
accordingly.
(g) Effect of reduction-contract nonperformance. No referendum, no
reduction contract, no reduction loan, and no fee payment and collection
obligation under Sec. 600.1013 and Sec. 600.1014 necessary to repay
any reduction loan, shall be impaired, invalidated, avoided, or
otherwise rendered unenforceable by virtue of any reduction contract's
nonperformance. This is without regard to the cause of, or reason for,
nonperformance. NMFS shall endeavor to enforce the specific performance
of all reduction contracts, but NMFS' inability, for any reason, to
enforce specific performance for any portion of such reduction contracts
shall not relieve fish sellers of their obligation to pay, and fish
buyers of their obligation to collect, the fee necessary to fully repay
the full reduction loan balance that results from all reduction payments
that NMFS actually makes and does not recover.
(h) Program completion. Other than the payment and collection of the
fee that repays a reduction loan and any other residual matters
regarding reduction payments and the disposition of reduction permits
and reduction vessels, a program shall be completed when NMFS tenders or
makes all reduction payments under all reduction contracts that
circumstances, in NMFS' judgment, reasonably permit NMFS to make.
Sec. 600.1012 Reduction loan.
(a) Obligation. The borrower shall be obligated to repay a reduction
loan. The borrower's obligation to repay a reduction loan shall be
discharged by fish sellers paying a fee in accordance with Sec.
600.1013. Fish buyers shall be obligated to collect the fee in
accordance with Sec. 600.1013 and to deposit and disburse the fee
revenue in accordance with Sec. 600.1014.
(b) Principal amount, interest rate, repayment term, and penalties
for non-payment or non-collection. The reduction loan shall be:
(1) In a principal amount that shall be determined by subsequent
program events under this subpart, but which shall not exceed the
maximum principal amount in the fishing capacity reduction
specifications;
(2) At an annual rate, that shall be determined by subsequent
events, of simple interest on the reduction loan's principal balance
that shall equal 2 percent plus the Treasury percentage;
(3) Repayable over the repayment term specified in the business plan
or otherwise determined by subsequent events; and
(4) Subject to such provisions as implementation regulations shall
specify for the payment of costs and penalties for non-payment, non-
collection, non-deposit, and/or non-disbursement in accordance with
Sec. 600.1013 and Sec. 600.1014.
(c) Effect of prospective interest rate. Any difference between a
prospective interest rate projected, for the purpose of any aspect of
reduction planning or processing under this subpart, before the U.S.
Treasury determines the Treasury percentage and an interest rate first
known after the U.S. Treasury determines the Treasury percentage shall
not void, invalidate, or otherwise impair any reduction contract, any
reduction loan repayment obligation, or any other aspect of the
reduction process under this subpart. Should any such difference result
in a reduction loan that cannot, at the maximum fee rate allowed by law,
be repaid, as previously projected, within the maximum maturity, any
amount of the reduction loan remaining unpaid at maturity shall be
repaid after maturity by continuing fee payment and collection under
this subpart at such maximum fee rate until the reduction loan's unpaid
principal balance and accrued interest is fully repaid. The above
notwithstanding, at the discretion of the Secretary, the reduction
contract can be voided if a material adverse change
[[Page 142]]
affects the reduction contract, reduction loan obligation, or any other
aspect of the reduction process under this subpart.
Sec. 600.1013 Fee payment and collection.
(a) Amount. The fee amount is the delivery value times the fee rate.
(b) Rate. NMFS will establish the fee rate. The fee rate may not
exceed 5 percent of the delivery value. NMFS will establish the initial
fee rate by calculating the fee revenue annually required to amortize a
reduction loan over the reduction loan's term, projecting the annual
delivery value, and expressing such fee revenue as a percentage of such
delivery value. Before each anniversary of the initial fee rate
determination, NMFS will recalculate the fee rate reasonably required to
ensure reduction loan repayment. This will include any changed delivery
value projections and any adjustment required to correct for previous
delivery values higher or lower than projected.
(c) Payment and collection. (1) The full fee is due and payable at
the time of fish delivery. Each fish buyer shall collect the fee at the
time of fish delivery by deducting the fee from the delivery value
before paying, or promising to pay, the net delivery value. Each fish
seller shall pay the fee at the time of fish delivery by receiving from
the fish buyer the net delivery value, or the fish buyer's promise to
pay the net delivery value, rather than the delivery value. Regardless
of when the fish buyer pays the net delivery value, the fish buyer shall
collect the fee at the time of fish delivery;
(2) In the event of any post-delivery payment for fee fish--
including, but not limited to bonuses--whose amount depends on
conditions that cannot be known until after fish delivery, that either
first determines the delivery value or later increases the previous
delivery value, the fish seller shall pay, and the fish buyer shall
collect, at the time the amount of such post-delivery payment first
becomes known, the fee that would otherwise have been due and payable as
if the amount of the post-delivery payment had been known, and as if the
post-delivery payment had consequently occurred, at the time of initial
fish delivery;
(3)(i) Each fish seller shall be deemed to be, for the purpose of
the fee collection, deposit, disbursement, and accounting requirements
of this subpart, both the fish seller and the fish buyer, and shall be
responsible for all requirements and liable for any penalties under this
subpart applicable to fish sellers and/or fish buyers, each time that a
fish seller sells fee fish to:
(A) Any party whose place of business is not located in the United
States, who does not take delivery or possession of the fee fish in the
United States, who is not otherwise subject to this subpart, or to whom
or against whom NMFS cannot otherwise apply or enforce this subpart,
(B) Any party who is a general food-service wholesaler or supplier,
a restaurant, a retailer, a consumer, some other type of end-user, or
some other party not engaged in the business of buying fish from fish
sellers for the purpose of reselling the fish, either with or without
processing the fish, or
(C) Any other party who the fish seller has good reason to believe
is a party not subject to this subpart or to whom or against whom NMFS
cannot otherwise apply or enforce this subpart,
(ii) In each such case the fish seller shall, with respect to the
fee fish involved in each such case, discharge, in addition to the fee
payment requirements of this subpart, all the fee collection, deposit,
disbursement, accounting, record keeping, and reporting requirements
that this subpart otherwise imposes on the fish buyer, and the fish
seller shall be subject to all the penalties this subpart provides for a
fish buyer's failure to discharge such requirements;
(4) Fee payment begins on the date NMFS specifies under the
notification procedures of paragraph (d) of this section and continues
without interruption at the fee rates NMFS specifies in accordance this
subpart until NMFS determines that the reduction loan is fully repaid.
If a reduction loan is, for any reason, not fully repaid at the maturity
of the reduction loan's original amortization period, fee payment and
collection shall continue until the reduction loan is fully repaid,
notwithstanding that the time required to fully repay the reduction loan
exceeds
[[Page 143]]
the reduction loan's initially permissible maturity.
(d) Notification. (1) At least 30 days before the effective date of
any fee or of any fee rate change, NMFS will publish a Federal Register
notice establishing the date from and after which the fee or fee rate
change is effective. NMFS will then also send, by U.S. mail, an
appropriate notification to each affected fish seller and fish buyer of
whom NMFS has notice;
(2) When NMFS determines that a reduction loan is fully repaid, NMFS
will publish a Federal Register notice that the fee is no longer in
effect and should no longer be either paid or collected. NMFS will then
also send, by U.S. mail, notification to each affected fish seller and
fish buyer of whom NMFS has knowledge;
(3) If NMFS fails to notify a fish seller or a fish buyer by U.S.
mail, or if the fish seller or fish buyer otherwise does not receive the
notice, of the date fee payments start or of the fee rate in effect,
each fish seller is, nevertheless, obligated to pay the fee at the fee
rate in effect and each fish buyer is, nevertheless, obligated to
collect the fee at the fee rate in effect.
(e) Failure to pay or collect. (1) If a fish buyer refuses to
collect the fee in the amount and manner that this subpart requires, the
fish seller shall then advise the fish buyer of the fish seller's fee
payment obligation and of the fish buyer's fee collection obligation. If
the fish buyer still refuses to properly collect the fee, the fish
seller, within the next 7 calendar days, shall forward the fee to NMFS.
The fish seller at the same time shall also advise NMFS in writing of
the full particulars, including:
(i) The fish buyer's and fish seller's name, address, and telephone
number,
(ii) The name of the fishing vessel from which the fish seller made
fish delivery and the date of doing so,
(iii) The quantity and delivery value of each species of fee fish
that the fish seller delivered, and
(iv) The fish buyer's reason, if known, for refusing to collect the
fee in accordance with this subpart;
(2) If a fish seller refuses to pay the fee in the amount and manner
that this subpart requires, the fish buyer shall then advise the fish
seller of the fish buyer's collection obligation and of the fish
seller's payment obligation. If the fish seller still refuses to pay the
fee, the fish buyer shall then either deduct the fee from the delivery
value over the fish seller's protest or refuse to buy the fee fish. The
fish buyer shall also, within the next 7 calendar days, advise NMFS in
writing of the full particulars, including:
(i) The fish buyer's and fish seller's name, address, and telephone
number,
(ii) The name of the fishing vessel from which the fish seller made
or attempted to make fish delivery and the date of doing so,
(iii) The quantity and delivery value of each species of fee fish
the fish seller delivered or attempted to deliver,
(iv) Whether the fish buyer deducted the fee over the fish seller's
protest or refused to buy the fee fish, and
(v) The fish seller's reason, if known, for refusing to pay the fee
in accordance with this subpart.
(f) Implementation regulations at variance with this section. If any
special circumstances in a reduction fishery require, in NMFS's
judgment, fee payment and/or collection provisions in addition to, or
different from, those in this section in order to accommodate the
circumstances of, and practices in, a reduction fishery while still
fulfilling the intent and purpose of this section, NMFS may,
notwithstanding this section, include such provisions in the
implementation regulations for such reduction fishery.
Sec. 600.1014 Fee collection deposits, disbursements, records, and reports.
(a) Deposit accounts. Each fish buyer that this subpart requires to
collect a fee shall maintain a segregated account at a federally insured
financial institution for the sole purpose of depositing collected fee
revenue and disbursing the fee revenue directly to NMFS in accordance
with paragraph (c) of this section.
(b) Fee collection deposits. Each fish buyer, no less frequently
than at the end of each business week, shall deposit, in the deposit
account established under paragraph (a) of this section, all fee
revenue, not previously deposited, that the fish buyer collects
[[Page 144]]
through a date not more than two calendar days before the date of
deposit. Neither the deposit account nor the principal amount of
deposits in the account may be pledged, assigned, or used for any
purpose other than aggregating collected fee revenue for disbursement to
the Fund in accordance with paragraph (c) of this section. The fish
buyer is entitled, at any time, to withdraw deposit interest, if any,
but never deposit principal, from the deposit account for the fish
buyer's own use and purposes.
(c) Deposit principal disbursement. On the last business day of each
month, or more frequently if the amount in the account exceeds the
account limit for insurance purposes, the fish buyer shall disburse to
NMFS the full amount of deposit principal then in the deposit account.
The fish buyer shall do this by check made payable to the Fund
subaccount to which the deposit principal relates. The fish buyer shall
mail each such check to the Fund subaccount lockbox that NMFS
establishes for the receipt of the disbursements for each program. Each
disbursement shall be accompanied by the fish buyer's settlement sheet
completed in the manner and form that NMFS specifies. NMFS will specify
the Fund subaccount lockbox and the manner and form of settlement sheet
by means of the notification in Sec. 600.1013(d).
(d) Records maintenance. Each fish buyer shall maintain, in a secure
and orderly manner for a period of at least 3 years from the date of
each transaction involved, at least the following information:
(1) For all deliveries of fee fish that the fish buyer buys from
each fish seller:
(i) The date of delivery,
(ii) The seller's identity,
(iii) The weight, number, or volume of each species of fee fish
delivered,
(iv) The identity of the fishing vessel that delivered the fee fish,
(v) The delivery value of each species of fee fish,
(vi) The net delivery value,
(vii) The identity of the party to whom the net delivery value is
paid, if other than the fish seller,
(viii) The date the net delivery value was paid, and
(ix) The total fee amount collected;
(2) For all fee collection deposits to and disbursements from the
deposit account:
(i) The dates and amounts of deposits,
(ii) The dates and amounts of disbursements to the Fund's lockbox
account, and
(iii) The dates and amounts of disbursements to the fish buyer or
other parties of interest earned on deposits.
(e) Annual report. In each year, on the date to be specified in each
implementation regulation, succeeding the year during which NMFS first
implemented a fee, each fish buyer shall submit to NMFS a report, on or
in the form NMFS specifies, containing the following information for the
preceding year, or whatever longer period may be involved in the first
annual report, for all fee fish each fish buyer purchases from fish
sellers: (1) Total weight, number, or volume bought;
(2) Total delivery value paid;
(3) Total fee amounts collected;
(4) Total fee collection amounts deposited by month;
(5) Dates and amounts of monthly disbursements to each Fund lockbox
account;
(6) Total amount of interest earned on deposits; and
(7) Depository account balance at year-end.
(f) State records. If landing records that a state requires from
fish sellers contain some or all of the data that this section requires
and state confidentiality laws or regulations do not prevent NMFS'
access to the records maintained for the state, then fish buyers can use
such records to meet appropriate portions of this section's
recordkeeping requirements. If, however, state confidentiality laws or
regulations make such records unavailable to NMFS, then fish buyers
shall maintain separate records for NMFS that meet the requirements of
this section. If any state law or regulation prohibits fish buyers, or
fish sellers where appropriate, from keeping, for the purpose of
complying with any requirement of this section, separate records that
involve some or all of the same data elements as the landing records
that the
[[Page 145]]
fish buyers also keep, for state purposes and under state law or
regulation, then a financed reduction program will not be possible.
(g) Audits. NMFS or its agents may audit, in whatever manner NMFS
believes reasonably necessary for the duly diligent administration of
reduction loans, the financial records of fish buyers and fish sellers
in each reduction fishery in order to ensure proper fee payment,
collection, deposit, disbursement, accounting, record keeping, and
reporting. Fish buyers and fish sellers shall make all records of all
program transactions involving post-reduction fish harvests, fish
deliveries, and fee payments, collections, deposits, disbursements,
accounting, record keeping, and reporting available to NMFS or NMFS'
agents at reasonable times and places and promptly provide all requested
information reasonably related to these records that such fish sellers
and fish buyers may otherwise lawfully provide. Trip tickets (or similar
accounting records establishing the pounds of fee fish that each fish
buyer buys from each fish seller each time that each fish buyer does so
and each price that each fish buyer then pays to each fish seller for
the fee fish) are essential audit documentation.
(h) Confidentiality of records. NMFS and NMFS' auditing agents shall
maintain the confidentiality of all data to which NMFS has access under
this section and shall neither release the data nor allow the data's use
for any purpose other than the purpose of this subpart; provided,
however, that NMFS may aggregate such data so as to preclude their
identification with any fish buyer or any fish seller and use them in
the aggregate for other purposes).
(i) Refunds. When NMFS determines that a reduction loan is fully
repaid, NMFS will refund any excess fee receipts, on a last-in/first-out
basis, to the fish buyers. Fish buyers shall return the refunds, on a
last-in/first-out basis, to the fish sellers who paid the amounts
refunded.
(j) Implementation regulations at variance with this section. If any
special circumstances in a reduction fishery require, in NMFS's
judgment, fee collection deposit, disbursement, or records provisions in
addition to, or different from, those in this section in order to
accommodate the circumstances of, and practices in, a reduction fishery
while still fulfilling the intent and purpose of this section, NMFS may,
notwithstanding this section, include such provisions in the
implementation regulations for such reduction fishery.
Sec. 600.1015 Late charges.
The late charge to fish buyers for fee payment, collection, deposit,
and/or disbursement shall be one and one-half (1.5) percent per month,
or the maximum rate permitted by state law, for the total amount of the
fee not paid, collected, deposited, and/or disbursed when due to be
paid, collected, deposited, and/or disbursed. The full late charge shall
apply to the fee for each month or portion of a month that the fee
remains unpaid, uncollected, undeposited, and/or undisbursed.
Sec. 600.1016 Enforcement.
In accordance with applicable law or other authority, NMFS may take
appropriate action against each fish seller and/or fish buyer
responsible for non-payment, non-collection, non-deposit, and/or non-
disbursement of the fee in accordance with this subpart to enforce the
collection from such fish seller and/or fish buyer of any fee (including
penalties and all costs of collection) due and owing the United States
on account of the loan that such fish seller and/or fish buyer should
have, but did not, pay, collect, deposit, and/or disburse in accordance
with this subpart. All such loan recoveries shall be applied to reduce
the unpaid balance of the loan.
Sec. 600.1017 Prohibitions and penalties.
(a) The following activities are prohibited, and it is unlawful for
any party to:
(1) Vote in any referendum under this subpart if the party is
ineligible to do so;
(2) Vote more than once in any referendum under this subpart;
(3) Sign or otherwise cast a ballot on behalf of a voter in any
referendum under this subpart unless the voter has fully authorized the
party to do so and doing so otherwise comports with this subpart;
[[Page 146]]
(4) Interfere with or attempt to hinder, delay, buy, or otherwise
unduly or unlawfully influence any eligible voter's vote in any
referendum under this subpart;
(5) Submit a fraudulent, unauthorized, incomplete, misleading,
unenforceable by specific performance, or inaccurate bid in response to
an invitation to bid under this subpart or, in any other way, interfere
with or attempt to interfere with, hinder, or delay, any invitation to
bid, any bid submitted under any invitation to bid, any reduction
contract, or any other reduction process in connection with any
invitation to bid;
(6) Revoke or attempt to revoke any bid under this subpart;
(7) Fail to comply with the terms and conditions of any invitation
to bid, bid, or reduction contract under this subpart, including NMFS'
right under such reduction contracts to specific performance;
(8) Fail to fully and properly pay and collect any fee due payable,
and collectible under this subpart or otherwise avoid, decrease,
interfere with, hinder, or delay any such payment and collection,
(9) Convert, or otherwise use for any purpose other than the purpose
this subpart intends, any paid or collected fee;
(10) Fail to fully and properly deposit on time the full amount of
all fee revenue collected under this subpart into a deposit account and
disburse the full amount of all deposit principal to the Fund's lockbox
account--all as this subpart requires;
(11) Fail to maintain full, timely, and proper fee payment,
collection, deposit, and/or disbursement records or make full, timely,
and proper reports of such information to NMFS-all as this subpart
requires;
(12) Fail to advise NMFS of any fish seller's refusal to pay, or of
any fish buyer's refusal to collect, any fee due and payable under this
subpart;
(13) Refuse to allow NMFS or agents that NMFS designates to review
and audit at reasonable times all books and records reasonably pertinent
to fee payment, collection, deposit, disbursement, and accounting under
this subpart or otherwise interfere with, hinder, or delay NMFS or it
agents in the course of their activities under this subpart;
(14) Make false statements to NMFS, any of the NMFS' employees, or
any of NMFS' agents about any of the matters in this subpart;
(15) Obstruct, prevent, or unreasonably delay or attempt to
obstruct, prevent, or unreasonably delay any audit or investigation NMFS
or its agents conduct, or attempt to conduct, in connection with any of
the matters in this subpart; and/or
(16) Otherwise materially interfere with the efficient and effective
conduct of reduction and the repayment of reduction loans under this
subpart.
(b) Any party who violates one or more of the prohibitions of
paragraph (a) of this section is subject to the full range of penalties
the Magnuson-Stevens Act and 15 CFR part 904 provide--including, but not
limited to: civil penalties, sanctions, forfeitures, and punishment for
criminal offenses--and to the full penalties and punishments otherwise
provided by any other applicable law of the United States.
(c) Additionally, NMFS may take any and all appropriate actions,
including the communication of action at law, against each party
responsible for the non-payment, non-collection, non-deposit, and/or
non-disbursement in accordance with Sec. 600.1013 and/or Sec. 600.1014
to enforce the United States' receipt from such party of any fee--
including penalties and all costs of collection--due and owing the
United States on account of the reduction loan that such party should
have, but did not, pay, collect, deposit, and/or disburse in accordance
with Sec. 600.1013 and/or Sec. 600.1014. All such reduction loan
recoveries shall be applied to reduce the unpaid balances of reduction
loans.
Subpart M_Specific Fishery or Program Fishing Capacity Reduction
Regulations
Authority: 5 U.S.C. 561, 16 U.S.C. 1801 et seq., 16 U.S.C. 1861a(b)
through (e), 46 App. U.S.C. 1279f and 1279g, section 144(d) of Division
B of Pub. L. 106-554, section 2201 of Pub. L. 107-20, and section 205 of
Pub. L. 107-117, Pub. L. 107-206, Pub. L. 108-7, Pub. L. 108-199, and
Pub. L. 108-447.
[[Page 147]]
Source: 69 FR 53361, Sept. 1, 2004, unless otherwise noted.
Sec. 600.1100 [Reserved]
Sec. 600.1101 Inshore fee system for repayment of the loan to harvesters of
Pollock from the directed fishing allowance allocated to the inshore component
under section 206(b)(1) of the AFA.
(a) Definition. In addition to the definitions in the Magnuson-
Stevens Act and in Sec. 679.2 of this title, the terms used in this
subpart have the following meanings:
American Fisheries Act (AFA) means Title II of Pub.L. 105-277.
Borrower means (individually and collectively) all persons who,
after January 1, 2000, harvest fee fish from the IC directed fishing
allowance.
Business week means a 7-day period, Saturday through Friday.
Delivery value means the gross ex-vessel value of all fee fish at
fish delivery.
Deposit principal means all collected fee revenue that a fish buyer
deposits in a segregated deposit account maintained in a federally
chartered national bank for the sole purpose of aggregating collected
fee revenue before sending the fee revenue to NMFS for repaying the
loan.
Fee means the six-tenths (0.6) of one cent that fish buyers deduct
at fish delivery from the delivery value of each pound of round weight
fee fish.
Fee fish means all pollock harvested from the IC directed fishing
allowance beginning on February 10, 2000 and ending at such time as the
loan's principal and interest are fully repaid.
Fish buyer means the first ex-vessel fish buyer who purchases fee
fish from a fish seller.
Fish delivery means the point at which a fish buyer first takes
delivery or possession of fee fish from a fish seller.
Fish seller means the harvester who catches and first sells fee fish
to a fish buyer.
IC directed fishing allowance means the directed fishing allowance
allocated to the inshore component under section 206(b)(1) of the AFA.
Loan means the loan authorized by section 207(a) of the AFA.
Net delivery value means the delivery value minus the fee.
Subaccount means the Inshore Component Pollock Subaccount of the
Fishing Capacity Reduction Fund in the U.S. Treasury for the deposit of
all funds involving the loan.
(b) Loan--(1) Principal amount. The loan's principal amount is
$75,000,000 (seventy five million dollars).
(2) Interest. Interest shall, from December 30, 1998, when NMFS
disbursed the loan, until the date the borrower fully repays the loan,
accrue at a fixed rate of 7.09 percent. Interest shall be simple
interest and shall accrue on the basis of a 365-day year.
(3) Repayment. The fee shall be the exclusive source of loan
repayment. The fee shall be paid on all fee fish.
(4) Application of fee receipts. NMFS shall apply all fee receipts
it receives, first, to payment of the loan's accrued interest and,
second, to reduction of the loan's principal balance.
(5) Obligation. The borrower shall repay the loan in accordance with
the AFA and this subpart.
(c) Fee payment and collection--(1) Payment and collection. (i) The
fee is due and payable at the time of fish delivery. Each fish buyer
shall collect the fee at the time of fish delivery by deducting the fee
from the delivery value before paying or promising later to pay the net
delivery value. Each fish seller shall pay the fee at the time of fish
delivery by receiving from the fish buyer the net delivery value or the
fish buyer's promise later to pay the net delivery value rather than the
delivery value. Regardless of when the fish buyer pays the net delivery
value, the fish buyer shall collect the fee at the time of fish
delivery;
(ii)(A) Each fish seller shall be deemed, for the purpose of the fee
collection, deposit, disbursement, and accounting requirements of this
subpart, to be both the fish seller and the fish buyer--and all
requirements and penalties under this subpart applicable to both a fish
seller and a fish buyer shall equally apply to the fish seller--each
time that the fish seller sells fee fish to:
(1) Any fish buyer whose place of business is not located in the
United States, who does not take delivery or
[[Page 148]]
possession of the fee fish in the United States, who is not otherwise
subject to this subpart, or to whom or against whom NMFS cannot
otherwise apply or enforce this subpart,
(2) Any fish buyer who is a general food-service wholesaler or
supplier, a restaurant, a retailer, a consumer, some other type of end-
user, or some other fish buyer not engaged in the business of buying
fish from fish sellers for the purpose of reselling the fish, or
(3) Any other fish buyer who the fish seller has good reason to
believe is a fish buyer not subject to this subpart or to whom or
against whom NMFS cannot otherwise apply or enforce this subpart,
(B) In each such case the fish seller shall, with respect to the fee
fish involved in each such case, discharge, in addition to the fee
payment requirements of this subpart, all the fee collection, deposit,
disbursement, accounting, recordkeeping, and reporting requirements that
this subpart otherwise imposes on the fish buyer, and the fish seller
shall be subject to all the penalties this subpart provides for a fish
buyer's failure to discharge such requirements;
(2) Notification. (i) NMFS will send an appropriate fee payment and
collection commencement notification to each affected fish seller and
fish buyer of whom NMFS has knowledge.
(ii) When NMFS determines that the loan is fully repaid, NMFS will
publish a Federal Register notification that the fee is no longer in
effect and should no longer be either paid or collected. NMFS will then
also send an appropriate fee termination notification to each affected
fish seller and fish buyer of whom NMFS has knowledge;
(3) Failure to pay or collect. (i) If a fish buyer refuses to
collect the fee in the amount and manner that this subpart requires, the
fish seller shall then advise the fish buyer of the fish seller's fee
payment obligation and of the fish buyer's fee collection obligation. If
the fish buyer still refuses to properly collect the fee, the fish
seller, within the next 7 calendar days, shall forward the fee to NMFS.
The fish seller at the same time shall also advise NMFS in writing of
the full particulars, including:
(A) The fish buyer's and fish seller's name, address, and telephone
number,
(B) The name of the fishing vessel from which the fish seller made
fish delivery and the date of doing so,
(C) The quantity and delivery value of fee fish that the fish seller
delivered, and
(D) The fish buyer's reason (if known) for refusing to collect the
fee in accordance with this subpart;
(ii) If a fish seller refuses to pay the fee in the amount and
manner that this subpart requires, the fish buyer shall then advise the
fish seller of the fish buyer's collection obligation and of the fish
seller's payment obligation. If the fish seller still refuses to pay the
fee, the fish buyer shall then either deduct the fee from the delivery
value over the fish seller's protest or refuse to buy the fee fish. The
fish buyer shall also, within the next 7 calendar days, advise NMFS in
writing of the full particulars, including:
(A) The fish buyer's and fish seller's name, address, and telephone
number,
(B) The name of the fishing vessel from which the fish seller made
or attempted to make fish delivery and the date of doing so,
(C) The quantity and delivery value of fee fish the fish seller
delivered or attempted to deliver,
(D) Whether the fish buyer deducted the fee over the fish seller's
protest or refused to buy the fee fish, and
(E) The fish seller's reason (if known) for refusing to pay the fee
in accordance with this subpart.
(d) Fee collection deposits, disbursements, records, and reports--
(1) Deposit accounts. Each fish buyer that this subpart requires to
collect a fee shall maintain a segregated account at a federally insured
financial institution for the sole purpose of depositing collected fee
revenue and disbursing the fee revenue directly to NMFS in accordance
with paragraph (c) of this section.
(2) Fee collection deposits. Each fish buyer, no less frequently
than at the end of each business week, shall deposit, in the deposit
account established under paragraph (a) of this section, all fee
revenue, not previously deposited, that the fish buyer has collected
through a date not more than 2
[[Page 149]]
calendar days before the date of deposit. Neither the deposit account
nor the principal amount of deposits in the account may be pledged,
assigned, or used for any purpose other than aggregating collected fee
revenue for disbursement to the subaccount in accordance with paragraph
(c) of this section. The fish buyer is entitled, at any time, to
withdraw deposit interest, if any, but never deposit principal, from the
deposit account for the fish buyer's own use and purposes.
(3) Deposit principal disbursement. On the last business day of each
month, or more frequently if the amount in the account exceeds the
account limit for insurance purposes, the fish buyer shall disburse to
NMFS the full amount of deposit principal then in the deposit account.
The fish buyer shall do this by check made payable to ``NOAA Inshore
Component Pollock Loan Subaccount.'' The fish buyer shall mail each such
check to the subaccount lockbox account that NMFS establishes for the
receipt of the disbursements of deposit principal. Each disbursement
shall be accompanied by the fish buyer's settlement sheet completed in
the manner and form that NMFS specifies. NMFS will specify the
subaccount's lockbox and the manner and form of settlement sheet by
means of the notification in Sec. 600.1101(c).
(4) Records maintenance. Each fish buyer shall maintain, in a secure
and orderly manner for a period of at least 3 years from the date of
each transaction involved, at least the following information:
(i) For all deliveries of fee fish that the fish buyer buys from
each fish seller:
(A) The date of delivery,
(B) The fish seller's identity,
(C) The round weight of fee fish delivered,
(D) The identity of the fishing vessel that delivered the fee fish,
(E) The delivery value,
(F) The net delivery value,
(G) The identity of the party to whom the net delivery value is
paid, if other than the fish seller,
(H) The date the net delivery value was paid, and
(I) The total fee amount collected;
(ii) For all fee collection deposits to and disbursements from the
deposit account:
(A) The dates and amounts of deposits,
(B) The dates and amounts of disbursements to the subaccount's
lockbox account, and
(C) The dates and amounts of disbursements to the fish buyer or
other parties of interest earned on deposits.
(5) Annual report. By January 15, 2001, and by each January 15
thereafter until the loan is fully repaid, each fish buyer shall submit
to NMFS a report, on or in the form NMFS specifies, containing the
following information for the preceding year for all fee fish each fish
buyer purchases from fish sellers:
(i) Total round weight bought;
(ii) Total delivery value paid;
(iii) Total fee amount collected;
(iv) Total fee collection amounts deposited by month;
(v) Dates and amounts of monthly disbursements to the subaccount
lockbox;
(vi) Total amount of interest earned on deposits; and
(vii) Depository account balance at year-end.
(6) State records. If landing records that a state requires from
fish sellers contain some or all of the data that this section requires
and state confidentiality laws or regulations do not prevent NMFS'
access to the records maintained for the state, then fish buyers can use
such records to meet appropriate portions of this section's
recordkeeping requirements. If, however, state confidentiality laws or
regulations make such records unavailable to NMFS, then fish buyers
shall maintain separate records for NMFS that meet the requirements of
this section.
(7) Audits. NMFS or its agents may audit, in whatever manner NMFS
believes reasonably necessary for the duly diligent administration of
the loan, the financial records of the fish buyers and the fish sellers
in order to ensure proper fee payment, collection, deposit,
disbursement, accounting, recordkeeping, and reporting. Fish buyers and
fish sellers shall make all records of all transactions involving fee
fish
[[Page 150]]
catches, fish deliveries, and fee payments, collections, deposits,
disbursements, accounting, recordkeeping, and reporting available to
NMFS or its agents at reasonable times and places and promptly provide
all requested information reasonably related to these records that such
fish sellers and fish buyers may otherwise lawfully provide. Trip
tickets (or similar accounting records establishing the round weight
pounds of fee fish that each fish buyer buys from each fish seller each
time that each fish buyer does so) are essential audit documentation.
(8) Confidentiality of records. NMFS and its auditing agents shall
maintain the confidentiality of all data to which NMFS has access under
this section and shall neither release the data nor allow the data's use
for any purpose other than the purpose of this subpart, unless otherwise
required by law; provided, however, that NMFS may aggregate such data so
as to preclude their identification with any fish buyer or any fish
seller and use them in the aggregate for other purposes.
(9) Refunds. When NMFS determines that the loan is fully repaid,
NMFS will refund any excess fee receipts, on a last-in/first-out basis,
to the fish buyers. Fish buyers shall return the refunds, on a last-in/
first-out basis, to the fish sellers who paid the amounts refunded.
(e) Late charges. The late charge to fish buyers for fee payment,
collection, deposit, and/or disbursement shall be one and one-half (1.5)
percent per month, or the maximum rate permitted by state law, for the
total amount of the fee not paid, collected, deposited, and/or disbursed
when due to be paid, collected, deposited, and/or disbursed within 5
days of the date due. The full late charge shall apply to the fee for
each month or portion of a month that the fee remains unpaid,
uncollected, undeposited, and/or undisbursed.
(f) Enforcement. In accordance with applicable law or other
authority, NMFS may take appropriate action against each fish seller
and/or fish buyer responsible for non-payment, non-collection, non-
deposit, and/or non-disbursement of the fee in accordance with this
subpart to enforce the collection from such fish seller and/or fish
buyer of any fee (including penalties and all costs of collection) due
and owing the United States on account of the loan that such fish seller
and/or fish buyer should have, but did not, pay, collect, deposit, and/
or disburse in accordance with this subpart. All such loan recoveries
shall be applied to reduce the unpaid balance of the loan.
(g) Prohibitions and penalties. (1) The following activities are
prohibited, and it is unlawful for anyone to:
(i) Avoid, decrease, interfere with, hinder, or delay payment or
collection of, or otherwise fail to fully and properly pay or collect,
any fee due and payable under this subpart or convert, or otherwise use
for any purpose other than the purpose this subpart intends, any paid or
collected fee;
(ii) Fail to fully and properly deposit on time the full amount of
all fee revenue collected under this subpart into a deposit account and
disburse the full amount of all deposit principal to the subaccount's
lockbox account--all as this subpart requires;
(iii) Fail to maintain full, timely, and proper fee payment,
collection, deposit, and/or disbursement records or make full, timely,
and proper reports of such information to NMFS-all as this subpart
requires;
(iv) Fail to advise NMFS of any fish seller's refusal to pay, or of
any fish buyer's refusal to collect, any fee due and payable under this
subpart;
(v) Refuse to allow NMFS or agents that NMFS designates to review
and audit at reasonable times all books and records reasonably pertinent
to fee payment, collection, deposit, disbursement, and accounting under
this subpart or otherwise interfere with, hinder, or delay NMFS or it
agents in the course of their activities under this subpart;
(vi) Make false statements to NMFS, any of the NMFS' employees, or
any of NMFS' agents about any of the matters in this subpart;
(vii) Obstruct, prevent, or unreasonably delay or attempt to
obstruct, prevent, or unreasonably delay any audit or investigation NMFS
or its agents
[[Page 151]]
conduct, or attempt to conduct, in connection with any of the matters in
this subpart; and/or
(viii) Otherwise materially interfere with the efficient and
effective repayment of the loan.
(2) Anyone who violates one or more of the prohibitions of paragraph
(a) of this section is subject to the full range of penalties the
Magnuson-Stevens Act and 15 CFR part 904 provide (including, but not
limited to: civil penalties, sanctions, forfeitures, and punishment for
criminal offenses) and to the full penalties and punishments otherwise
provided by any other applicable law of the United States.
Sec. 600.1102 Pacific Coast groundfish fee.
(a) Purpose. This section implements the fee for repaying the
reduction loan financing the Pacific Coast Groundfish Program authorized
by section 212 of Division B, Title II, of Public Law 108-7 and
implemented by a final notification in the Federal Register (July 18,
2003; 68 FR 42613).
(b) Definitions. Unless otherwise defined in this section, the terms
defined in Sec. 600.1000 of subpart L expressly apply to this section.
The following terms have the following meanings for the purpose of this
section:
Borrower means, individually and collectively, each post-reduction
fishing permit holder and/or fishing vessel owner fishing in the
reduction fishery, in any or all of the fee-share fisheries, or in both
the reduction fishery and any or all of the fee-share fisheries.
Deposit principal means all collected fee revenue that a fish buyer
deposits in an account maintained at a federally insured financial
institution for the purpose of aggregating collected fee revenue before
sending the fee revenue to NMFS for repaying the reduction loan.
Fee fish means all fish harvested from the reduction fishery during
the period in which any portion of the reduction fishery's subamount is
outstanding and all fish harvested from each of the fee-share fisheries
during the period in which any portion of each fee-share fishery's
subamount is outstanding.
Fee-share fishery means each of the fisheries for coastal Dungeness
crab and pink shrimp in each of the States of California and Oregon and
the fishery for coastal Dungeness crab and ocean pink shrimp in the
State of Washington.
Fee-share fishery subaccount means each of the six subaccounts
established in the groundfish program's fund subaccount in which each of
the six fee-share fishery subamounts are deposited.
Reduction fishery means all species in, and that portion of, the
limited entry trawl fishery under the Federal Pacific Coast Groundfish
Fishery Management Plan that is conducted under permits, excluding those
registered to whiting catcher-processors, which are endorsed for trawl
gear operation.
Reduction fishery subaccount means the subaccount established in the
groundfish program's fund subaccount in which the reduction fishery
subamount is deposited.
Subamount means each portion of the reduction loan's original
principal amount which is allocated either to the reduction fishery or
to any one of the fee-share fisheries.
(c) Reduction loan amount. The reduction loan's original principal
amount is $35,662,471.
(d) Subamounts. The subamounts of the reduction loan amount are:
(1) Reduction fishery, $28,428,719; and
(2) Fee-share fisheries:
(i) California coastal Dungeness crab fee-share fishery, $2,334,334,
(ii) California pink shrimp fee-share fishery, $674,202,
(iii) Oregon coastal Dungeness crab fee-share fishery, $1,367,545,
(iv) Oregon pink shrimp fee-share fishery, $2,228,845,
(v) Washington coastal Dungeness crab fee-share fishery, $369,426,
and
(vi) Washington ocean pink shrimp fee-share fishery, $259,400.
(e) Interest accrual inception. Interest began accruing on each
portion of the reduction loan amount on and from the date each such
portion was disbursed.
(f) Interest rate. The reduction loan's interest rate is 6.97
percent. This is a fixed rate of interest for the full term of the
reduction loan's life.
(g) Repayment term. For the purpose of determining fee rates, the
reduction loan's repayment term shall be 30 years
[[Page 152]]
from March 1, 2004, but each fee shall continue for as long as necessary
to fully repay each subamount.
(h) Reduction loan. The reduction loan shall be subject to the
provisions of Sec. 600.1012 of subpart L, except that:
(1) The borrower's obligation to repay the reduction loan shall be
discharged by fish sellers in the reduction fishery and in each of the
fee-share fisheries paying the fee applicable to each such fishery's
subamount in accordance with Sec. 600.1013 of subpart L, and
(2) Fish buyers in the reduction fishery and in each of the fee-
share fisheries shall be obligated to collect the fee applicable to each
such fishery's subamount in accordance with Sec. 600.1013 of this
subpart.
(i) Fee collection, deposits, disbursements, records, and reports.
Fish buyers in the reduction fishery and in each of the fee share
fisheries shall deposit and disburse, as well as keep records for and
submit reports about, the fees applicable to each such fishery in
accordance with Sec. 600.1014 of this subpart, except that:
(1) Deposit accounts. Each fish buyer that this section requires to
collect a fee shall maintain an account at a federally insured financial
institution for the purpose of depositing collected fee revenue and
disbursing the deposit principal directly to NMFS in accordance with
paragraph (i)(3) of this section. The fish buyer may use this account
for other operational purposes as well, but the fish buyer shall ensure
that the account separately accounts for all deposit principal collected
from the reduction fishery and from each of the six fee-share fisheries.
The fish buyer shall separately account for all fee collections as
follows:
(i) All fee collections from the reduction fishery shall be
accounted for in a reduction fishery subaccount,
(ii) All fee collections from the California pink shrimp fee-share
fishery shall be accounted for in a California shrimp fee-share fishery
subaccount,
(iii) All fee collections from the California coastal Dungeness crab
fishery shall be accounted for in a California crab fee-share fishery
subaccount,
(iv) All fee collections from the Oregon pink shrimp fee-share
fishery shall be accounted for in an Oregon shrimp fee-share fishery
subaccount,
(v) All fee collections from the Oregon coastal Dungeness crab fee-
share fishery shall be accounted for in an Oregon crab fee-share fishery
subaccount,
(vi) All fee collections from the Washington ocean pink shrimp fee-
share fishery shall be accounted for in a Washington ocean shrimp fee-
share fishery subaccount, and
(vii) All fee collections from the Washington coastal Dungeness crab
fishery shall be accounted for in a Washington crab fee-share fishery
subaccount;
(2) Fee collection deposits. Each fish buyer, no less frequently
than at the end of each month, shall deposit, in the deposit account
established under paragraph (i)(1) of this section, all collected fee
revenue not previously deposited that the fish buyer collects through a
date not more than two calendar days before the date of deposit. The
deposit principal may not be pledged, assigned, or used for any purpose
other than aggregating collected fee revenue for disbursement to the
fund in accordance with paragraph (i)(3) of this section. The fish buyer
is entitled, at any time, to withdraw interest (if any) on the deposit
principal, but never the deposit fee principal itself, for the fish
buyer's own use and purposes;
(3) Deposit principal disbursement. Not later than the 14th calendar
day after the last calendar day of each month, or more frequently if the
amount in the account exceeds the account limit for insurance purposes,
the fish buyer shall disburse to NMFS the full deposit principal then in
the deposit account, provided that the deposit principal then totals
$100 or more. If the deposit principal then totals less than $100, the
fish buyer need not disburse the deposit principal until either the next
month during which the deposit principal then totals $100 or more, or
not later than the 14th calendar day after the last calendar day of any
year in which the deposit principal has not since the last required
disbursement totaled $100 or more, whichever comes first. The fish buyer
shall disburse deposit principal by check made payable to the groundfish
program's fund subaccount. The fish buyer shall mail each such check
[[Page 153]]
to the groundfish program's fund subaccount lockbox that NMFS
establishes for the receipt of groundfish program disbursements. Each
disbursement shall be accompanied by the fish buyer's fee collection
report completed in the manner and form which NMFS specifies. NMFS will,
before fee payment and collection begins, specify the groundfish
program's fund subaccount lockbox and the manner and form of fee
collection report. NMFS will do this by means of the notification in
Sec. 600.1013(d) of subpart L. NMFS' fee collection report instructions
will include provisions for the fish buyer to specify the amount of each
disbursement which was disbursed from the reduction fishery subaccount
and/or from each of the six fee-share fishery subaccounts;
(4) Records maintenance. Each fish buyer shall maintain, in a secure
and orderly manner for a period of at least 3 years from the date of
each transaction involved, at least the following information:
(i) For all deliveries of fee fish that the fish buyer buys from
each fish seller:
(A) The date of delivery,
(B) The fish seller's identity,
(C) The weight, number, or volume of each species of fee fish
delivered,
(D) Information sufficient to specifically identify the fishing
vessel which delivered the fee fish,
(E) The delivery value of each species of fee fish,
(F) The net delivery value of each species of fee fish,
(G) The identity of the payor to whom the net delivery value is
paid, if different than the fish seller,
(H) The date the net delivery value was paid,
(I) The total fee amount collected as a result of all fee fish, and
(J) The total fee amount collected as a result of all fee fish from
the reduction fishery and/or all fee fish from each of the six fee-share
fisheries; and
(ii) For all collected fee deposits to, and disbursements of deposit
principal from, the deposit account include:
(A) The date of each deposit,
(B) The total amount deposited,
(C) The total amount deposited in the reduction fishery subaccount
and/or in each of the six fee-share fishery subaccounts,
(D) The date of each disbursement to the Fund's lockbox,
(E) The total amount disbursed,
(F) The total amount disbursed from the reduction fishery subaccount
and/or from each of the six fee-share fishery subaccounts, and
(G) The dates and amounts of disbursements to the fish buyer, or
other parties, of interest earned on deposits; and
(5) Annual report. No fish buyer needs to submit an annual report
about fee fish collection activities unless, during the course of an
audit under Sec. 600.1014(g), NMFS requires a fish buyer to submit such
a report or reports.
(j) Other provisions. The reduction loan is, in all other respects,
subject to the provisions of Sec. 600.1012 through applicable portions
of Sec. 600.1017, except Sec. 600.1014(e).
[70 FR 40229, July 13, 2005, as amended at 71 FR 28, Jan. 3, 2006]
Sec. 600.1103 Bering Sea and Aleutian Islands (BSAI) Crab species program.
(a) Purpose. This section's purpose is to implement the program that
Section 144(d) of Division B of Pub. L. 106-554, as amended by section
2201 of Pub. L. 107-20 and section 205 of Pub. L. 107-117, enacted for
BSAI crab species.
(b) Terms. Unless otherwise defined in this section, the terms
defined in Sec. 600.1000 expressly apply to the program for BSAI crab.
Likewise, the terms defined in Sec. 679.2 of this chapter also apply to
terms not otherwise defined in either Sec. 600.1000 or this section.
The following terms used in this section have the following meanings for
the purpose of this section:
Acceptance means NMFS' acceptance, on behalf of the United States,
of a bid.
Bid means a bidder's irrevocable offer, in response to an invitation
to bid under this section, to surrender, to have revoked, to have
restricted, to relinquish, to have withdrawn, or to have extinguished by
other means, in the manner this section requires, the bidder's reduction
fishing interest.
Bid amount means the dollar amount of each bid.
[[Page 154]]
Bidder means either a qualifying bidder bidding alone or a
qualifying bidder and a co-bidder bidding together who at the time of
bidding holds the reduction fishing interests specified at Sec.
600.1018(e).
Bid crab means the crab that NMFS determines each bidder's
reduction/history vessel (see definition) harvested, according to the
State of Alaska's records of the documented harvest of crab, from each
reduction endorsement fishery and from the Norton Sound fishery during
the most recent 5 calendar years in which each reduction endorsement
fishery was for any length of time open for directed crab fishing during
a 10-calendar-year period beginning on January 1, 1990, and ending on
December 31, 1999.
Bid score means the criterion by which NMFS decides in what order to
accept bids in the reverse auction this section specifies.
Co-bidder means a person who is not a qualifying bidder, but who at
the time of bidding owns the reduction/privilege vessel this section
requires to be included in a bid and is bidding together with a
qualifying bidder.
Crab means the crab species covered by the Fishery Management Plan
for the Bering Sea/Aleutian Islands King and Tanner Crabs pursuant to
Sec. 679.2 of this chapter.
Crab license means a License Limitation Program license for crab
issued pursuant to Sec. 679.4(k)(5) of this chapter.
Crab reduction permit means a non-interim crab license endorsed for
one or more reduction endorsement fisheries, regardless of whether it is
also endorsed for the Norton Sound fishery.
FSD means NMFS' Financial Services Division, located in NMFS' Silver
Spring, MD, headquarters office.
Non-crab reduction permit means a fishing license, including all of
its predecessor history, for which a bidder is the holder of record on
December 12, 2003 and which was issued based on the fishing history of
the bidder's -reduction/history vessel.
Norton Sound fishery means the non-reduction fishery defined in
Sec. 679.2 of this chapter as the area/species endorsement for Norton
Sound red king and Norton Sound blue king crab.
NVDC means the U.S. Coast Guard's National Vessel Documentation
Center located in Falling Waters, WV.
Qualifying bidder means a person who at the time of bidding is the
license holder of record of a crab reduction permit.
Qualifying voter means a person who at the time of voting in a
referendum is the license holder of record either of an interim or a
non-interim crab license, except a crab license whose sole area/species
endorsement is for the Norton Sound fishery.
RAM Program means NMFS' Restricted Access Management Program located
in NMFS' Juneau, AK, regional office.
Reduction endorsement fishery means any of the seven fisheries that
Sec. 679.2 of this chapter defines as area/species endorsements except
the area/species endorsement for the Norton Sound fishery.
Reduction fishery means the fishery for all crab covered by the
Bering Sea/Aleutian Islands King and Tanner Crabs Fishery Management
Plan under all area/species endorsements that section 679.2 of the
chapter defines, except the area/species endorsement for the Norton
Sound fishery.
Reduction fishing history means, for each bid, the complete
documented harvest of the bidder's reduction/history vessel, upon any
part of which such harvest NMFS based issuance of the crab license
included in the bid as a crab reduction permit, plus such fishing
history, after the issuance of such crab license, of any other vessel
upon which the bidder used such crab license.
Reduction fishing interest means, for each bid, the bidder's:
(1) Reduction fishing privilege (see definition);
(2) Crab reduction permit;
(3) Non-crab reduction permit;
(4) Reduction fishing history (see definition); and
(5) Any other claim that could in any way qualify the owner, holder,
or retainer of any of the reduction components, or any person claiming
under such owner, holder, or retainer, for any present or future limited
access system fishing license or permit in any United
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States fishery (including, but not limited to, any harvesting privilege
or quota allocation under any present or future individual fishing quota
system).
Reduction fishing privilege means the worldwide fishing privileges
of a bid's reduction/privilege vessel (see definition).
Reduction/history vessel means the vessel or vessels which generated
the reduction fishing history.
Reduction loan sub-amount means the portion of the original
principal amount of reduction loan this section specifies each reduction
endorsement fishery must repay with interest.
Reduction/privilege vessel means the vessel designated on a crab
license on December 12, 2003.
Referendum means a referendum under this section to determine
whether voters approve the fee required to repay this program's
reduction loan.
Replacement vessel means a reduction/history vessel which replaced
the lost or destroyed one whose reduction fishing history qualified
during the general qualification period and the endorsement
qualification period and, which under the exceptions in Amendment 10,
qualified during the recent participation period.
(c) Relationship to this subpart--(1) Provisions that apply. The
provisions of Sec. 600.1000 through Sec. 600.1017 of this subpart
apply to this program except as paragraph (c)(2) of this section
provides; and
(2) Provisions that do not apply. The following sections, or
portions of them, of this subpart do not apply to this program:
(i) All of:
(A) Section 600.1001,
(B) Section 600.1002,
(C) Section 600.1003,
(D) Section 600.1004,
(E) Section 600.1005,
(F) Section 600.1006, and
(G) Section 600.1007,
(ii) The portions of Sec. 600.1008:
(A) Pertaining to an implementation plan,
(B) Pertaining to a 60-day comment period for a proposed
implementation regulation,
(C) Pertaining to public hearings in each State that the this
program affects,
(D) Pertaining to basing the implementation regulation on a business
plan,
(E) Within paragraphs (d)(1)(ii) through (viii),
(F) Within paragraph (d)(2)(ii),
(G) Within paragraph (e), and
(H) Within paragraph (f) and pertaining to fishing capacity
reduction specifications and a subsidized program,
(iii) The portions of Sec. 600.1009:
(A) Pertaining to fishing capacity reduction specifications,
(B) Within paragraph (a)(4),
(C) Pertaining to a reduction amendment,
(D) Within paragraph (a)(5)(ii), to the extent that the paragraph is
inconsistent with the requirements of this section,
(E) Within paragraph (b)(i), and
(F) Pertaining to an implementation plan,
(iv) The portions of Sec. 600.1010:
(A) Within paragraph (b),
(B) Pertaining to fishing capacity reduction specifications,
(C) Within paragraph (d)(1), and
(D) Within paragraphs (d)(4))(iv) through (vii),
(v) The portions of Sec. 600.1011:
(A) That comprise the last sentence of paragraph (a),
(B) Within paragraph (d), and
(C) Within paragraph (e)(2),
(vi) The portions of Sec. 600.1012:
(A) Within paragraph (b)(3) following the word ``subpart'', and
(B) Within paragraph (b)(3), and
(vii) The last sentence of Sec. 600.1014(f).
(d) Reduction cost financing. NMFS will use the proceeds of a
reduction loan, authorized for this purpose, to finance 100 percent of
the reduction cost. The original principal amount of the reduction loan
will be the total of all reduction payments that NMFS makes under
reduction contracts. This amount shall not exceed $100 million.
(e) Who constitutes a bidder. A bidder is a person or persons who is
the:
(1) Holder of record and person otherwise fully and legally entitled
to offer, in the manner this section requires,
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the bid's crab reduction permit and the bid's non-crab reduction permit;
(2) Reduction/privilege vessel owner, title holder of record, and
person otherwise fully and legally entitled to offer, in the manner this
section requires, the bid's reduction fishing privilege; and
(3) Retainer and person otherwise fully and legally entitled to
offer, in the manner this section requires, the bid's reduction fishing
history.
(f) How crab licenses determine qualifying bidders and qualifying
voters--(1) Non-interim crab licenses. Each person who is the record
holder of a non-interim crab license endorsed for one or more reduction
endorsement fisheries is both a qualifying bidder and a qualifying voter
and can both bid and vote;
(2) Interim crab licenses. Each person who is the record holder of
an interim crab license endorsed for one or more reduction endorsement
fisheries is a qualifying voter but not a qualifying bidder and can vote
but not bid;
(3) Crab licenses endorsed solely for the Norton Sound Fishery. Each
person who is the record holder of any crab license endorsed solely for
the Norton Sound fishery is neither a qualifying bidder nor a qualifying
voter and can neither bid nor vote; and
(4) Time at which qualifying bidders and voters must hold required
crab licenses. A qualifying bidder must be the record holder of the
required crab license at the time the qualifying bidder submits its bid.
A qualifying voter must be the record holder of the required crab
license at the time the qualifying voter submits its referendum ballot.
(g) Qualifying bidders and co-bidders--(1) Qualifying bidders
bidding alone. There is no co-bidder when a qualifying bidder owns,
holds, or retains all the required components of the reduction fishing
interest;
(2) Qualifying bidders bidding together with co-bidders. When a
qualifying bidder does not own the reduction/privilege vessel, the
person who does may be the qualifying bidder's co-bidder; and
(3) Minimum reduction components that qualifying bidders must hold
or retain when bidding with co-bidders. At a minimum, a qualifying
bidder must hold the crab reduction permit and the non-crab reduction
permit and retain the reduction fishing history. The reduction/privilege
vessel may, however, be owned by another person who is a co-bidder.
(h) Reduction fishing interest--(1) General requirements. Each
bidder must:
(i) In its bid, offer to surrender, to have revoked, to have
restricted, to relinquish, to have withdrawn, or to have extinguished by
other means, in the manner that this section requires, the reduction
fishing interest,
(ii) At the time of bidding, hold, own, or retain the reduction
fishing interest and be fully and legally entitled to offer, in the
manner that this section requires, the reduction fishing interest, and
(iii) Continuously thereafter hold, own, or retain the reduction
fishing interest and remain fully and legally entitled to offer, in the
manner that this section requires, the reduction fishing interest until:
(A) The bid expires without NMFS first having accepted the bid,
(B) NMFS notifies the bidder that NMFS rejects the bid,
(C) NMFS notifies the bidder that a reduction contract between the
bidder and the United States no longer exists, or
(D) NMFS tenders reduction payment to the bidder;
(2) Reduction/privilege vessel requirements. The reduction/privilege
vessel in each bid must be:
(i) The vessel designated, at the time this final rule is published
in the Federal Register, on a crab license which becomes a bid's crab
reduction permit, and
(ii) Be neither lost nor destroyed at the time of bidding;
(3) Reduction fishing privilege requirements. The reduction fishing
privilege in each bid must be the reduction/privilege vessel's:
(i) Fisheries trade endorsement under the Merchant Marine Act, 1936
(46 U.S.C.A. 12108),
(ii) Qualification for any present or future U.S. Government
approval under section (9)(c)(2) of the Shipping Act, 1916 (46 U.S.C.
App. 808(c)(2)) for placement under foreign registry or operation under
the authority of a foreign country, and
[[Page 157]]
(iii) Any other privilege to ever fish anywhere in the world;
(4) Crab reduction permit requirements. (i) Except as otherwise
provided in paragraph (i) of this section, the crab reduction permit
must in each bid:
(A) Be the crab license that NMFS issued on the basis of the
bidder's reduction fishing history,
(B) Be non-interim at the time each bidder submits its bid, and
(C) Include an area/species endorsement for any one or more
reduction endorsement fisheries,
(ii) Although the Norton Sound fishery is not a reduction
endorsement fishery, an area/species endorsement for the Norton Sound
fishery occurring on a crab reduction permit must be surrendered and
revoked (and all fishing history involving it relinquished) in the same
manner as all other reduction endorsement fisheries occurring on the
crab reduction permit;
(5) Non-crab reduction permit requirements. The non-crab reduction
permit must in each bid be every license, permit, or other harvesting
privilege that:
(i) NMFS issued on the basis of the fishing history of the bidder's
reduction/history vessel, and
(ii) For which the bidder was the license holder of record on the
effective date of this section; and
(6) Reduction fishing history requirements. Except as otherwise
provided in paragraph (i) of this section, the reduction fishing history
in each bid must that of a single reduction/history vessel.
(i) Exceptions to the reduction fishing interest requirements--(1)
Lost or destroyed vessel salvaged. When a bidder has salvaged a lost or
destroyed vessel and has made from the salvaged vessel the documented
harvest of crab Sec. 679.4(k)(5)(iii)(B)(3) of this chapter requires,
the crab portion of the reduction fishing history is the salvaged
vessel's documented harvest of crab; and
(2) Lost or destroyed vessel not salvaged. When a bidder has not
salvaged the lost or destroyed vessel but has made from a replacement
vessel the documented harvest of crab Sec. 679.4(k)(5)(iii)(B)(3) of
this chapter requires:
(i) The crab portion of the reduction fishing history is the total
of the lost or destroyed vessel's documented harvest of crab through the
date of such vessel's loss or destruction plus the replacement vessel's
documented harvest of crab after such date, and
(ii) For the purposes of this program, the lost or destroyed
vessel's documented harvest of crab merges with, and becomes a part of,
the replacement vessel's documented harvest of crab; and
(3) Acquired crab fishing history. When a bidder, in the manner
Sec. 679.4(k)(5)(iv) of this chapter requires, has made a documented
harvest of crab from one vessel and has acquired a replacement vessel's
documented harvest of crab:
(i) The crab portion of the reduction fishing history is the total
of the acquired documented harvest of crab through December 31, 1994,
plus the documented harvest of crab after December 31, 1994, of the
vessel from which the bidder made the documented crab harvest Sec.
679.4(k)(5)(iv) of this chapter requires, and
(ii) [Reserved]
(iii) For the purposes of this program, the acquired documented
harvest of crab merges with, and becomes a part of, the non-acquired
documented harvest of crab.
(j) Determining value of reduction/history vessels' bid crab--(1) In
each fishery. NMFS will determine the dollar value of each reduction/
history vessel's bid crab in each reduction endorsement fishery and in
the Norton Sound Fishery by multiplying each reduction/history vessel's
number of pounds of each species of bid crab by the average ex-vessel
price per pound that the State of Alaska annually publishes for each
crab species in the bid crab; and
(2) In all fisheries. NMFS will determine the dollar value of each
reduction/history vessel's bid crab in all reduction endorsement
fisheries and in the Norton Sound fishery by adding each of the products
of the multiplications in paragraph (j)(1) of this section; and
(3) Crab excluded from bid crab. A reduction/history vessel's bid
crab may not include, to the extent that NMFS has knowledge:
[[Page 158]]
(i) Triangle tanner crab, grooved tanner crab, and any other crab
not involved in the various area/species endorsements,
(ii) Discarded crab,
(iii) Crab caught for personal use,
(iv) Unspecified crab, and
(v) Any other crab for which the dollar value, crab fishery, landing
date, or harvesting vessel NMFS cannot, for whatever reason, determine.
(k) Determining bid score. NMFS will determine each bid score by
dividing each bid amount by the sum in paragraph (j)(2) of this section.
(l) Determining reduction loan sub-amount--(1) Value of all bid crab
in each fishery. NMFS will add the dollar value of bid crab of all
accepted bidders' reduction/history vessels in each reduction
endorsement fishery;
(2) Value of all bid crab in all fisheries. NMFS will add the dollar
value of bid crab of all accepted bidders' reduction/history vessels in
all reduction endorsement fisheries plus the Norton Sound fishery;
(3) Each fishery as a percentage of all fisheries. NMFS will divide
each of the sums in paragraph (l)(1) of this section by the sum in
paragraph (l)(2) of this section. The result of this calculation will be
the dollar value of all bid crab in each reduction endorsement fishery
as a percentage of the dollar value of all bid crab in all reduction
endorsement fisheries plus the Norton Sound fishery;
(4) Applying percentages to loan amount. NMFS will multiply the
reduction loan's full original principal amount by each of the yields in
paragraph (l)(3) of this section; and
(5) Loan sub-amount. Each of the amounts resulting from the
calculation in paragraph (l)(4) of this section will be the reduction
loan subamount that a reduction endorsement fishery must repay.
(m) Prospectively qualifying bidder and voter notification--(1)
General. At the appropriate point before issuing an invitation to bid,
NMFS will publish a notification in the Federal Register listing all
persons who at the time of publishing the notification prospectively are
qualifying bidders and qualifying voters;
(2) Qualifying bidder list. The prospectively qualifying bidder list
will include the names and addresses of record of each license holder of
record for all non-interim crab licenses except only crab licenses whose
sole area/species endorsement is for the Norton Sound fishery;
(3) Qualifying voter list. The prospectively qualifying voter list
will include the names and addresses of record of each license holder of
record for all non-interim and interim crab licenses except only crab
licenses whose sole area/species endorsement is for the Norton Sound
fishery;
(4) Basis of lists. NMFS will base both the lists on the RAM
Program's license holder records for crab licenses meeting the
requirements of Sec. 679.4(k)(5) of this chapter as well as the
requirements of this section;
(5) Purpose. The purpose of the notification is to provide the
public notice of:
(i) The prospectively qualifying bidders, and
(ii) The prospectively qualifying voters; and
(6) Public comment. Any person who wants to comment about the
notification has 30 days from the notification's publication date to do
so. Persons should send their comments to both FSD and the RAM Program
(at addresses that the notification will specify). Comments may address:
(i) Persons who appear on one or more lists but should not,
(ii) Persons who do not appear on one or more lists but should, and
(iii) Persons who believe their names and/or business mailing
addresses appearing on one or more lists are incorrect.
(n) Invitation to bid--(1) Notification. At the appropriate point
after issuing the notification in paragraph (m) of this section, NMFS
will publish the invitation to bid in the Federal Register notification
further specified in Sec. 600.1009(c) of this subpart, along with a
bidding form and terms of capacity reduction agreement. No person may,
however, bid at this stage;
(2) Notification contents. The invitation to bid notification will
state all applicable bid submission requirements
[[Page 159]]
and procedures (including, but not limited to, those included in this
section). In particular, the invitation to bid notification will:
(i) State the date on which NMFS will invite bids by mailing an
invitation to bid to each person on the prospectively qualifying bidder
list,
(ii) State a bid opening date, before which a bidder may not bid,
and a bid closing date, after which a bidder may not bid,
(iii) State a bid expiration date after which each bid expires
unless, prior to that date, NMFS accepts the bid by mailing a written
acceptance notice to the bidder at the bidder's address of record,
(iv) State the manner of bid submission and the information each
bidder must submit for NMFS to deem a bid responsive,
(v) State any other information required for bid submission, and
(vi) Include a facsimile of the invitation to bid, along with a
bidding form and terms of capacity reduction agreement comprising the
entire terms and conditions of the reduction contract under which each
bidder must bid and under which NMFS must accept a bid; and
(3) Mailing. On the date specified in this notification, NMFS will
invite bids by mailing the invitation to bid and a bidding package,
including a bidding form terms of capacity reduction agreement, to each
person then on the prospectively qualifying bidder list. NMFS will not
mail the invitation to bid to any potential co-bidder because NMFS will
not then know which bids may include a co-bidder. Each qualifying bidder
is solely responsible to have any required co-bidder properly complete
the bid. No person may bid before receiving the invitation to bid and
the bidding package that NMFS mailed to that person.
(o) Bids--(1) Content. Each invitation to bid that NMFS mails to a
qualifying bidder will have a bid form requiring each bid to:
(i) Identify, by name, regular mail address, telephone number, and
(if available) electronic mail address, the qualifying bidder and each
co-bidder,
(ii) State the bid amount in U.S. dollars,
(iii) Identify, by crab license number, the qualifying bidder's crab
reduction permit and include an exact copy of this crab license (which
the RAM Program issued),
(iv) Identify, by vessel name and official number, the bidder's
reduction/privilege vessel, and include an exact copy of this vessel's
official document (which NVDC issued),
(v) Identify, by license or permit number, each of the bidder's non-
crab reduction permits; and include an exact copy of each of these
licenses or permits (which the RAM Program issued for licenses or
permits involving species under the jurisdiction of NMFS' Alaska Region
and which other NMFS offices issued for licenses or permits involving
species under those offices' jurisdiction),
(vi) Identify, separately for crab and for each other species:
(A) The qualifying bidder's reduction fishing history, and
(B) The dates that each portion of the reduction fishing history
encompasses; the name and official number of the reduction/history
vessel or vessels which gave rise to it; and the dates during which the
qualifying bidder owned such vessels or, if the qualifying bidder
acquired any reduction fishing history from another person, the name of
the person from which the qualifying bidder acquired such reduction
fishing history and the manner in which and the date on which the
qualifying bidder did so,
(vii) State, declare, and affirm that the qualifying bidder holds
the crab reduction permit and retains the complete reduction fishing
history, and is fully and legally entitled to offer both in the manner
this section requires,
(viii) State, declare, and affirm that either the qualifying bidder
or the co-bidder owns the reduction/privilege vessel and holds the non-
crab reduction permit and is fully and legally entitled to offer both in
the manner that this section requires, and
(ix) Provide any other information or materials that NMFS believes
is necessary and appropriate; and
(2) Rejection. NMFS, regardless of bid scores, will reject any bid
that NMFS
[[Page 160]]
believes is unresponsive to the invitation to bid. All bid rejections
will constitute final agency action as of the date of rejection. Before
rejection, NMFS may, however, contact any bidder to attempt to correct a
bid deficiency if NMFS, in its discretion, believes the attempt
warranted.
(p) Acceptance--(1) Reverse auction. NMFS will determine which
responsive bids NMFS accepts by using a reverse auction in which NMFS
first accepts the responsive bid with the lowest bid score and
successively accepts each additional responsive bid with the next lowest
bid score until either there are no more responsive bids to accept or
acceptance of the last responsive bid with the next lowest bid score
would cause the reduction cost to exceed $100 million. If two or more
responsive bid scores are exactly the same, NMFS will first accept the
bid that NMFS first received;
(2) Notification. NMFS will, after the conclusion of a successful
referendum, notify accepted bidders that NMFS had, before the
referendum, accepted their bids; and
(3) Post-acceptance reduction permit transfer. After NMFS has
accepted bids, neither the RAM Program (nor any other NMFS office) will
transfer to other persons any reduction permits that accepted bidders
included in the bids unless and until FSD advises the RAM Program (or
some other NMFS office) that the resulting reduction contracts are no
longer in effect because a referendum failed to approve the fee that
this section requires to repay this program's reduction loan.
(q) Reduction contracts subject to successful post-bidding
referendum condition. Although this program involves no fishing capacity
reduction specifications under this subpart, each bid, each acceptance,
and each reduction contract is nevertheless subject to the successful
post-bidding referendum condition that Sec. 600.1009(a)(3) of this
subpart specifies for bidding results that do not conform to the fishing
capacity reduction specifications.
(r) Post-bidding referendum--(1) Purpose. NMFS will conduct a post-
bidding referendum whose sole purpose is to determine whether, based on
the bidding results, qualifying voters who cast referendum ballots in
the manner that this section requires authorize the fee required to
repay this program's reduction loan;
(2) Manner of conducting. NMFS will mail a referendum ballot to each
person then on the prospectively qualifying voter list for each crab
license that the person holds and otherwise conduct the referendum as
specified in Sec. 600.1010 of this subpart;
(3) One vote per crab license. Each qualifying voter may cast only
one vote for each crab license that each qualifying voter holds;
(4) Crab license numbers on ballots. Each referendum ballot that
NMFS mails will contain the license number of the prospectively
qualifying voter's crab license to which the ballot relates;
(5) Potential reduction results stated. Each referendum ballot that
NMFS mails will state the aggregate potential reduction results of all
the bids that NMFS accepted, including:
(i) The amount of reduction that all accepted bids potentially
effect, including:
(A) The number of crab reduction permits, together with each area/
species endorsement for which each of these licenses is endorsed,
(B) The number of reduction/privilege vessels and reduction/history
vessels, and
(C) The aggregate and average dollar value of bid crab (together
with the number of pounds of bid crab upon which NMFS based the dollar
value), in each reduction endorsement fishery and in the reduction
fishery, for all reduction/history vessels during the period for which
NMFS calculates the dollar value of bid crab,
(ii) The reduction loan sub-amount that each reduction endorsement
fishery must repay if a referendum approves the fee, and
(iii) Any other useful information NMFS may then have about the
potential sub-fee rate initially necessary in each reduction endorsement
fishery to repay each reduction loan sub-amount; and
(6) Notice that condition fulfilled. If the referendum is
successful, NMFS will notify accepted bidders, in the manner that Sec.
600.1010(d)(6)(iii) of this subpart specifies, that a successful
referendum
[[Page 161]]
has fulfilled the reduction contracts' successful post-bidding
referendum condition specified in paragraph (q) of this section.
(s) Reduction method. In return for each reduction payment, NMFS
will permanently:
(1) Revoke each crab reduction permit;
(2) Revoke each non-crab reduction permit;
(3) Revoke each reduction fishing privilege (which revocation will
run with the reduction/privilege vessel's title in the manner Sec.
600.1009(a)(5)(ii)(A) of this subpart requires and in accordance with 46
U.S.C. 12108(d));
(4) Effect relinquishment of each reduction fishing history for the
purposes specified in this section by noting in the RAM Program records
(or such other records as may be appropriate for reduction permits
issued elsewhere) that the reduction fishing history has been
relinquished under this section and will never again be available to
anyone for any fisheries purpose; and
(5) Otherwise restrict in accordance with this subpart each
reduction/privilege vessel and fully effect the surrender, revocation,
restriction, relinquishment, withdrawal, or extinguishment by other
means of all components of each reduction fishing interest.
(t) Reduction payment tender and disbursement--(1) Fishing continues
until tender. Each accepted bidder may continue fishing as it otherwise
would have absent the program until NMFS, after a successful referendum,
tenders reduction payment to the accepted bidder;
(2) Notification to the public. After a successful referendum but
before tendering reduction payment, NMFS will publish a notification in
the Federal Register listing all proposed reduction payments and putting
the public on notice:
(i) Of the crab reduction permits, the reduction/privilege vessels,
the reduction fishing histories, and the non-crab reduction permits upon
whose holding, owning, retaining, or other legal authority
representations accepted bidders based their bids and NMFS based its
acceptances, and
(ii) That NMFS intends, in accordance with the reduction contracts,
to tender reduction payments in return for the actions specified in
paragraph (s) of this section;
(3) Public response. The public has 30 days after the date on which
NMFS publishes the reduction payment tender notification to advise NMFS
in writing of any holding, owning, or retaining claims that conflict
with the representations upon which the accepted bidders based their
bids and on which NMFS based its acceptances;
(4) Tender and disbursement parties. NMFS will tender reduction
payments only to accepted bidders, unless otherwise provided contrary
written instructions by accepted bidders. Creditors or other parties
with secured or other interests in reduction/privilege vessels or
reduction permits are responsible to make their own arrangements with
accepted bidders;
(5) Time of tender. At the end of the reduction payment tender
notification period, NMFS will tender reduction payments to accepted
bidders, unless NMFS then knows of a material dispute about an accepted
bidder's authority to enter into the reduction contract with respect to
any one or more components of the reduction fishing interest that
warrants, in NMFS' discretion, an alternative course of action;
(6) Method of tender and disbursement. NMFS will tender reduction
payment by requesting from each accepted bidder specific, written
instructions for paying the reduction payments. Upon receipt of these
payment instructions, NMFS will immediately disburse reduction payments
in accordance with the payment instructions; and
(7) Effect of tender. Concurrently with NMFS' tender of reduction
payment to each accepted bidder:
(i) All fishing activity for any species anywhere in the world in
any way associated with each accepted bidder's reduction fishing
interest must cease,
(ii) Each accepted bidder must retrieve all fixed fishing gear for
whose deployment the accepted bidder's reduction/privilege vessel was
responsible, and
(iii) NMFS will fully exercise its reduction contract rights with
respect to the reduction fishing interest by taking the actions
specified in paragraph (s) of this section.
[[Page 162]]
(u) Fee payment and collection--(1) Fish sellers who pay the fee.
Any person who harvests any crab, but whom ADF&G's fisheries reporting
requirements do not require to record and submit an ADF&G fish ticket
for that crab, is a fish seller for the purpose of paying any fee on
that crab and otherwise complying with the requirements of Sec.
600.1013 of this subpart;
(2) Fish buyers who collect the fee. Any person whom ADF&G's
fisheries reporting requirements require to record and submit an ADF&G
fish ticket for any crab that another person harvested is a fish buyer
for the purpose of collecting the fee on that crab and otherwise
complying with the requirements of Sec. 600.1013 of this subpart; and
(3) Persons who are both fish sellers and fish buyers and both pay
and collect the fee. Any person who harvests any crab, and whom ADF&G's
fisheries reporting requirements require to record and submit an ADF&G
fish ticket for that crab, is both a fish seller and a fish buyer for
the purpose of paying and collecting the fee on that crab and otherwise
complying with the requirements of Sec. 600.1013 of this subpart.
(v) Fishing prohibition and penalties--(1) General. Fishing, for the
purpose of this section, includes the full range of activities defined
in the term ``fishing'' in the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1801),
(2) Prohibitions. Concurrently with NMFS' tender of each reduction
payment, and with the sole exception in paragraph (t)(7)(i) of this
section, no person whatsoever may, and it is unlawful for any person to:
(i) Fish with or attempt to fish with, or allow others to fish with
or attempt to fish with, the reduction/privilege vessel anywhere in the
world for any species under any conditions and regardless of the
reduction/privilege vessel's ownership or registry for so long as the
reduction/privilege vessel exists. This prohibition includes, but is not
limited to, fishing on the high seas or in the jurisdiction of any
foreign country (to the extent prohibited by law) while operating under
U.S. flag,
(ii) Place or attempt to place, or allow others to place or attempt
to place, the reduction/privilege vessel under foreign flag or registry,
(iii) Operate or attempt to operate, or allow others to operate or
attempt to operate, the reduction/privilege vessel under the authority
of a foreign country to the extent prohibited by law,
(iv) Otherwise avoid or attempt to avoid, or allow others to avoid
or attempt to avoid, the revocation of the reduction fishing privilege
with respect to any reduction/privilege vessel, and
(v) Make any claim or attempt to make any claim, or allow others to
claim or attempt to make any claim, for any present or future limited
access fishing license or permit in any U.S. fishery (including, but not
limited to, any quota allocation under any present or future individual
quota allocation system) based in any way on any portion of a reduction
fishing interest surrendered, revoked, restricted, relinquished,
withdrawn, or extinguished by other means under this section; and
(3) Penalties. The activities that this paragraph prohibits are
subject to the full penalties provided in Sec. 600.1017 of this
subpart, and immediate cause for NMFS to take action to, among other
things:
(i) At the reduction/privilege vessel owner's expense, seize and
scrap the reduction/privilege vessel, and
(ii) Pursue such other remedies and enforce such other penalties as
may be applicable.
(w) Program administration--(1) FSD responsibilities. FSD is
responsible for implementing and administering this program. FSD will:
(i) Issue all notifications and mailings that this section requires,
(ii) Prepare and issue the invitation to bid,
(iii) Receive bids,
(iv) Reject bids,
(v) Score bids,
(vi) Make acceptances,
(vii) Prepare and issue referendum ballots,
(viii) Receive referendum ballots,
(ix) Tally referendum ballots,
(x) Determine referendum success or failure,
(xi) Tender and disburse reduction payments,
(xii) Administer reduction contracts,
[[Page 163]]
(xiii) Administer fees and reduction loan repayment, and
(xiv) Discharge all other management and administration functions
that this section requires;
(2) RAM Program responsibilities. Upon FSD's advice, the RAM Program
(for fishing licenses under the jurisdiction of NMFS's Alaska Region)
and any other appropriate NMFS authority (for fishing licenses under the
jurisdiction of any other NMFS office) will revoke reduction permits and
effect the surrender of fishing histories in accordance with this
section; and
(3) NVDC and MARAD responsibilities. FSD will advise NVDC, MARAD,
such other agency or agencies as may be involved, or all of them to
revoke reduction/privilege vessels' fisheries trade endorsements and
otherwise restrict reduction/privilege vessels in accordance with this
section.
(x) Reduction loan and reduction loan sub-amounts. [Reserved]
[68 FR 69337, Dec. 12, 2003. Redesignated at 69 FR 53362, Sept. 1, 2004]
Sec. 600.1104 Bering Sea and Aleutian Islands (BSAI) crab species fee payment
and collection system.
(a) Purpose. As authorized by Public Law 106-554, this section's
purpose is to:
(1) In accordance with Sec. 600.1012 of subpart L, establish:
(i) The borrower's obligation to repay a reduction loan, and
(ii) The loan's principal amount, interest rate, and repayment term;
and
(2) In accordance with Sec. 600.1013 through Sec. 600.1016 of
subpart L, implement an industry fee system for the reduction fishery.
(b) Definitions. Unless otherwise defined in this section, the terms
defined in Sec. 600.1000 of subpart L and Sec. 600.1103 of this
subpart expressly apply to this section. The following terms have the
following meanings for the purpose of this section:
Crab rationalization crab means the same as in Sec. 680.2 of this
chapter.
Crab rationalization fisheries means the same as in Sec. 680.2 of
this chapter.
Reduction endorsement fishery means any of the seven fisheries that
Sec. 679.2 of this chapter formerly (before adoption of part 680 of
this chapter) defined as crab area/species endorsements, except the
area/species endorsement for Norton Sound red king. More specifically,
the reduction endorsement fisheries, and the crab rationalization
fisheries which (after adoption of part 680 of this chapter) correspond
to the reduction endorsement fisheries, are:
(1) Bristol Bay red king (the corresponding crab rationalization
fishery is Bristol Bay red king crab),
(2) Bering Sea and Aleutian Islands Area C. opilio and C. bairdi
(the corresponding crab rationalization fisheries are two separate
fisheries, one for Bering Sea snow crab and another for Bering Sea
Tanner crab),
(3) Aleutian Islands brown king (the corresponding crab
rationalization fisheries are the two separate fisheries, one for
Eastern Aleutian Islands golden king crab and another for Western
Aleutian Islands golden king crab),
(4) Aleutian Islands red king (the corresponding crab
rationalization fishery is Western Aleutian Islands red king crab),
(5) Pribilof red king and Pribilof blue king (the corresponding crab
rationalization fishery is Pribilof red king and blue king crab), and
(6) St. Matthew blue king (the corresponding crab rationalization
fishery is also St. Matthew blue king crab).
Reduction fishery means the fishery for all crab rationalization
crab, excluding CDQ allocations, in all crab rationalization fisheries.
Sub-amount means the portion of the reduction loan amount for whose
repayment the borrower in each reduction endorsement fishery is
obligated.
(c) Reduction loan amount. The reduction loan's original principal
amount is $97,399,357.11.
(d) Sub-amounts. The sub-amounts are:
(1) For Bristol Bay red king, $17,129,957.23;
(2) For Bering Sea and Aleutian Islands Area C. opilio and C.
bairdi, $66,410,767.20;
(3) For Aleutian Islands brown king, $6,380,837.19;
(4) For Aleutian Islands red king, $237,588.04;
(5) For Pribilof red king and Pribilof blue king, $1,571,216.35; and
[[Page 164]]
(6) For St. Matthew blue king, $5,668,991.10.
(e) Interest accrual from inception. Interest began accruing on each
portion of the reduction loan amount on and from the date on which NMFS
disbursed each such portion.
(f) Interest rate. The reduction loan's interest rate shall be the
applicable rate which the U.S. Treasury determines at the end of fiscal
year 2005 plus 2 percent.
(g) Repayment term. For the purpose of determining fee rates, the
reduction loan's repayment term is 30 years from January 19, 2005, but
each fee shall continue indefinitely for as long as necessary to fully
repay each subamount.
(h) Reduction loan repayment. (1) The borrower shall, in accordance
with Sec. 600.1012, repay the reduction loan;
(2) Fish sellers in each reduction endorsement fishery shall, in
accordance with Sec. 600.1013, pay the fee at the rate applicable to
each such fishery's subamount;
(3) Fish buyers in each reduction endorsement fishery shall, in
accordance with Sec. 600.1013, collect the fee at the rate applicable
to each such fishery;
(4) Fish buyers in each reduction endorsement fishery shall in
accordance with Sec. 600.1014, deposit and disburse, as well as keep
records for and submit reports about, the fees applicable to each such
fishery; except the requirements specified under paragraph (c) of this
section concerning the deposit principal disbursement shall be made to
NMFS not later than the 7th calendar day of each month; and the
requirements specified under paragraph (e) of this section concerning
annual reports which shall be submitted to NMFS by July 1 of each
calendar year; and,
(5) The reduction loan is, in all other respects, subject to the
provisions of Sec. 600.1012 through Sec. 600.1017.
[70 FR 54656, Sept. 16, 2005, as amended at 71 FR 27210, May 10, 2006]
Sec. 600.1105 Longline catcher processor subsector of the Bering Sea and
Aleutian Islands (BSAI) non-pollock groundfish fishery program.
(a) Purpose. This section implements the capacity reduction program
that Title II, Section 219(e) of Public Law 108-447 enacted for the
longline catcher processor subsector of the Bering Sea and Aleutian
Islands (BSAI) non-pollock groundfish fishery.
(b) Definitions. Unless otherwise defined in this section, the terms
defined in Sec. 600.1000 of subpart L of this part expressly apply to
this section. The following terms have the following meanings for the
purpose of this section:
Act means Title II, Section 219 of Public Law 108-447.
AI means the Aleutian Islands.
Application Form means the form published on the FLCC's website that
sets forth whether the qualifying LLP License is a Latent License and
identifies the individual(s) authorized to execute and deliver Offers
and Offer Ranking Ballots on behalf of the Subsector Member.
Auditor means Jack V. Tagart, Ph.D., d.b.a. Tagart Consulting.
Authorized Party means the individuals authorized by Subsector
Members on the application form to execute and submit Offers, Rankings,
protests and other documents and/or notices on behalf of Subsector
Member.
Ballot means the form found on the auditor's website used to cast a
vote in favor of, or in opposition to, the currently Selected Offers.
BS means the Bering Sea.
BSAI means the Bering Sea and the Aleutian Islands.
BSAI Pacific Cod ITAC means the Total Allowable Catch for Pacific
cod after the subtraction of the 7.5 percent Community Development
Program reserve.
Capacity Reduction Agreement or Reduction Agreement means an
agreement entered into by the Subsector Members and the FLCC under which
the FLCC is permitted to develop and submit a Capacity Reduction Plan to
the Secretary.
Certificate of Documentation (COD) means a document issued by the
U.S. Coast Guard's National Documentation Center that registers the
vessel with the United States Government.
Closing Vote means a vote held pursuant to paragraph (d)(7) of this
section, after two-thirds (\2/3\) or more of the Nonoffering Subsector
Members submit Ranking Forms electing to accept the
[[Page 165]]
Selected Offerors and close the Selection Process, and there are no
unresolved Protests or Arbitrations.
Current Offer means an Offer submitted by a Subsector Member to the
Auditor during any Submission Period and, with regard to such Offer,
Offeror has not become a Rejected Offeror. The term ``Current Offer''
includes Selected Offers.
Current Offeror means an Offering Subsector Member that has
submitted an Offer to the Auditor during any Submission Period and, with
regard to such Offer, Offeror has not become a Rejected Offeror. The
term ``Current Offeror'' includes Selected Offerors.
Database means the online LLP License database maintained by NMFS as
downloaded by the Auditor pursuant to paragraph (c)(1) of this section.
Effective Date means the date the Capacity Reduction Agreement
becomes effective pursuant to section 4.e of the Capacity Reduction
Agreement.
Fishing Capacity Reduction Contract or Reduction Contract means the
contract that any Current Offeror must sign and agree to abide by if
NMFS accepts the offer by signing the Reduction Contract.
FLCC Counsel means Bauer Moynihan & Johnson LLP or other counsel
representing the FLCC in any review or arbitration under the Capacity
Reduction Agreement.
Latent License means an LLP License on which a vessel was not
designated at the time an Offer is submitted.
LLP License means a Federal License Limitation Program groundfish
license issued pursuant to Sec. 679.4(k) of this chapter or successor
regulation that is noninterim and transferable, or that is interim and
subsequently becomes noninterim and transferable, and that is endorsed
for BS or AI catcher processor fishing activity, C/P, Pacific cod and
hook and line gear.
Longline Subsector means the longline catcher processor subsector of
the BSAI non-pollock groundfish fishery as defined in the Act.
Longline Subsector ITAC means the longline catcher processor
subsector remainder of the Total Allowable Catch after the subtraction
of the 7.5 percent Community Development Program reserve.
Nonoffering Subsector Member shall have the meaning ascribed thereto
in paragraph (d)(5)(i) of this section.
Offer Content means all information included in Offers submitted to
the Auditor pursuant to paragraph (d)(2)(ii) of this section.
Offer Form means the form found on the Auditor's website used to
make an offer.
Offer(s) means a binding offer(s) from a Subsector Member to sell
its LLP, right to participate in the fisheries, the fishing history
associated with such LLP, and any vessel set forth on the Offer Form
submitted by Offeror pursuant to the terms of this Capacity Reduction
Agreement.
Opening Date means the first Monday following the Effective Date set
forth in paragraph (c)(3) of this section.
Person includes any natural person(s) and any corporation,
partnership, limited partnership, limited liability company, association
or any other entity whatsoever, organized under the laws of the United
States or of a state.
Prequalification Offer shall have the meaning ascribed thereto in
paragraph (d)(2)(iii) of this section.
Ranking Form means the form posted by the Auditor pursuant to
paragraph (d)(5)(iii) of this section.
Ranking Period shall have the meaning ascribed thereto in paragraph
(d)(5)(ii) of this section.
Reduction Fishery means the BSAI non-pollock groundfish fishery.
Reduction Fishing Interests shall have the meaning ascribed thereto
in the Fishing Capacity Reduction Contract.
Reduction Plan means a business plan prepared by the Subsector
Members in accordance with Section 1 of the Capacity Reduction Agreement
and forwarded to the Secretary for approval.
Reduction Privilege Vessel means the vessel listed on the Offeror's
License Limitation Program license.
Rejected Offer means an Offer that has been through one or more
Rankings and is not a Selected Offer following the latest Ranking
Period, with respect to which the Offering Subsector Member's
obligations have terminated pursuant to paragraphs (d)(2)(i) and
(d)(6)(v) of this section.
Rejected Offeror means a Subsector Member that has submitted an
Offer
[[Page 166]]
which has been ranked and was not posted as a Selected Offer pursuant to
paragraph (d)(6)(ii) of this section.
Restricted Access Management (RAM) means the Restricted Access
Management Program in the Alaska Region, NMFS, located in Juneau,
Alaska.
Secretary means the Secretary of Commerce or a designee.
Selected Offer shall have the meaning ascribed thereto in paragraph
(d)(6)(iv) of this section.
Selected Offeror means a Subsector Member that has submitted an
Offer which has been ranked and is posted as a Selected Offer pursuant
to paragraph (d)(6)(ii) of this section.
Selection Process means the process set forth in paragraph (d) of
this section for selecting the fishing capacity to be removed by the
Reduction Plan.
Submission Period(s) or Submitting Period(s) shall have the meaning
ascribed thereto in paragraph (d)(3)(ii) of this section.
Subsector Member(s) means a member(s) of the Longline Subsector.
Web site means the internet Web site developed and maintained on
behalf of the FLCC for implementation of the Selection Process described
herein with a URL address of http://www.freezerlonglinecoop.org.
(c) Qualification and enrollment of subsector members--(1)
Distribution. A copy of the Reduction Agreement, Application Form, and
Reduction Contract shall be mailed to each holder of record of an LLP
License endorsed for BS or AI catcher processor activity, C/P, Pacific
cod and hook and line gear, as the Auditor determines from the Database
downloaded by the Auditor as of January 30, 2006, regardless of whether
the LLP License is indicated in the Database as noninterim and
transferable or otherwise.
(2) Application. Any person, regardless of whether having received
the mailing described in paragraph (c)(1) of this section, may as a
Subsector Member apply to enroll with the FLCC to participate in the
Reduction Program, by submitting all of the following documents:
(i) Fully executed Reduction Agreement;
(ii) Photocopy of the LLP License(s) evidencing Subsector Member's
qualification as a member of the Longline Subsector;
(iii) Unless applying as the holder of a Latent License, a photocopy
of Federal Fisheries Permit for the vessel(s) designated on the LLP
License(s) on the date the Reduction Agreement is signed by the
Subsector Member;
(iv) Unless applying as the holder of a Latent License, a photocopy
of the Certificate of Documentation (COD) for the vessel(s) designated
on the LLP License(s) on the date the Reduction Agreement is signed by
the Subsector Member; and
(v) An executed Application Form which sets forth whether the
qualifying LLP License is a Latent License and identifies the
individual(s) authorized to execute and deliver Offers and Offer Ranking
Ballots on behalf of the Subsector Member.
(3) Examination by Auditor--(i) In general. Each application must be
submitted to the Auditor who will examine applications for completeness
and inconsistencies, whether on the face of the documents or with the
Database. Any application which is incomplete or which contains
inconsistencies shall be invalid. The Auditor shall notify by e-mail or
mail an applicant of the basis for the Auditor's finding an application
invalid. An applicant may resubmit a revised application. If the
application meets all requirements, the Auditor may accept the
application as valid and enroll the applicant.
(ii) Interim LLP Licenses. If an LLP License is interim and/or
nontransferable, the applicant's enrollment shall be accepted as a
Subsector Member and may fully participate in the Selection Process.
However, any posting of an Offer submitted with respect to such LLP
License shall note the status of such LLP License until that Subsector
Member submits to the Auditor a letter from the RAM confirming that it
is within the Subsector Member's control to cause the qualifying LLP
License to be issued as noninterim and transferable upon withdrawal of
all applicable appeals.
(4) Enrollment period. Applications that meet all requirements will
be accepted until the Selection Process is completed.
[[Page 167]]
(5) Effective date. The Effective Date of any Reduction Agreement
shall be ten (10) calendar days after written notice is sent by the
Auditor to each holder of record of an LLP License endorsed for BS or AI
catcher processor activity, C/P, Pacific cod and hook and line gear (as
determined by the Auditor from the Auditor's examination of the
Database) advising that the number of Subsector Members that have
delivered to the Auditor a complete Application, including a fully
executed Reduction Agreement, exceeds seventy percent (70 percent) of
the members of the Longline Subsector (as determined by the Auditor from
the Auditor's examination of the Database).
(6) Notice. All notices related to the effective date of the
Reduction Agreement shall be sent by the Auditor via registered mail.
(7) Withdrawal. A Subsector Member, unless such Subsector Member is
a Current Offeror or Selected Offeror, may terminate the Reduction
Agreement at any time with respect to that Subsector Member by giving
ten (10) calendar days written notice to the Auditor preferably via e-
mail. Withdrawal of a Subsector Member shall not affect the validity of
the Reduction Agreement with respect to any other Subsector Members.
Once effective, the Reduction Agreement shall continue in full force and
effect regardless of whether subsequent withdrawals reduce the number of
Subsector Members below that level required to effectuate the Reduction
Agreement. Attempted withdrawal by a Current Offeror or Selected Offeror
shall be invalid, and such Offer shall remain a binding, irrevocable
Offer, unaffected by the attempted withdrawal.
(d) Selection of fishing capacity to be removed by Reduction Plan.
The fishing capacity removed by the Reduction Plan will be the Reduction
Fishing Interests voluntarily offered through the Reduction Plan by
offering Subsector Members and as selected by the Nonoffering Subsector
Members, up to an aggregate amount of thirty six million dollars
($36,000,000) as set forth in this paragraph (d).
(1) Overview. The Selection Process will begin upon the Effective
Date of the Reduction Agreement. The Selection Process will alternate on
a weekly basis between:
(i) Submitting Periods, during which individual Subsector Members
may submit Offers of fishing capacity they wish to include in the
Reduction Plan; and
(ii) Ranking Periods, during which Nonoffering Subsector Members
will rank the submitted Offers.
(2) Offers--(i) Binding agreement. An Offer from a Subsector Member
shall be a binding, irrevocable offer from a Subsector Member to
relinquish to NMFS the Reduction Fishing Interests for the price set
forth on the Offer contingent on such Offer being a Selected Offer at
the closing of the Selection Process. Once submitted, an Offer may not
be revoked or withdrawn while that Offer is a Current Offer or Selected
Offer. An Offer that is submitted by a Subsector Member, but is not a
Selected Offer during the subsequent Ranking Period, shall be deemed to
be terminated and the Subsector Member shall have no further obligation
with respect to performance of that Offer.
(ii) Offer content. All Offers submitted to the Auditor shall
include the following information: LLP License number; LLP License
number(s) of any linked crab LLP Licenses; license MLOA (MLOA--maximum
length overall of a vessel is defined at Sec. 679.2 of this chapter);
the license area, gear and species endorsements; a summary of the
Pacific cod catch history for the calendar years 1995-2004; and the
offered price. The Offer shall also state whether a vessel is currently
designated on the LLP License and as such will be withdrawn from all
fisheries if the Offer is selected for reduction in the Reduction Plan.
If so, the Offer shall identify such vessel by name, official number,
and current owner. In addition, the Offer shall provide a summary of the
Pacific cod catch history for the calendar years 1995-2004 of the vessel
to be retired from the fisheries. All summary catch histories included
in Offers shall be calculated utilizing both the weekly production
report and best blend methodology and shall separately state for each
methodology the Pacific cod catch in metric tons and as a percentage of
the overall catch for
[[Page 168]]
the longline catcher processor subsector on an annual basis for each of
the required years. If the vessel stated to be withdrawn from the
fisheries is not owned by the LLP License owner of record, the Offer
shall be countersigned by the owner of record of the vessel. An Offer
offering a Latent License shall state on the Offer Form that the offered
LLP License is a Latent License. The Offer Form shall also include a
comment section for any additional information that Offerors wish to
provide to the Subsector Members concerning the Offer.
(iii) Prequalification of offers. A Subsector Member may submit a
Prequalification Offer to the Auditor at any time prior to the Opening
Date. A Prequalification Offer shall contain all elements of an Offer,
except that a price need not be provided. The Auditor shall notify the
Subsector Member submitting a Prequalification Offer as to any
deficiencies as soon as practicable. All details of a Prequalification
Offer shall be kept confidential by the Auditor.
(3) Submitting an offer--(i) Offer submission. Commencing on the
first Tuesday following the Opening Date and during all Submission
Periods until the Selection Process is closed, any Subsector Member may
submit an Offer. All Offers are to be on the applicable form provided on
the FLCC website, executed by an Authorized Party and submitted to the
Auditor by facsimile. Any Subsector Member may submit an Offer during
any Submission Period, even if that Subsector Member has not submitted
an Offer in any previous Submission Period. If a Subsector Member holds
more than one LLP License, such Subsector Member may, but is not
required to, submit an Offer for each LLP License held during a
Submission Period.
(ii) Submission periods. The initial Submission Period shall
commence at 9 a.m. (Pacific time) on the Tuesday following the Opening
Date and end at 5 p.m. (Pacific time) on the Friday of that week.
Subsequent Submission Periods shall commence at 9 a.m. (Pacific time) on
the first Tuesday following the preceding Ranking Period and end at 5
p.m. (Pacific time) on the Friday of that week. All times set forth in
the Reduction Agreement and used in the Offer process shall be the time
kept in the Pacific time zone as calculated by the National Institute of
Standards and Technology.
(iii) Validity of offer. The Auditor shall examine each Offer for
consistency with the Database and information contained in the
enrollment documents. If there is an inconsistency in the information
contained in the Offer, any of the elements required of an Offer
pursuant to paragraph (d)(2)(ii) of this section are missing, or the
Auditor does not receive the original Offer Form before the Offers are
to be posted pursuant to paragraph (d)(4) of this section, the Auditor
shall notify the offering Subsector Member by e-mail or mail that the
Offer is nonconforming as soon as practicable after discovering the
basis of invalidity. The Subsector Member may submit a revised,
conforming Offer prior to the close of that Submission Period or, in any
subsequent Submission Period. Only one Offer may be submitted with
respect to an LLP License during a Submission Period. In the event a
Subsector Member submits more than one Offer with respect to an LLP
License during a Submission Period, the first conforming Offer received
by the Auditor shall be binding and irrevocable and any subsequent
Offers shall be deemed invalid.
(iv) Warranty. By submitting an Offer, the Offering Subsector
Member, warrants and represents that the Offering Subsector Member has
read and understands the terms of the Reduction Agreement, the Offer,
and the Reduction Contract and has had the opportunity to seek
independent legal counsel regarding such documents and/or agreements and
the consequences of submitting an Offer.
(4) Posting offers--(i) Current offers. For each Offer received
during a Submission Period, the Auditor shall post on the Website no
later than 5 p.m. (Pacific time) on the following Tuesday all of the
details of such Offer as set forth on the Offer Form. In addition, the
Auditor shall post, as available to Auditor, a summary by year of up to
ten (10) years catch history during the period 1995-2004 in total round
weight equivalents and percentage of Longline
[[Page 169]]
Subsector ITAC harvested for any vessel that is included in the Offer.
Subsector Member (or vessel owner, if other than the Subsector Member)
expressly authorizes Auditor to release the catch history summary
information previously prepared for that Subsector Member or vessel
owner by the Auditor as part of the analysis of FLCC's membership's
catch history previously conducted by the Auditor on behalf of the FLCC.
(ii) Posting order. Offers shall be posted on the Website by the
Auditor in alphabetical order of the Offering Subsector Member's name.
(iii) Questions as to offer. The Auditor shall respond to no
questions from Subsector Member regarding Offers except to confirm that
the posting accurately reflects the details of the Offer. If an Offering
Subsector Member notices an error in an Offer posting on the Website,
such Subsector Member shall notify the Auditor as soon as practicable.
The Auditor shall review such notice, the posting and the original
Offer. If an error was made in posting the Auditor shall correct the
posting as soon as practicable and notify the Subsector Members via e-
mail or mail of the correction. In the event such an error is not
discovered prior to Ranking, an Offering Subsector Member shall be bound
to the terms of the submitted Offer, not the terms of the posted Offer.
(iv) Archive. The Auditor shall maintain on the Website an archive
of prior Offers posted, which shall be available for review by all
Subsector Members.
(5) Ranking--(i) Eligibility. Each Subsector Member that has not
submitted an Offer during the preceding Submission Period, or whose
vessel is not included as a withdrawing vessel in an Offer during the
preceding Submission Period (i.e., a Nonoffering Subsector Member), may
submit to the Auditor a Ranking Form during a Ranking Period. With
respect to Ranking, a Subsector Member that holds more than one LLP
License may participate in the Ranking process for each LLP License not
included in an Offer.
(ii) Ranking period. The initial Ranking Period shall commence
immediately after the Offers from the preceding Submission Period have
been posted and end at 5 p.m. (Pacific time) on the Friday of that week.
Subsequent Ranking Periods shall commence immediately after the Offers
from the preceding Submission Period have been posted and end at 5 p.m.
(Pacific time) on the Friday of that week.
(iii) Ranking form. Prior to each Ranking Period, the Auditor will
post a Ranking Form on the Website in ``pdf'' file format. Each eligible
Subsector Member wishing to rank the current Offers shall rank the
Offers on the Ranking Form numerically in the Subsector Member's
preferred order of purchase. The Offer that Subsector Member would most
like to have accepted should be ranked number one (1), and subsequent
Offers ranked sequentially until the Offer that the Subsector Member
would least like to see accepted is ranked with the highest numerical
score. A Subsector Member wishing to call for a Closing Vote shall, in
lieu of ranking the Current Offers, mark the Ranking Form to accept the
Selected Offers selected during the prior Ranking Period and close the
Selection Process. To be valid, the Ranking Form must rank each Current
Offer listed on the Ranking Form or, if applicable, be marked to call
for a Closing Vote. Ranking Forms shall be submitted by sending a
completed Ranking Form, signed by an Authorized Party, to the Auditor by
facsimile or mail prior to the end of the Ranking Period. A Subsector
Member is not required to rank the Offers during a Ranking Period or
call for a Closing Vote.
(iv) Validity of subsector member ranking. The Auditor shall examine
each Ranking Form for completeness, whether the form either ranks the
Offers or calls for a Closing Vote (but not both), and authorized
signature. Any incomplete or otherwise noncompliant Ranking Form(s)
shall be invalid, and shall not be included in the Rankings of the
Current Offers. The Auditor shall notify the Subsector Member of the
reason for declaring any Ranking Form invalid as soon as practicable. A
Subsector Member may cure the submission of an invalid Ranking Form by
submitting a complying Ranking Form if accomplished before the end of
the applicable Ranking Period.
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(6) Ranking results--(i) Compiling the rankings. Unless two-thirds
(\2/3\) of the Nonoffering Subsector Members have called for a Closing
Vote, the Auditor shall compile the results of the Ranking Forms by
assigning one point for each position on a Ranking Form. That is, the
Offer ranked number one (1) on a Ranking Form shall be awarded one (1)
point, the Offer ranked two (2) shall receive two (2) points, and
continuing on in this manner until all Offers have been assigned points
correlating to its ranking on each valid Ranking Form. The Offer with
the least number of total points assigned shall be the highest ranked
Offer, and the Offer with the greatest total points assigned shall be
the lowest ranked Offer.
(ii) Posting rankings. The Auditor shall post the results of the
compilation of the Ranking Forms on the Website in alphabetical order
based on the Offering Subsector Member's name no later than 5 p.m.
(Pacific time) on the Monday following the Ranking Period. The Auditor
shall post the highest consecutive ranking Offers that total thirty six
million dollars ($36,000,000) or less. Those Offering Subsector Members
whose Offers are posted shall be deemed Selected Offerors and their
Offers shall be deemed Selected Offers. Those Offering Subsector Members
whose Offers are not posted shall be deemed Rejected Offerors.
(iii) Selected offer information or confidentiality. The Auditor
shall post the name of the Offering Subsector Member, the amount of the
Offer, and a summary of the total number of Ranking Forms received and
the number of such forms on which the Members called for a Closing Vote.
Other than the foregoing, the Auditor shall not post any details of the
compilation of the Ranking Forms.
(iv) Selected offerors. Selected Offerors may not withdraw their
Offers unless in subsequent rankings their Offers no longer are within
the highest ranking Offers and they become Rejected Offerors. A Selected
Offeror may, however, modify a Selected Offer solely to the extent such
modification consists of a reduction in the Offer price. A Selected
Offeror may submit a modified Offer to the Auditor during the next
Offering Period as set forth in paragraph (d)(3) of this section. Unless
a Selected Offeror becomes a Rejected Offeror in a subsequent Ranking, a
Selected Offeror shall be bound by the terms of the lowest Selected
Offer submitted as if such modified Offer had been the original Selected
Offer. In the event a Selected Offeror submits a modified Offer and such
Offer is not ranked because sufficient votes are received to call for a
Closing Vote, the previously Selected Offer shall remain the Selected
Offer.
(v) Rejected offerors. The Offer of a Rejected Offeror is terminated
and the Rejected Offeror is no longer bound by the terms of its Offer. A
Rejected Offeror may, at its sole discretion, resubmit the same Offer,
submit a revised Offer, or elect not to submit an Offer during any
subsequent Submission Period until the Selection Process is closed.
(vi) Ties. In the event there is a tie with respect to Offers which
results in the tied Offers exceeding thirty-six million dollars
($36,000,000), the tied Offers and all Offers ranked lower than the tied
Offers shall be deemed to be rejected and the Rejected Offerors may, at
their option, submit an Offer in a subsequent Submission Period.
(vii) Archive. Auditor shall maintain on the Website an archive of
prior Offer Rankings as posted over the course of the Selection Process,
which shall be available for Subsector Member review.
(7) Closing. The Selection Process will close when two-thirds (\2/
3\) or more of the Nonoffering Subsector Members of the Longline
Subsector, as determined by the Auditor, affirmatively vote to accept
the Selected Offerors selected during the prior Ranking Period as part
of the Reduction Plan to be submitted to the Secretary.
(i) Call for vote. A Closing Vote will be held when: at least two-
thirds (\2/3\) of the Nonoffering Subsector Members submit Ranking Forms
electing to accept the Selected Offerors and close the Selection Process
in lieu of Ranking the current Offers; and there are no unresolved
Protests or Arbitrations. The Auditor shall notify all Subsector Members
by e-mail or mail and posting a notice on the Website as soon as
practicable that a Closing Vote is to be held. Such notice shall state
the starting and ending dates and times of the
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voting period, which shall be not less than three (3) nor more than
seven (7) calendar days from the date of such notice. A voting period
shall commence at 9 a.m. (Pacific time) on Monday and end at 5 p.m. on
the Friday of that week.
(ii) Voting. No less than three (3) calendar days prior to the
voting period, the Auditor will post a Closing Ballot on the Website in
``pdf'' file format. Each eligible Nonoffering Subsector Member wishing
to vote shall print out the Closing Ballot, and, with respect to each of
the currently Selected Offers on the Closing Ballot, vote either in
favor of or opposed to accepting that Selected Offer and submit a
completed and signed Closing Ballot to the Auditor preferably by
facsimile prior to the end of the Voting Period.
(iii) Ballot verification. The Auditor shall examine each submitted
Closing Ballot for completeness and authorized signature. Any incomplete
Closing Ballot shall be void, and shall not be included in the voting
results. The Auditor shall not notify the Subsector Member of an invalid
Closing Ballot.
(iv) Voting results. The Auditor shall post the results of the Vote
as soon as practicable after voting closes. Each Offer on the Closing
Ballot that receives votes approving acceptance of such Offer from two-
thirds (\2/3\) or more of the total number of Nonoffering Subsector
Members shall be a Selected Offeror and shall be the basis for the
Reduction Plan submitted to NMFS. Any Offer on the Closing Ballot that
does not receive such two-thirds (\2/3\) approval shall be rejected and
shall not be included among the Offers included among the Reduction Plan
submitted to NMFS.
(v) Notification to NMFS. Upon closing of the Selection Process,
FLCC shall notify NMFS in writing of the identities of the Selected
Offerors and provide to NMFS a completed and fully executed original
Reduction Agreement from each of the Selected Offerors and a certified
copy of the fully executed Reduction Agreement and Reduction Contract.
(e) Submission of reduction plan, including repayment. Upon
completion of the offering process, the FLCC on behalf of the Subsector
Members shall submit to NMFS the Reduction Plan which shall include the
provisions set forth in this paragraph (e).
(1) Capacity reduction. The Reduction Plan shall identify as the
proposed capacity reduction, without auction process, the LLP Licenses
as well as the vessels and the catch histories related to the LLP
Licenses, linked crab LLP Licenses, and any other fishing rights or
other interests associated with the LLP Licenses and vessels included in
the Selected Offers. The aggregate of all Reduction Agreements and
Reduction Contracts signed by Subsector Members whose offers to
participate in this buyback were accepted by votes of the Subsector
Members, will together with the FLCC's supporting documents and
rationale for recognizing that these offers represent the expenditure of
the least money for the greatest capacity reduction, constitute the
Reduction Plan to be submitted to NMFS for approval on behalf of the
Secretary of Commerce.
(2) Loan repayment--(i) Term. As authorized by Section 219(B)(2) of
the Act, the capacity reduction loan (the ``Reduction Loan'') shall be
amortized over a thirty (30) year term. The Reduction Loan's original
principal amount may not exceed thirty-six million dollars
($36,000,000), but may be less if the reduction cost is less. Subsector
Members acknowledge that in the event payments made under the Reduction
Plan are insufficient to repay the actual loan, the term of repayment
shall be extended by NMFS until the loan is paid in full.
(ii) Interest. The Reduction Loan's interest rate will be the U.S.
Treasury's cost of borrowing equivalent maturity funds plus 2 percent.
NMFS will determine the Reduction Loan's initial interest rate when NMFS
borrows from the U.S. Treasury the funds with which to disburse
reduction payments. The initial interest rate will change to a final
interest rate at the end of the Federal fiscal year in which NMFS
borrows the funds from the U.S. Treasury. The final interest rate will
be 2 percent plus a weighted average, throughout that fiscal year, of
the U.S. Treasury's cost of borrowing equivalent maturity funds. The
final interest rate will be
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fixed, and will not vary over the remainder of the reduction loan's 30-
year term. The Reduction loan will be subject to a level debt
amortization. There is no prepayment penalty.
(iii) Fees. The Reduction Loan shall be repaid by fees collected
from the Longline Subsector. The fee amount will be based upon: The
principal and interest due over the next twelve months divided by the
product of the Hook & Line, Catcher Processor (Longline Subsector;
sometimes referred to as the ``H&LCP Subsector'') portion of the BSAI
Pacific cod ITAC (in metric tons) set by the North Pacific Fishery
Management Council (NPFMC) in December of each year multiplied by 2,205
(i.e., the number of pounds in a metric ton). In the event that the
Longline Subsector portion for the ensuing year is not available, the
Longline Subsector portion forecast from the preceding year will be used
to calculate the fee.
(A) The fee will be expressed in cents per pound rounded up to the
next one-tenth of a cent. For example: If the principal and interest due
equal $2,900,000 and the Longline Subsector portion equals 100,000
metric tons, then the fee per round weight pound of Pacific cod will
equal 1.4 cents per pound. [2,900,000 /(100,000 x 2,205) = .01315]. The
fee will be accessed and collected on Pacific cod to the extent possible
and if not, will be accessed and collected as provided for in this
paragraph (e).
(B) Fees must be accessed and collected on Pacific cod used for bait
or discarded. Although the fee could be up to 5 percent of the ex-vessel
production value of all post-reduction Longline Subsector landings, the
fee will be less than 5 percent if NMFS projects that a lesser rate can
amortize the fishery's reduction loan over the reduction loan's 30-year
term. In the event that the total principal and interest due exceeds 5
percent of the ex-vessel Pacific cod revenues, a penny per pound round
weight fee will be calculated based on the latest available revenue
records and NMFS conversion factors for pollock, arrowtooth flounder,
Greenland turbot, skate, yellowfin sole and rock sole.
(C) The additional fee will be limited to the amount necessary to
amortize the remaining twelve months principal and interest in addition
to the 5 percent fee accessed against Pacific cod. The additional fee
will be a minimum of one cent per pound. In the event that collections
exceed the total principal and interest needed to amortize the payment
due, the principal balance of the loan will be reduced. To verify that
the fees collected do not exceed 5 percent of the fishery revenues, the
annual total of principal and interest due will be compared to the
latest available annual Longline Subsector revenues to ensure it is
equal to or less than 5 percent of the total ex-vessel production
revenues. In the event that any of the components necessary to calculate
the next year's fee are not available, or for any other reason NMFS
believes the calculation must be postponed, the fee will remain at the
previous year's amount until such a time that new calculations are made
and communicated to the post reduction fishery participants.
(D) It is possible that the fishery may not open during some years
and no Longline Subsector portion of the ITAC is granted. Consequently,
the fishery will not produce fee revenue with which to service the
reduction loan during those years. However, interest will continue to
accrue on the principal balance. When this happens, if the fee rate is
not already at the maximum 5 percent, NMFS will increase the fisheries'
fee rate to the maximum 5 percent of the revenues for Pacific cod and
the species mentioned in paragraph (e)(2)(iii)(B), apply all subsequent
fee revenue first to the payment of accrued interest, and continue the
maximum fee rates until all principal and interest payments become
current. Once all principal and interest payments are current, NMFS will
make a determination about adjusting the fee rate.
(iv) Reduction loan. NMFS has promulgated framework regulations
generally applicable to all fishing capacity reduction programs (Sec.
600.1000 et seq.). The reduction loan shall be subject to the provisions
of Sec. 600.1012, except that: the borrower's obligation to repay the
reduction loan shall be discharged by the owner of the Longline
Subsector license regardless of which vessel
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catches fish under this license and regardless of who processes the fish
in the reduction fishery in accordance with Sec. 600.1013. Longline
Subsector license owners in the reduction fishery shall be obligated to
collect the fee in accordance with Sec. 600.1013.
(v) Collection. The LLP License holder of the vessel harvesting in
the post-capacity reduction plan Longline Subsector shall be responsible
for self-collecting the repayment fees owed by that LLP License holder.
Fees shall be submitted to NMFS monthly and shall be due no later than
fifteen (15) calendar days following the end of each calendar month.
(vi) Record keeping and Reporting. The holder of the LLP License on
which a vessel harvesting in the post-capacity reduction plan Longline
Subsector is designated shall be responsible for compliance with the
applicable record keeping and reporting requirements.
(3) Agreement with Secretary. Each Selected Offeror, and vessel
owner if not the Subsector Member, that has submitted a Selected Offer
shall complete and deliver to the FLCC for inclusion in the Reduction
Plan submitted to NMFS, designee for the Secretary, a completed and
fully executed Reduction Contract. Any and all LLP License(s) and or
vessels set forth on a Selected Offer shall be included as Reduction
Fishing Interests in such Reduction Contract.
(f) Decisions of the Auditor and the FLCC. Time is of the essence in
developing and implementing a Reduction Plan and, accordingly, the
Offerors shall be limited to, and bound by, the decisions of the Auditor
and the FLCC.
(1) The Auditor's examination of submitted applications, Offers,
Prequalification Offers and Rankings shall be solely ministerial in
nature. That is, the Auditor will verify whether the documents submitted
by Subsector Members are, on their face, consistent with each other and
the Database, in compliance with the requirements set forth in the
Reduction Agreement, and, signed by an Authorized Party. The Auditor may
presume the validity of all signatures on documents submitted. The
Auditor shall not make substantive decisions as to compliance (e.g.,
whether an interim LLP License satisfies the requirements of the Act, or
whether a discrepancy in the name appearing on LLP Licenses and other
documents is material).
(2) [Reserved]
(g) Enforcement/specific performance. The parties to the Reduction
Agreement have agreed that the opportunity to develop and submit a
capacity reduction program for the Longline Subsector under the terms of
the Act is both unique and finite and that failure of a Selected
Offeror, and vessel owner, if not a Subsector Member, to perform the
obligations provided by the Reduction Agreement will result in
irreparable damage to the FLCC, the Subsector Members and other Selected
Offerors. Accordingly, the parties to the Reduction Agreement expressly
acknowledge that money damages are an inadequate means of redress and
agree that upon the failure of the Selected Offeror, and vessel owner if
not a Subsector Member, to fulfill its obligations under the Reduction
Agreement that specific performance of those obligations may be obtained
by suit in equity brought by the FLCC in any court of competent
jurisdiction without obligation to arbitrate such action.
(h) Miscellaneous--(1) Time/Holidays. All times related to the
Selection Process shall be the time kept in the Pacific time zone as
calculated by the National Institute of Standards and Technology. In the
event that any date occurring within the Selection Process is a Federal
holiday, the date shall roll over to the next occurring business day.
(2) Termination. The Reduction Agreement shall automatically
terminate if no vote of acceptance is completed by December 31, 2007.
The Reduction Agreement may be terminated at any time prior to approval
of the Reduction Plan by NMFS, on behalf of the Secretary, by written
notice from 50 percent of Subsector Members.
(3) Choice of law/venue. The Reduction Agreement shall be construed
and enforced in accordance with the laws of the State of Washington
without regard to its choice of law provisions. The parties submit to
the exclusive personal jurisdiction of the United States District Court
located in Seattle, Washington, with respect to any
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litigation arising out of or relating to the Reduction Agreement or out
of the performance of services hereunder.
(4) Incorporation. All executed counterparts of the Reduction
Agreement, Application Forms and Offers constitute the agreement between
the parties with respect to the subject matter of the Reduction
Agreement and are incorporated into the Reduction Agreement as if fully
written.
(5) Counterparts. The Reduction Agreement may be executed in
multiple counterparts and will be effective as to signatories on the
Effective Date. The Reduction Agreement may be executed in duplicate
originals, each of which shall be deemed to be an original instrument.
All such counterparts and duplicate originals together shall constitute
the same agreement, whether or not all parties execute each counterpart.
(i) The facsimile signature of any party to the Reduction Agreement
shall constitute the duly authorized, irrevocable execution and delivery
of the Reduction Agreement as fully as if the Reduction Agreement
contained the original ink signatures of the party or parties supplying
a facsimile signature.
(ii) [Reserved]
(i) Amendment. Subsector Member acknowledges that the Reduction
Agreement, the Reduction Contract, and the Reduction Plan may be subject
to amendment to conform to the requirements for approval of the
Reduction Plan by NMFS on behalf of the Secretary. The Auditor shall
distribute to each Subsector Member in electronic format the amended
form of the Reduction Agreement, the Reduction Contract, and the
Reduction Plan, which amended documents in the form distributed by the
Auditor and identified by the Auditor by date and version, the version
of each such document then in effect at the time of any dispute arising
or action taken shall be deemed binding upon the parties with respect to
such dispute and/or action.
(j) Warranties. Subsector Member must expressly warrant and
represent in the Reduction Agreement that:
(1) Subsector Member has had an opportunity to consult with
Subsector Member's attorney or other advisors of Subsector Member with
respect to the Reduction Agreement, the Reduction Contract, and the Act
and the ramifications of the ratification of the Reduction Plan
contemplated therein;
(2) Subsector Member has full understanding and appreciation of the
ramifications of executing and delivering the Reduction Agreement and,
free from coercion of any kind by the FLCC or any of its members,
officers, agents and/or employees, executes and delivers the Reduction
Agreement as the free and voluntary act of Subsector Member;
(3) The execution and delivery of the Reduction Agreement, does not
and will not conflict with any provisions of the governing documents of
Subsector Member;
(4) The person executing the Reduction Agreement has been duly
authorized by Subsector Member to execute and deliver the Reduction
Agreement and to undertake and perform the actions contemplated herein;
and
(5) Subsector Member has taken all actions necessary for the
Reduction Agreement to constitute the valid and binding obligation of
Subsector Member, enforceable in accordance with its terms.
(k) Approval of the reduction plan. Acceptance of the Offers are at
the sole discretion of NMFS on behalf of the Secretary of Commerce. To
be approved by NMFS, on behalf of the Secretary, any Reduction Plan
developed and submitted in accordance with this section and subpart M to
this part must be found by the Assistant Administrator of NMFS, to:
(1) Be consistent with the requirements of Section 219(e) of the FY
2005 Appropriations Act (Public Law 108-447);
(2) Be consistent with the requirements of Section 312(b) of the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.
1861(a)) except for the requirement that a Council or Governor of a
State request such a program (as set out in section 312(b)(1)) and for
the requirements of section 312(b)(4);
(3) Contain provisions for a fee system that provides for full and
timely repayment of the capacity reduction loan by the Longline
Subsector and
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that it provide for the assessment of such fees;
(4) Not require a bidding or auction process;
(5) Result in the maximum sustained reduction in fishing capacity at
the least cost and in the minimum amount of time; and
(6) Permit vessels in the Longline Subsector to be upgraded to
achieve efficiencies in fishing operations provided that such upgrades
do not result in the vessel exceeding the applicable length, tonnage, or
horsepower limitations set out in Federal law or regulation.
(l) Referenda. The provisions of Sec. 600.1010 (including
Sec. Sec. 600.1004(a), 600.1008, 600.1009, 600.1013, 600.1014, and
600.1017(a)(5), (6) and (7)) shall apply to the Reduction Plan of this
section to the extent that they do not conflict with this section or
with subpart M of this part.
Appendix to Sec. 600.1105--Fishing Capacity Reduction Contract: Bering
Sea and Aleutian Islands Longline Catcher Processor Subsector
Fishing Capacity Reduction Contract: Bering Sea and Aleutian Islands
Longline Catcher Processor Subsector
This agreement, (the ``Reduction Contract'') is entered into by and
between the party or parties named in section 46 of this contract
entitled, ``Fishing Capacity Reduction Offer Submission Form and
Reduction Fishing Interests Identification,'' as the qualifying Offeror
and as the co-Offeror (if there is a co-Offeror) (collectively the
``Offeror'') and the United States of America, acting by and through the
Secretary of Commerce, National Oceanic and Atmospheric Administration,
National Marine Fisheries Service, Financial Services Division
(``NMFS''). The Reduction Contract is effective when NMFS signs the
Reduction Contract and, thereby, accepts the Offeror's offer, subject to
the condition subsequent of NMFS' formal notification of a successful
referendum.
Witnesseth
Whereas, Section 219, Title II, Division B of the Consolidated
Appropriations Act, 2005, as enacted on December 8, 2004, (the ``Act'')
authorizes a fishing capacity reduction program implementing capacity
reduction plans submitted to NMFS by catcher processor subsectors of the
Bering Sea and Aleutian Islands (``BSAI'') non-pollock groundfish
fishery as set forth in the Act;
Whereas, the longline catcher processor subsector (the ``Longline
Subsector'') is among the catcher processor subsectors eligible to
submit to NMFS a capacity reduction plan under the terms of the Act;
Whereas, the Freezer Longline Conservation Cooperative (the
``FLCC'') has developed and is submitting to NMFS concurrently with this
Reduction Contract a capacity reduction plan for the Longline Subsector
(the ``Reduction Plan'');
Whereas, the selection process will be pursuant to the fishing
capacity Reduction Contract and the Reduction Plan;
Whereas, the term ``Reduction Fishery'' is defined by the Reduction
Plan as the longline catcher processor subsector of the BSAI non-pollock
groundfish fishery;
Whereas, the Reduction Plan's express objective is to permanently
reduce harvesting capacity in the Reduction Fishery; Whereas, NMFS
implements the Reduction Plan pursuant to Section 219 of the Act as well
as the Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1861a(b)-(e))(as excepted by the Act, including inter alia, any
requirement that the Reduction Plan include a bidding or auction
process) and other applicable law;
Whereas, NMFS has promulgated framework regulations generally
applicable to all fishing capacity reduction programs, portions of which
are applicable to the Reduction Plan, (50 CFR 600.1000 et seq.);
Whereas, NMFS can implement the Reduction Plan only after giving
notice to all members of the Longline Subsector of the Reduction Plan
pursuant to Section 219(3)(b) of the Act and approval of the Reduction
Plan by referendum of the Longline Subsector; and
Whereas, this Reduction Contract is submitted by Offeror and the
FLCC as an integral element of the Reduction Plan and is expressly
subject to the terms and conditions set forth herein, the framework
regulations, the final rule (as used in this contract ``final rule''
means the final rule promulgated by NMFS which sets forth the
regulations implementing the Reduction Plan for the Longline Subsector)
and applicable law.
Now therefore, for good and valuable consideration and the premises
and covenants hereinafter set forth the receipt and sufficiency of which
the parties to the Reduction Contract hereby acknowledge, and intending
to be legally bound hereby, the parties hereto agree as follows:
1. Incorporation of Recitals. The foregoing recitals are true and
correct and are expressly incorporated herein by this reference.
2. Further Incorporation. The Act, framework regulations, final rule
and any other rule promulgated pursuant to the Act are expressly
incorporated herein by this reference. In the event of conflicting
language,
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the framework regulations, the final rule and any other rule promulgated
pursuant to the Act, take precedence over the Reduction Contract.
3. Contract Form. By completing and submitting the Reduction
Contract to NMFS the Offeror hereby irrevocably offers to relinquish its
Reduction Fishing Interests. If NMFS discovers any deficiencies in the
Offeror's submission to NMFS, NMFS may, at its sole discretion, contact
the Offeror in an attempt to correct such offer deficiency. ``Reduction
Fishing Interests'' means all of Offeror(s) rights, title and interest
to the Groundfish Reduction Permit, Reduction Permit(s), Reduction
Fishing Privilege and Reduction Fishing History as defined in this
Reduction Contract.
4. Groundfish Reduction Permit. Offeror expressly acknowledges that
it hereby offers to permanently surrender, relinquish, and have NMFS
permanently revoke the valid non-interim Federal License Limitation
Program groundfish license issued pursuant to 50 CFR 679.4(k) (or
successor regulation) endorsed for Bering Sea or Aleutian Islands
catcher processor fishing activity, C/P, Pacific cod, and hook and line
gear identified in section 46 of this contract as well as any present or
future claims of eligibility for any fishery privilege based upon such
permit, including any Latent License and any offered and accepted
interim permit that Offeror causes to become a non-interim permit, (the
``Groundfish Reduction Permit'').
5. Reduction Permit(s). Offeror hereby acknowledges that it offers
to permanently surrender, relinquish, and have NMFS permanently revoke
any and all Federal fishery licenses, fishery permits, and area and
species endorsements issued for any vessel named on the Groundfish
Reduction Permit as well as any present or future claims of eligibility
for any fishery privilege based upon such permit, including any Latent
License, (the ``Reduction Permits'').
6. Reduction Privilege Vessel. The Reduction Privilege Vessel is the
vessel listed on the Offeror's License Limitation Program license.
7. Reduction Fishing Privilege. If a vessel is specified in section
46 of this contract (the ``Reduction Privilege Vessel''), Offeror hereby
acknowledges that Offeror offers to relinquish and surrender the
Reduction Privilege Vessel's fishing privilege and consents to the
imposition of Federal vessel documentation restrictions that have the
effect of permanently revoking the Reduction Privilege Vessel's legal
ability to fish anywhere in the world as well as its legal ability to
operate under foreign registry or control--including the Reduction
Privilege Vessel's: fisheries trade endorsement under the Commercial
Fishing Industry Vessel Anti-Reflagging Act (46 U.S.C. 12108);
eligibility for the approval required under section 9(c)(2) of the
Shipping Act, 1916 (46 U.S.C. App. 808(c)(2)), for the placement of a
vessel under foreign flag or registry, as well as its operation under
the authority of a foreign country; and the privilege otherwise to ever
fish again anywhere in the world (the ``Reduction Fishing Privilege'').
Offeror agrees to instruct the United States Coast Guard's Vessel
Documentation Center to remove the fishery endorsement from the
Reduction Privilege Vessel. If the Reduction Privilege Vessel is not a
federally documented vessel, the Offeror offers to promptly scrap the
vessel and allow NMFS whatever access to the scrapping NMFS deems
reasonably necessary to document and confirm the scrapping.
8. Reduction Fishing History. Offeror surrenders, relinquishes, and
consents to NMFS' permanent revocation of the following Reduction
Fishing History (the ``Reduction Fishing History''):
a. The Reduction Privilege Vessel's full and complete documented
harvest of groundfish;
b. For any documented harvest of the Reduction Privilege Vessel
whatsoever, including that specified in section 8 of this contract, any
right or privilege to make any claim in any way related to any fishery
privilege derived in whole or in part from any such other and documented
harvest which could ever qualify any party for any future limited access
system fishing license, permit, and other harvest authorization of any
kind; including without limitation crab LLP licenses linked to License
Limitation Program (``LLP'') licenses, state fishing rights appurtenant
to Reduction Fishing Vessels, and all fishing history associated
therewith, but without prejudice to any party who before submission of
this offer may have for value independently acquired the fishing history
involving any such documented harvest;
c. Any documented harvest on any other vessel (Reduction Fishing
Vessel) that gave rise to the Groundfish Reduction Permit; and
d. All fishing history associated with the latent LLP license
identified on the Selected Offer and any fishing history associated with
the fishing vessel that gave rise to the latent LLP license that remains
in the Offeror's possession as of August 11, 2006 (i.e., date of
publication of the proposed rule in the Federal Register).
9. Halibut, Sablefish and Crab IFQs Excluded. Notwithstanding any
other provision of this Reduction Contract, no right, title and/or
interest to harvest, process or otherwise utilize individual fishing
quota (``IFQ'') quota share in the halibut, sablefish and crab fisheries
pursuant to 50 CFR parts 679 and 680, nor crab LLP license history to
the extent necessary for the issuance of crab IFQ pursuant to 50 CFR
part 680 as in effect as of the
[[Page 177]]
date of this Contract, shall be included among Offeror's Reduction
Fishing Interests.
10. Representations and Warranties. Offeror represents and warrants
that, as of the date of submission of this Reduction Contract, Offeror
is:
a. The holder of record, according to NMFS' official fishing license
records, at the time of offer, of the Groundfish Reduction Permit and
the Reduction Permit(s).
b. The Reduction Privilege Vessel's owner of record, according to
the National Vessel Documentation Center's official vessel documentation
records, at the time of offer, and that the Reduction Privilege Vessel
is neither lost nor destroyed at the time of offer.
c. In retention of and fully and legally entitled to offer and
dispose of hereunder, full and complete rights to the Reduction
Privilege Vessel's full and complete Reduction Fishing History necessary
to fully and completely comply with the requirements of section 8 of
this contract.
11. Offer Amount. NMFS' payment to Offeror in the exact amount of
the amount set forth by Offeror in section 46 of this contract is full
and complete consideration for the Offeror's offer.
12. Additional Offer Elements. Offeror shall include with its offer
an exact photocopy of the Reduction Privilege Vessel's official vessel
documentation or registration (i.e., the certificate of documentation
the U.S. Coast Guard's National Vessel Documentation Center issued for
federally documented vessels or the registration a State issues for
State registered vessels) and an exact photocopy of the Groundfish
Reduction Permit and all Reduction Permit(s). The Offeror shall also
include with the offer all other information required in this Reduction
Contract and otherwise comply with Reduction Contract requirements.
13. Use of Official Fishing License or Permit Databases. Offeror
expressly acknowledges that NMFS shall use the appropriate official
governmental fishing license or permit database to:
Determine the Offeror's address of record; verify the Offeror's
qualification to offer; determine the holder of record of the Groundfish
Reduction Permit and Reduction Permit(s); and verify the Offeror's
inclusion in the offer of all permits and licenses required to be
offered in the Offer.
14. Use of National Vessel Documentation Center Database. Offeror
expressly acknowledges that NMFS shall use the records of the National
Vessel Documentation Center to determine the owner of record for a
federally documented Reduction Privilege Vessel and the appropriate
State records to determine the owner of record of a non-federally
documented Reduction Privilege Vessel.
15. Offeror to Ensure Accurate Records. Offeror shall, to the best
of its ability, ensure that the records of the databases relevant to
sections 13 and 14 of this contract are true, accurate, and complete.
16. Submissions are Irrevocable. The parties hereto expressly
acknowledge as the essence hereof that the Offeror voluntarily submits
to NMFS this firm and irrevocable offer. The Offeror expressly
acknowledges that it hereby waives any privilege or right to withdraw,
change, modify, alter, rescind, or cancel any portion of the Reduction
Contract and that the receipt date and time which NMFS marks on the
Reduction Contract constitutes the date and time of the offer's
submission.
17. Offer Rejection. NMFS shall reject an offer that NMFS deems is
in any way unresponsive or not in conformance with the Reduction
Contract, and the applicable law or regulations unless the Offeror
corrects the defect and NMFS, in its sole discretion, accepts the
correction.
18. Notarized Offeror Signature(s) Required. NMFS shall deem as non-
responsive and reject an offer whose Offer Submission Form does not
contain the notarized signatures of all persons required to sign the
form on behalf of the Offeror.
19. Offer Rejections Constitute Final Agency Action. NMFS's offer
rejections are conclusive and constitute final agency action as of the
rejection date.
20. Effect of Offer Submission. Submitting an irrevocable offer
conforming to the requirements stated herein entitles the Offeror to
have NMFS accept the offer if NMFS, in its sole discretion, deems that
the offer is fully responsive and complies with the Act, the final rule
and any other rule promulgated pursuant to the Act.
21. Offeror Retains Use. After submitting an offer, the Offeror
shall continue to hold, own, or retain unimpaired every aspect of any
and all LLP License(s) and or vessels set forth on an Offer included as
Reduction Fishing Interests, until such time as: NMFS notifies the
Offeror that the Reduction Plan is not in compliance with the Act or
other applicable law and will not be approved by NMFS; notifies the
Offeror that the referendum was unsuccessful; NMFS tenders the reduction
payment and the Offeror complies with its obligations under the
Reduction Contract; or NMFS otherwise excuses the Offeror's performance.
22. Acceptance by Referendum. NMFS shall formally notify the Offeror
in writing whether the referendum is successful, which written notice
shall inform Offeror that the condition subsequent has been satisfied.
Therefore, Offeror expressly acknowledges that all parties must perform
under the Reduction Contract and the Reduction Contract is enforceable
against, and binding on, the Reduction Contract parties in accordance
with the terms and conditions herein.
[[Page 178]]
23. Reduction Contract Subject to Federal Law. The Reduction
Contract is subject to Federal law.
24. Notice to Creditors. Upon NMFS' offer acceptance notice to the
Offeror, Offeror agrees to notify all parties with secured interests in
the Reduction Fishing Interests that the Offeror has entered into the
Reduction Contract.
25. Referendum. Offeror acknowledges that the outcome of the
referendum of the Reduction Plan is an occurrence over which NMFS has no
control.
26. Unsuccessful Referendum Excuses Performance. An unsuccessful
referendum excuses all parties hereto from every obligation to perform
under the Reduction Contract. In such event, NMFS need not tender
reduction payment and the Offeror need not surrender and relinquish or
allow the revocation or restriction of any element of the Reduction
Fishing Interest specified in the Reduction Contract. An unsuccessful
referendum shall cause the Reduction Contract to have no further force
or effect.
27. Offeror Responsibilities upon Successful Referendum. Upon NMFS'
formal notification to the Offeror that the referendum was successful
and that NMFS had accepted the Reduction Contract, Offeror shall
immediately become ready to surrender and relinquish and allow the
revocation or restriction of (as NMFS deems appropriate) the Reduction
Fishing Interests.
28. Written Payment Instructions. After a successful referendum,
NMFS shall tender reduction payment by requesting the Offeror to provide
to NMFS, and the Offeror shall subsequently so provide, written payment
instructions for NMFS' disbursement of the reduction payment to the
Offeror or to the Offeror's order.
29. Request for Written Payment Instructions Constitutes Tender.
NMFS' request to the Offeror for written payment instructions
constitutes reduction payment tender, as specified in 50 CFR 600.1011.
30. Offeror Responsibilities upon Tender. Upon NMFS' reduction
payment tender to the Offeror, the Offeror shall immediately surrender
and relinquish and allow the revocation or restriction of (as NMFS deems
appropriate) the Reduction Fishing Interests. The Offeror must then
return the original of its Groundfish Reduction Permit and Reduction
Permit(s) to NMFS. Concurrently with NMFS' reduction payment tender, the
Offeror shall forever cease all fishing for any species with the
Reduction Privilege Vessel and immediately retrieve all fishing gear,
irrespective of ownership, previously deployed from the Reduction
Privilege Vessel. Offeror agrees to authorize the United States Coast
Guard to cancel the fishery endorsement in the Reduction Privilege
Vessel.
31. Reduction Privilege Vessel Lacking Federal Documentation. Upon
NMFS' reduction payment tender to the Offeror, the Offeror shall
immediately scrap any vessel which the Offeror specified as a Reduction
Privilege Vessel and which is documented solely under state law or
otherwise lacks documentation under Federal law. The Offeror shall scrap
such vessel at the Offeror's expense. The Offeror shall allow NMFS, its
agents, or its appointees reasonable opportunity to observe and confirm
such scrapping. The Offeror shall conclude such scrapping within a
reasonable time.
32. Future Harvest Privilege and Reduction Fishing History
Extinguished. Upon NMFS' reduction payment tender to the Offeror, the
Offeror shall surrender and relinquish and consent to the revocation,
restriction, withdrawal, invalidation, or extinguishment by other means
(as NMFS deems appropriate), of any claim in any way related to any
fishing privilege derived, in whole or in part, from the use or
holdership of the Groundfish Reduction Permits and the Reduction
Permit(s), from the use or ownership of the Reduction Privilege Vessel
(subject to and in accordance with the provisions of section 8 of this
contract), and from any documented harvest fishing history arising under
or associated with the same which could ever qualify the Offeror for any
future limited access fishing license, fishing permit, and other harvest
authorization of any kind.
33. Post Tender Use of Federally Documented Reduction Privilege
Vessel. After NMFS' reduction payment tender to the Offeror, the Offeror
may continue to use a federally documented Reduction Privilege Vessel
for any lawful purpose except ``fishing'' as defined under the Magnuson-
Stevens Act and may transfer--subject to all restrictions in the
Reduction Contract, other applicable regulations, and the applicable
law--the vessel to a new owner. The Offeror or any subsequent owner
shall only operate the Reduction Privilege Vessel under the United
States flag and shall not operate such vessel under the authority of a
foreign country. In the event the Offeror fails to abide by such
restrictions, the Offeror expressly acknowledges and hereby agrees to
allow NMFS to pursue any and all remedies available to it, including,
but not limited to, recovering the reduction payment and seizing the
Reduction Privilege Vessel and scrapping it at the Offeror's expense.
34. NMFS' Actions upon Tender. Contemporaneously with NMFS'
reduction payment tender to the Offeror, and without regard to the
Offeror's refusal or failure to perform any of its Reduction Contract
duties and obligations, NMFS shall: Permanently revoke the Offeror's
Groundfish Reduction Permit and Reduction Permit(s); notify the National
Vessel Documentation Center to permanently revoke the Reduction
Privilege Vessel's fishery trade endorsement; notify the U.S. Maritime
Administration to make the
[[Page 179]]
Reduction Privilege Vessel permanently ineligible for the approval of
requests to place the vessel under foreign registry or operate the
vessel under a foreign country's authority; record in the appropriate
NMFS records that the Reduction Fishing History represented by any
documented harvest fishing history accrued on, under, or as a result of
the operation of the Reduction Privilege Vessel and/or Reduction Fishing
Vessel (subject to and in accordance with the provisions of section 8 of
this contract), the Groundfish Reduction Permit, and the Reduction
Permit(s) which could ever qualify the Offeror for any future limited
access fishing license, fishing permit, or other harvesting privilege of
any kind shall never again be available to anyone for any fisheries
purpose; and implement any other restrictions the applicable law or
regulations impose.
35. Material Disputes to be Identified. Members of the public shall,
up until NMFS receives the Offeror's written payment instructions, be
able to advise NMFS in writing of any material dispute with regard to
any aspect of any accepted Reduction Contract. Such a material dispute
shall neither relieve the Offeror of any Reduction Contract duties or
obligations nor affect NMFS' right to enforce performance of the
Reduction Contract terms and conditions.
36. Reduction Payment Disbursement. Once NMFS receives the Offeror's
written payment instructions and certification of compliance with the
Reduction Contract, NMFS shall as soon as practicable disburse the
reduction payment to the Offeror. Reduction payment disbursement shall
be in strict accordance with the Offeror's written payment instructions.
Unless the Offeror's written payment instructions direct NMFS to the
contrary, NMFS shall disburse the whole of the reduction payment to the
Offeror. If the qualifying Offeror offers with a co-Offeror, both the
qualifying Offeror and the co-Offeror must approve and sign the written
payment instructions.
37. Reduction Payment Withheld for Scrapping or for Other Reasons.
In the event that a Reduction Privilege Vessel which is not under
Federal documentation must be scrapped, NMFS shall withhold from
reduction payment disbursement an amount sufficient to scrap such
vessel. NMFS shall withhold such sum until the vessel is completely
scrapped before disbursing any amount withheld. NMFS may confirm, if
NMFS so chooses, that the vessel has been scrapped before disbursing any
amount withheld. If NMFS has reason to believe the Offeror has failed to
comply with any of the Reduction Contract terms and conditions, NMFS
shall also withhold reduction payment disbursement until such time as
the Offeror performs in accordance with the Reduction Contract terms and
conditions.
38. Offeror Assistance with Restriction. The Offeror shall, upon
NMFS' request, furnish such additional documents, undertakings,
assurances, or take such other actions as may be reasonably required to
enable NMFS' revocation, restriction, invalidation, withdrawal, or
extinguishment by other means (as NMFS deems appropriate) of all
components of the Reduction Contract's Reduction Fishing Interest in
accordance with the requirements of the Reduction Contract terms and
conditions, applicable regulations and the applicable law.
39. Recordation of Restrictions. Upon the Reduction Fishing
Privilege's revocation, the Offeror shall do everything reasonably
necessary to ensure that such revocation is recorded on the Reduction
Privilege Vessel's Federal documentation (which the National Vessel
Documentation Center maintains in accordance with Federal maritime law
and regulations) in such manner as is acceptable to NMFS and as shall
prevent the Reduction Privilege Vessel, regardless of its subsequent
ownership, from ever again being eligible for a fishery trade
endorsement or ever again fishing. The term ``fishing'' includes the
full range of activities defined in the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1802).
40. Reduction Element Omission. In the event NMFS accepts the offer
and the Offeror has failed, for any reason, to specify in the Reduction
Contract any Groundfish Reduction Permit, non-Groundfish Reduction
Permit(s), Reduction Privilege Vessel, Reduction Fishing Vessel,
Reduction Fishing History, or any other element of the Reduction Fishing
Interest which the Offeror should under Reduction Contract, applicable
regulations and the applicable law have specified in Reduction Contract,
such omitted element shall nevertheless be deemed to be included in the
Reduction Contract and to be subject to the Reduction Contract's terms
and conditions; and all Reduction Contract terms and conditions which
should have applied to such omitted element had it not be omitted shall
apply as if such element had not been omitted. Upon the Offeror
discovering any such omission, the Offeror shall immediately and fully
advise NMFS of such omission. Upon either NMFS or the Offeror
discovering any such omission, the Offeror shall act in accordance with
the Reduction Contract, applicable regulations and the applicable law.
41. Remedy for Breach. Because money damages are not a sufficient
remedy for the Offeror breaching any one or more of the Reduction
Contract terms and conditions, the Offeror explicitly agrees to and
hereby authorizes specific performance of the Reduction Contract, in
addition to any money damages, as a remedy for such breach. In the event
of such breach, NMFS shall take any reasonable action, including
requiring and
[[Page 180]]
enforcing specific performance of the Reduction Contract, NMFS deems
necessary to carry out the Reduction Contract, applicable regulations
and the applicable law.
42. Waiver of Data Confidentiality. The Offeror consents to the
public release of any information provided in connection with the
Reduction Contract or pursuant to Reduction Plan requirements, including
any information provided in the Reduction Contract or by any other means
associated with, or necessary for evaluation of, the Offeror's Reduction
Contract if NMFS finds that the release of such information is necessary
to achieve the Reduction Plan's authorized purpose. The Offeror hereby
explicitly waives any claim of confidentiality otherwise afforded to
catch, or harvest data and fishing histories otherwise protected from
release under the Magnuson-Stevens Fishery Conservation and Management
Act (16 U.S.C. 1881 a(b)) or any other law. In the event of such
information release, the Offeror hereby forever fully and
unconditionally releases and holds harmless the United States and its
officers, agents, employees, representatives, of and from any and all
claims, demands, debts, damages, duties, causes of action, actions and
suits whatsoever, in law or equity, on account of any act, failure to
act or event arising from, out of, or in any way related to, the release
of any information associated with the Reduction Program.
43. Oral Agreement Invalid. The Reduction Contract, any addendums to
section 46 of this contract, and enclosures of photocopies of licenses
and permits required under section 46 of this contract, contain the
final terms and conditions of the agreement between the Offeror and NMFS
and represent the entire and exclusive agreement between them. NMFS and
the Offeror forever waive all right to sue, or otherwise counterclaim
against each other, based on any claim of past, present, or future oral
agreement between them.
44. Severable Provisions. The Reduction Contract provisions are
severable; and, in the event that any portion of the Reduction Contract
is held to be void, invalid, non-binding, or otherwise unenforceable,
the remaining portion thereof shall remain fully valid, binding, and
enforceable against the Offeror and NMFS.
45. Disputes. Any and all disputes involving the Reduction Contract,
and any other Reduction Plan aspect affecting them shall in all respects
be governed by the Federal laws of the United States; and the Offeror
and all other parties claiming under the Offeror irrevocably submit
themselves to the jurisdiction of the Federal courts of the United
States and/or to any other Federal administrative body which the
applicable law authorizes to adjudicate such disputes.
46. Fishing Capacity Reduction Offer Submission Form and Reduction
Fishing Interests Identification.
a. Completion and Submission. The Offeror must fully, faithfully,
and accurately complete this section 46 of this contract and thereafter
submit the full and complete Reduction Contract to NMFS in accordance
with the Reduction Contract. If completing this section requires
inserting more information than the places provided for the insertion of
such information allows, the Offeror should attach an addendum to the
Reduction Contract that: Includes and identifies the additional
information, states that the addendum is a part of the Reduction Fishing
Interests Identification portion of the Reduction Contract, states (as a
means of identifying the Reduction Contract to which the addendum
relates) the NMFS license number designated on the Reduction Contract's
Groundfish Reduction Permit, and is signed by all persons who signed the
Reduction Contract as the Offeror.
b. Offeror Information.
(1) Offeror name(s). Insert in the table provided under this section
46.b(1) of this contract the name(s) of the qualifying Offeror and of
the co-Offeror (if there is a co-Offeror), and check the appropriate box
for each name listed.
Each name the Offeror inserts must be the full and exact legal name
of record of each person, partnership, corporation or other business
entity identified on the offer. If any Reduction Fishing Interest
element is co-owned by more than one person, partnership, corporation or
other business entity, the Offeror must insert each co-owner's name.
In each case, the Offeror is the holder of record, at the time of
Offeror's execution of this Reduction Contract, of the Groundfish
Reduction Permit and the Reduction Permit(s). A co-Offeror is not
allowed for either the Groundfish Reduction Permit or the Reduction
Permit(s). If the Offeror is also the owner of record, at the time of
offering, of the Reduction Privilege Vessel, the qualifying Offeror is
the sole Offeror. If, however, the owner of record, at the time of
execution of this Reduction Contract, of the Reduction Privilege Vessel
is not exactly the same as the Offeror, then the owner of record is the
co-Offeror; and the Offeror and the co-Offeror jointly offer together as
the Offeror.
[[Page 181]]
------------------------------------------------------------------------
OFFEROR NAME(S) If Offeror or Check appropriate box for each name
co-Offeror consists of more than listed in the adjacent column
one owner, use one row of this ---------------------------------------
column to name each co-Offeror.
If not, use only one row for Co-Offeror (if
Offeror and one row for any co- Offeror any)
Offeror
------------------------------------------------------------------------
(1)
------------------------------------------------------------------------
(2)
------------------------------------------------------------------------
(3)
------------------------------------------------------------------------
(4)
------------------------------------------------------------------------
(5)
------------------------------------------------------------------------
(2) Offeror address(s) of record. Insert in the table provided under
this section 46.b(2) of this contract the Offeror's and the co-Offeror's
(if there is a co-Offeror) full and exact address(s) of record, and
check the appropriate box for each address listed.
------------------------------------------------------------------------
OFFEROR ADDRESS(S) If Offeror Check appropriate box for each address
or co-Offeror consists of more listed in the adjacent column
than one owner, use 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 Co-Offeror (if
Name(s) table in section Offeror any)
46.b(1), i.e., address (1) is
for name (1), address (2) is for
name (2), address (3) is for
name (3), etc.
------------------------------------------------------------------------
(1)
------------------------------------------------------------------------
(2)
------------------------------------------------------------------------
(3)
------------------------------------------------------------------------
(4)
------------------------------------------------------------------------
(5)
------------------------------------------------------------------------
(3) Offeror business telephone number(s). Insert in the table
provided under this section 46.b(3) the Offeror's and the co-Offeror's
(if there is a co-Offeror) full and exact business telephone number(s),
and check the appropriate box for each number listed.
------------------------------------------------------------------------
OFFEROR BUSINESS TELEPHONE Check appropriate box for each
NUMBER(S) If Offeror or co- telephone number listed in the
Offeror consists of more than adjacent column
one owner, use 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 in section Offeror Co-Offeror (if
46.b(1), i.e., telephone number any)
(1) is for name (1), telephone
number (2) is for name (2),
telephone number (3) is for name
(3), etc.
------------------------------------------------------------------------
(1)
------------------------------------------------------------------------
(2)
------------------------------------------------------------------------
(3)
------------------------------------------------------------------------
(4)
------------------------------------------------------------------------
(5)
------------------------------------------------------------------------
(4) Offeror electronic mail address(s) (if available). Insert in the
table printed under this section 46.b(4) the Offeror's and the co-
Offeror's (if there is a co-Offeror) full and exact electronic mail (e-
mail) address(s), and check the appropriate box for each address.
[[Page 182]]
------------------------------------------------------------------------
OFFEROR E-MAIL ADDRESS(S) If Check appropriate box for each e-mail
Offeror or co-Offeror consists address listed in the adjacent column
of more than one owner, use 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 Offeror Co-Offeror (if
section 46.b(1) of this any)
contract, i.e., e-mail (1) is
for name (1), e-mail (2) is for
name (2), e-mail (3) is for name
(3), etc
------------------------------------------------------------------------
(1)
------------------------------------------------------------------------
(2)
------------------------------------------------------------------------
(3)
------------------------------------------------------------------------
(4)
------------------------------------------------------------------------
(5)
------------------------------------------------------------------------
c. LLP license number for Groundfish Reduction Permit. Insert in the
place this section 46.c provides the full and exact license number which
NMFS designated on the LLP license which the Offeror specifies as the
Groundfish Reduction Permit. Attach with the Reduction Contract an exact
photocopy of such license.
------------------------------------------------------------------------
LLP LICENSE NUMBER(S) AND FISHERY(S) OF Of LLP LICENSE(S) SPECIFIED AS
GROUNDFISH REDUCTION PERMIT(S)
-------------------------------------------------------------------------
License number(s) Fishery(s)
------------------------------------------------------------------------
(1)
------------------------------------------------------------------------
(2)
------------------------------------------------------------------------
(3)
------------------------------------------------------------------------
(4)
------------------------------------------------------------------------
(5)
------------------------------------------------------------------------
d. License number(s) for Reduction Permit(s). Insert in the place
this section 46.d provides the fishery(s) involved in, and the full and
exact license number(s) with NMFS designated on the license(s) which the
Offeror specifies in the Reduction Contract as the Reduction Permit(s).
Enclose with the Reduction Contract an exact photocopy of each such
license.
------------------------------------------------------------------------
LLP LICENSE NUMBER(S) AND FISHERY OF LICENSE(S) SPECIFIED AS REDUCTION
PERMITS
-------------------------------------------------------------------------
License number(s) Fishery(s)
------------------------------------------------------------------------
(1)
------------------------------------------------------------------------
(2)
------------------------------------------------------------------------
(3)
------------------------------------------------------------------------
(4)
------------------------------------------------------------------------
(5)
------------------------------------------------------------------------
e. Reduction Fishing History. For all Reduction Fishing History
insert in the place provided in the table under this section 46.e the
chronological and other information with each column heading therein
requires. The information required does not include any actual landing
data. Any Offeror whose Groundfish Reduction Permit whose issuance NMFS
based on the fishing history of a lost or destroyed vessel plus a
replacement vessel must insert information for both vessels and meet the
requirements of the framework regulations, final rule and any other
regulations promulgated pursuant to the Act. Any Offeror whose
Groundfish Reduction Permit whose issuance NMFS in any part based on
acquisition of fishing history from another party must insert
information regarding such catch history.
------------------------------------------------------------------------
FOR EACH FISHING HISTORY IN 2ND
COLUMN
NAMES(S) AND -----------------------------------
OFFICIAL NUMBER FOR EACH If Reduction
OF REDUCTION REDUCTION License No. of Privilege Vessel
PRIVILEGE VESSEL PRIVILEGE VESSEL each Groundfish acquired fishing
AND NAME(S) AND IN 1ST COLUMN Reduction Permit history from
OFFICIAL PROVIDE FROM TO and Reduction another party,
NUMBER(S) OF ANY DATE OF EACH Permit(s) provide name of
VESSEL FROM WHICH FISHING HISTORY associated with party, manner in
FISHING HISTORY OFFEROR POSSESSES each vessel which acquired,
WAS ACQUIRED involved and date
acquired
------------------------------------------------------------------------
(1)
------------------------------------------------------------------------
(2)
------------------------------------------------------------------------
(3)
------------------------------------------------------------------------
(4)
------------------------------------------------------------------------
(5)
------------------------------------------------------------------------
[[Page 183]]
f. Reduction Privilege Vessel. Insert the full and exact name and
official number which the National Vessel Documentation Center
designated for the Reduction Privilege Vessel which the Offeror or the
co-Offeror (if there is a co-Offeror) specifies in the Reduction
Contract, and check the box appropriate for the vessel's ownership of
record.
Enclose with the Reduction Contract an exact photocopy of such
vessel's official certificate of documentation.
----------------------------------------------------------------------------------------------------------------
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 section 46.g provides the
Offeror's full and exact offer amount, both in words and in numbers.
------------------------------------------------------------------------
OFFER AMOUNT [U.S. DOLLARS]
-------------------------------------------------------------------------
In words In numbers
------------------------------------------------------------------------
------------------------------------------------------------------------
h. Reduction Contract Signature. In compliance with the Reduction
Contract, applicable regulations and the applicable law, the Offeror
submits the Reduction Contract as the Offeror's irrevocable offer to
NMFS for the permanent surrender and relinquishment and revocation,
restriction, withdrawal, invalidation, or extinguishment by other means
(as NMFS deems appropriate) of the Groundfish Reduction Permit, any
Reduction Permit(s), the Reduction Fishing Privilege, and the Reduction
Fishing History--all as identified in the Reduction Contract or as
required under applicable regulations, or the applicable law.
The Offeror expressly acknowledges that NMFS' acceptance of the
Offeror's offer hereunder and NMFS' tender, following a successful
referendum, of a reduction payment in the same amount specified in
section 46.g of this contract (less any sum withheld for scrapping any
Reduction Privilege Vessel lacking Federal documentation or for any
other purpose) to the Offeror shall, among other things, render the
Reduction Privilege Vessel permanently ineligible or any fishing
worldwide, including, but not limited to, fishing on the high seas or in
the jurisdiction of any foreign country while operating under United
States flag, and shall impose or create other legal and contractual
restrictions, impediments, limitations, obligations, or other provisions
which restrict, revoke, withdraw, invalidate, or extinguish by other
means (as NMFS deems appropriate) the complete Reduction Fishing
Interest and any other fishery privileges or claims associated with the
Groundfish Reduction Permit, any Reduction Permit(s), the Reduction
Privilege Vessel, and the Reduction Fishing History--all as more fully
set forth in the Reduction Contract, applicable regulations, and the
applicable law.
By completing and signing the Reduction Contract, the Offeror
expressly acknowledges that the Offeror has fully and completely read
the entire Reduction Contract. The Offeror expressly states, declares,
affirms, attests, warrants, and represents to NMFS that the Offeror is
fully able to enter into the Reduction Contract and that the Offeror
legally holds, owns, or retains, and is fully able under the Reduction
Contract provisions to offer and dispose of, the full Reduction Fishing
Interest which the Reduction Contract specifies and the applicable
regulations, and the applicable law requires that any person or entity
completing the Reduction Contract and/or signing the Reduction Contract
on behalf of another person or entity, expressly attests, warrants, and
represents to NMFS that such completing and/or signing person or entity
has the express and written permission or other grant of authority to
bind such other person or entity to the Reduction Contract's terms and
conditions. The Offeror expressly attests, warrants, and represents to
NMFS that every co-owner of the Offeror necessary to constitute the
Offeror's full and complete execution of the Reduction Contract has
signed the Reduction Contract. The Offeror expressly attests, warrants,
and represents to NMFS that the Offeror: Fully understands the
consequences of submitting the completed Reduction Contract of which it
is a party to NMFS; pledges to abide by the terms and conditions of the
Reduction Contract; and is aware of, understands, and consents to, any
and all remedies available to NMFS for the Offeror's breach of the
Reduction Contract or submission of an offer which fails to conform with
the Reduction Contract, final rule, applicable regulations and the
applicable law. The Offeror expressly attests, warrants, and represents
to NMFS that all information which the Offeror inserted in the Reduction
Contract is true, accurate, complete, and fully in accordance with the
Reduction Contract, final rule, other applicable regulations and the
applicable law.
[[Page 184]]
In witness whereof, the Offeror has, in the place provided below,
executed the Reduction Contract either as an Offeror offering alone or
as an Offeror and co-Offeror (if there is a co-Offeror) jointly offering
together, in accordance with the requirements specified above, and on
the date written below. The Reduction Contract is effective as of the
date NMFS accepts the Offeror's offer by signing the Reduction Contract.
The Offeror and co-Offeror (if there is a co-Offeror) must each sign
the Reduction Contract exactly as instructed herein. Each co-owner (if
there is a co-owner) of each Offeror and co-Offeror (if there is a co-
Offeror) must also sign the Reduction Contract exactly as instructed
herein. A notary public must, for each person or entity signing on
behalf of the Offeror, complete and sign the acknowledgment and
certification provision associated with each such person or entity's
signature.
I. Offeror and co-Offeror's (if there is a co-Offeror) signature(s)
and notary's acknowledgment(s) and certification(s).
------------------------------------------------------------------------
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.)
-------------------------------------------------------------------------
OFFEROR SIGNATURE Check appropriate column for each NOTARY SIGNATURE
(1) Sign. (2) signature in 1st column (1) Sign. (2)
Print: the ------------------------------------ Print: the
following: (a) following: (a)
signer's name, name, (b) signing
(b) signer's date, (3) date
title (if signing commission
for corporation expires, and (4)
or other business State and county.
entity), and (c) Each notary
signing date signature attests
------------------ to the following:
``I certify that
I know or have
satisfactory
evidence that the
person who signed
in the 1st column
Qualifying Co-Offeror (if of this same row
Offeror any) 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)
------------------------------------------------------------------------
(2)
------------------------------------------------------------------------
(3)
------------------------------------------------------------------------
II. United States of America's signature. United States of America,
Acting by and through the Secretary of Commerce, National Oceanic and
Atmospheric Administration, National Marine Fisheries Service, Financial
Services Division.
Dated:_________________________________________________________________
By:____________________________________________________________________
Leo C. Erwin, Chief,
Financial Services Division, National Marine Fisheries Service.
[71 FR 57701, Sept. 29, 2006]
Sec. 600.1106 Longline catcher processor subsector Bering Sea and Aleutian
Islands (BSAI) non-pollock groundfish species fee payment and collection
system.
(a) Purpose. As authorized by Public Law 108 447, this section's
purpose is to:
(1) In accordance with Sec. 600.1012, establish:
(i) The borrower's obligation to repay a reduction loan, and
(ii) The loan's principal amount, interest rate, and repayment term;
and
(2) In accordance with Sec. Sec. 600.1013 through 600.1016,
implement an industry fee system for the reduction fishery.
(b) Definitions. Unless otherwise defined in this section, the terms
defined in Sec. 600.1000 and Sec. 600.1105 expressly apply to this
section. In addition, the following definition applies to this section:
Reduction fishery means the longline catcher processor subsector of
the BSAI non-pollock groundfish fishery that Sec. 679.2 of this chapter
defined as groundfish area/species endorsements.
(c) Reduction loan amount. The reduction loan's original principal
amount is $35,000,000.
[[Page 185]]
(d) Interest accrual from inception. Interest began accruing on the
reduction loan from May 29, 2007, the date on which NMFS disbursed such
loan.
(e) Interest rate. The reduction loan's interest rate shall be the
applicable rate which the U.S. Treasury determines at the end of fiscal
year 2007 plus 2 percent.
(f) Repayment term. For the purpose of determining fee rates, the
reduction loan's repayment term is 30 years from May 29, 2007, but fees
shall continue indefinitely for as long as necessary to fully repay the
loan.
(g) Reduction loan repayment. (1) The borrower shall, in accordance
with Sec. 600.1012, repay the reduction loan;
(2) For the purpose of the fee collection, deposit, disbursement,
and accounting requirements of this subpart, subsector members are
deemed to be both the fish buyer and fish seller. In this case, all
requirements and penalties of Sec. 600.1013 that are applicable to both
a fish seller and a fish buyer shall equally apply to parties performing
both functions;
(3) Subsector members in the reduction fishery shall pay and collect
the fee amount in accordance with Sec. 600.1105;
(4) Subsector members in the reduction fishery shall, in accordance
with Sec. 600.1014, deposit and disburse, as well as keep records for
and submit reports about, the fees applicable to such fishery; except
the requirements specified under paragraph (c) of this section
concerning the deposit principal disbursement shall be made to NMFS no
later than fifteen (15) calendar days following the end of each calendar
month; and the requirements specified under paragraph (e) of this
section concerning annual reports which shall be submitted to NMFS by
February 1 of each calendar year; and
(5) The reduction loan is, in all other respects, subject to the
provisions of Sec. Sec. 600.1012 through 600.1017.
[72 FR 54222, Sept. 24, 2007]
Subpart N_Shark Finning
Source: 67 FR 6200, Feb. 11, 2002, unless otherwise noted.
Redesignated at 69 FR 53361, Sept. 1, 2004.
Sec. 600.1200 Purpose and scope.
The regulations in this subpart govern ``shark finning'' (the
removal of shark fins and discarding of the carcass), the possession of
shark fins, and the landing into U.S. ports of shark fins without
corresponding carcasses under the authority of the Magnuson-Stevens Act.
They implement the Shark Finning Prohibition Act of 2000.
Sec. 600.1201 Relation to other laws.
(a) The relation of this subpart to other laws is set forth in
Sec. Sec. 600.514 and 600.705 and in paragraphs (b) and (c) of this
section.
(b) Regulations pertaining to shark conservation and management for
certain shark fisheries are also set forth in this subpart and in parts
635 (for Federal Atlantic Ocean, Gulf of Mexico, and Caribbean shark
fisheries), 648 (for spiny dogfish fisheries), and 660 (for fisheries
off West Coast states and in the western Pacific) of this chapter
governing those fisheries.
(c) Nothing in this regulation supercedes more restrictive state
laws or regulations regarding shark finning in state waters.
(d) A person who owns or operates a vessel that has been issued an
Atlantic Federal commercial shark limited access permit or a spiny
dogfish permit is subject to the reporting and recordkeeping
requirements found at parts 635 and 648 of this chapter, respectively.
Sec. 600.1202 Definitions.
(a) In addition to the definitions in the Magnuson-Stevens Act and
in Sec. 600.10, the terms used in this subpart have the following
meanings:
Land or landing means offloading fish, or causing fish to be
offloaded, from a fishing vessel, either to another vessel or to a
shoreside location or facility, or arriving in port, or at a dock,
berth, beach, seawall, or ramp to begin offloading fish.
Shark finning means taking a shark, removing a fin or fins (whether
or not including the tail), and returning the remainder of the shark to
the sea.
(b) If there is any difference between a definition in this section
and in Sec. 600.10, the definition in this section is
[[Page 186]]
the operative definition for the purposes of this subpart.
Sec. 600.1203 Prohibitions.
(a) In addition to the prohibitions in Sec. Sec. 600.505 and
600.725, it is unlawful for any person to do, or attempt to do, any of
the following:
(1) Engage in shark finning, as provided in Sec. 600.1204(a) and
(i).
(2) Possess shark fins without the corresponding carcasses while on
board a U.S. fishing vessel, as provided in Sec. 600.1204(b) and (j).
(3) Land shark fins without the corresponding carcasses, as provided
in Sec. 600.1204(c) and (k).
(4) Fail to have all shark fins and carcasses from a U.S. or foreign
fishing vessel landed at one time and weighed at the time of the
landing, as provided in Sec. 600.1204(d).
(5) Possess, purchase, offer to sell, or sell shark fins taken,
landed, or possessed in violation of this section, as provided in Sec.
600.1204(e) and (l).
(6) When requested, fail to allow an authorized officer or any
employee of NMFS designated by a Regional Administrator access to and/or
inspection or copying of any records pertaining to the landing, sale,
purchase, or other disposition of shark fins and/or shark carcasses, as
provided in Sec. 600.1204(f).
(7) Fail to have shark fins and carcasses recorded as specified in
Sec. 635.30(c)(3) of this chapter.
(8) Fail to have all shark carcasses and fins landed and weighed at
the same time if landed in an Atlantic coastal port, and to have all
weights recorded on the weighout slips specified in Sec. 635.5(a)(2) of
this chapter.
(9) Fail to maintain a shark in the form specified in Sec. Sec.
600.1204(h) and 635.30(c) of this chapter.
(b)(1) For purposes of this section, it is a rebuttable presumption
that shark fins landed by a U.S. or foreign fishing vessel were taken,
held, or landed in violation of this section if the total weight of the
shark fins landed exceeds 5 percent of the total dressed weight of shark
carcasses on board or landed from the fishing vessel.
(2) For purposes of this section, it is a rebuttable presumption
that shark fins possessed by a U.S. fishing vessel were taken and held
in violation of this section if the total weight of the shark fins on
board, or landed, exceeds 5 percent of the total dressed weight of shark
carcasses on board or landed from the fishing vessel.
[67 FR 6200, Feb. 11, 2002. Redesignated at 69 FR 53361, Sept. 1, 2004,
as amended at 73 FR 40707, July 15, 2008]
Sec. 600.1204 Shark finning; possession at sea and landing of shark fins.
(a)(1) No person aboard a U.S. fishing vessel shall engage in shark
finning in waters seaward of the inner boundary of the U.S. EEZ.
(2) No person aboard a foreign fishing vessel shall engage in shark
finning in waters shoreward of the outer boundary of the U.S. EEZ.
(b) No person aboard a U.S. fishing vessel shall possess on board
shark fins harvested seaward of the inner boundary of the U.S. EEZ
without the corresponding carcass(es), as may be determined by the
weight of the shark fins in accordance with Sec. 600.1203(b)(2), except
that sharks may be dressed at sea.
(c) No person aboard a U.S. or foreign fishing vessel (including any
cargo vessel that received shark fins from a fishing vessel at sea)
shall land shark fins harvested in waters seaward of the inner boundary
of the U.S. EEZ without corresponding shark carcasses, as may be
determined by the weight of the shark fins in accordance with Sec.
600.1203(b)(1).
(d) Except as provided in paragraphs (g) and (h) of this section, a
person who operates a U.S. or foreign fishing vessel and who lands shark
fins harvested in waters seaward of the inner boundary of the U.S. EEZ
shall land all fins and corresponding carcasses from the vessel at the
same point of landing and shall have all fins and carcasses weighed at
that time.
(e) A person may not purchase, offer to sell, or sell shark fins
taken, landed, or possessed in violation of this section.
(f) Upon request, a person who owns or operates a vessel or a dealer
shall allow an authorized officer or any employee of NMFS designated by
a Regional Administrator access to, and/or inspection or copying of, any
records
[[Page 187]]
pertaining to the landing, sale, purchase, or other disposition of shark
fins and/or shark carcasses.
(g) A person who owns or operates a vessel that has been issued a
Federal Atlantic commercial shark limited access permit and who lands
shark in an Atlantic coastal port must have all fins weighed in
conjunction with the weighing of the carcasses at the vessel's first
point of landing. Such weights must be recorded on the ``weighout
slips'' specified in Sec. 635.5(a)(2) of this chapter.
(h) A person who owns or operates a vessel that has been issued a
Federal Atlantic commercial shark limited access permit and who lands
shark in or from the U.S. EEZ in an Atlantic coastal port must comply
with regulations found at Sec. 635.30(c) of this chapter.
(i) No person aboard a vessel that has been issued a Federal
Atlantic commercial shark limited access permit shall engage in shark
finning.
(j) No person aboard a vessel that has been issued a Federal
Atlantic commercial shark limited access permit shall possess on board
shark fins without the fins being naturally attached to the
corresponding carcass(es), although sharks may be dressed at sea.
(k) No person aboard a vessel that has been issued a Federal
Atlantic commercial shark limited access permit shall land shark fins
without the corresponding carcass(es).
(l) A dealer may not purchase from an owner or operator of a fishing
vessel issued a Federal Atlantic commercial shark limited access permit
who lands shark in an Atlantic coastal port fins whose wet weight
exceeds 5 percent of the dressed weight of the carcasses.
[67 FR 6200, Feb. 11, 2002. Redesignated at 69 FR 53361, Sept. 1, 2004,
as amended at 73 FR 40707, July 15, 2008]
Subpart O_Limited Access Privilege Programs
Authority: 16 U.S.C. 1801 et seq.
Sec. Sec. 600.1300--600.1309 [Reserved]
Sec. 600.1310 New England and Gulf of Mexico Individual Fishing Quota Referenda.
(a) Purpose and scope. This section establishes procedures and
guidelines for referenda to be conducted on Individual Fishing Quota
(IFQ) program proposals developed by the New England Fishery Management
Council (NEFMC) and the Gulf of Mexico Fishery Management Council
(GMFMC). These procedures and guidelines also apply to IFQ program
proposals developed by NMFS for fisheries under the jurisdiction of the
NEFMC or GMFMC, except for certain provisions that only apply to a
fishery management council. This section provides guidance on developing
voter eligibility and vote weighting, and establishes general procedures
to ensure referenda are conducted in a fair and equitable manner.
(b) Initiating IFQ referenda. (1) The NEFMC and the GMFMC shall not
submit, and the Secretary shall not approve, an FMP or FMP amendment
that would create an IFQ program until the IFQ program proposal, as
ultimately developed, has been approved by a referendum of eligible
voters. Paragraph (h) of this section provides criteria for determining
the outcome of IFQ referenda.
(2) To initiate a referendum on a proposed IFQ program:
(i) The relevant Council must have held public hearings on the FMP
or FMP amendment in which the IFQ program is proposed;
(ii) The relevant Council must have considered public comments on
the proposed IFQ program;
(iii) The relevant Council must have selected preferred alternatives
for the proposed IFQ program;
(iv) The chair of the Council with jurisdiction over such proposed
IFQ fishery must request a referendum on the proposed IFQ program in a
letter to the appropriate NMFS Regional Administrator;
(v) The letter requesting initiation of a referendum must recommend
voter eligibility criteria that are consistent with the applicable
requirements of paragraph (c)(1) of this section and may also include
recommended criteria for vote weighting. The letter must provide the
rationale supporting the Council's recommendation, as well as such
additional information and analyses as needed, consistent with
applicable law and provisions of this section. If a Council recommends
vote
[[Page 188]]
weighting criteria, the letter should fully describe the rationale for
and the expected effects of such weighting on the referendum;
(vi) NEFMC referenda initiation letters must: recommend criteria
that are consistent with paragraph (c)(2)(iii) of this section for NMFS
to use in determining the eligibility of other fishery participants to
vote in the referendum; include the minimum percentage of a crew
member's total income that must have been earned during the eligibility
periods in the proposed IFQ fishery as discussed in paragraph (c)(2)(ii)
of this section; and include criteria for ``referendum eligible
vessels'' as described in paragraph (c)(2)(i) of this section; and
(vii) GMFMC letters initiating referenda of multispecies permit
holders in the Gulf of Mexico must include recommended criteria to be
used in identifying those permit holders who have substantially fished
the species to be included in the proposed IFQ program, along with
alternatives to the recommendation, and supporting analyses. Guidelines
for developing such recommendations are provided at paragraph (c)(3) of
this section.
(3) Following a referendum that has failed to approve the IFQ
proposal, any request from a Council for a new referendum in the same
fishery must include an explanation of the substantive changes to the
proposed IFQ program or the changes of circumstances in the fishery that
would warrant initiation of an additional referendum.
(c) Referenda voter eligibility--(1) Permit holders and other
fishery participants. (i) To be eligible to vote in IFQ referenda,
permit holders and other fishery participants must meet voter
eligibility criteria.
(ii) Holders of multispecies permits in the Gulf of Mexico must have
substantially fished the species proposed to be included in the IFQ
program to be eligible to vote in a referendum on the proposed program.
(iii) When developing eligibility criteria for permit holders in an
IFQ program referendum, the relevant Council or Secretary must consider,
but is not limited to considering:
(A) The full range of entities likely to be eligible to receive
initial quota allocation under the proposed IFQ program;
(B) Current and historical harvest and participation in the fishery;
and
(C) Other factors as may be determined by the Council with
jurisdiction over the fishery for which an IFQ program is proposed to be
relevant to the fishery and to the proposed IFQ program.
(2) Crew member eligibility in NEFMC IFQ referenda. (i) For the
purposes of this section, ``referendum-eligible vessel'' means a vessel,
the permit holder or owner of which has been determined to be eligible
to vote in the referendum on the basis of such vessel's history or other
characteristics.
(ii) To be eligible to vote in an NEFMC IFQ referendum, crew members
must meet the following requirements:
(A) The crew member must have worked aboard a referendum-eligible
vessel at sea, during the qualifying period(s), while the vessel was
engaged in fishing;
(B) If requested, the crew member must produce documentary proof of
employment or service as a crew member and income during the qualifying
periods. Documents that may be required include, but are not limited to,
signed crew contracts, records of payment, settlement sheets, income tax
records, a signed statement from the permit holder, and other
documentary evidence of the period of employment and the vessel upon
which the crew member worked;
(C) During the qualifying period(s), the crew member must have
derived a percentage of his/her total income from the fishery under the
proposed IFQ program that is equal to or greater than the percentage
determined to be significant relative to the economic value and
employment practices of the fishery; and
(D) Any additional eligibility criteria promulgated by the NMFS.
(iii) When developing criteria for determining whether other fishery
participants, including crew members, may participate in a NEFMC IFQ
referendum, the Council or Secretary must consider, but is not limited
to considering:
[[Page 189]]
(A) The full range of entities likely to be eligible to receive
initial quota under the proposed IFQ program;
(B) A crew member's current and historical participation in the
fishery aboard a referendum-eligible vessel;
(C) The economic value of the proposed IFQ fishery, employment
practices in the proposed IFQ fishery, and other economic and social
factors that would bear on a determination of what percentage of a crew
member's total income from the fishery should be considered significant
for the purposes of this section;
(D) The availability of documentary proof of employment and income
to validate eligibility; and
(E) Any other factors as may be determined by the Council to be
relevant to the fishery and the proposed IFQ program.
(3) GMFMC's substantially fished criterion. When developing criteria
for identifying those multispecies permit holders who have substantially
fished the species to be included in the IFQ program proposal, the
Council or Secretary must consider, but is not limited to considering:
(i) Current and historical harvest and participation in the fishery;
(ii) The economic value of and employment practices in the fishery;
and
(iii) Any other factors determined by the Council with jurisdiction
over the fishery for which an IFQ program is proposed to be relevant to
the fishery and the proposed IFQ program.
(d) Council-recommended criteria under paragraph (c) of this section
may include, but are not limited to, levels of participation or reliance
on the fishery as represented by landings, sales, expenditures, or other
considerations. A Council may also apply the same criteria for weighting
eligible referendum votes.
(e) Actions by NMFS: Review of Council referendum criteria and
Secretarial IFQ plans. (1) NMFS shall determine whether Council
recommended referendum criteria will provide for a fair and equitable
referendum and will be consistent with national standards and other
provisions of the Magnuson-Stevens Act, and other applicable legal
standards. The Secretary's considerations shall include, but shall not
be limited to:
(i) Whether the criteria are rationally connected to or further the
objectives of the proposed IFQ program;
(ii) Whether the criteria are designed in such a way to prevent any
person or single entity from obtaining an excessive share of voting
privileges;
(iii) Whether the criteria are reasonable relative to the
availability of documentary evidence and the possibility of validating a
participant's eligibility; and
(iv) Whether the referendum can be administered and executed in a
fair and equitable manner, in a reasonable time, and without subjecting
industry members, the Council, or NMFS to administrative burdens, costs
or other requirements that would be considered onerous.
(2) If NMFS determines that referendum criteria would not provide
for a fair and equitable referendum; would not be consistent with
national standards and other provisions of the Magnuson-Stevens Act, and
other applicable legal standards; or, in the case of a referendum
request subsequent to a failed referendum in the same fishery, that the
Council has not substantively amended the IFQ proposal or circumstances
have not changed sufficiently to warrant initiation of a new referendum,
NMFS shall inform the Council of the Agency's decision to deny the
referendum request and of the reasons for the decision.
(3) If NMFS determines that referendum criteria would provide for a
fair and equitable referendum and would be consistent with national
standards and other provisions of the Magnuson-Stevens Act, and other
applicable legal standards; then NMFS shall conduct the referendum in
accordance with procedures and guidelines provided in paragraph (f) of
this section.
(4) In accordance with paragraphs (c)(2) and (3) of this section,
NMFS may initiate a referendum and promulgate referendum criteria for
any IFQ program proposal advanced through a Secretarial fishery
management plan (FMP) or FMP amendment under the authority of section
304(c) of the Magnuson-Stevens Act for a New England or Gulf of Mexico
fishery. Such criteria must provide for a fair and equitable
[[Page 190]]
referendum and NMFS shall conduct the referendum in accordance with
procedures and guidelines provided in paragraph (f) of this section.
(f) Conducting IFQ referenda. (1) NMFS shall promulgate specific
referenda procedural requirements, voter eligibility requirements, and
any vote weighting criteria through appropriate rulemaking.
(i) Proposed rule. A proposed rule shall seek public comment on the
specific schedule, procedures, and other requirements for the referendum
process.
(A) For NEFMC IFQ program referenda, the proposed rule shall
establish procedures for documenting or certifying that other fishery
participants, including crew members, meet the proposed voter
eligibility criteria.
(B) For GMFMC IFQ program referenda for multispecies permit holders,
the proposed rule shall include criteria to be used in identifying those
permit holders who have substantially fished the species that are the
subject of the proposed IFQ program.
(ii) Final rule. (A) If NMFS decides to proceed with the referendum
after reviewing public comments, NMFS shall publish implementing
regulations through a final rule in the Federal Register as soon as
practicable after the Council determines the IFQ program proposal and
supporting analyses are complete and ready for Secretarial review.
Otherwise, NMFS shall publish a notice in the Federal Register to inform
the Council and the public of its decision not to conduct the
referendum, as proposed, including reasons for the Agency's decision.
(B) Upon implementation of the referendum through a final rule, NMFS
shall provide eligible voters referenda ballots and shall make available
information about the schedule, procedures, and eligibility requirements
for the referendum process and the proposed IFQ program.
(2) NMFS shall notify the public in the region of the subject
fishery of the referendum eligibility criteria.
(3) Individuals who wish to vote as other fishery participants in a
NEFMC IFQ referendum, based on criteria established by the NEFMC under
(c)(2), must contact NMFS and produce all required documentation and
certifications to receive a ballot. NMFS shall provide sufficient time
in the referendum process to allow for crew members to request, receive,
and submit referendum ballots.
(g) Referenda ballots. (1) Ballots shall be composed such that
voters will indicate approval or disapproval of the preferred IFQ
program proposal.
(2) NMFS may require voters to self-certify on referenda ballots
that they meet voter eligibility criteria. To be considered valid,
ballots must be signed by the eligible voter.
(3) Referenda ballots shall be numbered serially or otherwise
designed to guard against submission of duplicate ballots.
(4) If votes are weighted, the value of weighted votes shall be
indicated on the ballot. The weighted vote must be cast as a single
unit. Its value may not be split. The full value must be applied to the
selection made on the ballot.
(5) NMFS shall allow at least 30 days for eligible voters to receive
and return their ballots and shall specify a deadline by which ballots
must be received. Ballots received after the deadline shall not be
considered valid.
(h) Determining the outcome of an IFQ referendum. (1) NMFS shall
tally and announce the results of the referendum within 90 days of the
deadline by which completed ballots must be received. NMFS may declare a
referendum invalid if the Agency can demonstrate the referendum was not
conducted in accordance with the procedures established in the final
rule implementing the referendum.
(2) A NEFMC IFQ program referendum shall be considered approved only
if more than 2/3 of the votes submitted on valid ballots are in favor of
the referendum question.
(3) A GMFMC IFQ program referendum shall be considered approved only
if a majority of the votes submitted on valid ballots are in favor of
the referendum question.
(i) Council actions. (1) If NMFS notifies a Council that an IFQ
program proposal has been approved through a referendum, then the
Council may submit the associated FMP or FMP amendment for Secretarial
review and implementation.
[[Page 191]]
(2) Any changes that would modify an IFQ program proposal that was
reviewed by referenda voters may invalidate the results of the
referendum and require the modified program proposal to be approved
through a new referendum before it can be submitted to the Secretary for
review and implementation.
(3) If NMFS notifies a Council that an IFQ referendum has failed,
then the Council may modify its IFQ program proposal and request a new
referendum pursuant to paragraph (b) of this section.
[73 FR 75973, Dec. 15, 2008]
Subpart P_Marine Recreational Fisheries of the United States
Source: 73 FR 79717, Dec. 30, 2008, unless otherwise noted.
Sec. 600.1400 Definitions.
In addition to the definitions in the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act) and in Sec.
600.10 of this title, the terms used in this subpart have the following
meanings. For purposes of this subpart, if applicable, the terms used in
this subpart supersede those used in Sec. 600.10.
(a) Anadromous species means the following:
American shad: Alosa sapidissima
Blueback herring: Alosa aestivalus
Alewife: Alosa pseudoharengus
Hickory shad: Alosa mediocris
Alabama shad: Alosa alabamae
Striped bass: Morone saxatilis
Rainbow smelt: Osmerus mordax
Atlantic salmon: Salmo salar
Chinook, or king, salmon: Oncorhynchus tshawytscha
Coho, or silver, salmon: Oncorhynchus kisutch
Pink salmon: Oncorhynchus gorbuscha
Sockeye salmon: Oncorhynchus nerka
Chum salmon: Oncorhynchus keta
Steelhead: Oncorhynchus mykiss
Coastal cutthroat trout: Oncorhynchus clarki clarki
Eulachon or candlefish: Thaleichthys pacificus
Dolly varden: Salvelinus malma
Sheefish or inconnu: Stenodus leucichthys
Atlantic sturgeon: Acipenser oxyrhynchus oxyrhynchus
Shortnose sturgeon: Acipenser brevirostrum
Gulf sturgeon: Acipenser oxyrhynchus desotoi
White sturgeon: Acipenser transmontanus
Green sturgeon: Acipenser medirostris
(b) Angler means a person who is angling (see 50 CFR 600.10) in
tidal waters.
(c) Authorized officer has the same meaning as in 50 CFR 600.10.
(d) Continental shelf fishery resources has the same meaning as in
16 U.S.C. 1802.
(e) Exempted state means a state that has been designated as an
exempted state by NMFS pursuant to Sec. 600.1415.
(f) For-hire fishing vessel means a vessel on which passengers are
carried to engage in angling or spear fishing, from whom a consideration
is contributed as a condition of such carriage, whether directly or
indirectly flowing to the owner, charterer, operator, agent or any other
person having an interest in the vessel.
(g) Indigenous people means persons who are documented members of a
federally recognized tribe or Alaskan Native Corporation or persons who
reside in the western Pacific who are descended from the aboriginal
people indigenous to the region who conducted commercial or subsistence
fishing using traditional fishing methods, including angling.
(h) Spearfishing means fishing for, attempting to fish for, catching
or attempting to catch fish in tidal waters by any person with a spear
or a powerhead (see 50 CFR 600.10).
(i) State has the same meaning as in 16 U. S. C. 1802.
(j) Tidal waters means waters that lie below mean high water and
seaward of the first upstream obstruction or barrier to tidal action and
that are subject to the ebb and flow of the astronomical tides under
ordinary conditions.
Sec. 600.1405 Angler registration.
(a) Effective January 1, 2010, the requirements of this section
apply to any person who does any of the following:
(1) Engages in angling or spearfishing for:
[[Page 192]]
(i) Fish in the EEZ;
(ii) Anadromous species in any tidal waters; or
(iii) Continental Shelf fishery resources beyond the EEZ.
(2) Operates a for-hire fishing vessel in the EEZ.
(3) Operates a for-hire fishing vessel that engages in angling or
spearfishing for:
(i) Anadromous species in any tidal waters; or
(ii) Continental shelf fishery resources beyond the EEZ.
(4) Possesses equipment used for angling or spearfishing and also
possesses:
(i) Fish in the EEZ;
(ii) Anadromous species in any tidal waters; or
(iii) Continental shelf fishery resources beyond the EEZ.
(b) No person may engage in the activities listed in paragraph (a)
of this section unless that person:
(1) Has registered annually with NMFS in accordance with Sec.
600.1410 of this part;
(2) Holds a valid fishing license issued by, or is registered by, an
exempted state;
(3) Is a resident of an exempted state, but is not required to hold
a fishing license, or to be registered to fish, under the laws of that
state;
(4) Holds a permit issued by NMFS for for-hire fishing under 50 CFR
622.4(a)(1), 635.4(b), 648.4(a), or 660.70(a)(1);
(5) Is under the age of 16;
(6) Is angling aboard a for-hire fishing vessel that is in
compliance with NMFS and state for-hire vessel permit, license or
registration requirements;
(7) Holds a commercial fishing license or permit issued by NMFS or a
state and is lawfully fishing or in possession of fish taken under the
terms and conditions of such license or permit;
(8) Holds an HMS Angling permit under 50 CFR 635.4(c);
(9) Holds a subsistence fishing license or permit issued by NMFS or
a state and is lawfully fishing or in possession of fish taken under the
terms and conditions of such license or permit; or
(10) Is angling or spearfishing for, or operating a for-hire fishing
vessel that engages in fishing for, anadromous species or Continental
Shelf fishery resources, in waters under the control of a foreign
nation.
(c) Any angler or spear fisher or operator of a for-hire vessel
must, on request of an authorized officer, produce the NMFS registration
number and certificate or evidence that such person or for-hire vessel
operator is exempt from the registration requirement pursuant to Sec.
600.1405(b)(2) through Sec. 600.1405(b)(10).
[73 FR 79717, Dec. 30, 2008]
Effective Date Note: At 73 FR 79717, Dec. 30, 2008, Sec. 600.1405
was added, effective January 1, 2010.
Sec. 600.1410 Registry process.
(a) A person may register through the NMFS web site at
www.nmfs.noaa.gov or by calling a toll-free telephone number available
by contacting NMFS or at the NMFS website.
(b) Individuals must submit their name; address; telephone number;
date of birth; region(s) of the country in which they intend to fish in
the upcoming year; and additional information necessary for the issuance
or administration of the registration.
(c) To register a for-hire fishing vessel, the vessel owner or
operator must submit vessel owner name, address, date of birth, and
telephone number; vessel operator (if different) name, address, date of
birth and telephone number; vessel name; vessel's state registration or
U.S. Coast Guard documentation number; home port or principal area of
operation; and additional information necessary for the issuance or
administration of the registration.
(d) NMFS will issue a registration number and certificate to
registrants. A registration number and certificate will be valid for one
year from the date on which it is issued.
(e) It shall be unlawful for any person to submit false, inaccurate
or misleading information in connection with any registration request.
(f) Fees. Effective January 1, 2011, persons registering with NMFS
must pay an annual fee. The annual schedule for such fees will be
published in the Federal Register. Indigenous people engaging in angling
or spear fishing must
[[Page 193]]
register, but are not required to pay a fee.
Sec. 600.1415 Procedures for designating exempted states-general provisions.
(a) States with an exempted state designation must:
(1) Submit state angler and for-hire vessel license holder data to
NMFS for inclusion in a national or regional registry database; or
(2) Participate in regional surveys of recreational catch and effort
and make the data from those surveys available to NMFS.
(b) Process for getting an exempted state designation:
(1) To apply for exempted state designation, a state must submit:
(i) A complete description of the data it intends to submit to NMFS;
(ii) An assessment of how the data conforms to the requirements of
Sec. Sec. 600.1416 or 600. 1417;
(iii) A description of the database in which the data exists and
will be transmitted; and
(iv) The proposed process, schedule and frequency of submission of
the data.
(2) If NMFS determines the submitted material meets the requirements
of Sec. Sec. 600.1416 or 600.1417, NMFS will initiate negotiations with
the state on a Memorandum of Agreement. The Memorandum of Agreement must
include the terms and conditions of the data-sharing program. The
Memorandum of Agreement and state designation may be limited to data-
sharing related to only anglers or only for-hire fishing vessels.
(3) Following execution of a Memorandum of Agreement, NMFS will
publish a notice of the exempted state designation in the Federal
Register.
Sec. 600.1416 Requirements for exempted state designation based on submission
of state license holder data.
(a) A state must annually submit to NMFS, in a format consistent
with NMFS guidelines, the name, address and, to the extent available in
the state's database, telephone number and date of birth of all persons
and for-hire vessels and for-hire vessel operators who are licensed to
fish, or who are registered as fishing, in the EEZ, in the tidal waters
of the state, or for anadromous species. The Memorandum of Agreement
will specify the timetable for a state to compile and submit complete
information on the telephone numbers and dates of birth for its license
holders/registrants. The waters of the state for which such license-
holder data must be submitted will be specified in the Memorandum of
Agreement.
(b) A state is eligible to be designated as an exempted state even
if its licensing program excludes anglers who are:
(1) Under 16 years of age;
(2) Over age 59 (see Sec. 600.1416(d)(1));
(3) Customers on licensed for-hire vessels;
(4) Customers on state-licensed fishing piers, provided that the
pier license holder provides to the state complete angler contact
information or angler effort information for users of the pier;
(5) On active military duty while on furlough; or
(6) Disabled or a disabled Veteran as defined by the state.
(c) Unless the state can demonstrate that a given category of
anglers is so small it has no significant probability of biasing
estimates of fishing effort if these anglers are not included in a
representative sample, a state may not be designated as an exempted
state if its licensing program excludes anglers that meet any of the
following conditions:
(1) Fishing on a state-licensed private vessel;
(2) Fishing from privately-owned land;
(3) Fishing on a public pier;
(4) Fishing from shore;
(5) Fishing in tidal waters of the state; or
(6) Fishing as an occupant of a beach buggy, the operator of which
is licensed or permitted to operate the vehicle on public beaches.
(d) Required enhancements to exempted state license-holder data. An
exempted state must submit the following angler identification data by
Jan. 1, 2012, or within two years of the effective date of the
Memorandum of Agreement, whichever islater, and thereafter in accordance
with the Memorandum of Agreement:
[[Page 194]]
(1) Name, address and telephone number of excluded anglers over age
59;
(2) Name, address and telephone number, updated annually, of holders
of state lifetime and multi-year licenses;
(3) Name, address and telephone number of state combination license
holders who fished in tidal waters in the prior year, or who intend to
fish in tidal waters. The Memorandum of Agreement will define the
boundaries of the state's tidal waters for this purpose.
Sec. 600.1417 Requirements for exempted state designation based on submission
of recreational survey data.
(a) To be designated as an exempted state based on the state's
participation in a regional survey of marine and anadromous recreational
fishing catch and effort, a state may submit to NMFS a proposal that
fully describes the state's participation in a qualifying regional
survey, and the survey's sample design, data collection and
availability.
(b) A qualifying regional survey must:
(1) Include all of the states within each region as follows:
(i) Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut,
New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North
Carolina, South Carolina, Georgia and Florida (Atlantic coast);
(ii) Florida (Gulf of Mexico coast), Alabama, Mississippi,
Louisiana, and Texas;
(iii) Puerto Rico and the U. S. Virgin Islands;
(iv) California, Oregon and Washington;
(v) Alaska;
(vi) Hawaii; or
(vii) American Samoa, Guam and the Commonwealth of the Northern
Mariana Islands.
(2) Utilize angler registry data, or direct field counts to obtain
angler effort, or other appropriate statistical means to obtain fishing
effort;
(3) Utilize angler registry data to identify individuals to be
surveyed by telephone, if such regional survey includes a telephone
survey component; and
(4) Meet NMFS survey design and data collection standards.
PART 622_FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC--Table of
Contents
Subpart A_General Provisions
Sec.
622.1 Purpose and scope.
622.2 Definitions and acronyms.
622.3 Relation to other laws and regulations.
622.4 Permits and fees.
622.5 Recordkeeping and reporting.
622.6 Vessel and gear identification.
622.7 Prohibitions.
622.8 At-sea observer coverage.
622.9 Vessel monitoring systems (VMSs).
622.10 Conservation measures for protected resources.
Subpart B_Effort Limitations
622.15 Wreckfish individual transferable quota (ITQ) system.
622.16 Red snapper individual transferable quota (ITQ) system.
622.17 South Atlantic golden crab controlled access.
622.18 South Atlantic snapper-grouper limited access.
622.19 South Atlantic rock shrimp limited access.
622.20 Individual fishing quota (IFQ) program for Gulf groupers and
tilefishes.
Subpart C_Management Measures
622.30 Fishing years.
622.31 Prohibited gear and methods.
622.32 Prohibited and limited-harvest species.
622.33 Caribbean EEZ seasonal and/or area closures.
622.34 Gulf EEZ seasonal and/or area closures.
622.35 Atlantic EEZ seasonal and/or area closures.
622.36 Seasonal harvest limitations.
622.37 Size limits.
622.38 Landing fish intact.
622.39 Bag and possession limits.
622.40 Limitations on traps and pots.
622.41 Species specific limitations.
622.42 Quotas.
622.43 Closures.
622.44 Commercial trip limits.
622.45 Restrictions on sale/purchase.
622.46 Prevention of gear conflicts.
622.47 Gulf groundfish trawl fishery.
622.48 Adjustment of management measures.
622.49 Accountability measures.
[[Page 195]]
622.50 Caribbean spiny lobster import prohibitions.
Appendix A to Part 622--Species Tables
Appendix B to Part 622--Gulf Areas
Appendix C to Part 622--Fish Length Measurements
Appendix D to Part 622--Specifications for Certified BRDs
Authority: 16 U.S.C. 1801 et seq.
Source: 61 FR 34934, July 3, 1996, unless otherwise noted.
Editorial Note: Nomenclature changes to part 622 appear at 70 FR
73389, Dec. 12, 2005 and 73 FR 411, Jan. 3, 2008.
Subpart A_General Provisions
Sec. 622.1 Purpose and scope.
(a) The purpose of this part is to implement the FMPs prepared under
the Magnuson-Stevens Act by the CFMC, GMFMC, and/or SAFMC listed in
Table 1 of this section.
(b) This part governs conservation and management of species
included in the FMPs in or from the Caribbean, Gulf, Mid-Atlantic, South
Atlantic, or Atlantic EEZ, unless otherwise specified, as indicated in
Table 1 of this section. For the FMPs noted in the following table,
conservation and management extends to adjoining state waters for the
purposes of data collection and monitoring. This part also governs
importation of Caribbean spiny lobster into Puerto Rico or the U.S.
Virgin Islands.
Table 1--FMPs Implemented Under Part 622
------------------------------------------------------------------------
Responsible fishery
FMP title management Geographical
council(s) area
------------------------------------------------------------------------
FMP for Coastal Migratory GMFMC/SAFMC Gulf, \1\ Mid-
Pelagic Resources. Atlantic \1,2\
and South
Atlantic. \1,3\
FMP for Coral and Coral Reefs of GMFMC Gulf.
the Gulf of Mexico.
FMP for Coral, Coral Reefs, and SAFMC South Atlantic.
Live/Hard Bottom Habitats of
the South Atlantic Region.
FMP for Corals and Reef CFMC Caribbean.
Associated Plants and
Invertebrates of Puerto Rico
and the U.S. Virgin Islands.
FMP for the Dolphin and Wahoo SAFMC Atlantic.
Fishery off the Atlantic States.
FMP for the Golden Crab Fishery SAFMC South Atlantic
of the South Atlantic Region.
FMP for Queen Conch Resources of CFMC Caribbean.
Puerto Rico and the U.S. Virgin
Islands.
FMP for Pelagic Sargassum SAFMC South Atlantic
Habitat of the South Atlantic
Region.
FMP for the Red Drum Fishery of GMFMC Gulf. \1\
the Gulf of Mexico.
FMP for the Reef Fish Fishery of CFMC Caribbean.
Puerto Rico and the U.S. Virgin
Islands.
FMP for the Reef Fish Resources GMFMC Gulf.\1,5,6\
of the Gulf of Mexico.
FMP for the Shrimp Fishery of GMFMC Gulf. \1\
the Gulf of Mexico.
FMP for the Shrimp Fishery of SAFMC South Atlantic.
the South Atlantic Region.
FMP for the Snapper-Grouper SAFMC South Atlantic.
Fishery of the South Atlantic \1,4\
Region.
FMP for the Spiny Lobster CFMC Caribbean.
Fishery of Puerto Rico and the
U.S. Virgin Islands.
------------------------------------------------------------------------
\1\ Regulated area includes adjoining state waters for purposes of data
collection and quota monitoring.
\2\ Only king and Spanish mackerel and cobia are managed under the FMP
in the Mid-Atlantic.
\3\ Bluefish are not managed under the FMP in the South Atlantic.
\4\ Bank, rock, and black sea bass and scup are not managed by the FMP
or regulated by this part north of 35[deg]15.19[min] N. lat., the
latitude of Cape Hatteras Light, NC.
\5\ Regulated area includes adjoining state waters for Gulf red snapper
harvested or possessed by a person aboard a vessel for which a Gulf
red snapper IFQ vessel account has been established or possessed by a
dealer with a Gulf IFQ dealer endorsement.
\6\ Regulated area includes adjoining state waters for Gulf groupers and
tilefishes harvested or possessed by a person aboard a vessel for
which an IFQ vessel account for Gulf groupers and tilefishes has been
established or possessed by a dealer with a Gulf IFQ dealer
endorsement.
[61 FR 34934, July 3, 1996, as amended at 61 FR 43956, Aug. 27, 1996; 61
FR 65483, Dec. 13, 1996; 63 FR 10565, Mar. 4, 1998; 67 FR 22362, May 3,
2002; 68 FR 57378, Oct. 3, 2003; 69 FR 30240, May 27, 2004; 71 FR 67457,
Nov. 22, 2006; 73 FR 58061, Oct. 6, 2008; 74 FR 1151, Jan. 12, 2009; 74
FR 44741, Aug. 31, 2009]
Sec. 622.2 Definitions and acronyms.
In addition to the definitions in the Magnuson Act and in Sec.
600.10 of this chapter, and the acronyms in Sec. 600.15 of this
chapter, the terms and acronyms
[[Page 196]]
used in this part have the following meanings:
Accountability measure means a management control implemented such
that overfishing is prevented, where possible, and mitigated if it
occurs.
Actual ex-vessel value means the total monetary sale amount a
fisherman receives for IFQ landings from a registered IFQ dealer.
Allowable chemical means a substance, generally used to immobilize
marine life so that it can be captured alive, that, when introduced into
the water, does not take Gulf and South Atlantic prohibited coral and is
allowed by Florida for the harvest of tropical fish (e.g., quinaldine,
quinaldine compounds, or similar substances).
Allowable octocoral means an erect, nonencrusting species of the
subclass Octocorallia, except the seafans Gorgonia flabellum and G.
ventalina, plus the attached substrate within 1 inch (2.54 cm) of an
allowable octocoral.
Note: An erect, nonencrusting species of the subclass Octocorallia,
except the seafans Gorgonia flabellum and G. ventalina, with attached
substrate exceeding 1 inch (2.54 cm) is considered to be live rock and
not allowable octocoral.
Annual catch limit (ACL) means the level of catch that serves as the
basis for invoking accountability measures.
Aquacultured live rock means live rock that is harvested under a
Federal aquacultured live rock permit, as required under Sec.
622.4(a)(3)(iii).
Atlantic means the North Atlantic, Mid-Atlantic, and South Atlantic.
Authorized statistical reporting agent means:
(1) Any person so designated by the SRD; or
(2) Any person so designated by the head of any Federal or State
agency that has entered into an agreement with the Assistant
Administrator to collect fishery data.
Automatic reel means a reel that remains attached to a vessel when
in use from which a line and attached hook(s) are deployed. The line is
payed out from and retrieved on the reel electrically or hydraulically.
Bandit gear means a rod and reel that remain attached to a vessel
when in use from which a line and attached hook(s) are deployed. The
line is payed out from and retrieved on the reel manually, electrically,
or hydraulically.
BRD means bycatch reduction device.
Buoy gear means fishing gear consisting of a float and one or more
weighted lines suspended therefrom, generally long enough to reach the
bottom. A hook or hooks (usually 6 to 10) are on the lines at or near
the end. The float and line(s) drift freely and are retrieved
periodically to remove catch and rebait hooks.
Carapace length means the straight-line distance from the orbital
notch inside the orbital spine, in a line parallel to the lateral
rostral sulcus, to the posterior margin of the cephalothorax. (See
Figure 1 in Appendix C of this part.)
Caribbean means the Caribbean Sea and Atlantic Ocean seaward of
Puerto Rico, the U.S. Virgin Islands, and possessions of the United
States in the Caribbean Sea.
Caribbean coral reef resource means one or more of the species, or a
part thereof, listed in Table 1 in Appendix A of this part, whether
living or dead.
Caribbean prohibited coral means, in the Caribbean; a gorgonian,
that is, a Caribbean coral reef resource of the Class Anthozoa, Subclass
Octocorallia, Order Gorgonacea; a live rock; or a stony coral, that is,
a Caribbean coral reef resource of the Class Hydrozoa (fire corals and
hydrocorals) or of the Class Anthozoa, Subclass Hexacorallia, Orders
Scleractinia (stony corals) and Antipatharia (black corals); or a part
thereof.
Caribbean queen conch or queen conch means the species, Strombus
gigas, or a part thereof.
Caribbean reef fish means one or more of the species, or a part
thereof, listed in Table 2 in Appendix A of this part.
Caribbean spiny lobster means the species Panulirus argus, or a part
thereof.
CFMC means the Caribbean Fishery Management Council.
Charter vessel means a vessel less than 100 gross tons (90.8 mt)
that is subject to the requirements of the USCG to carry six or fewer
passengers for hire and that engages in charter fishing at any time
during the calendar year. A charter vessel with a commercial permit, as
required under
[[Page 197]]
Sec. 622.4(a)(2), is considered to be operating as a charter vessel
when it carries a passenger who pays a fee or when there are more than
three persons aboard, including operator and crew. However, a charter
vessel that has a charter vessel permit for Gulf reef fish, a commercial
vessel permit for Gulf reef fish, and a valid Certificate of Inspection
(COI) issued by the USCG to carry passengers for hire will not be
considered to be operating as a charter vessel provided--
(1) It is not carrying a passenger who pays a fee; and
(2) When underway for more than 12 hours, that vessel meets, but
does not exceed the minimum manning requirements outlined in its COI for
vessels underway over 12 hours; or when underway for not more than 12
hours, that vessel meets the minimum manning requirements outlined in
its COI for vessels underway for not more than 12-hours (if any), and
does not exceed the minimum manning requirements outlined in its COI for
vessels that are underway for more than 12 hours.
Circle hook means a fishing hook designed and manufactured so that
the point is turned perpendicularly back to the shank to form a
generally circular, or oval, shape.
Coastal migratory pelagic fish means one or more of the following
species, or a part thereof:
(1) Bluefish, Pomatomus saltatrix (Gulf of Mexico only).
(2) Cero, Scomberomorus regalis.
(3) Cobia, Rachycentron canadum.
(4) Dolphin, Coryphaena hippurus (Gulf of Mexico only).
(5) King mackerel, Scomberomorus cavalla.
(6) Little tunny, Euthynnus alletteratus.
(7) Spanish mackerel, Scomberomorus maculatus.
Coral area means marine habitat in the Gulf or South Atlantic EEZ
where coral growth abounds, including patch reefs, outer bank reefs,
deep water banks, and hard bottoms.
Dealer, in addition to the definition specified in Sec. 600.10 of
this chapter, means the person who first receives rock shrimp harvested
from the EEZ or dolphin or wahoo harvested from the Atlantic EEZ upon
transfer ashore.
Deep-water grouper (DWG) means yellowedge grouper, misty grouper,
warsaw grouper, snowy grouper, and speckled hind. In addition, for the
purposes of the IFQ program for Gulf groupers and tilefishes in Sec.
622.20, scamp are also included as DWG as specified in Sec.
622.20(b)(2)(vi).
Dehooking device means a device intended to remove a hook embedded
in a fish to release the fish with minimum damage.
Dolphin means the species Coryphaena equiselis or C. hippurus, or a
part thereof, in the Atlantic. (See the definition of Coastal migratory
pelagic fish for dolphin in the Gulf of Mexico.)
Drift gillnet, for the purposes of this part, means a gillnet, other
than a long gillnet or a run-around gillnet, that is unattached to the
ocean bottom, regardless of whether attached to a vessel.
Fish trap means--
(1) In the Caribbean EEZ, a trap and its component parts (including
the lines and buoys), regardless of the construction material, used for
or capable of taking finfish.
(2) In the Gulf EEZ, a trap and its component parts (including the
lines and buoys), regardless of the construction material, used for or
capable of taking finfish, except a trap historically used in the
directed fishery for crustaceans (that is, blue crab, stone crab, and
spiny lobster).
(3) In the South Atlantic EEZ, a trap and its component parts
(including the lines and buoys), regardless of the construction
material, used for or capable of taking fish, except a sea bass pot, a
golden crab trap, or a crustacean trap (that is, a type of trap
historically used in the directed fishery for blue crab, stone crab, red
crab, jonah crab, or spiny lobster and that contains at any time not
more than 25 percent, by number, of fish other than blue crab, stone
crab, red crab, jonah crab, and spiny lobster).
Fork length means the straight-line distance from the tip of the
head (snout) to the rear center edge of the tail (caudal fin). (See
Figure 2 in appendix C of this part.)
Golden crab means the species Chaceon fenneri, or a part thereof.
[[Page 198]]
Golden crab trap means any trap used or possessed in association
with a directed fishery for golden crab in the South Atlantic EEZ,
including any trap that contains a golden crab in or from the South
Atlantic EEZ or any trap on board a vessel that possesses golden crab in
or from the South Atlantic EEZ.
GMFMC means the Gulf of Mexico Fishery Management Council.
Gulf means the Gulf of Mexico. The line of demarcation between the
Atlantic Ocean and the Gulf of Mexico is specified in Sec. 600.105(c)
of this chapter.
Gulf reef fish means one or more of the species, or a part thereof,
listed in Table 3 in appendix A of this part.
Gulf and South Atlantic prohibited coral means, in the Gulf and
South Atlantic, one or more of the following, or a part thereof:
(1) Coral belonging to the Class Hydrozoa (fire corals and
hydrocorals).
(2) Coral belonging to the Class Anthozoa, Subclass Hexacorallia,
Orders Scleractinia (stony corals) and Antipatharia (black corals).
(3) A seafan, Gorgonia flabellum or G. ventalina.
(4) Coral in a coral reef, except for allowable octocoral.
(5) Coral in an HAPC, including allowable octocoral.
Handline means a line with attached hook(s) that is tended directly
by hand.
HAPC means habitat area of particular concern.
Headboat means a vessel that holds a valid Certificate of Inspection
(COI) issued by the USCG to carry more than six passengers for hire.
(1) A headboat with a commercial vessel permit, as required under
Sec. 622.4(a)(2), is considered to be operating as a headboat when it
carries a passenger who pays a fee or--
(i) In the case of persons aboard fishing for or possessing South
Atlantic snapper-grouper, when there are more persons aboard than the
number of crew specified in the vessel's COI; or
(ii) In the case of persons aboard fishing for or possessing coastal
migratory pelagic fish, when there are more than three persons aboard,
including operator and crew.
(2) However a vessel that has a headboat permit for Gulf reef fish,
a commercial vessel permit for Gulf reef fish, and a valid COI issued by
the USCG to carry passengers for hire will not be considered to be
operating as a headboat provided--
(i) It is not carrying a passenger who pays a fee; and
(ii) When underway for more than 12 hours, that vessel meets, but
does not exceed the minimum manning requirements outlined in its COI for
vessels underway over 12 hours; or when underway for not more than 12
hours, that vessel meets the minimum manning requirements outlined in
its COI for vessels underway for not more than 12-hours (if any), and
does not exceed the minimum manning requirements outlined in its COI for
vessels that are underway for more than 12 hours.
Headrope length means the distance, measured along the forwardmost
webbing of a trawl net, between the points at which the upper lip (top
edge) of the mouth of the net are attached to sleds, doors, or other
devices that spread the net.
Hook-and-line gear means automatic reel, bandit gear, buoy gear,
handline, longline, and rod and reel.
Import means, for the purpose of Sec. Sec. 622.1(b) and 622.50
only,--
(1) To land on, bring into, or introduce into, or attempt to land
on, bring into, or introduce into, Puerto Rico or the U.S. Virgin
Islands, whether or not such landing, bringing, or introduction
constitutes an importation within the meaning of the customs laws of the
United States; but
(2) Does not include any activity described in paragraph (1) of this
definition with respect to fish caught in the U.S. exclusive economic
zone by a vessel of the United States.
IFQ means individual fishing quota.
Live rock means living marine organisms, or an assemblage thereof,
attached to a hard substrate, including dead coral or rock (excluding
individual mollusk shells).
Long gillnet means a gillnet that has a float line that is more than
1,000 yd (914 m) in length.
Longline means a line that is deployed horizontally to which
gangions and hooks are attached. A longline
[[Page 199]]
may be a bottom longline, i.e., designed for use on the bottom, or a
pelagic longline, i.e., designed for use off the bottom. The longline
hauler may be manually, electrically, or hydraulically operated.
MAFMC means the Mid-Atlantic Fishery Management Council.
Mid-Atlantic means the Atlantic Ocean off the Atlantic coastal
states from the boundary between the New England Fishery Management
Council and the MAFMC, as specified in Sec. 600.105(a) of this chapter,
to the boundary between the MAFMC and the SAFMC, as specified in Sec.
600.105(b) of this chapter.
Migratory group, for king and Spanish mackerel, means a group of
fish that may or may not be a separate genetic stock, but that is
treated as a separate stock for management purposes. King and Spanish
mackerel are divided into migratory groups--the Atlantic migratory group
and the Gulf migratory group. The boundaries between these groups are as
follows:
(1) King mackerel--(i) Summer separation. From April 1 through
October 31, the boundary separating the Gulf and Atlantic migratory
groups of king mackerel is 25[deg]48[min] N. lat., which is a line
directly west from the Monroe/Collier County, FL, boundary to the outer
limit of the EEZ.
(ii) Winter separation. From November 1 through March 31, the
boundary separating the Gulf and Atlantic migratory groups of king
mackerel is 29[deg]25[min] N. lat., which is a line directly east from
the Volusia/Flagler County, FL, boundary to the outer limit of the EEZ.
(2) Spanish mackerel. The boundary separating the Gulf and Atlantic
migratory groups of Spanish mackerel is 25[deg]20.4[min] N. lat., which
is a line directly east from the Miami-Dade/Monroe County, FL, boundary
to the outer limit of the EEZ.
MPA means marine protected area.
North Atlantic means the Atlantic Ocean off the Atlantic coastal
states from the boundary between the United States and Canada to the
boundary between the New England Fishery Management Council and the
MAFMC, as specified in Sec. 600.105(a) of this chapter.
Off Florida means the waters in the Gulf and South Atlantic from
30[deg]42[min]45.6[sec] N. lat., which is a line directly east from the
seaward terminus of the Georgia/Florida boundary, to
87[deg]31[min]06[sec] W. long., which is a line directly south from the
Alabama/Florida boundary.
Off Georgia means the waters in the South Atlantic from a line
extending in a direction of 104[deg] from true north from the seaward
terminus of the South Carolina/Georgia boundary to
30[deg]42[min]45.6[sec] N. lat., which is a line directly east from the
seaward terminus of the Georgia/Florida boundary.
Official sunrise or official sunset means the time of sunrise or
sunset as determined for the date and location in The Nautical Almanac,
prepared by the U.S. Naval Observatory.
Off Louisiana, Mississippi, and Alabama means the waters in the Gulf
other than off Florida and off Texas.
Off North Carolina means the waters in the South Atlantic from
36[deg]34[min]55[sec] N. lat., which is a line directly east from the
Virginia/North Carolina boundary, to a line extending in a direction of
135[deg]34[min]55[sec] from true north from the North Carolina/South
Carolina boundary, as marked by the border station on Bird Island at
33[deg]51[min]07.9[sec] N. lat., 78[deg]32[min]32.6[sec] W. long.
Off South Carolina means the waters in the South Atlantic from a
line extending in a direction of 135[deg]34[min]55[sec] from true north
from the North Carolina/South Carolina boundary, as marked by the border
station on Bird Island at 33[deg]51[min]07.9[sec] N. lat.,
78[min]32[min]32.6[sec] W. long., to a line extending in a direction of
104[deg] from true north from the seaward terminus of the South
Carolina/Georgia boundary.
Off Texas means the waters in the Gulf west of a rhumb line from
29[deg]32.1[min] N. lat., 93[deg]47.7[min] W. long. to 26[deg]11.4[min]
N. lat., 92[deg]53[min] W. long., which line is an extension of the
boundary between Louisiana and Texas.
Pelagic longline means a longline that is suspended by floats in the
water column and that is not fixed to or in contact with the ocean
bottom.
Pelagic sargassum means the species Sargassum natans or S. fluitans,
or a part thereof.
Penaeid shrimp means one or more of the following species, or a part
thereof:
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(1) Brown shrimp, Farfantepenaeus aztecus.
(2) Pink shrimp, Farfantepenaeus duorarum.
(3) White shrimp, Litopenaeus setiferus.
Penaeid shrimp trawler means any vessel that is equipped with one or
more trawl nets whose on-board or landed catch of penaeid shrimp is more
than 1 percent, by weight, of all fish comprising its on-board or landed
catch.
Powerhead means any device with an explosive charge, usually
attached to a speargun, spear, pole, or stick, that fires a projectile
upon contact.
Processor means a person who processes fish or fish products, or
parts thereof, for commercial use or consumption.
Purchase means the act or activity of buying, trading, or bartering,
or attempting to buy, trade, or barter.
Red drum, also called redfish, means Sciaenops ocellatus, or a part
thereof.
Red snapper means Lutjanus campechanus, or a part thereof, one of
the Gulf reef fish species.
Regional Administrator (RA), for the purposes of this part, means
the Administrator, Southeast Region, NMFS, 263 13th Avenue South, St.
Petersburg, FL 33701, or a designee.
Rod and reel means a rod and reel unit that is not attached to a
vessel, or, if attached, is readily removable, from which a line and
attached hook(s) are deployed. The line is payed out from and retrieved
on the reel manually, electrically, or hydraulically.
Run-around gillnet means a gillnet, other than a long gillnet, that,
when used, encloses an area of water.
SAFMC means the South Atlantic Fishery Management Council.
Sale or sell means the act or activity of transferring property for
money or credit, trading, or bartering, or attempting to so transfer,
trade, or barter.
Science and Research Director (SRD), for the purposes of this part,
means the Science and Research Director, Southeast Fisheries Science
Center, NMFS (see Table 1 of Sec. 600.502 of this chapter).
Sea bass pot means a trap has six rectangular sides and does not
exceed 25 inches (63.5 cm) in height, width, or depth.
Shallow-water grouper (SWG) means gag, red grouper, black grouper,
scamp, yellowfin grouper, rock hind, red hind, and yellowmouth grouper.
In addition, for the purposes of the IFQ program for Gulf groupers and
tilefishes in Sec. 622.20, speckled hind and warsaw grouper are also
included as SWG as specified in Sec. 622.20(b)(2)(v).
Shrimp means one or more of the following species, or a part
thereof:
(1) Brown shrimp, Farfantepenaeus aztecus.
(2) White shrimp, Litopenaeus setiferus.
(3) Pink shrimp, Farfantepenaeus duorarum.
(4) Royal red shrimp, Hymenopenaeus robustus.
(5) Rock shrimp, Sicyonia brevirostris.
(6) Seabob shrimp, Xiphopenaeus kroyeri.
Shrimp trawler means any vessel that is equipped with one or more
trawl nets whose on-board or landed catch of shrimp is more than 1
percent, by weight, of all fish comprising its on-board or landed catch.
SMZ means special management zone.
South Atlantic means the Atlantic Ocean off the Atlantic coastal
states from the boundary between the MAFMC and the SAFMC, as specified
in Sec. 600.105(b) of this chapter, to the line of demarcation between
the Atlantic Ocean and the Gulf of Mexico, as specified in Sec.
600.105(c) of this chapter.
South Atlantic snapper-grouper means one or more of the species, or
a part thereof, listed in Table 4 in Appendix A of this part.
Stab net means a gillnet, other than a long gillnet, or trammel net
whose weight line sinks to the bottom and submerges the float line.
Total length (TL), for the purposes of this part, means the
straight-line distance from the tip of the snout to the tip of the tail
(caudal fin), excluding any caudal filament, while the fish is lying on
its side. The mouth of the fish may be closed and/or the tail may be
squeezed together to give the greatest overall measurement. (See Figure
2 in appendix C of this part.)
Toxic chemical means any substance, other than an allowable
chemical, that,
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when introduced into the water, can stun, immobilize, or take marine
life.
Trammel net means two or more panels of netting, suspended
vertically in the water by a common float line and a common weight line,
with one panel having a larger mesh size than the other(s), to entrap
fish in a pocket of netting.
Trip means a fishing trip, regardless of number of days duration,
that begins with departure from a dock, berth, beach, seawall, or ramp
and that terminates with return to a dock, berth, beach, seawall, or
ramp.
Try net, also called test net, means a net pulled for brief periods
by a shrimp trawler to test for shrimp concentrations or determine
fishing conditions (e.g., presence or absence of bottom debris,
jellyfish, bycatch, seagrasses).
Venting device means a device intended to deflate the swim bladder
of a fish to release the fish with minimum damage.
Wahoo means the species Acanthocybium solandri, or a part thereof,
in the Atlantic.
Wild live rock means live rock other than aquacultured live rock.
Wreckfish means the species Polyprion americanus, or a part thereof,
one of the South Atlantic snapper-grouper species.
Editorial Note: For Federal Register citations affecting Sec.
622.2, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 622.3 Relation to other laws and regulations.
(a) The relation of this part to other laws is set forth in Sec.
600.705 of this chapter and paragraphs (b) through (f) of this section.
(b) Except for regulations on allowable octocoral, Gulf and South
Atlantic prohibited coral, and live rock, this part is intended to apply
within the EEZ portions of applicable National Marine Sanctuaries and
National Parks, unless the regulations governing such sanctuaries or
parks prohibit their application. Regulations on allowable octocoral,
Gulf and South Atlantic prohibited coral, and live rock do not apply
within the EEZ portions of the following National Marine Sanctuaries and
National Parks:
(1) Florida Keys National Marine Sanctuary (15 CFR part 922, subpart
P).
(2) Gray's Reef National Marine Sanctuary (15 CFR part 922, subpart
I).
(3) Monitor National Marine Sanctuary (15 CFR part 922, subpart F).
(4) Everglades National Park (36 CFR 7.45).
(5) Biscayne National Park (16 U.S.C. 410gg).
(6) Fort Jefferson National Monument (36 CFR 7.27).
(c) For allowable octocoral, if a state has a catch, landing, or
gear regulation that is more restrictive than a catch, landing, or gear
regulation in this part, a person landing in such state allowable
octocoral taken from the Gulf or South Atlantic EEZ must comply with the
more restrictive state regulation.
(d) General provisions on facilitation of enforcement, penalties,
and enforcement policy applicable to all domestic fisheries are set
forth in Sec. Sec. 600.730, 600.735, and 600.740 of this chapter,
respectively.
(e) An activity that is otherwise prohibited by this part may be
conducted if authorized as scientific research activity, exempted
fishing, or exempted educational activity, as specified in Sec. 600.745
of this chapter.
(f) Regulations pertaining to additional prohibitions on importation
of spiny lobster into any place subject to the jurisdiction of the
United States other than Puerto Rico or the U.S. Virgin Islands are set
forth in part 640 of this chapter.
[61 FR 34934, July 3, 1996, as amended at 71 FR 28284, May 16, 2006; 74
FR 1151, Jan. 12, 2009]
Sec. 622.4 Permits and fees.
(a) Permits required. To conduct activities in fisheries governed in
this part, valid permits, licenses, and endorsements are required as
follows:
(1) Charter vessel/headboat permits. (i) For a person aboard a
vessel that is operating as a charter vessel or headboat to fish for or
possess, in or from the EEZ, species in any of the following species
groups, a valid charter vessel/headboat permit for that species group
must have been issued to the vessel and must be on board--
[[Page 202]]
(A) Gulf coastal migratory pelagic fish.
(B) South Atlantic coastal migratory pelagic fish.
(C) Gulf reef fish.
(D) South Atlantic snapper-grouper.
(E) Atlantic dolphin and wahoo. (See paragraph (a)(5) of this
section for the requirements for operator permits in the dolphin and
wahoo fishery.)
(ii) See paragraph (r) of this section regarding a limited access
system for charter vessel/headboat permits for Gulf reef fish and Gulf
coastal migratory pelagic fish.
(iii) A charter vessel or headboat may have both a charter vessel/
headboat permit and a commercial vessel permit. However, when a vessel
is operating as a charter vessel or headboat, a person aboard must
adhere to the bag limits. See the definitions of ``Charter vessel'' and
``Headboat'' in Sec. 622.2 for an explanation of when vessels are
considered to be operating as a charter vessel or headboat,
respectively.
(iv) If Federal regulations for Gulf reef fish in subparts A, B, or
C of this part are more restrictive than state regulations, a person
aboard a charter vessel or headboat for which a charter vessel/headboat
permit for Gulf reef fish has been issued must comply with such Federal
regulations regardless of where the fish are harvested.
(2) Commercial vessel permits, licenses, and endorsements--(i)
[Reserved]
(ii) Gillnets for king mackerel in the southern Florida west coast
subzone. For a person aboard a vessel to use a run-around gillnet for
king mackerel in the southern Florida west coast subzone (see Sec.
622.42(c)(1)(i)(A)(3)), a commercial vessel permit for king mackerel and
a king mackerel gillnet permit must have been issued to the vessel and
must be on board. See paragraph (o) of this section regarding a limited
access system applicable to king mackerel gillnet permits and
restrictions on transferability of king mackerel gillnet permits.
(iii) King mackerel. For a person aboard a vessel to be eligible for
exemption from the bag limits and to fish under a quota for king
mackerel in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ, a
commercial vessel permit for king mackerel must have been issued to the
vessel and must be on board. To obtain or renew a commercial vessel
permit for king mackerel, at least 25 percent of the applicant's earned
income, or at least $10,000, must have been derived from commercial
fishing (i.e., harvest and first sale of fish) or from charter fishing
during one of the three calendar years preceding the application. See
paragraph (q) of this section regarding a limited access system
applicable to commercial vessel permits for king mackerel, transfers of
permits under the limited access system, and limited exceptions to the
earned income or gross sales requirement for a permit.
(iv) Spanish mackerel. For a person aboard a vessel to be eligible
for exemption from the bag limits and to fish under a quota for Spanish
mackerel in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ, a
commercial vessel permit for Spanish mackerel must have been issued to
the vessel and must be on board. To obtain or renew a commercial vessel
permit for Spanish mackerel, at least 25 percent of the applicant's
earned income, or at least $10,000, must have been derived from
commercial fishing (i.e., harvest and first sale of fish) or from
charter fishing during one of the 3 calendar years preceding the
application.
(v) Gulf reef fish. For a person aboard a vessel to be eligible for
exemption from the bag limits, to fish under a quota, as specified in
Sec. 622.42(a)(1), or to sell Gulf reef fish in or from the Gulf EEZ, a
commercial vessel permit for Gulf reef fish must have been issued to the
vessel and must be on board. If Federal regulations for Gulf reef fish
in subparts A, B, or C of this part are more restrictive than state
regulations, a person aboard a vessel for which a commercial vessel
permit for Gulf reef fish has been issued must comply with such Federal
regulations regardless of where the fish are harvested. See paragraph
(a)(2)(ix) of this section regarding an IFQ vessel account required to
fish for, possess, or land Gulf red snapper or Gulf groupers and
tilefishes. To obtain or renew a commercial vessel permit for Gulf reef
fish, more than 50 percent of the applicant's earned income must have
been
[[Page 203]]
derived from commercial fishing (i.e., harvest and first sale of fish)
or from charter fishing during either of the 2 calendar years preceding
the application. See paragraph (m) of this section regarding a limited
access system for commercial vessel permits for Gulf reef fish and
limited exceptions to the earned income requirement for a permit.
(A) Option to consolidate commercial vessel permits for Gulf reef
fish. A person who has been issued multiple commercial vessel permits
for Gulf reef fish and wants to consolidate some or all of those
permits, and the landings histories associated with those permits, into
one permit must submit a completed permit consolidation application to
the RA. The permits consolidated must be valid, non-expired permits and
must be issued to the same entity. The application form and instructions
are available online at sero.nmfs.noaa.gov. After consolidation, such a
person would have a single permit, and the permits that were
consolidated into that permit will be permanently terminated.
(B) [Reserved]
(vi) South Atlantic snapper-grouper. For a person aboard a vessel to
be eligible for exemption from the bag limits for South Atlantic
snapper-grouper in or from the South Atlantic EEZ, to engage in the
directed fishery for tilefish in the South Atlantic EEZ, to use a
longline to fish for South Atlantic snapper-grouper in the South
Atlantic EEZ, or to use a sea bass pot in the South Atlantic EEZ between
35[deg]15.19[min] N. lat. (due east of Cape Hatteras Light, NC) and
28[deg]35.1[min] N. lat. (due east of the NASA Vehicle Assembly
Building, Cape Canaveral, FL), a commercial vessel permit for South
Atlantic snapper-grouper must have been issued to the vessel and must be
on board. A vessel with longline gear and more than 200 lb (90.7 kg) of
tilefish on board is considered to be in the directed fishery for
tilefish. It is a rebuttable presumption that a fishing vessel with more
than 200 lb (90.7 kg) of tilefish on board harvested such tilefish in
the EEZ. See Sec. 622.18 for limitations on the use, transfer, and
renewal of a commercial vessel permit for South Atlantic snapper-
grouper.
(vii) Wreckfish. For a person aboard a vessel to fish for wreckfish
in the South Atlantic EEZ, possess wreckfish in or from the South
Atlantic EEZ, offload wreckfish from the South Atlantic EEZ, or sell
wreckfish in or from the South Atlantic EEZ, a commercial vessel permit
for wreckfish must have been issued to the vessel and must be on board.
To obtain a commercial vessel permit for wreckfish, the applicant must
be a wreckfish shareholder; and either the shareholder must be the
vessel owner or the owner or operator must be an employee, contractor,
or agent of the shareholder. (See Sec. 622.15 for information on
wreckfish shareholders.)
(viii) South Atlantic rock shrimp. (A) For a person aboard a vessel
to fish for rock shrimp in the South Atlantic EEZ or possess rock shrimp
in or from the South Atlantic EEZ, a commercial vessel permit for rock
shrimp must be issued to the vessel and must be on board. (See paragraph
(a)(5) of this section for the requirements for operator permits for the
South Atlantic rock shrimp fishery.)
(B) In addition, for a person aboard a vessel to fish for rock
shrimp in the South Atlantic EEZ off Georgia or off Florida or possess
rock shrimp in or from the South Atlantic EEZ off Georgia or off
Florida, a limited access endorsement for South Atlantic rock shrimp
must be issued to the vessel and must be on board. See Sec. 622.19 for
limitations on the issuance, transfer, renewal, and reissuance of a
limited access endorsement for South Atlantic rock shrimp.
(ix) Gulf IFQ vessel accounts. For a person aboard a vessel, for
which a commercial vessel permit for Gulf reef fish has been issued, to
fish for, possess, or land Gulf red snapper or Gulf groupers (including
DWG and SWG, as specified in Sec. 622.20(a)) or tilefishes (including
goldface tilefish, blackline tilefish, anchor tilefish, blueline
tilefish, and tilefish), regardless of where harvested or possessed, a
Gulf IFQ vessel account for the applicable species or species groups
must have been established. As a condition of the IFQ vessel account, a
person aboard such vessel must comply with the requirements of Sec.
622.16 when fishing for
[[Page 204]]
red snapper or Sec. 622.20 when fishing for groupers or tilefishes
regardless of where the fish are harvested or possessed. An owner of a
vessel with a commercial vessel permit for Gulf reef fish, who has
established an IFQ account for the applicable species, as specified in
Sec. 622.16(a)(3)(i) or Sec. 622.20(a)(3)(i), online via the NMFS IFQ
website ifq.sero.nmfs.noaa.gov, may establish a vessel account through
that IFQ account for that permitted vessel. If such owner does not have
an online IFQ account, the owner must first contact IFQ Customer Service
at 1-866-425-7627 to obtain information necessary to access the IFQ
website and establish an online IFQ account. There is no fee to set-up
an IFQ account or a vessel account. Only one vessel account may be
established per vessel under each IFQ program. An owner with multiple
vessels may establish multiple vessel accounts under each IFQ account.
The purpose of the vessel account is to hold IFQ allocation that is
required to land the applicable IFQ species. A vessel account must hold
sufficient IFQ allocation in the appropriate share category, at least
equal to the pounds in gutted weight of the red snapper or groupers and
tilefishes on board, from the time of advance notice of landing through
landing (except for any overage allowed as specified in Sec.
622.16(c)(1)(ii) for red snapper and Sec. 622.20(c)(1)(ii) for groupers
and tilefishes). The vessel account remains valid as long as the vessel
permit remains valid; the vessel has not been sold or transferred; and
the vessel owner is in compliance with all Gulf reef fish and IFQ
reporting requirements, has paid all applicable IFQ fees, and is not
subject to sanctions under 15 CFR part 904. The vessel account is not
transferable to another vessel. The provisions of this paragraph do not
apply to fishing for or possession of Gulf groupers and tilefishes under
the bag limit specified in Sec. 622.39 (b)(1)(ii) or Gulf red snapper
under the bag limit specified in Sec. 622.39 (b)(1)(iii). See Sec.
622.16 regarding other provisions pertinent to the Gulf red snapper IFQ
system and Sec. 622.20 regarding other provisions pertinent to the IFQ
system for Gulf groupers and tilefishes.
(x) South Atlantic golden crab. For a person aboard a vessel to fish
for golden crab in the South Atlantic EEZ, possess golden crab in or
from the South Atlantic EEZ, off-load golden crab from the South
Atlantic EEZ, or sell golden crab in or from the South Atlantic EEZ, a
commercial vessel permit for golden crab must be issued to the vessel
and must be on board. It is a rebuttable presumption that a golden crab
on board a vessel in the South Atlantic or off-loaded from a vessel in a
port adjoining the South Atlantic was harvested from the South Atlantic
EEZ. See Sec. 622.17 for limitations on the use, transfer, and renewal
of a commercial vessel permit for golden crab.
(xi) Gulf shrimp fisheries--(A) Gulf shrimp permit. For a person
aboard a vessel to fish for shrimp in the Gulf EEZ or possess shrimp in
or from the Gulf EEZ, a commercial vessel permit for Gulf shrimp must
have been issued to the vessel and must be on board. See paragraph (s)
of this section regarding a moratorium on commercial vessel permits for
Gulf shrimp and the associated provisions. See the following paragraph,
(a)(2)(xi)(B) of this section, regarding an additional endorsement
requirement related to royal red shrimp.
(B) Gulf royal red shrimp endorsement. Effective March 26, 2007, for
a person aboard a vessel to fish for royal red shrimp in the Gulf EEZ or
possess royal red shrimp in or from the Gulf EEZ, a commercial vessel
permit for Gulf shrimp with a Gulf royal red shrimp endorsement must be
issued to the vessel and must be on board.
(xii) Atlantic dolphin and wahoo. (A) For a person aboard a vessel
to be eligible for exemption from the bag and possession limits for
dolphin or wahoo in or from the Atlantic EEZ or to sell such dolphin or
wahoo, a commercial vessel permit for Atlantic dolphin and wahoo must be
issued to the vessel and must be on board, except as provided in
paragraph (a)(2)(xii)(B) of this section. (See paragraph (a)(5) of this
section for the requirements for operator permits in the Atlantic
dolphin and wahoo fishery).
(B) The provisions of paragraph (a)(2)(xii)(A) of this section
notwithstanding, a fishing vessel, except a vessel operating as a
charter vessel or
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headboat, that does not have a commercial vessel permit for Atlantic
dolphin and wahoo but has a Federal commercial vessel permit in any
other fishery, is exempt from the bag and possession limits for dolphin
and wahoo and may sell dolphin and wahoo, subject to the trip and
geographical limits specified in Sec. 622.44(f)(2). (A charter vessel/
headboat permit is not a commercial vessel permit.)
(xiii) South Atlantic penaeid shrimp. For a person aboard a trawler
to fish for penaeid shrimp in the South Atlantic EEZ or possess penaeid
shrimp in or from the South Atlantic EEZ, a valid commercial vessel
permit for South Atlantic penaeid shrimp must have been issued to the
vessel and must be on board.
(3) Coral permits--(i) Allowable chemical. For an individual to take
or possess fish or other marine organisms with an allowable chemical in
a coral area, other than fish or other marine organisms that are landed
in Florida, a Federal allowable chemical permit must have been issued to
the individual. Such permit must be available when the permitted
activity is being conducted and when such fish or other marine organisms
are possessed, through landing ashore.
(ii) Allowable octocoral. For an individual to take or possess
allowable octocoral in the Gulf or South Atlantic EEZ, other than
allowable octocoral that is landed in Florida, a Federal allowable
octocoral permit must have been issued to the individual. Such permit
must be available for inspection when the permitted activity is being
conducted and when allowable octocoral is possessed, through landing
ashore.
(iii) Aquacultured live rock. For a person to take or possess
aquacultured live rock in the Gulf or South Atlantic EEZ, a Federal
aquacultured live rock permit must have been issued for the specific
harvest site. Such permit, or a copy, must be on board a vessel
depositing or possessing material on an aquacultured live rock site or
harvesting or possessing live rock from an aquacultured live rock site.
(iv) Prohibited coral. A Federal permit may be issued to take or
possess Gulf and South Atlantic prohibited coral or Caribbean prohibited
coral only as scientific research activity, exempted fishing, or
exempted educational activity. See Sec. 600.745 of this chapter for the
procedures and limitations for such activities and fishing.
(v) Florida permits. Appropriate Florida permits and endorsements
are required for the following activities, without regard to whether
they involve activities in the EEZ or Florida's waters:
(A) Landing in Florida fish or other marine organisms taken with an
allowable chemical in a coral area.
(B) Landing allowable octocoral in Florida.
(C) Landing live rock in Florida.
(4) Dealer permits, endorsements, and conditions --(i) Permits. For
a dealer to receive Gulf reef fish harvested from the Gulf EEZ; golden
crab, South Atlantic snapper-grouper, rock shrimp, or wreckfish
harvested from the South Atlantic EEZ; or dolphin or wahoo harvested
from the Atlantic EEZ; a dealer permit for Gulf reef fish, golden crab,
South Atlantic snapper-grouper, rock shrimp, wreckfish, or Atlantic
dolphin and wahoo, respectively, must be issued to the dealer.
(ii) Gulf IFQ dealer endorsements. In addition to the requirement
for a dealer permit for Gulf reef fish as specified in paragraph
(a)(4)(i) of this section, for a dealer to receive red snapper subject
to the Gulf red snapper IFQ program, as specified in Sec. 622.16(a)(1),
or groupers and tilefishes subject to the IFQ program for Gulf groupers
and tilefishes, as specified in Sec. 622.20(a)(1), or for a person
aboard a vessel with a Gulf IFQ vessel account to sell such red snapper
or groupers and tilefishes directly to an entity other than a dealer,
such persons must also have a Gulf IFQ dealer endorsement. A dealer with
a Gulf reef fish permit can download a Gulf IFQ dealer endorsement from
the NMFS IFQ website at ifq.sero.nmfs.noaa.gov. If such persons do not
have an IFQ online account, they must first contact IFQ Customer Service
at 1-866-425-7627 to obtain information necessary to access the IFQ
website and establish an IFQ online account. There is no fee for
obtaining this endorsement. The endorsement remains valid as long as the
Gulf reef fish dealer permit remains
[[Page 206]]
valid and the dealer is in compliance with all Gulf reef fish and IFQ
reporting requirements, has paid all IFQ fees required under paragraph
(c)(2) of this section, and is not subject to any sanctions under 15 CFR
part 904. The endorsement is not transferable. See Sec. 622.16
regarding other provisions pertinent to the Gulf red snapper IFQ system
and Sec. 622.20 regarding other provisions pertinent to the IFQ system
for Gulf groupers and tilefishes.
(iii) State license and facility requirements. To obtain a dealer
permit or endorsement, the applicant must have a valid state
wholesaler's license in the state(s) where the dealer operates, if
required by such state(s), and must have a physical facility at a fixed
location in such state(s).
(5) Operator permits. (i) The following persons are required to have
operator permits:
(A) An operator of a vessel that has or is required to have a valid
permit for South Atlantic rock shrimp issued under this section.
(B) An operator of a vessel that has or is required to have a
charter vessel/headboat or commercial permit for Atlantic dolphin and
wahoo issued under this section.
(ii) A person required to have an operator permit under paragraph
(a)(5)(i) of this section must carry on board such permit and one other
form of personal identification that includes a picture (driver's
license, passport, etc.).
(iii) An owner of a vessel that is required to have a permitted
operator under paragraph (a)(5)(i) of this section must ensure that at
least one person with a valid operator permit is aboard while the vessel
is at sea or offloading.
(iv) An owner of a vessel that is required to have a permitted
operator under paragraph (a)(5)(i) of this section and the operator of
such vessel are responsible for ensuring that a person whose operator
permit is suspended, revoked, or modified pursuant to subpart D of 15
CFR part 904 is not aboard that vessel.
(b) Applications for permits. Application forms for all permits are
available from the RA. Completed application forms and all required
supporting documents must be submitted to the RA at least 30 days prior
to the date on which the applicant desires to have the permit made
effective. All vessel permits are mailed to owners, whether the
applicant is an owner or an operator.
(1) Coral permits. (i) The applicant for a coral permit must be the
individual who will be conducting the activity that requires the permit.
In the case of a corporation or partnership that will be conducting live
rock aquaculture activity, the applicant must be the principal
shareholder or a general partner.
(ii) An applicant must provide the following:
(A) Name, address, telephone number, and other identifying
information of the applicant.
(B) Name and address of any affiliated company, institution, or
organization.
(C) Information concerning vessels, harvesting gear/methods, or
fishing areas, as specified on the application form.
(D) Any other information that may be necessary for the issuance or
administration of the permit.
(E) If applying for an aquacultured live rock permit, identification
of each vessel that will be depositing material on or harvesting
aquacultured live rock from the proposed aquacultured live rock site,
specification of the port of landing of aquacultured live rock, and a
site evaluation report prepared pursuant to generally accepted industry
standards that--
(1) Provides accurate coordinates of the proposed harvesting site so
that it can be located using LORAN or Global Positioning System
equipment;
(2) Shows the site on a chart in sufficient detail to determine its
size and allow for site inspection;
(3) Discusses possible hazards to safe navigation or hindrance to
vessel traffic, traditional fishing operations, or other public access
that may result from aquacultured live rock at the site;
(4) Describes the naturally occurring bottom habitat at the site;
and
(5) Specifies the type and origin of material to be deposited on the
site and how it will be distinguishable from the naturally occurring
substrate.
(2) Dealer permits. (i) The application for a dealer permit must be
submitted
[[Page 207]]
by the owner (in the case of a corporation, an officer or shareholder;
in the case of a partnership, a general partner).
(ii) An applicant must provide the following:
(A) A copy of each state wholesaler's license held by the dealer.
(B) Name, address, telephone number, date the business was formed,
and other identifying information of the business.
(C) The address of each physical facility at a fixed location where
the business receives fish.
(D) Name, address, telephone number, other identifying information,
and official capacity in the business of the applicant.
(E) Any other information that may be necessary for the issuance or
administration of the permit, as specified on the application form.
(3) Vessel permits. (i) The application for a commercial vessel
permit, other than for wreckfish, or for a charter vessel/headboat
permit must be submitted by the owner (in the case of a corporation, an
officer or shareholder; in the case of a partnership, a general partner)
or operator of the vessel. A commercial vessel permit that is issued
based on the earned income qualification of an operator is valid only
when that person is the operator of the vessel. The applicant for a
commercial vessel permit for wreckfish must be a wreckfish shareholder.
(ii) An applicant must provide the following:
(A) A copy of the vessel's valid USCG certificate of documentation
or, if not documented, a copy of its valid state registration
certificate.
(B) Vessel name and official number.
(C) Name, address, telephone number, and other identifying
information of the vessel owner and of the applicant, if other than the
owner.
(D) Any other information concerning the vessel, gear
characteristics, principal fisheries engaged in, or fishing areas, as
specified on the application form.
(E) Any other information that may be necessary for the issuance or
administration of the permit, as specified on the application form.
(F) If applying for a commercial vessel permit, documentation, as
specified in the instructions accompanying each application form,
showing that applicable eligibility requirements of paragraph (a)(2) of
this section have been met.
(G) If a sea bass pot will be used, the number, dimensions, and
estimated cubic volume of the pots that will be used and the applicant's
desired color code for use in identifying his or her vessel and buoys
(white is not an acceptable color code).
(4) Operator permits. An applicant for an operator permit must
provide the following:
(i) Name, address, telephone number, and other identifying
information specified on the application.
(ii) Two recent (no more than 1-yr old), color, passport-size
photographs.
(iii) Any other information that may be necessary for the issuance
or administration of the permit, as specified on the application form.
(c) Change in application information. The owner or operator of a
vessel with a permit, a person with a coral permit, a person with an
operator permit, or a dealer with a permit must notify the RA within 30
days after any change in the application information specified in
paragraph (b) of this section. The permit is void if any change in the
information is not reported within 30 days.
(d) Fees.Unless specified otherwise, a fee is charged for each
application for a permit, license, or endorsement submitted under this
section, for each request for transfer or replacement of such permit,
license, or endorsement, and for each sea bass pot identification tag
required under Sec. 622.6(b)(1)(i)(B). The amount of each fee is
calculated in accordance with the procedures of the NOAA Finance
Handbook, available from the RA, for determining the administrative
costs of each special product or service. The fee may not exceed such
costs and is specified with each application form. The appropriate fee
must accompany each application, request for transfer or replacement, or
request for sea bass pot identification tags.
(e) Initial issuance. (1) The RA will issue an initial permit at any
time to
[[Page 208]]
an applicant if the application is complete and the specific
requirements for the requested permit have been met. An application is
complete when all requested forms, information, and documentation have
been received.
(2) Upon receipt of an incomplete application, the RA will notify
the applicant of the deficiency. If the applicant fails to correct the
deficiency within 30 days of the date of the RA's letter of
notification, the application will be considered abandoned.
(f) Duration. A permit remains valid for the period specified on it
unless it is revoked, suspended, or modified pursuant to subpart D of 15
CFR part 904 or, in the case of a vessel or dealer permit, the vessel or
dealership is sold.
(g) Transfer--(1) Vessel permits, licenses, and endorsements and
dealer permits. A vessel permit, license, or endorsement or a dealer
permit or endorsement issued under this section is not transferable or
assignable, except as provided in paragraph (m) of this section for a
commercial vessel permit for Gulf reef fish, in paragraph (o) of this
section for a king mackerel gillnet permit, in paragraph (q) of this
section for a commercial vessel permit for king mackerel, in paragraph
(r) of this section for a charter vessel/headboat permit for Gulf
coastal migratory pelagic fish or Gulf reef fish, in paragraph (s) of
this section for a commercial vessel moratorium permit for Gulf shrimp,
in Sec. 622.17(c) for a commercial vessel permit for golden crab, in
Sec. 622.18(b) for a commercial vessel permit for South Atlantic
snapper-grouper, or in Sec. 622.19(b) for a commercial vessel permit
for South Atlantic rock shrimp. A person who acquires a vessel or
dealership who desires to conduct activities for which a permit,
license, or endorsement is required must apply for a permit, license, or
endorsement in accordance with the provisions of this section and other
applicable sections of this part. If the acquired vessel or dealership
is currently permitted, the application must be accompanied by the
original permit and a copy of a signed bill of sale or equivalent
acquisition papers. In those cases where a permit, license, or
endorsement is transferable, the seller must sign the back of the
permit, license, or endorsement and have the signed transfer document
notarized.
(2) Operator permits. An operator permit is not transferable.
(h) Renewal--(1) Vessel permits, licenses, and endorsements and
dealer permits. Unless specified otherwise, a vessel owner or dealer who
has been issued a permit, license, or endorsement under this section
must renew such permit, license, or endorsement on an annual basis. The
RA will mail a vessel owner or dealer whose permit, license, or
endorsement is expiring an application for renewal approximately 2
months prior to the expiration date. A vessel owner or dealer who does
not receive a renewal application from the RA by 45 days prior to the
expiration date of the permit, license, or endorsement must contact the
RA and request a renewal application. The applicant must submit a
completed renewal application form and all required supporting documents
to the RA prior to the applicable deadline for renewal of the permit,
license, or endorsement and at least 30 days prior to the date on which
the applicant desires to have the permit made effective. If the RA
receives an incomplete application, the RA will notify the applicant of
the deficiency. If the applicant fails to correct the deficiency within
30 days of the date of the RA's letter of notification, the application
will be considered abandoned. A permit, license, or endorsement that is
not renewed within the applicable deadline will not be reissued.
(2) Operator permits. An operator permit required by this section is
issued for a period not longer than 3 years. A permit not renewed
immediately upon its expiration would expire at the end of the
operator's birth month that is between 2 and 3 years after issuance. For
renewal, a new application must be submitted in accordance with
paragraph (b)(4) of this section.
(i) Display. A vessel permit, license, or endorsement issued under
this section must be carried on board the vessel. A dealer permit issued
under this section, or a copy thereof, must be available on the dealer's
premises. In addition, a copy of the dealer's permit must accompany each
vehicle that is used to pick up from a fishing vessel
[[Page 209]]
reef fish harvested from the Gulf EEZ. A Gulf IFQ dealer endorsement
must accompany each vehicle that is used to pick up Gulf IFQ red snapper
and/or Gulf IFQ groupers and tilefishes. The operator of a vessel must
present the vessel permit, license, or endorsement for inspection upon
the request of an authorized officer. A dealer or a vehicle operator
must present the permit or a copy for inspection upon the request of an
authorized officer. An operator of a vessel in a fishery in which an
operator permit is required must present his/her operator permit and one
other form of personal identification that includes a picture (driver's
license, passport, etc.) for inspection upon the request of an
authorized officer.
(j) Sanctions and denials. (1) A permit, license, or endorsement
issued pursuant to this section may be revoked, suspended, or modified,
and a permit, license, or endorsement application may be denied, in
accordance with the procedures governing enforcement-related permit
sanctions and denials found at subpart D of 15 CFR part 904.
(2) A person whose operator permit is suspended, revoked, or
modified may not be aboard any fishing vessel subject to Federal fishing
regulations in any capacity, if so sanctioned by NOAA, while the vessel
is at sea or offloading. The vessel's owner and operator are responsible
for compliance with this measure. A list of operators whose permits are
revoked or suspended may be obtained from the RA.
(k) Alteration. A permit, license, or endorsement that is altered,
erased, or mutilated is invalid.
(l) Replacement. A replacement permit, license, or endorsement may
be issued. An application for a replacement permit, license, or
endorsement is not considered a new application. An application for a
replacement operator permit must include two new photographs, as
specified in paragraph (b)(4)(ii) of this section.
(m) Limited access system for commercial vessel permits for Gulf
reef fish. (1) No applications for additional commercial vessel permits
for Gulf reef fish will be accepted. Existing vessel permits may be
renewed, are subject to the restrictions on transfer or change in
paragraphs (m)(2) through (5) of this section, and are subject to the
requirement for timely renewal in paragraph (m)(6) of this section. An
application for renewal or transfer of a commercial vessel permit for
Gulf reef fish will not be considered complete until proof of purchase,
installation, activation, and operational status of an approved VMS for
the vessel receiving the permit has been verified by NMFS VMS personnel.
(2) An owner of a permitted vessel may transfer the commercial
vessel permit for Gulf reef fish to another vessel owned by the same
entity.
(3) An owner whose earned income qualified for the commercial vessel
permit for Gulf reef fish may transfer the permit to the owner of
another vessel, or to the new owner when he or she transfers ownership
of the permitted vessel. Such owner of another vessel, or new owner, may
receive a commercial vessel permit for Gulf reef fish for his or her
vessel, and renew it through April 15 following the first full calendar
year after obtaining it, without meeting the earned income requirement
of paragraph (a)(2)(v) of this section. However, to further renew the
commercial vessel permit, the owner of the other vessel, or new owner,
must meet the earned income requirement not later than the first full
calendar year after the permit transfer takes place.
(4) An owner of a permitted vessel, the permit for which is based on
an operator's earned income and, thus, is valid only when that person is
the operator of the vessel, may transfer the permit to the income
qualifying operator when such operator becomes an owner of a vessel.
(5) An owner of a permitted vessel, the permit for which is based on
an operator's earned income and, thus, is valid only when that person is
the operator of the vessel, may have the operator qualification on the
permit removed, and renew it without such qualification through April 15
following the first full calendar year after removing it, without
meeting the earned income requirement of paragraph (a)(2)(v) of this
section. However, to further renew the commercial vessel permit, the
owner must meet the earned income requirement not later than the first
full
[[Page 210]]
calendar year after the operator qualification is removed. To have an
operator qualification removed from a permit, the owner must return the
original permit to the RA with an application for the changed permit.
(6) A commercial vessel permit for Gulf reef fish that is not
renewed or that is revoked will not be reissued. A permit is considered
to be not renewed when an application for renewal is not received by the
RA within 1 year of the expiration date of the permit.
(n) [Reserved]
(o) Limited access system for king mackerel gillnet permits
applicable in the southern Florida west coast subzone. Except for
applications for renewals of king mackerel gillnet permits, no
applications for king mackerel gillnet permits will be accepted.
Application forms for permit renewal are available from the RA.
(1) An owner of a vessel with a king mackerel gillnet permit issued
under this limited access system may transfer that permit upon a change
of ownership of a permitted vessel with such permit from one to another
of the following: Husband, wife, son, daughter, brother, sister, mother,
or father. Such permit also may be transferred to another vessel owned
by the same entity.
(2) A king mackerel gillnet permit that is not renewed or that is
revoked will not be reissued. A permit is considered to be not renewed
when an application for renewal is not received by the RA within one
year after the expiration date of the permit.
(1)-(6) [Reserved]
(q) Limited access system for commercial vessel permits for king
mackerel. (1) No applications for additional commercial vessel permits
for king mackerel will be accepted. Existing vessel permits may be
renewed, are subject to the restrictions on transfer or change in
paragraphs (q)(2) through (q)(5) of this section, and are subject to the
requirement for timely renewal in paragraph (q)(6) of this section.
(2) An owner of a permitted vessel may transfer the commercial
vessel permit for king mackerel issued under this limited access system
to another vessel owned by the same entity.
(3) An owner whose percentage of earned income or gross sales
qualified him/her for the commercial vessel permit for king mackerel
issued under this limited access system may request that NMFS transfer
that permit to the owner of another vessel, or to the new owner when he
or she transfers ownership of the permitted vessel. Such owner of
another vessel, or new owner, may receive a commercial vessel permit for
king mackerel for his or her vessel, and renew it through April 15
following the first full calendar year after obtaining it, without
meeting the percentage of earned income or gross sales requirement of
paragraph (a)(2)(iii) of this section. However, to further renew the
commercial vessel permit, the owner of the other vessel, or new owner,
must meet the earned income or gross sales requirement not later than
the first full calendar year after the permit transfer takes place.
(4) An owner of a permitted vessel, the permit for which is based on
an operator's earned income and, thus, is valid only when that person is
the operator of the vessel, may request that NMFS transfer the permit to
the income-qualifying operator when such operator becomes an owner of a
vessel.
(5) An owner of a permitted vessel, the permit for which is based on
an operator's earned income and, thus, is valid only when that person is
the operator of the vessel, may have the operator qualification on the
permit removed, and renew it without such qualification through April 15
following the first full calendar year after removing it, without
meeting the earned income or gross sales requirement of paragraph
(a)(2)(iii) of this section. However, to further renew the commercial
vessel permit, the owner must meet the earned income or gross sales
requirement not later than the first full calendar year after the
operator qualification is removed. To have an operator qualification
removed from a permit, the owner must return the original permit to the
RA with an application for the changed permit.
(6) NMFS will not reissue a commercial vessel permit for king
mackerel if the permit is revoked or if the RA does not receive an
application for renewal within one year of the permit's expiration date.
[[Page 211]]
(r) Limited access system for charter vessel/headboat permits for
Gulf coastal migratory pelagic fish and Gulf reef fish. No applications
for additional charter vessel/headboat permits for Gulf coastal
migratory pelagic fish or Gulf reef fish will be accepted. Existing
permits may be renewed, are subject to the restrictions on transfer in
paragraph (r)(1) of this section, and are subject to the renewal
requirements in paragraph (r)(2) of this section.
(1) Transfer of permits--(i) Permits without a historical captain
endorsement. A charter vessel/headboat permit for Gulf coastal migratory
pelagic fish or Gulf reef fish that does not have a historical captain
endorsement is fully transferable, with or without sale of the permitted
vessel, except that no transfer is allowed to a vessel with a greater
authorized passenger capacity than that of the vessel to which the
moratorium permit was originally issued, as specified on the face of the
permit being transferred. An application to transfer a permit to an
inspected vessel must include a copy of that vessel's current USCG
Certificate of Inspection (COI). A vessel without a valid COI will be
considered an uninspected vessel with an authorized passenger capacity
restricted to six or fewer passengers.
(ii) Permits with a historical captain endorsement. A charter
vessel/headboat permit for Gulf coastal migratory pelagic fish or Gulf
reef fish that has a historical captain endorsement may only be
transferred to a vessel operated by the historical captain, cannot be
transferred to a vessel with a greater authorized passenger capacity
than that of the vessel to which the moratorium permit was originally
issued, as specified on the face of the permit being transferred, and is
not otherwise transferable.
(iii) Procedure for permit transfer. To request that the RA transfer
a charter vessel/headboat permit for Gulf coastal migratory pelagic fish
or Gulf reef fish, the owner of the vessel who is transferring the
permit and the owner of the vessel that is to receive the transferred
permit must complete the transfer information on the reverse side of the
permit and return the permit and a completed application for transfer to
the RA. See paragraph (g)(1) of this section for additional transfer-
related requirements applicable to all permits issued under this
section.
(2) Renewal. (i) Renewal of a charter vessel/headboat permit for
Gulf coastal migratory pelagic fish or Gulf reef fish is contingent upon
the permitted vessel and/or captain, as appropriate, being included in
an active survey frame for, and, if selected to report, providing the
information required in one of the approved fishing data surveys.
Surveys include, but are not limited to--
(A) NMFS' Marine Recreational Fishing Vessel Directory Telephone
Survey (conducted by the Gulf States Marine Fisheries Commission);
(B) NMFS' Southeast Headboat Survey (as required by Sec.
622.5(b)(1);
(C) Texas Parks and Wildlife Marine Recreational Fishing Survey; or
(D) A data collection system that replaces one or more of the
surveys in paragraph (r)(2)(i)(A),(B), or (C) of this section.
(ii) A charter vessel/headboat permit for Gulf coastal migratory
pelagic fish or Gulf reef fish that is not renewed or that is revoked
will not be reissued. A permit is considered to be not renewed when an
application for renewal, as required, is not received by the RA within 1
year of the expiration date of the permit.
(3) Requirement to display a vessel decal. Upon renewal or transfer
of a charter vessel/headboat permit for Gulf coastal migratory pelagic
fish or Gulf reef fish, the RA will issue the owner of the permitted
vessel a vessel decal for the applicable permitted fishery or fisheries.
The vessel decal must be displayed on the port side of the deckhouse or
hull and must be maintained so that it is clearly visible.
(s) Moratorium on commercial vessel permits for Gulf shrimp. The
provisions of this paragraph (s) are applicable through October 26,
2016.
(1) Date moratorium permits are required. Beginning March 26, 2007,
the only valid commercial vessel permits for Gulf shrimp are those
issued under the moratorium criteria in this paragraph (s).
[[Page 212]]
(2) Initial eligibility for a moratorium permit. Initial eligibility
for a commercial vessel moratorium permit for Gulf shrimp is limited to
a person who
(i) Owns a vessel that was issued a Federal commercial vessel permit
for Gulf shrimp on or before December 6, 2003; or
(ii) On or before December 6, 2003, owned a vessel that was issued a
Federal commercial vessel permit for Gulf shrimp and, prior to September
26, 2006, owns a vessel with a Federal commercial permit for Gulf shrimp
that is equipped for offshore shrimp fishing, is at least 5 net tons
(4.54 metric tons), is documented by the Coast Guard, and is the vessel
for which the commercial vessel moratorium permit is being applied.
(3) Application deadline and procedures. An applicant who desires a
commercial vessel moratorium permit for Gulf shrimp must submit an
application to the RA postmarked or hand delivered not later than
October 26, 2007. After that date, no applications for additional
commercial vessel moratorium permits for Gulf shrimp will be accepted.
Application forms are available from the RA. Failure to apply in a
timely manner will preclude permit issuance even when the applicant
otherwise meets the permit eligibility criteria.
(4) Determination of eligibility. NMFS' permit records are the sole
basis for determining eligibility based on permit history. An applicant
who believes he/she meets the permit eligibility criteria based on
ownership of a vessel under a different name, as may have occurred when
ownership has changed from individual to corporate or vice versa, must
document his/her continuity of ownership.
(5) Incomplete applications. If an application that is postmarked or
hand-delivered in a timely manner is incomplete, the RA will notify the
applicant of the deficiency. If the applicant fails to correct the
deficiency within 30 days of the date of the RA's notification, the
application will be considered abandoned.
(6) Notification of ineligibility. If the applicant does not meet
the applicable eligibility requirements of paragraph (s)(2) of this
section, the RA will notify the applicant, in writing, of such
determination and the reasons for it.
(7) Permit transferability. Commercial vessel moratorium permits for
Gulf shrimp are fully transferable, with or without the sale of the
vessel. To request that the RA transfer a commercial vessel moratorium
permit for Gulf shrimp, the owner of a vessel that is to receive the
transferred permit must complete the transfer information on the reverse
of the permit and return the permit and a completed application for
transfer to the RA. Transfer documents must be notarized as specified in
paragraph (g)(1) of this section.
(8) Renewal. (i) Renewal of a commercial vessel moratorium permit
for Gulf shrimp is contingent upon compliance with the recordkeeping and
reporting requirements for Gulf shrimp specified in Sec.
622.5(a)(1)(iii).
(ii) A commercial vessel moratorium permit for Gulf shrimp that is
not renewed will be terminated and will not be reissued during the
moratorium. A permit is considered to be not renewed when an application
for renewal, as required, is not received by the RA within 1 year of the
expiration date of the permit.
[61 FR 34937, July 3, 1996]
Editorial Note: For Federal Register citations affecting Sec.
622.4, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Effective Date Note: At 74 FR 50703, Oct. 1, 2009, Sec. 622.4 was
amended by revising paragraph (a)(2)(viii), and in the first sentence of
paragraph (g)(1) by removing the words ``commercial vessel permit for
South Atlantic rock shrimp'' and adding the words ``Commercial Vessel
Permit for Rock Shrimp (South Atlantic EEZ),'' in their place, effective
November 2, 2009. For the convenience of the user, the revised text is
set forth as follows:
Sec. 622.4 Permits and fees.
(a) * * *
(2) * * *
(viii) South Atlantic rock shrimp. (A) Until January 27, 2010, the
permit requirements specified in paragraphs (a)(2)(viii)(A)(1) and (2)
of this section apply.
(1) For a person aboard a vessel to fish for rock shrimp in the
South Atlantic EEZ or possess rock shrimp in or from the South Atlantic
EEZ, a commercial vessel permit for rock shrimp must be issued to the
vessel and
[[Page 213]]
must be on board. (See paragraph (a)(5) of this section for the
requirements for operator permits for the South Atlantic rock shrimp
fishery.)
(2) In addition, for a person aboard a vessel to fish for rock
shrimp in the South Atlantic EEZ off Georgia or off Florida or possess
rock shrimp in or from the South Atlantic EEZ off Georgia or off
Florida, a limited access endorsement for South Atlantic rock shrimp
must be issued to the vessel and must be on board. See Sec. 622.19 for
limitations on the issuance, transfer, renewal, and reissuance of a
limited access endorsement for South Atlantic rock shrimp.
(B) During January 2010, and prior to January 26, 2010, a currently
valid (not expired) commercial vessel permit for rock shrimp with an
expiration date after January 27, 2010, that does not have a limited
access endorsement for South Atlantic rock shrimp will be replaced by
the RA with a Commercial Vessel Permit for Rock Shrimp (Carolinas Zone),
and a currently valid (not expired) commercial vessel permit for rock
shrimp with an expiration date after January 27, 2010, that has a
limited access endorsement for South Atlantic rock shrimp will be
replaced by the RA with a Commercial Vessel Permit for Rock Shrimp
(South Atlantic EEZ). However, a person with an expired limited access
endorsement for South Atlantic rock shrimp who desires a Commercial
Vessel Permit for Rock Shrimp (South Atlantic EEZ) must apply for such a
permit before the date 1 year after the expiration date of the expired
limited access endorsement for South Atlantic rock shrimp.
(C) On and after January 27, 2010, the permit requirements specified
in paragraphs (a)(2)(viii)(C)(1) and (2) of this section apply.
(1) For a person aboard a vessel to fish for rock shrimp in the
South Atlantic EEZ off North Carolina or off South Carolina or possess
rock shrimp in or from the South Atlantic EEZ off those states, a
Commercial Vessel Permit for Rock Shrimp (Carolinas Zone) or a
Commercial Vessel Permit for Rock Shrimp (South Atlantic EEZ) must be
issued to the vessel and must be on board.
(2) For a person aboard a vessel to fish for rock shrimp in the
South Atlantic EEZ off Georgia or off Florida or possess rock shrimp in
or from the South Atlantic EEZ off those states, a Commercial Vessel
Permit for Rock Shrimp (South Atlantic EEZ) must be issued to the vessel
and must be on board. A Commercial Vessel Permit for Rock Shrimp (South
Atlantic EEZ) is a limited access permit. See Sec. 622.19(b) for
limitations on the issuance, transfer or renewal of a Commercial Vessel
Permit for Rock Shrimp (South Atlantic EEZ).
(D) The provisions of paragraph (f) of this section notwithstanding,
neither a commercial vessel permit for rock shrimp nor a limited access
endorsement for South Atlantic rock shrimp remains valid on or after
January 27, 2010.
* * * * *
Sec. 622.5 Recordkeeping and reporting.
Participants in fisheries governed in this part are required to keep
records and report as follows.
(a) Commercial vessel owners and operators--(1) Requirements by
species--(i) Coastal migratory pelagic fish. The owner or operator of a
vessel that fishes for or lands coastal migratory pelagic fish for sale
in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ or adjoining
state waters, or whose vessel is issued a commercial permit for king or
Spanish mackerel, as required under Sec. 622.4(a)(2)(iii) or (iv), who
is selected to report by the SRD, must maintain a fishing record on a
form available from the SRD and must submit such record as specified in
paragraph (a)(2) of this section.
(ii) Gulf reef fish. The owner or operator of a vessel for which a
commercial permit for Gulf reef fish has been issued, as required under
Sec. 622.4(a)(2)(v), or whose vessel fishes for or lands reef fish in
or from state waters adjoining the Gulf EEZ, who is selected to report
by the SRD must maintain a fishing record on a form available from the
SRD and must submit such record as specified in paragraph (a)(2) of this
section.
(iii) Gulf shrimp--(A) General reporting requirement. The owner or
operator of a vessel that fishes for shrimp in the Gulf EEZ or in
adjoining state waters, or that lands shrimp in an adjoining state, must
provide information for any fishing trip, as requested by the SRD,
including, but not limited to, vessel identification, gear, effort,
amount of shrimp caught by species, shrimp condition (heads on/heads
off), fishing areas and depths, and person to whom sold.
(B) Electronic logbook reporting. The owner or operator of a vessel
for which a Federal commercial vessel permit for Gulf shrimp has been
issued and who is selected by the SRD must participate in the NMFS-
sponsored electronic logbook reporting program as directed by
[[Page 214]]
the SRD. In addition, such owner or operator must provide information
regarding the size and number of shrimp trawls deployed and the type of
BRD and turtle excluder device used, as directed by the SRD. Compliance
with the reporting requirements of this paragraph (a)(1)(iii)(B) is
required for permit renewal.
(C) Vessel and Gear Characterization Form. All owners or operators
of vessels applying for or renewing a commercial vessel moratorium
permit for Gulf shrimp must complete an annual Gulf Shrimp Vessel and
Gear Characterization Form. The form will be provided by NMFS at the
time of permit application and renewal. Compliance with this reporting
requirement is required for permit issuance and renewal.
(D) Landings report. The owner or operator of a vessel for which a
Federal commercial vessel permit for Gulf shrimp has been issued must
annually report the permitted vessel's total annual landings of shrimp
and value, by species, on a form provided by the SRD. Compliance with
this reporting requirement is required for permit renewal.
(iv) South Atlantic snapper-grouper. (A) The owner or operator of a
vessel for which a commercial permit for South Atlantic snapper-grouper
has been issued, as required under Sec. 622.4(a)(2)(vi), or whose
vessel fishes for or lands South Atlantic snapper-grouper in or from
state waters adjoining the South Atlantic EEZ, who is selected to report
by the SRD must maintain a fishing record on a form available from the
SRD and must submit such record as specified in paragraph (a)(2) of this
section.
(B) The wreckfish shareholder under Sec. 622.15, or operator of a
vessel for which a commercial permit for wreckfish has been issued, as
required under Sec. 622.4(a)(2)(vii), must maintain a fishing record on
a form available from the SRD and must submit such record as specified
in paragraph (a)(2) of this section.
(C) The wreckfish shareholder under Sec. 622.15, or operator of a
vessel for which a commercial permit for wreckfish has been issued, as
required under Sec. 622.4(a)(2)(vii), must make available to an
authorized officer upon request all records of offloadings, purchases,
or sales of wreckfish.
(v) South Atlantic golden crab. The owner or operator of a vessel
for which a commercial permit for golden crab has been issued, as
required under Sec. 622.4(a)(2)(x), who is selected to report by the
SRD must maintain a fishing record on a form available from the SRD.
(vi) Atlantic dolphin and wahoo. The owner or operator of a vessel
for which a commercial permit for Atlantic dolphin and wahoo has been
issued, as required under Sec. 622.4 (a)(2)(xii), or whose vessel
fishes for or lands Atlantic dolphin or wahoo in or from state waters
adjoining the Atlantic EEZ, who is selected to report by the SRD must
maintain a fishing record on a form available from the SRD and must
submit such record as specified in paragraph (a)(2) of this section.
(vii) South Atlantic rock or penaeid shrimp. The owner or operator
of a vessel for which a commercial permit for South Atlantic rock shrimp
or South Atlantic penaeid shrimp has been issued, as required under
Sec. 622.4(a)(2)(viii) or (xiii), respectively, or whose vessel fishes
for or lands South Atlantic rock shrimp or South Atlantic penaeid shrimp
in or from state waters adjoining the Atlantic EEZ, who is selected to
report by the SRD must maintain a fishing record on a form available
from the SRD and must submit such record as specified in paragraph
(a)(2) of this section.
(2) Reporting deadlines. (i) Completed fishing records required by
paragraphs (a)(1)(i), (ii), (iv), (vi), and (vii) of this section must
be submitted to the SRD postmarked not later than 7 days after the end
of each fishing trip. If no fishing occurred during a calendar month, a
report so stating must be submitted on one of the forms postmarked not
later than 7 days after the end of that month. Information to be
reported is indicated on the form and its accompanying instructions.
(ii) Reporting forms required in paragraph (a)(1)(v) of this section
must be submitted to the SRD postmarked not later than 30 days after
sale of the golden crab offloaded from a trip. If no fishing occurred
during a calendar
[[Page 215]]
month, a report so stating must be submitted on one of the forms
postmarked not later than 7 days after the end of that month.
Information to be reported is indicated on the form and its accompanying
instructions.
(b) Charter vessel/headboat owners and operators--(1) Coastal
migratory pelagic fish, reef fish, snapper-grouper, and Atlantic dolphin
and wahoo. The owner or operator of a vessel for which a charter vessel/
headboat permit for Gulf coastal migratory pelagic fish, South Atlantic
coastal migratory pelagic fish, Gulf reef fish, South Atlantic snapper-
grouper, or Atlantic dolphin and wahoo has been issued, as required
under Sec. 622.4(a)(1), or whose vessel fishes for or lands such
coastal migratory pelagic fish, reef fish, snapper-grouper, or Atlantic
dolphin or wahoo in or from state waters adjoining the applicable Gulf,
South Atlantic, or Atlantic EEZ, who is selected to report by the SRD
must maintain a fishing record for each trip, or a portion of such trips
as specified by the SRD, on forms provided by the SRD and must submit
such record as specified in paragraph (b)(2) of this section.
(2) Reporting deadlines--(i) Charter vessels. Completed fishing
records required by paragraph (b)(1) of this section for charter vessels
must be submitted to the SRD weekly, postmarked not later than 7 days
after the end of each week (Sunday). Information to be reported is
indicated on the form and its accompanying instructions.
(ii) Headboats. Completed fishing records required by paragraph
(b)(1) of this section for headboats must be submitted to the SRD
monthly and must either be made available to an authorized statistical
reporting agent or be postmarked not later than 7 days after the end of
each month. Information to be reported is indicated on the form and its
accompanying instructions.
(c) Dealers--(1) Coastal migratory pelagic fish. (i) A person who
purchases coastal migratory pelagic fish from a fishing vessel, or
person, that fishes for or lands such fish in or from the EEZ or
adjoining state waters who is selected to report by the SRD must submit
information on forms provided by the SRD. This information must be
submitted to the SRD at monthly intervals, postmarked not later than 5
days after the end of each month. Reporting frequency and reporting
deadlines may be modified upon notification by the SRD. If no coastal
migratory pelagic fish were received during a calendar month, a report
so stating must be submitted on one of the forms, in accordance with the
instructions on the form, and must be postmarked not later than 5 days
after the end of the month. The information to be reported is as
follows:
(A) Dealer's or processor's name and address.
(B) County where fish were landed.
(C) Total poundage of each species received during that month, or
other requested interval.
(D) Average monthly price paid for each species.
(E) Proportion of total poundage landed by each gear type.
(ii) Alternate SRD. For the purposes of paragraph (c)(1)(i) of this
section, in the states from New York through Virginia, or in the waters
off those states, ``SRD'' means the Science and Research Director,
Northeast Fisheries Science Center, NMFS (see Table 1 of Sec. 600.502
of this chapter), or a designee.
(2) Gulf red drum. A dealers or processor who purchases red drum
harvested from the Gulf who is selected to report by the SRD must report
to the SRD such information as the SRD may request and in the form and
manner as the SRD may require. The information required to be submitted
must include, but is not limited to, the following:
(i) Dealer's or processor's name and address.
(ii) State and county where red drum were landed.
(iii) Total poundage of red drum received during the reporting
period, by each type of gear used for harvest.
(3) Gulf reef fish. A person who purchases Gulf reef fish from a
fishing vessel, or person, that fishes for or lands such fish in or from
the EEZ or adjoining state waters must maintain records and submit
information as follows:
(i) A dealer must maintain at his/her principal place of business a
record of Gulf reef fish that he/she receives. The record must contain
the name of each fishing vessel from which reef fish were received and
the date, species, and
[[Page 216]]
quantity of each receipt. A dealer must retain such record for at least
1 year after receipt date and must provide such record for inspection
upon the request of an authorized officer or the SRD.
(ii) When requested by the SRD, a dealer must provide information
from his/her record of Gulf reef fish received the total poundage of
each species received during the month, average monthly price paid for
each species by market size, and proportion of total poundage landed by
each gear type. This information must be provided on forms available
from the SRD and must be submitted to the SRD at monthly intervals,
postmarked not later than 5 days after the end of the month. Reporting
frequency and reporting deadlines may be modified upon notification by
the SRD. If no reef fish were received during a calendar month, a report
so stating must be submitted on one of the forms, postmarked not later
than 5 days after the end of the month.
(iii) The operator of a car or truck that is used to pick up from a
fishing vessel reef fish harvested from the Gulf must maintain a record
containing the name of each fishing vessel from which reef fish on the
car or truck have been received. The vehicle operator must provide such
record for inspection upon the request of an authorized officer.
(4) Gulf shrimp. A person who purchases shrimp from a vessel, or
person, that fishes for shrimp in the Gulf EEZ or in adjoining state
waters, or that lands shrimp in an adjoining state, must provide the
following information when requested by the SRD:
(i) Name and official number of the vessel from which shrimp were
received or the name of the person from whom shrimp were received, if
received from other than a vessel.
(ii) Amount of shrimp received by species and size category for each
receipt.
(iii) Exvessel value, by species and size category, for each
receipt.
(5) South Atlantic snapper-grouper. (i) A person who purchases South
Atlantic snapper-grouper that were harvested from the EEZ or from
adjoining state waters and who is selected to report by the SRD and a
dealer who has been issued a dealer permit for wreckfish, as required
under Sec. 622.4(a)(4), must provide information on receipts of South
Atlantic snapper-grouper and prices paid, by species, on forms available
from the SRD. The required information must be submitted to the SRD at
monthly intervals, postmarked not later than 5 days after the end of the
month. Reporting frequency and reporting deadlines may be modified upon
notification by the SRD. If no South Atlantic snapper-grouper were
received during a calendar month, a report so stating must be submitted
on one of the forms, postmarked not later than 5 days after the end of
the month. However, during complete months encompassed by the wreckfish
spawning-season closure (that is, February and March), a wreckfish
dealer is not required to submit a report stating that no wreckfish were
received.
(ii) A dealer reporting South Atlantic snapper-grouper other than
wreckfish may submit the information required in paragraph (c)(5)(i) of
this section via facsimile (fax).
(iii) A dealer who has been issued a dealer permit for wreckfish, as
required under Sec. 622.4(a)(4), must make available to an authorized
officer upon request all records of offloadings, purchases, or sales of
wreckfish.
(6) South Atlantic golden crab. A dealer who receives from a fishing
vessel golden crab harvested from the South Atlantic EEZ and who is
selected by the SRD must provide information on receipts of, and prices
paid for, South Atlantic golden crab to the SRD at monthly intervals,
postmarked not later than 5 days after the end of each month. Reporting
frequency and reporting deadlines may be modified upon notification by
the SRD.
(7) South Atlantic rock shrimp. (i) A dealer who has been issued a
permit for rock shrimp, as required under Sec. 622.4(a)(4), and who is
selected by the SRD must provide information on receipts of rock shrimp
and prices paid on forms available from the SRD. The required
information must be submitted to the SRD at monthly intervals postmarked
not later than 5 days after the end of each month. Reporting frequencies
and reporting deadlines
[[Page 217]]
may be modified upon notification by the SRD.
(ii) On demand, a dealer who has been issued a dealer permit for
rock shrimp, as required under Sec. 622.4(a)(4), must make available to
an authorized officer all records of offloadings, purchases, or sales of
rock shrimp.
(8) Atlantic dolphin and wahoo. (i) A dealer who has been issued a
permit for Atlantic dolphin and wahoo, as required under Sec.
622.4(a)(4), and who is selected by the SRD must provide information on
receipts of Atlantic dolphin and wahoo and prices paid on forms
available from the SRD. The required information must be submitted to
the SRD at monthly intervals postmarked not later than 5 days after the
end of each month. Reporting frequencies and reporting deadlines may be
modified upon notification by the SRD.
(ii) For the purposes of paragraph (c)(8)(i) of this section, in the
states from Maine through Virginia, or in the waters off those states,
``SRD'' means the Science and Research Director, Northeast Fisheries
Science Center, NMFS, (see Table 1 of Sec. 600.502 of this chapter), or
a designee.
(iii) On demand, a dealer who has been issued a dealer permit for
Atlantic dolphin and wahoo, as required under Sec. 622.4(a)(4), must
make available to an authorized officer all records of offloadings,
purchases, or sales of dolphin and wahoo.
(d) Individuals with coral or live rock permits. (1) An individual
with a Federal allowable octocoral permit must submit a report of
harvest to the SRD. Specific reporting requirements will be provided
with the permit.
(2) A person with a Federal aquacultured live rock permit must
report to the RA each deposition of material on a site. Such reports
must be postmarked not later than 7 days after deposition and must
contain the following information:
(i) Permit number of site and date of deposit.
(ii) Geological origin of material deposited.
(iii) Amount of material deposited.
(iv) Source of material deposited, that is, where obtained, if
removed from another habitat, or from whom purchased.
(3) A person who takes aquacultured live rock must submit a report
of harvest to the RA. Specific reporting requirements will be provided
with the permit. This reporting requirement is waived for aquacultured
live rock that is landed in Florida.
(e) Additional data and inspection. Additional data will be
collected by authorized statistical reporting agents and by authorized
officers. A person who fishes for or possesses species in or from the
EEZ governed in this part is required to make the applicable fish or
parts thereof available for inspection by the SRD or an authorized
officer upon request.
(f) Commercial vessel, charter vessel, and headboat inventory. The
owner or operator of a commercial vessel, charter vessel, or headboat
operating in a fishery governed in this part who is not selected to
report by the SRD under paragraph (a) or (b) of this section must
provide the following information when interviewed by the SRD:
(1) Name and official number of vessel and permit number, if
applicable.
(2) Length and tonnage.
(3) Current home port.
(4) Fishing areas.
(5) Ports where fish were offloaded during the last year.
(6) Type and quantity of gear.
(7) Number of full- and part-time fishermen or crew members.
[61 FR 34940, July 3, 1996, as amended at 61 FR 43956, Aug. 27, 1996; 61
FR 47448, Sept. 9, 1996; 63 FR 10567, Mar. 4, 1998; 63 FR 57590, Oct.
28, 1998; 64 FR 59126, Nov. 2, 1999; 64 FR 68935, Dec. 9, 1999; 67 FR
43565, June 28, 2002; 69 FR 30241, May 27, 2004; 70 FR 73387, Dec. 12,
2005; 71 FR 56047, Sept. 26, 2006; 73 FR 410, Jan. 3, 2008]
Effective Date Note: At 74 FR 50704, Oct. 1, 2009, Sec. 622.5 was
amended by revising paragraph (a)(1)(vii), effective November 2, 2009.
For the convenience of the user, the revised text is set forth as
follows:
Sec. 622.5 Recordkeeping and reporting.
* * * * *
(a) * * *
(1) * * *
* * * * *
(vii) South Atlantic shrimp. The owner or operator of a vessel that
fishes for shrimp in
[[Page 218]]
the South Atlantic EEZ or in adjoining state waters, or that lands
shrimp in an adjoining state, must provide information for any fishing
trip, as requested by the SRD, including, but not limited to, vessel
identification, gear, effort, amount of shrimp caught by species, shrimp
condition (heads on/heads off), fishing areas and depths, and person to
whom sold.
* * * * *
Sec. 622.6 Vessel and gear identification.
(a) Vessel identification--(1) Applicability--(i) Official number. A
vessel for which a permit has been issued under Sec. 622.4, and a
vessel that fishes for or possesses pelagic sargassum in the South
Atlantic EEZ, must display its official number--
(A) On the port and starboard sides of the deckhouse or hull and,
for vessels over 25 ft (7.6 m) long, on an appropriate weather deck, so
as to be clearly visible from an enforcement vessel or aircraft.
(B) In block arabic numerals permanently affixed to or painted on
the vessel in contrasting color to the background.
(C) At least 18 inches (45.7 cm) in height for vessels over 65 ft
(19.8 m) long; at least 10 inches (25.4 cm) in height for vessels over
25 ft (7.6 m) long; and at least 3 inches (7.6 cm) in height for vessels
25 ft (7.6 m) long or less.
(ii) Official number and color code. The following vessels must
display their official number as specified in paragraph (a)(1)(i) of
this section and, in addition, must display their assigned color code: A
vessel for which a permit has been issued to fish with a sea bass pot,
as required under Sec. 622.4(a)(2)(vi); a vessel in the commercial
Caribbean reef fish fishery fishing with traps; and a vessel in the
Caribbean spiny lobster fishery. Color codes required for the Caribbean
reef fish fishery and Caribbean spiny lobster fishery are assigned by
Puerto Rico or the U.S. Virgin Islands, whichever is applicable; color
codes required in all other fisheries are assigned by the RA. The color
code must be displayed--
(A) On the port and starboard sides of the deckhouse or hull and,
for vessels over 25 ft (7.6 m) long, on an appropriate weather deck, so
as to be clearly visible from an enforcement vessel or aircraft.
(B) In the form of a circle permanently affixed to or painted on the
vessel.
(C) At least 18 inches (45.7 cm) in diameter for vessels over 65 ft
(19.8 m) long; at least 10 inches (25.4 cm) in diameter for vessels over
25 ft (7.6 m) long; and at least 3 inches (7.6 cm) in diameter for
vessels 25 ft (7.6 m) long or less.
(2) Duties of operator. The operator of a vessel specified in
paragraph (a)(1) of this section must keep the official number and the
color code, if applicable, clearly legible and in good repair and must
ensure that no part of the fishing vessel, its rigging, fishing gear, or
any other material on board obstructs the view of the official number or
the color code, if applicable, from an enforcement vessel or aircraft.
(b) Gear identification--(1) Traps/pots and associated buoys--(i)
Traps or pots--(A) Caribbean EEZ. A fish trap or spiny lobster trap used
or possessed in the Caribbean EEZ must display the official number
specified for the vessel by Puerto Rico or the U.S. Virgin Islands so as
to be easily identified.
(B) Gulf and South Atlantic EEZ. A sea bass pot used or possessed in
the South Atlantic EEZ between 35[deg]15.19[min] N. lat. (due east of
Cape Hatteras Light, NC) and 28[deg]35.1[min] N. lat. (due east of the
NASA Vehicle Assembly Building, Cape Canaveral, FL), or a sea bass pot
on board a vessel with a commercial permit for South Atlantic snapper-
grouper, must have a valid identification tag issued by the RA attached.
A golden crab trap used or possessed in the South Atlantic EEZ or on
board a vessel with a commercial permit for golden crab must have the
commercial vessel permit number permanently affixed so as to be easily
distinguished, located, and identified; an identification tag issued by
the RA may be used for this purpose but is not required.
(ii) Associated buoys. A buoy that is attached to a trap or pot must
display the official number and assigned color code so as to be easily
distinguished, located, and identified as follows:
(A) Caribbean EEZ. Traps or pots used in the Caribbean spiny lobster
or Caribbean reef fish fisheries that are fished
[[Page 219]]
individually, rather than tied together in a trap line, must have at
least one buoy attached that floats on the surface. Traps or pots used
in the Caribbean spiny lobster or Caribbean reef fish fisheries that are
tied together in a trap line must have at least one buoy that floats at
the surface attached at each end of the trap line. Each buoy must
display the official number and color code assigned to the vessel by
Puerto Rico or the U.S. Virgin Islands, whichever is applicable.
(B) South Atlantic EEZ. In the South Atlantic EEZ, buoys are not
required to be used, but, if used, each buoy must display the official
number and color code assigned by the RA. However, no color code is
required on a buoy attached to a golden crab trap.
(iii) Presumption of ownership. A Caribbean spiny lobster trap, a
fish trap, a golden crab trap, or a sea bass pot in the EEZ will be
presumed to be the property of the most recently documented owner. This
presumption will not apply with respect to such traps and pots that are
lost or sold if the owner reports the loss or sale within 15 days to the
RA.
(iv) Unmarked traps, pots, or buoys. An unmarked Caribbean spiny
lobster trap, a fish trap, a golden crab trap, a sea bass pot, or a buoy
deployed in the EEZ where such trap, pot, or buoy is required to be
marked is illegal and may be disposed of in any appropriate manner by
the Assistant Administrator or an authorized officer.
(2) Gillnet buoys. On board a vessel with a valid Spanish mackerel
permit that is fishing for Spanish mackerel in, or that possesses
Spanish mackerel in or from, the South Atlantic EEZ off Florida north of
25[deg]20.4[min] N. lat., which is a line directly east from the Miami-
Dade/Monroe County, FL, boundary, the float line of each gillnet
possessed, including any net in use, must have a maximum of nine
distinctive floats, i.e., different from the usual net buoys, spaced
uniformly at a distance of 100 yd (91.4 m) or less. Each such
distinctive float must display the official number of the vessel.
[61 FR 34934, July 3, 1996, as amended at 61 FR 43957, Aug. 27, 1996; 63
FR 10567, Mar. 4, 1998; 63 FR 57590, Oct. 28, 1998; 64 FR 59126, Nov. 2,
1999; 65 FR 52957, Aug. 31, 2000; 67 FR 22362, May 3, 2002; 67 FR 51078,
Aug. 7, 2002; 68 FR 57378, Oct. 3, 2003; 70 FR 62080, Oct. 28, 2005; 73
FR 410, Jan. 3, 2008]
Effective Date Note: At 74 FR 50704, Oct. 1, 2009, Sec. 622.6 was
amended by revising the heading for paragraph (b)(1)(i)(B), effective
November 2, 2009. For the convenience of the user, the revised text is
set forth as follows:
Sec. 622.6 Vessel and gear identification.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(B) South Atlantic EEZ. * * *
* * * * *
Sec. 622.7 Prohibitions.
In addition to the general prohibitions in Sec. 600.725 of this
chapter, it is unlawful for any person to do any of the following:
(a) Engage in an activity for which a valid Federal permit, license,
or endorsement is required under Sec. 622.4 without such permit,
license, or endorsement.
(b) Falsify information on an application for a permit, license, or
endorsement or submitted in support of such application, as specified in
Sec. 622.4(b), (g), (p), (q), or (r) or in Sec. Sec. 622.18 or 622.19.
(c) Fail to display a permit, license, or endorsement, or other
required identification, as specified in Sec. 622.4(i).
(d) Falsify or fail to maintain, submit, or provide information or
fail to comply with inspection requirements or restrictions, as
specified in Sec. 622.5(a) through (f).
(e) Fail to make a fish, or parts thereof, available for inspection,
as specified in Sec. 622.5(e).
(f) Falsify or fail to display and maintain vessel and gear
identification, as specified in Sec. 622.6(a) and (b) or Sec.
622.4(r)(11).
(g) Fail to comply with any requirement or restriction regarding ITQ
coupons, as specified in Sec. 622.15(c)(3), (c)(5), (c)(6), or (c)(7).
[[Page 220]]
(h) Possess wreckfish as specified in Sec. 622.15(c)(4), receive
wreckfish except as specified in Sec. 622.15(c)(7), or offload a
wreckfish except as specified in Sec. 622.15 (d)(3) and (d)(4).
(i) Transfer--
(1) A wreckfish, as specified in Sec. 622.15(d)(1);
(2) A limited-harvest species, as specified in Sec. 622.32(c)
introductory text;
(3) A species/species group subject to a bag limit, as specified
Sec. 622.39(a)(1);
(4) South Atlantic snapper-grouper from a vessel with unauthorized
gear on board, as specified in Sec. 622.41(d)(2)(iii); or
(5) A species subject to a commercial trip limit, as specified in
Sec. 622.44.
(j) Use or possess prohibited gear or methods or possess fish in
association with possession or use of prohibited gear, as specified in
Sec. 622.31.
(k) Fish for, harvest, or possess a prohibited species, or a
limited-harvest species in excess of its limitation, sell or purchase
such species, fail to comply with release requirements, or molest or
strip eggs from a Caribbean spiny lobster, as specified in Sec. 622.32.
(l) Fish in violation of the prohibitions, restrictions, and
requirements applicable to seasonal and/or area closures, including but
not limited to: Prohibition of all fishing, gear restrictions,
restrictions on take or retention of fish, fish release requirements,
and restrictions on use of an anchor or grapple, as specified in Sec.
622.33, Sec. 622.34, or Sec. 622.35, or as may be specified under
Sec. 622.46 (b) or (c).
(m) Harvest, possess, offload, sell, or purchase fish in excess of
the seasonal harvest limitations, as specified in Sec. 622.36.
(n) Except as allowed under Sec. 622.37(c) (2) and (3) for king and
Spanish mackerel, possess undersized fish, fail to release undersized
fish, or sell or purchase undersized fish, as specified in Sec. 622.37.
(o) Fail to maintain a fish intact through offloading ashore, as
specified in Sec. 622.38.
(p) Exceed a bag or possession limit, as specified in Sec. 622.39.
(q) Fail to comply with the limitations on traps and pots, including
but not limited to: Tending requirements, constructions requirements,
and area specific restrictions, as specified in Sec. 622.40.
(r) Fail to comply with the species-specific limitations, as
specified in Sec. 622.41.
(s) Fail to comply with the restrictions that apply after closure of
a fishery, as specified in Sec. 622.43.
(t) Possess on board a vessel or land, purchase, or sell fish in
excess of the commercial trip limits, as specified in Sec. 622.44.
(u) Fail to comply with the restrictions on sale/purchase, as
specified in Sec. 622.45.
(v) Interfere with fishing or obstruct or damage fishing gear or the
fishing vessel of another, as specified in Sec. 622.46(a).
(w) Fail to comply with the requirements for observer coverage as
specified in Sec. 622.8.
(x) Assault, resist, oppose, impede, intimidate, or interfere with a
NMFS-approved observer aboard a vessel.
(y) Prohibit or bar by command, impediment, threat, coercion, or
refusal of reasonable assistance, an observer from conducting his or her
duties aboard a vessel.
(z) Fish for or possess golden crab in or from a fishing zone or
sub-zone of the South Atlantic EEZ other than the zone or sub-zone for
which the vessel is permitted or authorized, as specified in Sec.
622.17(b).
(aa) Falsify information submitted regarding an application for
testing a BRD or regarding testing of a BRD, as specified in Sec.
622.41(g)(3)(i) or (h)(3).
(bb) Make a false statement, oral or written, to an authorized
officer regarding the installation, use, operation, or maintenance of a
vessel monitoring system (VMS) unit or communication service provider.
(cc) Operate or own a vessel that is required to have a permitted
operator aboard when the vessel is at sea or offloading without such
operator aboard, as specified in Sec. 622.4(a)(5)(i) through (iv).
(dd) When a vessel that is subject to Federal fishing regulations is
at sea or offloading, own or operate such vessel with a person aboard
whose operator permit is revoked, suspended, or modified.
[[Page 221]]
(ee) Fail to comply with any provision related to a vessel
monitoring system as specified in Sec. 622.9, including but not limited
to, requirements for use, installation, activation, access to data,
procedures related to interruption of VMS operation, and prohibitions on
interference with the VMS.
(ff) Fail to comply with the protected species conservation measures
as specified in Sec. 622.10.
(gg) Fail to comply with any provision related to the Gulf red
snapper IFQ program as specified in Sec. 622.16, or the IFQ program for
Gulf groupers and tilefishes as specified in Sec. 622.20.
(hh) Falsify any information required to be submitted regarding the
Gulf red snapper IFQ program as specified in Sec. 622.16, or the IFQ
program for Gulf groupers and tilefishes as specified in Sec. 622.20.
(ii) Fail to comply with the Caribbean spiny lobster import
prohibitions, as specified in Sec. 622.50.
[61 FR 34934, July 3, 1996]
Editorial Note: For Federal Register citations affecting Sec.
622.7, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 622.8 At-sea observer coverage.
(a) Required coverage--(1) Pelagic sargassum. A vessel that harvests
or possesses pelagic sargassum on any trip in the South Atlantic EEZ
must carry a NMFS-approved observer.
(2) Golden crab. A vessel for which a Federal commercial permit for
golden crab has been issued must carry a NMFS-approved observer, if the
vessel's trip is selected by the SRD for observer coverage.
(3) Gulf reef fish. A vessel for which a Federal commercial vessel
permit for Gulf reef fish or a charter vessel/headboat permit for Gulf
reef fish has been issued must carry a NMFS-approved observer, if the
vessel's trip is selected by the SRD for observer coverage. Vessel
permit renewal is contingent upon compliance with this paragraph (a)(3).
(4) South Atlantic rock or penaeid shrimp. A vessel for which a
Federal commercial permit for South Atlantic rock shrimp or South
Atlantic penaeid shrimp has been issued must carry a NMFS-approved
observer, if the vessel's trip is selected by the SRD for observer
coverage.
(5) Gulf shrimp. A vessel for which a Federal commercial vessel
permit for Gulf shrimp has been issued must carry a NMFS-approved
observer, if the vessel's trip is selected by the SRD for observer
coverage. Vessel permit renewal is contingent upon compliance with this
paragraph (a)(5).
(b) Notification to the SRD. When observer coverage is required, an
owner or operator must advise the SRD in writing not less than 5 days in
advance of each trip of the following:
(1) Departure information (port, dock, date, and time).
(2) Expected landing information (port, dock, and date).
(c) Observer accommodations and access. An owner or operator of a
vessel on which a NMFS-approved observer is embarked must:
(1) Provide accommodations and food that are equivalent to those
provided to the crew.
(2) Allow the observer access to and use of the vessel's
communications equipment and personnel upon request for the transmission
and receipt of messages related to the observer's duties.
(3) Allow the observer access to and use of the vessel's navigation
equipment and personnel upon request to determine the vessel's position.
(4) Allow the observer free and unobstructed access to the vessel's
bridge, working decks, holding bins, weight scales, holds, and any other
space used to hold, process, weigh, or store fish.
(5) Allow the observer to inspect and copy the vessel's log,
communications logs, and any records associated with the catch and
distribution of fish for that trip.
[61 FR 43957, Aug. 27, 1996, as amended at 63 FR 57590, Oct. 28, 1998;
68 FR 57378, Oct. 3, 2003; 70 FR 32272, June 2, 2005; 70 FR 73387, Dec.
12, 2005; 71 FR 56047, Sept. 26, 2006]
Sec. 622.9 Vessel monitoring systems (VMSs).
(a) Requirements for use of a VMS--(1) South Atlantic rock shrimp.
An owner or operator of a vessel that has been issued a limited access
endorsement for
[[Page 222]]
South Atlantic rock shrimp must ensure that such vessel has an operating
VMS approved by NMFS for use in the South Atlantic rock shrimp fishery
on board when on a trip in the South Atlantic. An operating VMS includes
an operating mobile transmitting unit on the vessel and a functioning
communication link between the unit and NMFS as provided by a NMFS-
approved communication service provider.
(2) Gulf reef fish. The VMS requirements of this paragraph (a)(2)
apply throughout the Gulf of Mexico and adjacent states.
(i) General VMS requirement. An owner or operator of a vessel that
has been issued a commercial vessel permit for Gulf reef fish, including
a charter vessel/headboat issued such a permit even when under charter,
must ensure that such vessel has an operating VMS approved by NMFS for
use in the Gulf reef fish fishery on board at all times whether or not
the vessel is underway, unless exempted by NMFS under the power-down
exemptions specified in paragraph (a)(2)(iv) of this section and in the
NOAA Enforcement Vessel Monitoring System Requirements for the Reef Fish
Fishery of the Gulf of Mexico. This NOAA Enforcement Vessel Monitoring
System Requirements document is available from NMFS, Office for Law
Enforcement (OLE), Southeast Region, 263 13th Avenue South, St.
Petersburg, FL 33701; phone: 800-758-4833. An operating VMS includes an
operating mobile transmitting unit on the vessel and a functioning
communication link between the unit and NMFS as provided by a NMFS-
approved communication service provider. NMFS OLE maintains a current
list of approved VMS units and communication providers which is
available from the VMS Support Center, NMFS OLE, 8484 Georgia Avenue,
Suite 415, Silver Spring, MD 20910 or by calling toll free 888-219-9228.
If a VMS unit approved for the Gulf reef fish fishery is removed from
the approved list by NMFS OLE, a vessel owner who purchased and
installed such a VMS unit prior to its removal from the approved list
will be considered to be in compliance with the requirement to have an
approved unit, unless otherwise notified by NMFS OLE. At the end of a
VMS unit's service life, it must be replaced with a currently approved
unit for the fishery.
(ii) Hourly reporting requirement. An owner or operator of a vessel
subject to the requirements of paragraph (a)(2) of this section must
ensure that the required VMS unit transmits a signal indicating the
vessel's accurate position at least once an hour, 24 hours a day every
day unless exempted under paragraphs (a)(2)(iii) or (iv) of this
section.
(iii) In-port exemption. While in port, an owner or operator of a
vessel with a type-approved VMS unit configured with the 4-hour
reporting feature may utilize the 4-hour reporting feature rather than
comply with the hourly reporting requirement specified in paragraph
(a)(2)(ii) of this section. Once the vessel is no longer in port, the
hourly reporting requirement specified in paragraph (a)(2)(ii) of this
section applies. For the purposes of this paragraph (a)(2) of this
section, ``in port'' means secured at a land-based facility, or moored
or anchored after the return to a dock, berth, beach, seawall, or ramp.
(iv) Power-down exemptions. An owner or operator of a vessel subject
to the requirement to have a VMS operating at all times as specified in
paragraph (a)(2)(i) of this section can be exempted from that
requirement and may power down the required VMS unit if--
(A) The vessel will be continuously out of the water or in port, as
defined in paragraph (a)(2)(iii) of this section, for more than 72
consecutive hours;
(B) The owner or operator of the vessel applies for and obtains a
valid letter of exemption from NMFS OLE VMS personnel as specified in
the NOAA Enforcement Vessel Monitoring System Requirements for the Reef
Fish Fishery of the Gulf of Mexico. This is a one-time requirement. The
letter of exemption must be maintained on board the vessel and remains
valid for all subsequent power-down requests conducted consistent with
the provisions of paragraphs (a)(2)(iv)(C) and (D) of this section.
(C) Prior to each power-down, the owner or operator of the vessel
files a report to NMFS OLE VMS program personnel, using the VMS unit's
e-mail, that includes the name of the person
[[Page 223]]
filing the report, vessel name, vessel U.S. Coast Guard documentation
number or state registration number, commercial vessel reef fish permit
number, vessel port location during VMS power down, estimated duration
of the power down exemption, and reason for power down; and
(D) The owner or operator enters the power-down code through the use
of the VMS Declaration form on the terminal and, prior to powering down
the VMS, receives a confirmation, through the VMS terminal, that the
form was successfully delivered.
(v) Declaration of fishing trip and gear. Prior to departure for
each trip, a vessel owner or operator must report to NMFS any fishery
the vessel will participate in on that trip and the specific type(s) of
fishing gear, using NMFS-defined gear codes, that will be on board the
vessel.
(b) Installation and activation of a VMS. Only a VMS that has been
approved by NMFS for the applicable fishery may be used, and the VMS
must be installed by a qualified marine electrician. When installing and
activating the NMFS-approved VMS, or when reinstalling and reactivating
such VMS, the vessel owner or operator must--
(1) Follow procedures indicated on a NMFS-approved installation and
activation checklist for the applicable fishery, which is available from
NMFS Office for Law Enforcement, Southeast Region, 263 13\th\ Avenue
South, St. Petersburg, FL 33701; phone: 800-758-4833; and
(2) Submit to NMFS Office for Law Enforcement, Southeast Region, 263
13\th\ Avenue South, St. Petersburg, FL 33701, a statement certifying
compliance with the checklist, as prescribed on the checklist.
(3) Submit to NMFS Office for Law Enforcement, Southeast Region, 263
13\th\ Avenue South, St. Petersburg, FL 33701, a vendor-completed
installation certification checklist, which is available from NMFS
Office for Law Enforcement, Southeast Region, 263 13\th\ Avenue South,
St. Petersburg, FL 33701; phone: 800-758-4833.
(c) Interference with the VMS. No person may interfere with, tamper
with, alter, damage, disable, or impede the operation of the VMS, or
attempt any of the same.
(d) Interruption of operation of the VMS. When a vessel's VMS is not
operating properly, the owner or operator must immediately contact NMFS
Office for Law Enforcement, Southeast Region, 263 13\th\ Avenue South,
St. Petersburg, FL 33701, phone: 800-758-4833, and follow instructions
from that office. If notified by NMFS that a vessel's VMS is not
operating properly, the owner and operator must follow instructions from
that office. In either event, such instructions may include, but are not
limited to, manually communicating to a location designated by NMFS the
vessel's positions or returning to port until the VMS is operable.
(e) Access to position data. As a condition of authorized fishing
for or possession of fish in a fishery subject to VMS requirements in
this section, a vessel owner or operator subject to the requirements for
a VMS in this section must allow NMFS, the USCG, and their authorized
officers and designees access to the vessel's position data obtained
from the VMS.
[71 FR 45434, Aug. 9, 2006, as amended at 72 FR 73273, Dec. 27, 2007; 73
FR 410, Jan. 3, 2008]
Effective Date Note: At 74 FR 50704, Oct. 1, 2009, Sec. 622.9 was
amended by revising the first sentence of paragraph (a)(1), effective
November 2, 2009. For the convenience of the user, the revised text is
set forth as follows:
Sec. 622.9 Vessel monitoring systems (VMSs).
(a) Requirements for use of a VMS--(1) South Atlantic rock shrimp.
An owner or operator of a vessel that has been issued a limited access
endorsement for South Atlantic rock shrimp or a Commercial Vessel Permit
for Rock Shrimp (South Atlantic EEZ) must ensure that such vessel has an
operating VMS approved by NMFS for use in the South Atlantic rock shrimp
fishery on board when on a trip in the South Atlantic. * * *
* * * * *
Sec. 622.10 Conservation measures for protected resources.
(a) Atlantic dolphin and wahoo pelagic longliners. The owner or
operator of a vessel for which a commercial permit for Atlantic dolphin
and wahoo has been issued, as required under Sec. 622.4(a)(2)(xii), and
that has on board a pelagic longline must post inside the
[[Page 224]]
wheelhouse the sea turtle handling and release guidelines provided by
NMFS. Such owner or operator must also comply with the sea turtle
bycatch mitigation measures, including gear requirements and sea turtle
handling requirements, as specified in Sec. 635.21(c)(5)(i) and (ii) of
this chapter, respectively. For the purpose of this paragraph, a vessel
is considered to have pelagic longline gear on board when a power-
operated longline hauler, a mainline, floats capable of supporting the
mainline, and leaders (gangions) with hooks are on board. Removal of any
one of these elements constitutes removal of pelagic longline gear.
(b) Gulf reef fish commercial vessels and charter vessels/
headboats--(1) Sea turtle conservation measures. The owner or operator
of a vessel for which a commercial vessel permit for Gulf reef fish or a
charter vessel/headboat permit for Gulf reef fish has been issued, as
required under Sec. Sec. 622.4(a)(2)(v) and 622.4(a)(1)(i),
respectively, must post inside the wheelhouse, or within a waterproof
case if no wheelhouse, a copy of the document provided by NMFS titled,
``Careful Release Protocols for Sea Turtle Release With Minimal
Injury,'' and must post inside the wheelhouse, or in an easily viewable
area if no wheelhouse, the sea turtle handling and release guidelines
provided by NMFS. Those permitted vessels with a freeboard height of 4
ft (1.2 m) or less must have on board a dipnet, short-handled dehooker,
long-nose or needle-nose pliers, bolt cutters, monofilament line
cutters, and at least two types of mouth openers/mouth gags. This
equipment must meet the specifications described in 50 CFR
635.21(c)(5)(i)(E) through (L) with the following modifications: the
dipnet handle can be of variable length, only one NMFS approved short-
handled dehooker is required (i.e., CFR 635.21(c)(5)(i)(G) or (H)); and
life rings, seat cushions, life jackets, and life vests may be used as
alternatives to tires for cushioned surfaces as specified in 50 CFR
635.21(c)(5)(i)(F). Those permitted vessels with a freeboard height of
greater than 4 ft (1.2 m) must have on board a dipnet, long-handled line
clipper, a short-handled and a long-handled dehooker, long-nose or
needle-nose pliers, bolt cutters, monofilament line cutters, and at
least two types of mouth openers/mouth gags. This equipment must meet
the specifications described in 50 CFR 635.21(c)(5)(i)(A) through (L)
with the following modifications: only one NMFS approved long-handled
dehooker (50 CFR 635.21(c)(5)(i)(B) or (C)) and one NMFS-approved short-
handled dehooker (50 CFR 635.21(c)(5)(i)(G) or (H)) are required; and
life rings, seat cushions, life jackets, and life vests may be used as
alternatives to tires for cushioned surfaces as specified in 50 CFR
635.21(c)(5)(i)(F).
(2) Smalltooth sawfish conservation measures. The owner or operator
of a vessel for which a commercial vessel permit for Gulf reef fish or a
charter vessel/headboat permit for Gulf reef fish has been issued, as
required under Sec. Sec. 622.4(a)(2)(v) and 622.4(a)(1)(i),
respectively, that incidentally catches a smalltooth sawfish must--
(i) Keep the sawfish in the water at all times;
(ii) If it can be done safely, untangle the line if it is wrapped
around the saw;
(iii) Cut the line as close to the hook as possible; and
(iv) Not handle the animal or attempt to remove any hooks on the
saw, except for with a long-handled dehooker.
[71 FR 45435, Aug. 9, 2006]
Subpart B_Effort Limitations
Sec. 622.15 Wreckfish individual transferable quota (ITQ) system.
The provisions of this section apply to wreckfish in or from the
South Atlantic EEZ.
(a) Percentage shares. (1) In accordance with the procedure
specified in the Fishery Management Plan for the Snapper-Grouper Fishery
of the South Atlantic Region, percentage shares of the quota for
wreckfish have been assigned. Each person has been notified by the RA of
his or her percentage share and shareholder certificate number.
(2) All or a portion of a person's percentage shares may be
transferred to another person. Transfer of shares must be reported on a
form available
[[Page 225]]
from the RA. The RA will confirm, in writing, each transfer of shares.
The effective date of each transfer is the confirmation date provided by
the RA. The confirmation date will normally be not later than 3 working
days after receipt of a properly completed transfer form. A fee is
charged for each transfer of shares. The amount of the fee is calculated
in accordance with the procedures of the NOAA Finance Handbook,
available from the RA, for determining the administrative costs of each
special product or service provided by NOAA to non-Federal recipients.
The fee may not exceed such costs and is specified with each transfer
form. The appropriate fee must accompany each transfer form.
(b) Lists of wreckfish shareholders and permitted vessels. Annually,
on or about March 1, the RA will provide each wreckfish shareholder with
a list of all wreckfish shareholders and their percentage shares,
reflecting share transactions on forms received through February 15.
Annually by April 15, the RA will provide each dealer who holds a dealer
permit for wreckfish, as required under Sec. 622.4(a)(4), with a list
of vessels for which wreckfish permits have been issued, as required
under Sec. 622.4(a)(2)(vii). Annually, by April 15, the RA will provide
each wreckfish shareholder with a list of dealers who have been issued
dealer permits for wreckfish. From April 16 through January 14, updated
lists will be provided when required. Updated lists may be obtained at
other times or by a person who is not a wreckfish shareholder or
wreckfish dealer permit holder by written request to the RA.
(c) ITQs. (1) Annually, as soon after March 1 as the TAC for
wreckfish for the fishing year that commences April 16 is known, the RA
will calculate each wreckfish shareholder's ITQ. Each ITQ is the product
of the wreckfish TAC, in round weight, for the ensuing fishing year, the
factor for converting round weight to eviscerated weight, and each
wreckfish shareholder's percentage share, reflecting share transactions
reported on forms received by the RA through February 15. Thus, the ITQs
will be in terms of eviscerated weight of wreckfish.
(2) The RA will provide each wreckfish shareholder with ITQ coupons
in various denominations, the total of which equals his or her ITQ, and
a copy of the calculations used in determining his or her ITQ. Each
coupon will be coded to indicate the initial recipient.
(3) An ITQ coupon may be transferred from one wreckfish shareholder
to another by completing the sale endorsement thereon (that is, the
signature and shareholder certificate number of the buyer). An ITQ
coupon may be possessed only by the shareholder to whom it has been
issued, or by the shareholder's employee, contractor, or agent, unless
the ITQ coupon has been transferred to another shareholder. An ITQ
coupon that has been transferred to another shareholder may be possessed
only by the shareholder whose signature appears on the coupon as the
buyer, or by the shareholder's employee, contractor, or agent, and with
all required sale endorsements properly completed.
(4) Wreckfish may not be possessed on board a fishing vessel--
(i) In an amount exceeding the total of the ITQ coupons on board the
vessel;
(ii) That does not have on board a commercial vessel permit for
wreckfish, as required under Sec. 622.4(a)(2)(vii); or
(iii) That does not have on board logbook forms for that fishing
trip, as required under Sec. 622.5(a)(1)(iv)(B).
(5) Prior to termination of a trip, a signature and date signed must
be affixed in ink to the ``Fisherman'' part of ITQ coupons in
denominations equal to the eviscerated weight of the wreckfish on board.
The ``Fisherman'' part of each such coupon must be separated from the
coupon and submitted with the logbook forms required by Sec.
622.5(a)(1)(iv)(B) for that fishing trip.
(6) The ``Fish House'' part of each such coupon must be given to the
dealer to whom the wreckfish are transferred in amounts totaling the
eviscerated weight of the wreckfish transferred to that dealer. A
wreckfish may be transferred only to a dealer who holds a dealer permit
for wreckfish, as required under Sec. 622.4(a)(4).
[[Page 226]]
(7) A dealer may receive a wreckfish only from a vessel for which a
commercial permit for wreckfish has been issued, as required under Sec.
622.4(a)(2)(vii). A dealer must receive the ``Fish House'' part of ITQ
coupons in amounts totaling the eviscerated weight of the wreckfish
received; enter the permit number of the vessel from which the wreckfish
were received, enter the date the wreckfish were received, enter the
dealer's permit number, and sign each such ``Fish House'' part; and
submit all such parts with the dealer reports required by Sec.
622.5(c)(5)(i).
(8) An owner or operator of a vessel and a dealer must make
available to an authorized officer all ITQ coupons in his or her
possession upon request.
(d) Wreckfish limitations. (1) A wreckfish taken in the South
Atlantic EEZ may not be transferred at sea, regardless of where the
transfer takes place; and a wreckfish may not be transferred in the
South Atlantic EEZ.
(2) A wreckfish possessed by a fisherman or dealer shoreward of the
outer boundary of the South Atlantic EEZ or in a South Atlantic coastal
state will be presumed to have been harvested from the South Atlantic
EEZ unless accompanied by documentation that it was harvested from other
than the South Atlantic EEZ.
(3) A wreckfish may be offloaded from a fishing vessel only between
8 a.m. and 5 p.m., local time.
(4) If a wreckfish is to be offloaded at a location other than a
fixed facility of a dealer who holds a dealer permit for wreckfish, as
required under Sec. 622.4 (a)(4), the wreckfish shareholder or the
vessel operator must advise NMFS Office for Law Enforcement, Southeast
Region, St. Petersburg, FL, by telephone (727-824-5344), of the location
not less than 24 hours prior to offloading.
[61 FR 34934, July 3, 1996, as amended at 64 FR 59126, Nov. 2, 1999; 73
FR 410, Jan. 3, 2008]
Sec. 622.16 Gulf red snapper individual fishing quota (IFQ) program.
(a) General. This section establishes an IFQ program for the
commercial fishery for Gulf red snapper. Under the IFQ program, the RA
initially will assign eligible participants IFQ shares equivalent to a
percentage of the annual commercial red snapper quota, based on their
applicable historical landings. Shares determine the amount of Gulf red
snapper IFQ allocation, in pounds gutted weight, a shareholder is
initially authorized to possess, land, or sell in a given calendar year.
Shares and annual IFQ allocation are transferable. See Sec.
622.4(a)(2)(ix) regarding a requirement for a vessel landing red snapper
subject to this IFQ program to have a Gulf red snapper IFQ vessel
account. See Sec. 622.4(a)(4)(ii) regarding a requirement for a Gulf
IFQ dealer endorsement. Details regarding eligibility, applicable
landings history, account setup and transaction requirements,
constraints on transferability, and other provisions of this IFQ system
are provided in the following paragraphs of this section.
(1) Scope. The provisions of this section apply to Gulf red snapper
in or from the Gulf EEZ and, for a person aboard a vessel with a Gulf
red snapper IFQ vessel account as required by Sec. 622.4(a)(2)(ix) or
for a person with a Gulf IFQ dealer endorsement as required by Sec.
622.4(a)(4)(ii), these provisions apply to Gulf red snapper regardless
of where harvested or possessed.
(2) Duration. The IFQ program established by this section will
remain in effect until it is modified or terminated; however, the
program will be evaluated by the Gulf of Mexico Fishery Management
Council every 5 years.
(3) Electronic system requirements. (i) The administrative functions
associated with this IFQ program, e.g., registration and account setup,
landing transactions, and transfers, are designed to be accomplished
online; therefore, a participant must have access to a computer and
Internet access and must set up an appropriate IFQ online account to
participate. Assistance with online functions is available from IFQ
Customer Service by calling 1-866-425-7627 Monday through Friday between
8 a.m. and 4:30 p.m. eastern time.
(ii) The RA will mail initial shareholders and dealers with Gulf
reef fish dealer permits information and instructions pertinent to
setting up an
[[Page 227]]
IFQ online account. Other eligible persons who desire to become IFQ
participants by purchasing IFQ shares or allocation or by obtaining a
Gulf red snapper IFQ dealer endorsement must first contact IFQ Customer
Service at 1-866-425-7627 to obtain information necessary to set up the
required IFQ online account. Each IFQ participant must monitor his/her
online account and all associated messages and comply with all IFQ
online reporting requirements.
(iii) During catastrophic conditions only, the IFQ program provides
for use of paper-based components for basic required functions as a
backup. The RA will determine when catastrophic conditions exist, the
duration of the catastrophic conditions, and which participants or
geographic areas are deemed affected by the catastrophic conditions. The
RA will provide timely notice to affected participants via publication
of notification in the Federal Register, NOAA weather radio, fishery
bulletins, and other appropriate means and will authorize the affected
participants' use of paper-based components for the duration of the
catastrophic conditions. NMFS will provide each IFQ dealer the necessary
paper forms, sequentially coded, and instructions for submission of the
forms to the RA. The paper forms will also be available from the RA. The
program functions available to participants or geographic areas deemed
affected by catastrophic conditions will be limited under the paper-
based system. There will be no mechanism for transfers of IFQ shares or
allocation under the paper-based system in effect during catastrophic
conditions. Assistance in complying with the requirements of the paper-
based system will be available via IFQ Customer Service 1-866-425-7627
Monday through Friday between 8 a.m. and 4:30 p.m. eastern time.
(b) Procedures for initial implementation--(1) Determination of
eligibility for initial IFQ shares. To be eligible as an initial IFQ
shareholder a person must own a Class 1 or Class 2 Gulf red snapper
license as of November 22, 2006. For the purposes of this paragraph, an
owner of a license is defined as the person who controls transfer of the
license and is listed as the qualifier on the face of the license. NMFS'
permit records are the sole basis for determining eligibility based on
Class 1 or Class 2 license history. No more than one initial eligibility
will be granted based upon a given Class 1 or Class 2 license.
(2) Calculation of initial IFQ shares and allocation--(i) IFQ
shares. The RA will calculate initial IFQ shares based on the highest
average annual landings of Gulf red snapper associated with each
shareholder's current Class 1 or Class 2 license during the applicable
landings history. The applicable landings history for a Class 1 license
owner whose license was not issued based on historical captain status
includes any 10 consecutive years of landings data from 1990 through
2004; for a Class 1 license owner whose license was issued on the basis
of historical captain status, all years of landings data from 1998
through 2004; and for a Class 2 license holder, any 5 years of landings
data from 1998 through 2004. All landings associated with a current
Class 1 or Class 2 license for the applicable landings history,
including those reported by a person who held the license prior to the
current license owner, will be attributed to the current license owner.
Only legal landings reported in compliance with applicable state and
Federal regulations will be accepted. Each shareholder's initial share
is derived by dividing the shareholder's highest average annual landings
during the applicable landings history by the sum of the highest average
annual landings of all shareholders during the respective applicable
landings histories. Initial IFQ shares will not be issued in
denominations of less than 0.0001 percent.
(ii) Initial share set-aside to accommodate resolution of appeals.
During the first year of implementation of this IFQ program only, the RA
will reserve a 3-percent IFQ share, prior to the initial distribution of
shares, to accommodate resolution of appeals, if necessary. Any portion
of the 3-percent share remaining after the appeals process is completed
will be distributed as soon as possible among initial shareholders in
direct proportion to the percentage share each was initially allocated.
If resolution of appeals requires more than a 3-percent share, the
shares
[[Page 228]]
of all initial shareholders would be reduced accordingly in direct
proportion to the percentage share each was initially allocated.
(iii) IFQ allocation. IFQ allocation is the amount of Gulf red
snapper, in pounds gutted weight, an IFQ shareholder or allocation
holder is authorized to possess, land, or sell during a given fishing
year. IFQ allocation is derived at the beginning of each year by
multiplying a shareholder's IFQ share times the annual commercial quota
for Gulf red snapper.
(3) Shareholder notification regarding landings history, initial
determination of IFQ shares and allocations, and IFQ account setup
information. (i) As soon as possible after November 22, 2006, the RA
will mail each Class 1 or Class 2 red snapper license owner information
pertinent to the IFQ program. This information will include--
(A) Gulf red snapper landings associated with the owner's license
during each year of the applicable landings history;
(B) The highest average annual red snapper landings based on the
owner's applicable landings history;
(C) The owner's initial IFQ share based on the highest average
annual landings associated with the owner's applicable landings history;
(D) The initial IFQ allocation;
(E) Instructions for appeals;
(F) General instructions regarding procedures related to the IFQ
online system, including how to set up an online account; and
(G) A user identification number--the personal identification number
(PIN) will be provided in a subsequent letter.
(ii) The RA will provide this information, via certified mail return
receipt requested, to the license owner's address of record as listed in
NMFS' permit files. A license owner who does not receive such
notification from the RA by December 22, 2006 must contact the RA to
clarify eligibility status and landings and initial share information.
(iii) The initial share information provided by the RA is based on
the highest average landings associated with the owner's applicable
landings history; however, a license owner may select a different set of
years of landings, consistent with the owner's applicable landings
history, for the calculation of the initial IFQ share. The license owner
must submit that information to the RA postmarked no later than December
22, 2006. If alternative years, consistent with the applicable landings
history, are selected, revised information regarding shares and
allocations will be posted on the online IFQ accounts no later than
January 1, 2007. A license owner who disagrees with the landings or
eligibility information provided by the RA may appeal the RA's initial
determinations.
(4) Procedure for appealing IFQ eligibility and/or landings
information. The only items subject to appeal under this IFQ system are
initial eligibility for IFQ shares based on ownership of a Class 1 or
Class 2 license, the accuracy of the amount of landings, and correct
assignment of landings to the license owner. Appeals based on hardship
factors will not be considered. Appeals must be submitted to the RA
postmarked no later than April 1, 2007 and must contain documentation
supporting the basis for the appeal. The RA will review all appeals,
render final decisions on the appeals, and advise the appellant of the
final decision.
(i) Eligibility appeals. NMFS' records of Class 1 and Class 2
licenses are the sole basis for determining ownership of such licenses.
A person who believes he/she meets the permit eligibility criteria based
on ownership of a vessel under a different name, as may have occurred
when ownership has changed from individual to corporate or vice versa,
must document his/her continuity of ownership.
(ii) Landings appeals. Landings data for 1990 through 1992 are not
subject to appeal. Appeals regarding landings data for 1993 through 2004
will be based solely on NMFS' logbook records. If NMFS' logbooks are not
available, state landings records or data that were submitted in
compliance with applicable Federal and state regulations, on or before
June 30, 2005, can be used.
(5) Dealer notification and IFQ account setup information. As soon
as possible after November 22, 2006, the RA will mail each dealer with a
valid Gulf reef fish dealer permit information pertinent to the IFQ
program. Any such dealer is eligible to receive a red
[[Page 229]]
snapper IFQ dealer endorsement which can be downloaded from the IFQ
website at ifq.sero.nmfs.noaa.gov once an IFQ account has been
established. The information package will include general information
about the IFQ program and instructions for accessing the IFQ website and
establishing an IFQ dealer account.
(c) IFQ operations and requirements--(1) IFQ Landing and transaction
requirements. (i) Gulf red snapper subject to this IFQ program can only
be possessed or landed by a vessel with a Gulf red snapper IFQ vessel
account with allocation at least equal to the pounds of red snapper on
board, except as provided in paragraph (c)(1)(ii) of this section. Such
red snapper can only be received by a dealer with a Gulf IFQ dealer
endorsement.
(ii) A person on board a vessel with an IFQ vessel account landing
the shareholder's only remaining allocation, can legally exceed, by up
to 10 percent, the shareholder's allocation remaining on that last
fishing trip of the fishing year, i.e., a one-time per fishing year
overage. Any such overage will be deducted from the shareholder's
applicable allocation for the subsequent fishing year. From the time of
the overage until January 1 of the subsequent fishing year, the IFQ
shareholder must retain sufficient shares to account for the allocation
that will be deducted the subsequent fishing year. Share transfers that
would violate this requirement will be prohibited.
(iii) The dealer is responsible for completing a landing transaction
report for each landing and sale of Gulf red snapper via the IFQ website
at ifq.sero.nmfs.noaa.gov at the time of the transaction in accordance
with reporting form and instructions provided on the website. This
report includes, but is not limited to, date, time, and location of
transaction; weight and actual ex-vessel value of red snapper landed and
sold; and information necessary to identify the fisherman, vessel, and
dealer involved in the transaction. The fisherman must validate the
dealer transaction report by entering his unique PIN number when the
transaction report is submitted. After the dealer submits the report and
the information has been verified, the website will send a transaction
approval code to the dealer and the allocation holder.
(iv) If there is a discrepancy regarding the landing transaction
report after approval, the dealer or vessel account holder (or his or
her authorized agent) may initiate a landing transaction correction form
to correct the landing transaction. This form is available via the IFQ
website at ifq.sero.nmfs.noaa.gov. Both parties must validate the
landing correction form by entering their respective PIN numbers, i.e.
vessel account PIN or dealer account PIN. The dealer must then print out
the form, both parties must sign it, and the form must be mailed to
NMFS. The form must be received by NMFS no later than 15 days after the
date of the initial landing transaction.
(2) IFQ cost recovery fees. As required by section 304(d)(2)(A)(i)
of the Magnuson-Stevens Act, the RA will collect a fee to recover the
actual costs directly related to the management and enforcement of the
Gulf red snapper IFQ program. The fee cannot exceed 3 percent of the ex-
vessel value of Gulf red snapper landed under the IFQ program. Such fees
will be deposited in the Limited Access System Administration Fund
(LASAF). Initially, the fee will be 3 percent of the actual ex-vessel
value of Gulf red snapper landed under the IFQ program, as documented in
each landings transaction report. The RA will review the cost recovery
fee annually to determine if adjustment is warranted. Factors considered
in the review include the catch subject to the IFQ cost recovery,
projected ex-vessel value of the catch, costs directly related to the
management and enforcement of the IFQ program, the projected IFQ balance
in the LASAF, and expected non-payment of fee liabilities. If the RA
determines that a fee adjustment is warranted, the RA will publish a
notification of the fee adjustment in the Federal Register.
(i) Payment responsibility. The IFQ allocation holder specified in
the documented red snapper IFQ landing transaction report is responsible
for payment of the applicable cost recovery fees.
[[Page 230]]
(ii) Collection and submission responsibility. A dealer who receives
Gulf red snapper subject to the IFQ program is responsible for
collecting the applicable cost recovery fee for each IFQ landing from
the IFQ allocation holder specified in the IFQ landing transaction
report. Such dealer is responsible for submitting all applicable cost
recovery fees to NMFS on a quarterly basis. The fees are due and must be
submitted, using pay.gov via the IFQ system at the end of each calendar-
year quarter, but no later than 30 days after the end of each calendar-
year quarter. Fees not received by the deadline are delinquent.
(iii) Fee payment procedure. For each IFQ dealer, the IFQ system
will post, on individual message boards, an end-of-quarter statement of
cost recovery fees that are due. The dealer is responsible for
submitting the cost recovery fee payments using pay.gov via the IFQ
system. Authorized payments methods are credit card, debit card, or
automated clearing house (ACH). Payment by check will be authorized only
if the RA has determined that the geographical area or an individual(s)
is affected by catastrophic conditions.
(iv) Fee reconciliation process--delinquent fees. The following
procedures apply to an IFQ dealer whose cost recovery fees are
delinquent.
(A) On or about the 31st day after the end of each calendar-year
quarter, the RA will send the dealer an electronic message via the IFQ
website and official notice via mail indicating the applicable fees are
delinquent, and the dealer's IFQ account has been suspended pending
payment of the applicable fees.
(B) On or about the 91st day after the end of each calendar-year
quarter, the RA will refer any delinquent IFQ dealer cost recovery fees
to the appropriate authorities for collection of payment.
(3) Measures to enhance IFQ program enforceability--(i) Advance
notice of landing. For the purpose of this paragraph, landing means to
arrive at a dock, berth, beach, seawall, or ramp. The owner or operator
of a vessel landing IFQ red snapper is responsible for ensuring that
NMFS is contacted at least 3 hours, but no more than 12 hours, in
advance of landing to report the time and location of landing, estimated
red snapper landings in pounds gutted weight, vessel identification
number (Coast Guard registration number or state registration number),
and the name and address of the IFQ dealer where the red snapper are to
be received. The vessel landing red snapper must have sufficient IFQ
allocation in the IFQ vessel account, at least equal to the pounds in
gutted weight of red snapper on board (except for any overage up to the
10 percent allowed on the last fishing trip) from the time of the
advance notice of landing through landing. Authorized methods for
contacting NMFS and submitting the report include calling NMFS Office
for Law Enforcement at 1-866-425-7627, completing and submitting to NMFS
the notification form provided through the VMS unit, or providing the
required information to NMFS through the web-based form available on the
IFQ website at ifq.sero.nmfs.noaa.gov. As new technology becomes
available, NMFS will add other authorized methods for complying with the
advance notification requirement, via appropriate rulemaking. Failure to
comply with this advance notice of landing requirement is unlawful and
will preclude authorization to complete the landing transaction report
required in paragraph (c)(1)(iii) of this section and, thus, will
preclude issuance of the required transaction approval code.
(ii) Time restriction on offloading. IFQ red snapper may be
offloaded only between 6 a.m. and 6 p.m., local time.
(iii) Restrictions on transfer of IFQ red snapper. At-sea or
dockside transfer of IFQ red snapper from one vessel to another vessel
is prohibited.
(iv) Requirement for transaction approval code. If IFQ red snapper
are offloaded to a vehicle for transportation to a dealer or are on a
vessel that is trailered for transport to a dealer, on-site capability
to accurately weigh the fish and to connect electronically to the online
IFQ system to complete the transaction and obtain the transaction
approval code is required. After a landing transaction has been
completed, a transaction approval code verifying a legal transaction of
[[Page 231]]
the amount of IFQ red snapper in possession and a copy of the dealer
endorsement must accompany any IFQ red snapper from the landing location
through possession by a dealer. This requirement also applies to IFQ red
snapper possessed on a vessel that is trailered for transport to a
dealer.
(v) Approved landing locations. Landing locations must be approved
by NMFS Office for Law Enforcement prior to landing or offloading at
these sites. Proposed landing locations may be submitted online via the
IFQ website at ifq.sero.nmfs.noaa.gov, or by calling IFQ Customer
Service at 1-866-425-7627, at any time, however, new landing locations
will be approved only at the end of each calendar-year quarter. To have
a landing location approved by the end of the calendar-year quarter, it
must be submitted at least 45 days before the end of the calendar-year
quarter. NMFS will evaluate the proposed sites based on, but not limited
to, the following criteria:
(A) Landing locations must be publicly accessible by land and water,
and
(B) they must have a street address. If there is no street address
on record for a particular landing location, global positioning system
(GPS) coordinates for an identifiable geographic location must be
provided.
(4) Transfer of IFQ shares and allocation. Until January 1, 2012,
IFQ shares and allocations can be transferred only to a person who holds
a valid commercial vessel permit for Gulf reef fish; thereafter, IFQ
shares and allocations can be transferred to any U.S. citizen or
permanent resident alien. However, a valid commercial permit for Gulf
reef fish, a Gulf red snapper IFQ vessel account, and Gulf red snapper
IFQ allocation are required to possess (at and after the time of the
advance notice of landing), land or sell Gulf red snapper subject to
this IFQ program.
(i) Share transfers. Share transfers are permanent, i.e., they
remain in effect until subsequently transferred. Transfer of shares will
result in the corresponding allocation being automatically transferred
to the person receiving the transferred share beginning with the fishing
year following the year the transfer occurred. However, within the
fishing year the share transfer occurs, transfer of shares and
associated allocation are independent--unless the associated allocation
is transferred separately, it remains with the transferor for the
duration of that fishing year. A share transfer transaction that remains
in pending status, i.e., has not been completed and verified with a
transaction approval code, after 30 days from the date the shareholder
initiated the transfer will be cancelled, and the pending shares will be
re-credited to the shareholder who initiated the transfer.
(ii) Share transfer procedures. Share transfers must be accomplished
online via the IFQ website. An IFQ shareholder must initiate a share
transfer request by logging onto the IFQ website at
ifq.sero.nmfs.noaa.gov. Following the instructions provided on the
website, the shareholder must enter pertinent information regarding the
transfer request including, but not limited to, amount of shares to be
transferred, which must be a minimum of 0.0001 percent; name of the
eligible transferee; and the value of the transferred shares. An IFQ
shareholder who is subject to a sanction under 15 CFR part 904 is
prohibited from initiating a share transfer. An IFQ shareholder who is
subject to a pending sanction under 15 CFR part 904 must disclose in
writing to the prospective transferee the existence of any pending
sanction at the time of the transfer. For the first 5 years this IFQ
program is in effect, an eligible transferee is a person who has a valid
commercial vessel permit for Gulf reef fish; is in compliance with all
reporting requirements for the Gulf reef fish fishery and the red
snapper IFQ program; is not subject to sanctions under 15 CFR part 904;
and who would not be in violation of the share cap as specified in
paragraph (c)(6) of this section. Thereafter, share transferee
eligibility will be extended to include U.S. citizens and permanent
resident aliens who are otherwise in compliance with the provisions of
this section. The online system will verify the transfer information
entered. If the information is not accepted, the online system will send
the shareholder an electronic message explaining the reason(s) why the
transfer request can not
[[Page 232]]
be completed. If the information is accepted, the online system will
send the transferee an electronic message of the pending transfer. The
transferee must approve the share transfer by electronic signature. If
the transferee approves the share transfer, the online system will send
a transaction approval code to both the transferor and transferee
confirming the transaction. All share transfers must be completed and
the transaction approval code received prior to December 31 at 6 p.m.
eastern time each year.
(iii) Allocation transfers. An allocation transfer is valid only for
the remainder of the fishing year in which it occurs; it does not carry
over to the subsequent fishing year. Any allocation that is unused at
the end of the fishing year is void. Allocation may be transferred to a
vessel account from any IFQ account. Allocation held in a vessel
account, however, may only be transferred back to the IFQ account
through which the vessel account was established.
(iv) Allocation transfer procedures. Allocation transfers must be
accomplished online via the IFQ website. An IFQ account holder must
initiate an allocation transfer by logging onto the IFQ website at
ifq.sero.nmfs.noaa.gov, entering the required information, including but
not limited to, name of an eligible transferee and amount of IFQ
allocation to be transferred and price, and submitting the transfer
electronically. An IFQ allocation holder who is subject to a sanction
under 15 CFR part 904 is prohibited from initiating an allocation
transfer. An IFQ allocation holder who is subject to a pending sanction
under 15 CFR part 904 must disclose in writing to the prospective
transferee the existence of any pending sanction at the time of the
transfer. If the transfer is approved, the online system will provide a
transaction approval code to the transferor and transferee confirming
the transaction.
(5) Restricted transactions during the 12-hour online maintenance
window. All electronic IFQ transactions must be completed by December 31
at 6 p.m. eastern time each year. Electronic IFQ functions will resume
again on January 1 at 6 a.m. eastern time the following fishing year.
The remaining 6 hours prior to the end of the fishing year, and the 6
hours at the beginning of the next fishing year, are necessary to
provide NMFS time to reconcile IFQ accounts, adjust allocations for the
upcoming year if the commercial quotas for Gulf red snapper have
changed, and update shares and allocations for the upcoming fishing
year. No electronic IFQ transactions will be available during these 12
hours. An advance notice of landing may still be submitted during the
12-hour maintenance window by calling IFQ Customer Service at 1-866-425-
7627.
(6) IFQ share cap. No person, including a corporation or other
entity, may individually or collectively hold IFQ shares in excess of
6.0203 percent of the total shares. For the purposes of considering the
share cap, a corporation's total IFQ share is determined by adding the
applicable IFQ shares held by the corporation and any other IFQ shares
held by a corporation(s) owned by the original corporation prorated
based on the level of ownership. An individual's total IFQ share is
determined by adding the applicable IFQ shares held by the individual
and the applicable IFQ shares equivalent to the corporate share the
individual holds in a corporation. Initially, a corporation must provide
the RA the identity of the shareholders of the corporation and their
percent of shares in the corporation, and provide updated information to
the RA within 30 days of when changes occur. This information must also
be provided to the RA any time a commercial vessel permit for Gulf reef
fish is renewed or transferred.
(7) Redistribution of shares resulting from permanent permit or
endorsement revocation. If a shareholder's commercial vessel permit for
Gulf reef fish has been permanently revoked under provisions of 15 CFR
part 904, the RA will redistribute the IFQ shares held by that
shareholder proportionately among remaining shareholders (subject to cap
restrictions) based upon the amount of shares each held just prior to
the redistribution. During December of each year, the RA will determine
the amount of revoked shares, if any, to be redistributed, and the
shares will be distributed at the beginning of the subsequent fishing
year.
[[Page 233]]
(8) Annual recalculation and notification of IFQ shares and
allocation. On or about January 1 each year, IFQ shareholders will be
notified, via the IFQ website at ifq.sero.nmfs.noaa.gov, of their IFQ
share and allocation for the upcoming fishing year. These updated share
values will reflect the results of applicable share transfers and any
redistribution of shares (subject to cap restrictions) resulting from
permanent revocation of applicable permits under 15 CFR part 904.
Allocation is calculated by multiplying IFQ share times the annual red
snapper commercial quota. Updated allocation values will reflect any
change in IFQ share, any change in the annual commercial quota for Gulf
red snapper, and any debits required as a result of prior fishing year
overages as specified in paragraph (c)(1)(ii) of this section. IFQ
participants can monitor the status of their shares and allocation
throughout the year via the IFQ website.
[71 FR 67459, Nov. 22, 2006, as amended at 72 FR 73274, Dec. 27, 2007;
73 FR 410, Jan. 3, 2008; 73 FR 68361, Nov. 18, 2008; 74 FR 44743, Aug.
31, 2009]
Sec. 622.17 South Atlantic golden crab controlled access.
(a) General. In accordance with the procedures specified in the
Fishery Management Plan for the Golden Crab Fishery of the South
Atlantic Region, initial commercial vessel permits have been issued for
the fishery. All permits in the fishery are issued on a fishing-year
(calendar-year) basis. No additional permits may be issued except for
the northern zone as follows:
(1) The RA will issue up to two new vessel permits for the northern
zone. Selection will be made from the list of historical participants in
the South Atlantic golden crab fishery. Such list was used at the
October 1995 meeting of the South Atlantic Fishery Management Council
and was prioritized based on pounds of golden crab landed, without
reference to a specific zone. Individuals on the list who originally
received permits will be deleted from the list.
(2) The RA will offer in writing an opportunity to apply for a
permit for the northern zone to the individuals highest on the list
until two individuals accept and apply in a timely manner. An offer that
is not accepted within 30 days after it is received will no longer be
valid.
(3) An application for a permit from an individual who accepts the
RA's offer must be received by the RA no later than 30 days after the
date of the individual's acceptance. Application forms are available
from the RA.
(4) A vessel permit for the northern zone issued under paragraph
(a)(1) of this section, and any successor permit, may not be changed to
another zone. A successor permit includes a permit issued to that vessel
for a subsequent owner and a permit issued via transfer from that vessel
to another vessel.
(b) Fishing zones--(1) Designation of fishing zones. The South
Atlantic EEZ is divided into three fishing zones for golden crab as
follows:
(i) Northern zone--the South Atlantic EEZ north of 28[deg] N. lat.
(ii) Middle zone--the South Atlantic EEZ from 28[deg] N. lat. to
25[deg] N. lat.
(iii) Southern zone--the South Atlantic EEZ south of 25[deg] N. lat.
(2) Authorization to fish in zones. Each vessel permit indicates one
of the zones specified in paragraph (b)(1) of this section. A vessel
with a permit to fish for golden crab in the northern zone or the middle
zone may fish only in that zone. A vessel with a documented length
overall greater than 65 ft (19.8 m) with a permit to fish for golden
crab in the southern zone may fish in that zone, consistent with the
provisions of paragraph (b)(3) of this section. A vessel may possess
golden crab only in a zone in which it is authorized to fish, except
that other zones may be transited if the vessel notifies NMFS Office for
Law Enforcement, Southeast Region, St. Petersburg, FL, by telephone
(727-824-5344) in advance and does not fish in a zone in which it is not
authorized to fish.
(3) Small-vessel sub-zone. Within the southern zone, a small-vessel
sub-zone is established bounded on the north by 24[deg]15[min] N. lat.,
on the south by 24[deg]07[min] N. lat., on the east by 81[deg]22[min] W.
long., and on the west by 81[deg]56[min] W. long. No vessel with a
documented length overall greater than 65 ft (19.8 m) may fish for
golden crab in this sub-zone, and a vessel with a documented length
overall of
[[Page 234]]
65 ft (19.8 m) or less that is permitted for the southern zone may fish
for golden crab only in this sub-zone.
(4) Procedure for changing zones. (i) Upon request from an owner of
a permitted vessel, the RA will change the zone specified on a permit
from the middle or southern zone to the northern zone. No other changes
in the zone specified on a permit are allowed, except as specified in
paragraph (b)(4)(ii) of this section. An owner of a permitted vessel who
desires a change to the northern zone must submit his/her request with
the existing permit to the RA.
(ii) [Reserved]
(c) Transferring permits between vessels--(1) Procedure for
transferring. An owner of a vessel who desires a golden crab permit may
request that NMFS transfer an existing permit or permits to his or her
vessel by returning an existing permit or permits to the RA with an
application for a permit for the replacement vessel.
(2) Vessel size limitations on transferring. (i) To obtain a permit
for the middle or southern zone via transfer, the documented length
overall of the replacement vessel may not exceed the documented length
overall, or aggregate documented lengths overall, of the replaced
vessel(s) by more than 20 percent. The owner of a vessel permitted for
the middle or southern zone who has requested that NMFS transfer that
permit to a smaller vessel (i.e., downsized) may subsequently request
NMFS transfer that permit to a vessel of a length calculated from the
length of the permitted vessel immediately prior to downsizing.
(ii) There are no vessel size limitations to obtain a permit for the
northern zone via transfer.
(d) Permit renewal. NMFS will not renew a commercial vessel permit
for South Atlantic golden crab if the permit is revoked or if the RA
does not receive a required application for renewal within 6 months
after the permit's expiration. See Sec. 622.4(h) for the applicable
general procedures and requirements for permit renewals.
[67 FR 22361, May 3, 2002, as amended at 70 FR 73388, Dec. 12, 2005; 73
FR 410, Jan. 3, 2008]
Sec. 622.18 South Atlantic snapper-grouper limited access.
(a) General. The only valid commercial vessel permits for South
Atlantic snapper-grouper are those that have been issued under the
limited access criteria specified in the Fishery Management Plan for the
Snapper-Grouper Fishery of the South Atlantic Region. A commercial
vessel permit for South Atlantic snapper-grouper is either a
transferable commercial permit or a trip-limited commercial permit.
(b) Transfers of permits. A snapper-grouper limited access permit is
valid only for the vessel and owner named on the permit. To change
either the vessel or the owner, an application for transfer must be
submitted to the RA.
(1) Transferable permits. (i) An owner of a vessel with a
transferable permit may request that the RA transfer the permit to
another vessel owned by the same entity.
(ii) A transferable permit may be transferred upon a change of
ownership of a permitted vessel with such permit from one to another of
the following: husband, wife, son, daughter, brother, sister, mother, or
father.
(iii) Except as provided in paragraphs (b)(1)(i) and (ii) of this
section, a person desiring to acquire a limited access, transferable
permit for South Atlantic snapper-grouper must obtain and exchange two
such permits for one new permit.
(iv) A transfer of a permit that is undertaken under paragraph
(b)(1)(ii) of this section will constitute a transfer of the vessel's
entire catch history to the new owner.
(2) Trip-limited permits. An owner of a vessel with a trip- limited
permit may request that the RA transfer the permit to another vessel
owned by the same entity.
(c) Renewal. NMFS will not reissue a commercial vessel permit for
South Atlantic snapper-grouper if the permit is revoked or if the RA
does not receive an application for renewal within 60 days of the
permit's expiration date.
[70 FR 73388, Dec. 12, 2005]
[[Page 235]]
Sec. 622.19 South Atlantic rock shrimp limited access.
(a) Applicability. For a person aboard a vessel to fish for rock
shrimp in the South Atlantic EEZ off Georgia or off Florida or possess
rock shrimp in or from the South Atlantic EEZ off Georgia or off
Florida, a limited access endorsement for South Atlantic rock shrimp
must be issued to the vessel and must be on board.
(b) Transfer of an endorsement. A limited access endorsement for
South Atlantic rock shrimp is valid only for the vessel and owner named
on the permit/endorsement. To change either the vessel or the owner, an
application for transfer must be submitted to the RA. An owner of a
vessel with an endorsement may request that the RA transfer the
endorsement to another vessel owned by the same entity, to the same
vessel owned by another entity, or to another vessel with another owner.
A transfer of an endorsement under this paragraph will include the
transfer of the vessel's entire catch history of South Atlantic rock
shrimp to a new owner; no partial transfers are allowed.
(c) Renewal. The RA will not reissue a limited access endorsement
for South Atlantic rock shrimp if the endorsement is revoked or if the
RA does not receive a complete application for renewal of the
endorsement within 1 year after the endorsement's expiration date.
(d) Non-renewal of inactive endorsements. In addition to the
sanctions and denials specified in Sec. 622.4(j)(1), a limited access
endorsement for South Atlantic rock shrimp that is inactive for a period
of 4 consecutive calendar years will not be renewed. For the purpose of
this paragraph, ``inactive'' means that the vessel with the endorsement
has not landed at least 15,000 lb (6,804 kg) of rock shrimp from the
South Atlantic EEZ in a calendar year.
(e) Reissuance of non-renewed permits. A permit that is not renewed
under paragraph (d) of this section will be made available to a vessel
owner randomly selected from a list of owners who had documented
landings of rock shrimp from the South Atlantic EEZ prior to 1996 but
who did not qualify for an initial limited access endorsement. Owners'
names have been placed on the list in accordance with the procedures
specified in the FMP for the Shrimp Fishery of the South Atlantic
Region.
[70 FR 73388, Dec. 12, 2005]
Effective Date Note: At 74 FR 50704, Oct. 1, 2009, Sec. 622.19 was
revised, effective November 2, 2009. For the convenience of the user,
the revised text is set forth as follows:
Sec. 622.19 South Atlantic rock shrimp limited access off Georgia and
Florida.
(a) Initial applicability. (1) The measures in paragraph (a) of this
section are applicable on November 2, 2009 through January 26, 2010.
(2) For a person aboard a vessel to fish for rock shrimp in the
South Atlantic EEZ off Georgia or off Florida or possess rock shrimp in
or from the South Atlantic EEZ off Georgia or off Florida, a limited
access endorsement for South Atlantic rock shrimp must be issued to the
vessel and must be on board.
(3) A limited access endorsement for South Atlantic rock shrimp is
valid only for the vessel and owner named on the permit/endorsement. To
change either the vessel or the owner, a complete application for
transfer must be submitted to the RA. An owner of a vessel with an
endorsement may request that the RA transfer the endorsement to another
vessel owned by the same entity, to the same vessel owned by another
entity, or to another vessel with another owner. A transfer of an
endorsement under this paragraph will include the transfer of the
vessel's entire catch history of South Atlantic rock shrimp to a new
owner; no partial transfers are allowed. No transfer of a limited access
endorsement for South Atlantic rock shrimp will be allowed after
November 2, 2009.
(4) The RA will not reissue a limited access endorsement for South
Atlantic rock shrimp if the endorsement is revoked or if the RA does not
receive a complete application for renewal of the endorsement within 1
year after the endorsement's expiration date.
(b) Subsequent applicability. (1) The measures in paragraph (b) of
this section are applicable on and after January 27, 2010.
(2) For a person aboard a vessel to fish for rock shrimp in the
South Atlantic EEZ off Georgia or off Florida or possess rock shrimp in
or from the South Atlantic EEZ off those states, a Commercial Permit for
Rock Shrimp (South Atlantic EEZ) must be issued to the vessel and must
be on board.
(3) Applications. No applications for additional Commercial Vessel
Permits for Rock Shrimp (South Atlantic EEZ) will be accepted, except as
follows:
(i) Failure to renew. An owner of a vessel may apply for a
Commercial Vessel Permit for Rock Shrimp (South Atlantic EEZ) and such
permit will be issued provided the owner,
[[Page 236]]
(A) Had a limited access endorsement for South Atlantic rock shrimp;
(B) Failed to request renewal of his or her endorsement within 1
year after the endorsement's expiration date; and
(C) Renewed his or her commercial vessel permit for rock shrimp
within 1 year after its expiration date.
(ii) Inactive endorsement. An owner of a vessel may apply for a
Commercial Vessel Permit for Rock Shrimp (South Atlantic EEZ) and such
permit will be issued provided the owner,
(A) Has a commercial vessel permit for rock shrimp;
(B) Had a limited access endorsement for South Atlantic rock shrimp
and;
(C) Was unable to renew the endorsement because the endorsement was
``inactive'' for a period of 4 consecutive calendar years. ``Inactive''
means that the vessel with the endorsement did not land at least 15,000
lb (6,804 kg) of rock shrimp from the South Atlantic EEZ in a calendar
year.
(iii) Application period. Applications under paragraph (b)(3) of
this section must be received by NMFS by January 27, 2011.
(iv) Continuity of ownership. An applicant who believes he or she
meets the permit eligibility criteria based on ownership of a vessel
under a different name, as may have occurred when ownership has changed
from individual to corporate or vice versa, must document his or her
continuity of ownership.
(c) Transfer of an existing permit. A Commercial Vessel Permit for
Rock Shrimp (South Atlantic EEZ) is valid only for the vessel and owner
named on the permit. To change either the vessel or the owner, a
complete application for transfer must be submitted to the RA. An owner
of a vessel with a permit may request that the RA transfer a valid
permit to another vessel owned by the same entity, to the same vessel
owned by another entity, or to another vessel with another owner. A
transfer of a permit under this paragraph will include the transfer of
the vessel's entire catch history of South Atlantic rock shrimp to a new
owner; no partial transfers are allowed.
(d) Renewal. The RA will not reissue a Commercial Vessel Permit for
Rock Shrimp (South Atlantic EEZ) if the permit is revoked or if the RA
does not receive an application for renewal of the permit within 1 year
after the expiration date of the permit.
(e) Limitation on permits. A vessel for which a permit for South
Atlantic rock shrimp is required may be issued either a Commercial
Vessel Permit for Rock Shrimp (Carolinas Zone) or a Commercial Vessel
Permit for Rock Shrimp (South Atlantic EEZ), depending on its
eligibility. However, no such vessel may be issued both permits for the
same period of effectiveness.
Sec. 622.20 Individual fishing quota (IFQ) program for Gulf groupers and
tilefishes.
(a) General. This section establishes an IFQ program for the
commercial components of the Gulf reef fish fishery for groupers
(including DWG, red grouper, gag, and other SWG) and tilefishes
(including goldface tilefish, blackline tilefish, anchor tilefish,
blueline tilefish, and tilefish). For the purposes of this IFQ program,
DWG includes yellowedge grouper, misty grouper, warsaw grouper, snowy
grouper, and speckled hind, and scamp, but only as specified in
paragraph (b)(2)(vi) of this section. For the purposes of this IFQ
program, other SWG includes black grouper, scamp, yellowfin grouper,
rock hind, red hind, and yellowmouth grouper, and warsaw grouper and
speckled hind, but only as specified in paragraph (b)(2)(v) of this
section. Under the IFQ program, the RA initially will assign eligible
participants IFQ shares, in five share categories. These IFQ shares are
equivalent to a percentage of the annual commercial quotas for DWG, red
grouper, gag, and tilefishes, and the annual commercial catch allowance
(meaning the SWG quota minus gag and red grouper) for other SWG species,
based on their applicable historical landings. Shares determine the
amount of IFQ allocation for Gulf groupers and tilefishes, in pounds
gutted weight, a shareholder is initially authorized to possess, land,
or sell in a given calendar year. Shares and annual IFQ allocation are
transferable. See Sec. 622.4(a)(2)(ix) regarding a requirement for a
vessel landing groupers or tilefishes subject to this IFQ program to
have an IFQ vessel account for Gulf groupers and tilefishes. See Sec.
622.4(a)(4)(ii) regarding a requirement for a Gulf IFQ dealer
endorsement. Details regarding eligibility, applicable landings history,
account setup and transaction requirements, constraints on
transferability, and other provisions of this IFQ system are provided in
the following paragraphs of this section.
(1) Scope. The provisions of this section apply to Gulf groupers and
tilefishes in or from the Gulf EEZ and, for a person aboard a vessel
with an IFQ vessel account for Gulf groupers
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and tilefishes as required by Sec. 622.4(a)(2)(ix) or for a person with
a Gulf IFQ dealer endorsement as required by Sec. 622.4(a)(4)(ii),
these provisions apply to Gulf groupers and tilefishes regardless of
where harvested or possessed.
(2) Duration. The IFQ program established by this section will
remain in effect until it is modified or terminated; however, the
program will be evaluated by the Gulf of Mexico Fishery Management
Council every 5 years.
(3) Electronic system requirements. (i) The administrative functions
associated with this IFQ program, e.g., registration and account setup,
landing transactions, and transfers, are designed to be accomplished
online; therefore, a participant must have access to a computer and
Internet access and must set up an appropriate IFQ online account to
participate. The computer must have browser software installed, e.g.
Internet Explorer, Netscape, Mozilla Firefox; as well as the software
Adobe Flash Player version 9.0 or greater, which may be downloaded from
the Internet for free. Assistance with online functions is available
from IFQ Customer Service by calling 1-866-425-7627 Monday through
Friday between 8 a.m. and 4:30 p.m. eastern time.
(ii) The RA will mail initial shareholders and dealers with Gulf
reef fish dealer permits information and instructions pertinent to
setting up an IFQ online account. Other eligible persons who desire to
become IFQ participants by purchasing IFQ shares or allocation or by
obtaining a Gulf IFQ dealer endorsement must first contact IFQ Customer
Service at 1-866-425-7627 to obtain information necessary to set up the
required IFQ online account. Each IFQ participant must monitor his/her
online account and all associated messages and comply with all IFQ
online reporting requirements.
(iii) During catastrophic conditions only, the IFQ program provides
for use of paper-based components for basic required functions as a
backup. The RA will determine when catastrophic conditions exist, the
duration of the catastrophic conditions, and which participants or
geographic areas are deemed affected by the catastrophic conditions. The
RA will provide timely notice to affected participants via publication
of notification in the Federal Register, NOAA weather radio, fishery
bulletins, and other appropriate means and will authorize the affected
participants' use of paper-based components for the duration of the
catastrophic conditions. NMFS will provide each IFQ dealer the necessary
paper forms, sequentially coded, and instructions for submission of the
forms to the RA. The paper forms will also be available from the RA. The
program functions available to participants or geographic areas deemed
affected by catastrophic conditions will be limited under the paper-
based system. There will be no mechanism for transfers of IFQ shares or
allocation under the paper-based system in effect during catastrophic
conditions. Assistance in complying with the requirements of the paper-
based system will be available via IFQ Customer Service 1-866-425-7627
Monday through Friday between 8 a.m. and 4:30 p.m. eastern time.
(b) Procedures for initial implementation--(1) Determination of
eligibility for initial IFQ shares. To be eligible as an initial IFQ
shareholder a person must posses a valid commercial Gulf reef fish
permit as of October 1, 2009. NMFS' permit records are the sole basis
for determining eligibility for the IFQ program for Gulf groupers and
tilefishes based on permit history. No more than one initial eligibility
will be granted based upon a given commercial vessel permit for Gulf
reef fish.
(2) Calculation of initial IFQ shares and allocation--(i) IFQ
shares. The RA will calculate initial IFQ shares based on the highest
average annual landings of Gulf groupers and tilefishes, in each of five
share categories, associated with each shareholder's current commercial
vessel permit for Gulf reef fish during the applicable landings history.
The five share categories are gag, red grouper, DWG, other SWG, and
tilefishes. The applicable landings history for reef fish permit holders
with grouper or tilefish landings includes landings data from 1999
through 2004 with the allowance for dropping one year. All grouper and
tilefish landings associated with a current reef fish permit for the
applicable landings history,
[[Page 238]]
including those reported by a person(s) who held the license prior to
the current license owner, will be attributed to the current license
owner. Only legal landings reported in compliance with applicable state
and Federal regulations will be accepted. For each share category, each
shareholder's initial share is derived by dividing the shareholder's
highest average annual landings during the applicable landings history
by the sum of the highest average annual landings of all shareholders
during the respective applicable landings histories. Initial shares
distributed in the gag share category and the other SWG share category
will be based on landings that have been adjusted for gag and/or black
grouper misidentification. Initial IFQ shares will not be issued in
units less than the percentage equivalent to 1.0 lb (0.45 kg) of the
grouper or tilefish species, in each share category, based on that share
category's quota or catch allowance.
(ii) Initial share set-aside to accommodate resolution of appeals.
During the first year of implementation of this IFQ program only, for
each share category, the RA will reserve a 3-percent IFQ share prior to
the initial distribution of shares, to accommodate resolution of
appeals, if necessary. Any portion of the 3-percent share set-aside for
each share category remaining after the appeals process is completed
will be distributed as soon as possible among initial shareholders in
direct proportion to the percentage share each was initially allocated.
If resolution of appeals requires more than a 3-percent share set-aside
for a share category, the shares of all initial shareholders, for that
share category, would be reduced accordingly in direct proportion to the
percentage share each was initially allocated.
(iii) IFQ allocation. IFQ allocation is the amount of Gulf groupers
and tilefishes, in pounds gutted weight, an IFQ shareholder or
allocation holder is authorized to possess, land, or sell during a given
fishing year. IFQ allocation for the five respective share categories is
derived at the beginning of each year by multiplying a shareholder's IFQ
share times the annual commercial quota for gag, red grouper, DWG, and
tilefishes; and times the annual commercial catch allowance for other
SWG.
(iv) Red grouper and gag multi-use allocation--(A) Red grouper
multi-use allocation. At the beginning of each fishing year, 4 percent
of each shareholder's initial red grouper allocation will be converted
to red grouper multi-use allocation. Red grouper multi-use allocation
may be used to possess, land, or sell either red grouper or gag under
certain conditions. Red grouper multi-use allocation may be used to
possess, land, or sell red grouper only after an IFQ account holder's
(shareholder or allocation holder's) red grouper allocation has been
landed and sold, or transferred; and to possess, land, or sell gag, only
after both gag and gag multi-use allocation have been landed and sold,
or transferred.
(B) Gag multi-use allocation. At the beginning of each fishing year,
8 percent of each shareholder's initial gag allocation will be converted
to gag multi-use allocation. Gag multi-use allocation may be used to
possess, land, or sell either gag or red grouper under certain
conditions. Gag multi-use allocation may be used to possess, land, or
sell gag only after an IFQ account holder's gag allocation has been
landed and sold, or transferred; and possess, land or sell red grouper,
only after both red grouper and red grouper multi-use allocation have
been landed and sold, or transferred. Multi-use allocation transfer
procedures and restrictions are specified in paragraph (c)(4)(iv) of
this section.
(v) Warsaw grouper and speckled hind classification. Warsaw grouper
and speckled hind are considered DWG species and under certain
circumstances SWG species. For the purposes of the IFQ program for Gulf
groupers and tilefishes, once all of an IFQ account holder's DWG
allocation has been landed and sold, or transferred, or if an IFQ
account holder has no DWG allocation, then other SWG allocation may be
used to land and sell warsaw grouper and speckled hind.
(vi) Scamp classification. Scamp is considered a SWG species and
under certain circumstances a DWG. For the purposes of the IFQ program
for Gulf groupers and tilefishes, once all of an
[[Page 239]]
IFQ account holder's other SWG allocation has been landed and sold, or
transferred, or if an IFQ account holder has no SWG allocation, then DWG
allocation may be used to land and sell scamp.
(3) Shareholder notification regarding landings history, initial
determination of IFQ shares and allocations, and IFQ account setup
information. (i) On or about October 1, 2009, the RA will mail each Gulf
reef fish commercial vessel permittee with grouper and tilefish landings
history during the qualifying years, information pertinent to the IFQ
program. This information will include--
(A) Gulf grouper and tilefish landings associated with the Gulf reef
fish commercial vessel permit during each year of the applicable
landings history;
(B) The highest average annual grouper and tilefish landings, in
each of the five share categories, based on the permittee's best 5 out
of 6 years of applicable landings history;
(C) The permittee's initial IFQ share, in each of the five share
categories, based on the highest average annual landings associated with
the permittee's best 5 out of 6 years of applicable landings history;
(D) The initial IFQ allocation, in each of the five share
categories, as well as their total IFQ allocation;
(E) Instructions for appeals;
(F) General instructions regarding procedures related to the IFQ
online system, including how to set up an online account; and
(G) A user identification number; and a personal identification
number (PIN) that will be provided in a subsequent letter.
(ii) The RA will provide this information, via certified mail return
receipt requested, to the permittee's address of record as listed in
NMFS' permit files. A permittee who does not receive such notification
from the RA, must contact the RA by November 1, 2009, to clarify
eligibility status and landings and initial share information.
(iii) The initial share information provided by the RA is based on
the highest average annual landings during the best 5 out of 6 years
associated with the permittee's applicable landings history for each
share category; however, a permittee may select to exclude a different
year of landings history than was chosen, consistent with the
permittee's applicable landings history, for the calculation of the
initial IFQ share. The permittee must submit that information to the RA
postmarked no later than December 1, 2009. If alternative years,
consistent with the applicable landings history, are selected, revised
information regarding shares and allocations will be posted on the
online IFQ accounts no later than January 1, 2010. A permittee who
disagrees with the landings or eligibility information provided by the
RA may appeal the RA's initial determinations.
(4) Procedure for appealing IFQ eligibility and/or landings
information. The only items subject to appeal under this IFQ system are
initial eligibility for IFQ shares based on ownership of a reef fish
permit, the accuracy of the amount of landings, correct assignment of
landings to the permittee, and correct assignment of gag versus black
grouper landings. Appeals based on hardship factors will not be
considered. Appeals must be submitted to the RA postmarked no later than
April 1, 2010, and must contain documentation supporting the basis for
the appeal. The RA will review all appeals, render final decisions on
the appeals, and advise the appellant of the final decision.
(i) Eligibility appeals. NMFS' records of reef fish permits are the
sole basis for determining ownership of such permits. A person who
believes he/she meets the permit eligibility criteria based on ownership
of a vessel under a different name, as may have occurred when ownership
has changed from individual to corporate or vice versa, must document
his/her continuity of ownership.
(ii) Landings appeals. Appeals regarding landings data for 1999
through 2004 will be based on NMFS' logbook records. If NMFS' logbooks
are not available, the RA may use state landings records or data that
were submitted in compliance with applicable Federal and state
regulations, on or before December 31, 2006.
(5) Dealer notification and IFQ account setup information. On or
about October 1, 2009, the RA will mail each dealer
[[Page 240]]
with a valid Gulf reef fish dealer permit information pertinent to the
IFQ program. Any such dealer is eligible to receive a Gulf IFQ dealer
endorsement, which can be downloaded from the IFQ website at
ifq.sero.nmfs.noaa.gov once an IFQ account has been established. The
information package will include general information about the IFQ
program and instructions for accessing the IFQ website and establishing
an IFQ dealer account.
(c) IFQ operations and requirements--(1) IFQ Landing and transaction
requirements. (i) Gulf groupers and tilefishes subject to this IFQ
program can only be possessed or landed by a vessel with a IFQ vessel
account for Gulf groupers and tilefishes. Such groupers and tilefishes
can only be received by a dealer with a Gulf IFQ dealer endorsement. The
vessel landing groupers or tilefishes must have sufficient IFQ
allocation in the IFQ vessel account, at least equal to the pounds in
gutted weight of grouper or tilefish species to be landed, from the time
of advance notice of landing through landing, except as provided in
paragraph (c)(1)(ii) of this section.
(ii) A person on board a vessel with an IFQ vessel account landing
the shareholder's only remaining allocation from among any of the
grouper or tilefish share categories, can legally exceed, by up to 10
percent, the shareholder's allocation remaining on that last fishing
trip of the fishing year, i.e. a one-time per fishing year overage. Any
such overage will be deducted from the shareholder's applicable
allocation for the subsequent fishing year. From the time of the overage
until January 1 of the subsequent fishing year, the IFQ shareholder must
retain sufficient shares to account for the allocation that will be
deducted the subsequent fishing year. Share transfers that would violate
this requirement will be prohibited.
(iii) The dealer is responsible for completing a landing transaction
report for each landing and sale of Gulf groupers and tilefishes via the
IFQ website at ifq.sero.nmfs.noaa.gov at the time of the transaction in
accordance with reporting form and instructions provided on the website.
This report includes, but is not limited to, date, time, and location of
transaction; weight and actual ex-vessel value of groupers and
tilefishes landed and sold; and information necessary to identify the
fisherman, vessel, and dealer involved in the transaction. The fisherman
must validate the dealer transaction report by entering the unique PIN
number for the vessel account when the transaction report is submitted.
After the dealer submits the report and the information has been
verified by NMFS, the online system will send a transaction approval
code to the dealer and the allocation holder.
(iv) If there is a discrepancy regarding the landing transaction
report after approval, the dealer or vessel account holder (or his or
her authorized agent) may initiate a landing transaction correction form
to correct the landing transaction. This form is available via the IFQ
website at ifq.sero.nmfs.noaa.gov. Both parties must validate the
landing correction form by entering their respective PIN numbers, i.e.
vessel account PIN or dealer account PIN. The dealer must then print out
the form, both parties must sign it, and the form must be mailed to
NMFS. The form must be received by NMFS no later than 15 days after the
date of the initial landing transaction.
(2) IFQ cost recovery fees. As required by section 304(d)(2)(A)(i)
of the Magnuson-Stevens Act, the RA will collect a fee to recover the
actual costs directly related to the management and enforcement of the
IFQ program for Gulf groupers and tilefishes. The fee cannot exceed 3
percent of the ex-vessel value of Gulf groupers and tilefishes landed
under the IFQ program. Such fees will be deposited in the Limited Access
System Administration Fund (LASAF). Initially, the fee will be 3 percent
of the actual ex-vessel value of Gulf groupers and tilefishes landed
under the IFQ program, as documented in each landings transaction
report. The RA will review the cost recovery fee annually to determine
if adjustment is warranted. Factors considered in the review include the
catch subject to the IFQ cost recovery, projected ex-vessel value of the
catch, costs directly related to the management and enforcement of the
IFQ program, the projected
[[Page 241]]
IFQ balance in the LASAF, and expected non-payment of fee liabilities.
If the RA determines that a fee adjustment is warranted, the RA will
publish a notification of the fee adjustment in the Federal Register.
(i) Payment responsibility. The IFQ account holder specified in the
documented IFQ landing transaction report for Gulf groupers and
tilefishes is responsible for payment of the applicable cost recovery
fees.
(ii) Collection and submission responsibility. A dealer who receives
Gulf groupers or tilefishes subject to the IFQ program is responsible
for collecting the applicable cost recovery fee for each IFQ landing
from the IFQ account holder specified in the IFQ landing transaction
report. Such dealer is responsible for submitting all applicable cost
recovery fees to NMFS on a quarterly basis. The fees are due and must be
submitted, using pay.gov via the IFQ system, at the end of each
calendar-year quarter, but no later than 30 days after the end of each
calendar-year quarter. Fees not received by the deadline are delinquent.
(iii) Fee payment procedure. For each IFQ dealer, the IFQ system
will post, in individual IFQ dealer accounts, an end-of-quarter
statement of cost recovery fees that are due. The dealer is responsible
for submitting the cost recovery fee payments using pay.gov via the IFQ
system. Authorized payment methods are credit card, debit card, or
automated clearing house (ACH). Payment by check will be authorized only
if the RA has determined that the geographical area or an individual(s)
is affected by catastrophic conditions.
(iv) Fee reconciliation process--delinquent fees. The following
procedures apply to an IFQ dealer whose cost recovery fees are
delinquent.
(A) On or about the 31\st\ day after the end of each calendar-year
quarter, the RA will send the dealer an electronic message via the IFQ
website and official notice via mail indicating the applicable fees are
delinquent, and the dealer's IFQ account has been suspended pending
payment of the applicable fees.
(B) On or about the 91\st\ day after the end of each calendar-year
quarter, the RA will refer any delinquent IFQ dealer cost recovery fees
to the appropriate authorities for collection of payment.
(3) Measures to enhance IFQ program enforceability--(i) Advance
notice of landing. For the purpose of this paragraph, landing means to
arrive at a dock, berth, beach, seawall, or ramp. The owner or operator
of a vessel landing IFQ groupers or tilefishes is responsible for
ensuring that NMFS is contacted at least 3 hours, but no more than 12
hours, in advance of landing to report the time and location of landing,
estimated grouper and tilefish landings in pounds gutted weight for each
share category (gag, red grouper, DWG, other SWG, tilefishes), vessel
identification number (Coast Guard registration number or state
registration number), and the name and address of the IFQ dealer where
the groupers or tilefishes are to be received. The vessel landing
groupers or tilefishes must have sufficient IFQ allocation in the IFQ
vessel account, and in the appropriate share category or categories, at
least equal to the pounds in gutted weight of all groupers and
tilefishes on board (except for any overage up to the 10 percent allowed
on the last fishing trip) from the time of the advance notice of landing
through landing. Authorized methods for contacting NMFS and submitting
the report include calling NMFS at 1-866-425-7627, completing and
submitting to NMFS the notification form provided through the VMS unit,
or providing the required information to NMFS through the web-based form
available on the IFQ website at ifq.sero.nmfs.noaa.gov. As new
technology becomes available, NMFS will add other authorized methods for
complying with the advance notification requirement, via appropriate
rulemaking. Failure to comply with this advance notice of landing
requirement is unlawful and will preclude authorization to complete the
landing transaction report required in paragraph (c)(1)(iii) of this
section and, thus, will preclude issuance of the required transaction
approval code.
(ii) Time restriction on offloading. IFQ groupers and tilefishes may
be offloaded only between 6 a.m. and 6 p.m., local time.
[[Page 242]]
(iii) Restrictions on transfer of IFQ groupers and tilefishes. At-
sea or dockside transfer of IFQ groupers or tilefishes from one vessel
to another vessel is prohibited.
(iv) Requirement for transaction approval code. If IFQ groupers or
tilefishes are offloaded to a vehicle for transportation to a dealer or
are on a vessel that is trailered for transport to a dealer, on-site
capability to accurately weigh the fish and to connect electronically to
the online IFQ system to complete the transaction and obtain the
transaction approval code is required. After a landing transaction has
been completed, a transaction approval code verifying a legal
transaction of the amount of IFQ groupers and tilefishes in possession
and a copy of the dealer endorsement must accompany any IFQ groupers and
tilefishes from the landing location through possession by a dealer.
This requirement also applies to IFQ groupers and tilefishes possessed
on a vessel that is trailered for transport to a dealer.
(v) Approved landing locations. Landing locations must be approved
by NMFS Office for Law Enforcement prior to landing or offloading at
these sites. Proposed landing locations may be submitted online via the
IFQ website at ifq.sero.nmfs.noaa.gov, or by calling IFQ Customer
Service at 1-866-425-7627, at any time, however, new landing locations
will be approved only at the end of each calendar-year quarter. To have
your landing location approved by the end of the calendar-year quarter,
it must be submitted at least 45 days before the end of the calendar-
year quarter. NMFS will evaluate the proposed sites based on, but not
limited to, the following criteria:
(A) Landing locations must be publicly accessible by land and water,
and
(B) they must have a street address. If there is no street address
on record for a particular landing location, global positioning system
(GPS) coordinates for an identifiable geographic location must be
provided.
(4) Transfer of IFQ shares and allocation. Until January 1, 2015,
IFQ shares and allocations can be transferred only to a person who holds
a valid commercial vessel permit for Gulf reef fish; thereafter, IFQ
shares and allocations can be transferred to any U.S. citizen or
permanent resident alien. However, a valid commercial permit for Gulf
reef fish, an IFQ vessel account for Gulf groupers and tilefishes, and
IFQ allocation for Gulf groupers or tilefishes are required to possess
(at and after the time of the advance notice of landing), land or sell
Gulf groupers or tilefishes subject to this IFQ program.
(i) Share transfers. Share transfers are permanent, i.e., they
remain in effect until subsequently transferred. Transfer of shares will
result in the corresponding allocation being automatically transferred
to the person receiving the transferred share beginning with the fishing
year following the year the transfer occurred. However, within the
fishing year the share transfer occurs, transfer of shares and
associated allocation are independent--unless the associated allocation
is transferred separately, it remains with the transferor for the
duration of that fishing year. A share transfer transaction that remains
in pending status, i.e., has not been completed and verified with a
transaction approval code, after 30 days from the date the shareholder
initiated the transfer will be cancelled, and the pending shares will be
re-credited to the shareholder who initiated the transfer.
(ii) Share transfer procedures. Share transfers must be accomplished
online via the IFQ website. An IFQ shareholder must initiate a share
transfer request by logging onto the IFQ website at
ifq.sero.nmfs.noaa.gov. An IFQ shareholder who is subject to a sanction
under 15 CFR part 904 is prohibited from initiating a share transfer. An
IFQ shareholder who is subject to a pending sanction under 15 CFR part
904 must disclose in writing to the prospective transferee the existence
of any pending sanction at the time of the transfer. Following the
instructions provided on the website, the shareholder must enter
pertinent information regarding the transfer request including, but not
limited to: amount of shares to be transferred, which must be a minimum
of 0.000001 percent; name of the eligible transferee; and the value of
the transferred shares. For the first 5 years this IFQ program is in
effect, an eligible transferee is a person who has
[[Page 243]]
a valid commercial vessel permit for Gulf reef fish; is in compliance
with all reporting requirements fo