[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2020 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 50
Wildlife and Fisheries
________________________
Parts 600 to 659
Revised as of October 1, 2020
Containing a codification of documents of general
applicability and future effect
As of October 1, 2020
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
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........................ 1001
Alphabetical List of Agencies Appearing in the CFR...... 1021
List of CFR Sections Affected........................... 1031
[[Page iv]]
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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.
----------------------------
[[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
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
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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
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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.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
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the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
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not dropped in error.
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
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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and Finding Aids. This volume contains the Parallel Table of Authorities
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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.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
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the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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INQUIRIES
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Oliver A. Potts,
Director,
Office of the Federal Register
October 1, 2020
[[Page ix]]
THIS TITLE
Title 50--Wildlife and Fisheries is composed of thirteen volumes.
The parts in these volumes are arranged in the following order: Parts 1-
16; part 17 (17.1 to 17.95(a)), part 17 (17.95(b)), part 17 (17.95(c) to
(e)), part 17 (17.95(f) to end of 17.95), part 17 (17.96 to 17.98), part
17 (17.99(a) to (h)), part 17 (17.99(i) to end of part 17), parts 18-
199, parts 200-227, parts 228-599, parts 600-659, and part 660 to end.
The first nine volumes consist of parts 1-16, part 17 (17.1 to
17.95(a)), part 17 (17.95(b)), part 17 (17.95(c) to (e)), part 17
(17.95(f) to end of 17.95), part 17 (17.96 to 17.98), part 17 (17.99(a)
to 17.99(h)), part 17 (17.99(i) to end of part 17), and parts 18-199 and
contain the current regulations issued under chapter I--United States
Fish and Wildlife Service, Department of the Interior. The tenth volume
(parts 200-227) contains the current regulations issued under chapter
II--National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce. The eleventh volume (parts 228-
599) contains the remaining current regulations issued under chapter
II--National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce; and the current regulations
issued under 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 twelfth and thirteenth 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, 2020.
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
John Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 50--WILDLIFE AND FISHERIES
(This book contains parts 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................................ 232
635 Atlantic highly migratory species........... 467
644 [Reserved]
648 Fisheries of the Northeastern United States. 563
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).
600.117 Council coordination committee (CCC).
600.120 Employment practices.
600.125 Budgeting, funding, and accounting.
600.130 Protection of confidentiality of statistics.
600.133 Scientific and Statistical Committee (SSC).
600.134 Stipends.
600.135 Meeting procedures.
600.140 Procedure for proposed regulations.
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.
600.207 Pacific Fishery Management Council Tribal Indian representative
and alternate.
600.210 Terms of Council members.
600.215 Council nomination and appointment procedures.
600.220 Oath of office.
600.225 Rules of conduct.
600.227 Lobbying.
600.230 Removal.
600.235 Financial disclosure.
600.240 Security assurances.
600.245 Council member compensation.
600.250 Council member training.
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.
[[Page 6]]
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.
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.
600.1107 Southeast Alaska Purse Seine Salmon Fishery capacity reduction
program, including fee payment and collection system.
600.1108 Longline catcher processor subsector of the Bering Sea and
Aleutian Islands (BSAI) non-pollock groundfish fishery
program.
Subpart N_Shark Fin Removal, Possession, Transfer and Landing
600.1200 Purpose and scope.
600.1201 Relation to other laws.
600.1202 Definitions.
600.1203 Prohibitions.
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.
[[Page 7]]
600.1417 Requirements for exempted state designation based on submission
of recreational survey data.
Subpart Q_Vessel Monitoring System Type-Approval
600.1500 Definitions and acronyms.
600.1501 Vessel Monitoring System type-approval process.
600.1502 Communications functionality.
600.1503 Position report data formats and transmission.
600.1504 Latency requirement.
600.1505 Messaging.
600.1506 Electronic forms.
600.1507 Communications security.
600.1508 Field and technical services.
600.1509 General.
600.1510 Notification of type-approval.
600.1511 Changes or modifications to type-approvals.
600.1512 Type-approval revocation process.
600.1513 Type-approval revocation appeals process.
600.1514 Revocation effective date and notification to vessel owners.
600.1515 Litigation support.
600.1516 Reimbursement opportunities for revoked Vessel Monitoring
System type-approval products.
Subpart R_Standardized Bycatch Reporting Methodology
600.1600 Purpose and scope.
600.1605 Definitions and word usage.
600.1610 Establishing and reviewing standardized bycatch reporting
methodologies in fishery management plans.
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 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.
Advisory panel (AP) means a committee formed, selected, and formally
designated as a Magnuson-Stevens Act Section 302(g)(2) advisory panel by
the Council's Statement of organization, practices, and procedures
(SOPP), or by a formal charge to the committee made by the chair and
recorded in the Council's minutes, to assist it in carrying out its
functions. An AP may include individuals who are not members of the
Council.
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.
[[Page 8]]
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 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 Atlantic billfish (blue marlin, white marlin,
sailfish, longbill spearfish, or roundscale spearfish).
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.
[[Page 9]]
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.
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.
[[Page 10]]
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:
(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 industry advisory committee (FIAC) means an advisory group
formed and selected by a regional fishery management council under the
authority of the Magnuson-Stevens Act section 302(g)(3)(A) and formally
designated in the Council's SOPP or by a formal charge to the FIAC made
by the chair and recorded in the Council's minutes. A FIAC is not an
``advisory panel'' as defined under this section.
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.
[[Page 11]]
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 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
[[Page 12]]
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.
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 of the
United States in their respective geographical regions.
Regional Administrator means the Administrator of one of the six
NMFS Regions described in Table 1 to Sec.600.502, or a designee.
Regional Program Officer means the NMFS official designated in the
terms and conditions of the grant award responsible for monitoring,
recommending, and reviewing any technical aspects of the application for
Federal assistance and the award.
[[Page 13]]
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.
Roundscale spearfish means the species Tetrapturus georgii, or a
part thereof.
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 (also referred to as ``Center
Director'') means the Director of one of the six NMFS Fisheries Science
Centers described in Table 1 to Sec.600.502, or a designee.
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 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
[[Page 14]]
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 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
[[Page 15]]
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;
(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 Kajikia 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; 75 FR
59149, Sept. 27, 2010; 75 FR 57701, Sept. 22, 2010]
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) CCC-Council coordination committee
(6) DAH--estimated domestic annual harvest
(7) DAP--estimated domestic annual processing
(8) EIS--environmental impact statement
(9) EY--equilibrium yield
(10) FIAC-Fishing industry advisory committee
(11) FMP--fishery management plan
(12) ICCAT means the International Commission for the Conservation
of Atlantic Tunas.
(13) JVP--joint venture processing
[[Page 16]]
(14) MSY--maximum sustainable yield
(15) PMP--preliminary FMP
(16) TAC--total allowable catch
(17) 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; 75 FR 59149, Sept. 27, 2010]
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]33[min]01.0[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 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; 75
FR 59149, Sept. 27, 2010]
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).
[[Page 17]]
(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, subpart C of this part, the terms and
conditions of the cooperative agreement (the funding agreement between
the Council and NOAA that establishes Council funding and mandates
specific requirements regarding the use of those funds), 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 must be published in the Federal Register that includes an
Internet address from which the amended SOPP may be read and downloaded
and a mailing address to which 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; 75
FR 59149, Sept. 27, 2010]
Sec.600.117 Council coordination committee (CCC).
(a) The Councils may establish a Council coordination committee
(CCC) consisting of the chairs, vice chairs, and executive directors of
each of the eight Councils or other Council members or staff, in order
to discuss issues of relevance to all Councils.
(b) The CCC is not subject to the requirements of the Federal
Advisory Committee Act (5 U.S.C. App. 2). Procedures for announcing and
conducting open and closed meetings of the CCC shall be in accordance
with Sec.600.135.
[75 FR 59150, Sept. 27, 2010]
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 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
[[Page 18]]
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) Council grant activities are governed by 15 CFR part 14 (Uniform
Administrative Requirements for Grants and Agreements with Institutions
of Higher Education, Hospitals, and other Non-Profit and Commercial
Organizations), 2 CFR part 230 (Cost Principles for Non-Profit
Organizations), 15 CFR part 14 (Audit Requirements for Institutions of
Higher Education and Other Non-Profit Organizations), and the terms and
conditions of the cooperative agreement.
(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, as amended at 75 FR 59150, Sept. 27, 2010]
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.
Sec.600.133 Scientific and Statistical Committee (SSC).
(a) Each Council shall establish, maintain, and appoint the members
of an SSC to assist it in the development, collection, evaluation, and
peer review of such statistical, biological, economic, social, and other
scientific information as is relevant to such Council's development and
amendment of any fishery management plan.
(b) Each SSC shall provide its Council ongoing scientific advice for
fishery management decisions, including recommendations for acceptable
biological catch, preventing overfishing, maximum sustainable yield, and
achieving rebuilding targets, and reports on
[[Page 19]]
stock status and health, bycatch, habitat status, social and economic
impacts of management measures, and sustainability of fishing practices.
(c) Members appointed by the Councils to the SSCs shall be Federal
employees, State employees, academicians, or independent experts and
shall have strong scientific or technical credentials and experience.
(d) An SSC shall hold its meetings in conjunction with the meetings
of the Council, to the extent practicable.
[75 FR 59150, Sept. 27, 2010]
Sec.600.134 Stipends.
Stipends are available, subject to the availability of
appropriations, to members of committees formally designated as SSCs
under Sec. 301(g)(1)(a) or APs under Sec. 302(g)(2) of the Magnuson-
Stevens Act who are not employed by the Federal Government or a State
marine fisheries agency. For the purposes of this section, a state
marine fisheries agency includes any state or tribal agency that has
conservation, management, or enforcement responsibility for any marine
fishery resource.
[75 FR 59150, Sept. 27, 2010]
Sec.600.135 Meeting procedures.
(a) Regular meetings. Public notice of a regular meeting, including
the meeting agenda, of each Council, CCC, SSC, AP, FIAC, or other
committees established under Magnuson-Stevens Act, Sec. 302(g), must be
published in the Federal Register at least 14 calendar days prior to the
meeting date. Appropriate notice by any means that will result in wide
publicity in the major fishing ports of the region (and in other major
fishing ports having a direct interest in the affected fishery) must be
given. E-mail notification and website postings alone are not
sufficient. The published agenda of a regular meeting may not be
modified to include additional matters for Council action without public
notice given at least 14 calendar days prior to the meeting date, unless
such modification is necessary 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
received by 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) Emergency meetings. Drafts of emergency public notices must be
transmitted to the NMFS headquarters office 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 any means that will result in wide publicity in the
major fishing ports of the region. E-mail notification and website
postings alone are not sufficient.
(c) Closed meetings. After proper notification by any means that
will result in wide publicity in the major fishing ports within the
region and, having included in the notification the time and place of
the meeting and the reason for closing any meeting or portion thereof to
the public, a Council, CCC, SSC, AP, FIAC, or other committees:
(1) Must close any meeting, or portion thereof, that concerns
information bearing a national security classification.
(2) 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) 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, the Council, CCC, SSC, AP, FIAC, or other
committees should consider not only the privacy interests of individuals
whose
[[Page 20]]
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, CCC, SSC, AP, FIAC, or other committees 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 two hours.
(e) Before closing a meeting or portion thereof, the Council, CCC,
SSC, AP, FIAC, or other committees should consult with the NOAA Office
of General Counsel 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 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, as amended at 75 FR 59150, Sept. 27, 2010]
Sec.600.140 Procedure for proposed regulations.
(a) Each Council must establish a written procedure for proposed
regulations consistent with section 303(c) of the Magnuson-Stevens Act.
The procedure must describe how the Council deems proposed regulations
necessary or appropriate for the purposes of implementing a fishery
management plan or a plan amendment, or making modifications to
regulations implementing a fishery management plan or plan amendment. In
addition, the procedure must describe how the Council submits proposed
regulations to the Secretary.
(b) The Councils must include the procedure for proposed regulations
in its SOPP, see Sec.600.115, or other written documentation that is
available to the public.
[75 FR 59150, Sept. 27, 2010]
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) Each Council is required to maintain documents generally
available to the public on its Internet site. Documents for posting must
include: fishery management plans and their amendments for the fisheries
for which the Council is responsible, drafts of fishery management plans
and plan amendments under consideration, analysis of actions the Council
has under review, minutes or official reports of past meetings of the
Council and its committees, materials provided by the Council staff to
Council members in preparation for meetings, and other Council documents
of interest to the public. For documents too large to maintain on the
Web site, not available electronically, or seldom requested, the Council
must provide copies of the documents for viewing at the Council office
during regular business hours or
[[Page 21]]
may provide the documents through the mail.
[66 FR 57887, Nov. 19, 2001, as amended at 75 FR 59151, Sept. 27, 2010]
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 NOAA FOIA Officer to secure a FOIA number and
log the request into FOIAonline. The Region will also obtain clearance
from the NOAA General Counsel's Office concerning initial determination
for denial of requested information.
(b) FOIA request processing will be controlled and documented in the
Region. The requests should be forwarded to the NOAA FOIA Officer who
will enter the request into FOIAonline. The request will be assigned an
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
Liaison. Upon completion, a copy of the signed letter transmitting the
information to the requester should be posted to FOIAonline by NMFS.
[80 FR 57738, Sept. 25, 2015]
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.600.207 Pacific Fishery Management Council Tribal Indian
representative and alternate.
(a) The tribal Indian representative to the Pacific Fishery
Management Council may designate an alternate during the period of the
representative's term. The designee must be knowledgeable concerning
tribal rights, tribal law, and the fishery resources of the geographical
area concerned.
(b) New or revised designations of an alternate by the tribal Indian
representative must be delivered in writing to the appropriate NMFS
Regional Administrator and the Council chair at least 48 hours before
the designee may vote on any issue before the Council. In that written
document, the tribal Indian representative must indicate how the
designee meets the knowledge requirements under paragraph (a) of this
section.
[75 FR 59151, Sept. 27, 2010]
[[Page 22]]
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. 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 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; 75
FR 59151, Sept. 27, 2010]
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;
[[Page 23]]
(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 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.
(c) Nominees to the Gulf of Mexico Fishery Management Council. (1)
The Governors of States submitting nominees to the Secretary for
appointment to the Gulf of Mexico Fishery Management Council shall
include:
(i) At least one nominee each from the commercial, recreational, and
charter fishing sectors, except that an individual who owns or operates
a fish farm outside the United States shall not be considered to be a
representative of the commercial or recreational sector; and
(ii) At least one other individual who is knowledgeable regarding
the conservation and management of fisheries resources in the
jurisdiction of the Council.
(2) Notwithstanding the requirements of paragraphs (a) and (b) of
this section, if the Secretary determines that the list of names
submitted by the Governor does not meet the requirements of paragraph
(c)(1) of this section, the Secretary shall:
(i) Publish a notice in the Federal Register asking the residents of
that State to submit the names and pertinent biographical data of
individuals who would meet the requirements of this section that were
not met for appointment to the Council; and
(ii) Add the name of any qualified individual submitted by the
public who meets the requirements of this section that were not met to
the list of names submitted by the Governor.
(3) The requirements of this paragraph (c) shall expire at the end
of fiscal year 2012, meaning through September 30, 2012.
(d) Responsibilities of eligible tribal Indian governments. The
tribal Indian representative on the Pacific Council will be selected by
the Secretary from a list
[[Page 24]]
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.
(e) Nomination deadlines. Nomination packages (governors' letters
and completed nomination kits) must be forwarded by express mail under a
single mailing to arrive at the address specified by the Assistant
Administrator by March 15. For appointments outside the normal cycle,
the Secretary will provide a deadline for receipt of nominations to the
affected Council and state governors.
(1) Obligatory seats. (i) The Governor of the state for which the
term of an obligatory seat is expiring should 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 Fishery Management
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 Governor or tribal Indian governments fail to provide a
nomination letter and at least three 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 qualified nominees for each vacant seat. A nomination letter and a
nomination kit for each qualified nominee must be forwarded by express
mail under a single mailing to arrive at the address specified by the
Assistant Administrator by March 15.
(ii) Nomination packages that are not substantially complete by
March 15 may be returned to the nominating Governor. At-large members
will be appointed from among the nominations submitted by the governors
who complied with the nomination requirements.
(f) 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
[[Page 25]]
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 than three consecutive terms in the Indian tribal seat.
[64 FR 4600, Jan. 29, 1999, as amended at 75 FR 59151, Sept. 27, 2010]
Sec.600.220 Oath of office.
As trustees of the nation's fishery resources, all voting members
must take an oath specified by the Secretary as follows: ``I, [name of
the person taking oath], as a duly appointed member of a Regional
Fishery Management Council established under the Magnuson-Stevens
Fishery Conservation and Management Act, hereby promise to conserve and
manage the living marine resources of the United States of America by
carrying out the business of the Council for the greatest overall
benefit of the Nation. I recognize my responsibility to serve as a
knowledgeable and experienced trustee of the Nation's marine fisheries
resources, being careful to balance competing private or regional
interests, and always aware and protective of the public interest in
those resources. I commit myself to uphold the provisions, standards,
and requirements of the Magnuson-Stevens Fishery Conservation and
Management Act and other applicable law, and shall conduct myself at all
times according to the rules of conduct prescribed by the Secretary of
Commerce. This oath is given freely and without mental reservation or
purpose of evasion.''
[75 FR 59152, Sept. 27, 2010]
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) Council members, employees, and contractors must comply with the
Federal Cost Principles Applicable to Regional Fishery Management
Council Grants and Cooperative Agreements, especially with regard to
lobbying, and other restrictions with regard to lobbying as specified in
Sec.600.227 of this part.
(3) No employee of a Council may be deprived of employment,
position,
[[Page 26]]
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.
(4) 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.
(5) 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.
(6) 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.
(7) No Council member or employee of the Council may engage in
criminal, infamous, dishonest, notoriously immoral, or disgraceful
conduct.
(8) 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.
(9)(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; 75 FR 59152, Sept. 27, 2010]
Sec.600.227 Lobbying.
(a) Council members, employees and contractors must comply with the
requirements of 31 U.S.C. 1352 and Department of Commerce implementing
regulations published at 15 CFR part 28, ``New Restrictions on
Lobbying.'' These provisions generally prohibit the use of Federal funds
for lobbying the Executive or Legislative Branches of the Federal
Government in connection with the award. Because the Councils receive in
excess of $100,000 in Federal funding, the regulations mandate that the
Councils must complete Form SF-LLL, ``Disclosure of Lobbying
Activities,'' regarding the use of non Federal funds for lobbying. The
Form SF-LLL shall be submitted within 30 days following the end of the
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed. The recipient must
submit the Forms SF-LLL, including those received from subrecipients,
contractors, and subcontractors, to the Grants Officer.
(b) Council members, employees, and contractors must comply with the
Federal Cost Principles Applicable to Regional Fishery Management
Council Grants and Cooperative Agreements summarized as follows:
(1) Title 2 CFR part 230 - Cost Principles for Nonprofit
Organizations (OMB CircularA-122) is applicable to the Federal
assistance awards issued to the Councils.
(2) The purpose of the cost principles at 2 CFR part 230 is to
define what
[[Page 27]]
costs can be paid on Federal awards issued to non-profit organizations.
The regulation establishes both general principles and detailed items of
costs.
(3) Under 2 CFR part 230, costs for certain lobbying activities are
unallowable as charges to Federal awards. These activities would include
any attempts to influence:
(i) The introduction of Federal or state legislation;
(ii) The enactment or modification of any pending legislation by
preparing, distributing, or using publicity or propaganda, or by urging
members of the general public to contribute to or to participate in any
demonstration, march, rally, fundraising drive, lobbying campaign, or
letter writing or telephone campaign.
(4) Generally, costs associated with providing a technical and
factual presentation directly related to the performance of a grant,
through hearing testimony, statements, or letters to Congress or a state
legislature are allowable if made in response to a documented request.
(5) Costs associated with lobbying to influence state legislation in
order to reduce the cost or to avoid material impairment of the
organization's authority to perform the grant are also allowable.
[75 FR 59152, Sept. 27, 2010]
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 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.
(3) A member of an SSC shall be treated as an affected individual
for the purposes of paragraphs (b)(1), (b)(5) through (b)(7), and (i) of
this section.
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 Form means NOAA Form 88-195, ``STATEMENT OF
FINANCIAL INTERESTS For Use By Voting Members of, and Nominees to, the
Regional Fishery Management Councils, and Members of the Scientific and
Statistical Committee (SSC)'' or such other form as the Secretary may
prescribe.
Financial interest in harvesting, processing, lobbying, advocacy, or
marketing (1) includes:
(i) Stock, equity, or other ownership interests in, or employment
with, any company, business, fishing vessel, or other entity or
employment with any entity that has any percentage ownership in or by
another entity engaging in any harvesting, processing, lobbying,
advocacy, 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
[[Page 28]]
company or other entity or employment with any entity that has any
percentage ownership in or by another entity that provides equipment or
other services essential to harvesting, processing, lobbying, advocacy,
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 any harvesting, processing, lobbying,
advocacy, or marketing activities, or companies or other entities
providing services essential to harvesting, processing, lobbying,
advocacy, or marketing activities in any fishery under the jurisdiction
of the Council concerned; and
(iv) Employment with an entity that has any percentage ownership in
or by another entity providing consulting, legal, or representational
services to any entity engaging in, or providing equipment or services
essential to harvesting, processing, lobbying, advocacy, 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 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
of any financial interest in harvesting, processing, lobbying, advocacy,
or marketing activity that is being, or will be, undertaken within any
fishery over which the Council concerned has jurisdiction. An affected
individual must disclose such financial interest held by that
individual; 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 the Financial
Interest Form (as defined in paragraph (a) of this section), or such
other form as the Secretary may prescribe.
(2) The Financial Interest Form must be filed by each nominee for
Secretarial appointment to the Council with the Assistant Administrator
by April 15 or, if nominated after March 15, one 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, regardless of
whether any information has changed on that form.
(3) The Executive Director must, in a timely manner, provide copies
of and updates to the Financial Interest Forms of appointed Council
members to the NMFS Regional Administrator, the Regional Attorney who
advises the Council, the Department of Commerce Assistant General
Counsel for Administration, and the NMFS Office of Sustainable
Fisheries. These completed Financial Interest Forms shall be kept on
file in the office of the NMFS Regional Administrator and at the Council
offices, and shall be made available for public inspection at such
offices during normal office hours. In addition, the forms shall be made
available at each Council meeting or hearing and shall be posted for
download from the Internet on the Council's website.
(4) Councils must retain the Financial Interest Form for a Council
member for at least 5 years after the expiration of that individual's
last term.
[[Page 29]]
(5) An individual being considered for appointment to an SSC must
file the Financial Interest Form with the Regional Administrator for the
geographic area concerned within 45 days prior to appointment. A member
of the SSC must file an update of his or her statement with the Regional
Administrator for the geographic area concerned within 30 days of the
time any such financial interest is acquired or substantially changed by
the SSC member or the SSC member'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 Regional
Administrator by February 1 of each year.
(6) An individual who serves as an SSC member to more than one
Council shall file Financial Interest Forms with each Regional
Administrator for the geographic areas concerned.
(7) The Regional Administrator shall maintain on file the Financial
Interest Forms of all SSC members for at least five years after the
expiration of that individual's term on the SSC. Such Forms are not
subject to sections 302(j)(5)(B) and (C) of the Magnuson-Stevens Act.
(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, lobbying, advocacy, 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 the
determining factor.
(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.
(4) A member of an SSC is not subject to the restrictions on voting
under this section.
(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 and identify the financial
interest that would be affected.
(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.
(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
[[Page 30]]
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) The provisions of 18 U.S.C. 208 regarding conflicts of interest
do not apply to an affected individual who is a voting member of a
Council appointed by the Secretary, as described under section
302(j)(1)(A)(ii) of the Magnuson-Stevens Act, and who is in compliance
with the requirements of this section for filing a financial disclosure
report. The provisions of 18 U.S.C. 208 do not apply to a member of an
SSC, unless that individual is an officer or employee of the United
States or is otherwise covered by the requirements of 18 U.S.C. 208.
(i) 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 or SSC membership.
[63 FR 64185, Nov. 19, 1998, as amended at 75 FR 59152, Sept. 27, 2010]
Effective Date Note: At 85 FR 56182, Sept. 11, 2020, Sec.600.235
was amended in paragraph (a), by adding the definitions for ``Close
causal link,'' ``Expected and substantially disproportionate benefit,''
and ``Significant financial interest;'', by redesignating paragraphs
(b)(5) through (b)(7) and (c)(4) as paragraphs (b)(6) through (b)(8) and
[[Page 31]]
(c)(7), revising the section heading, the new paragraph (b)(8), and
paragraphs (c)(3), (f) introductory text, (f)(1), paragraphs (g)(2) and
(h), and by adding new paragraphs (b)(5), (c)(4), (5) and (6) and
paragraph (f)(6), effective Oct. 13, 2020. For the convenience of the
user, the added and revised text is set forth as follows:
Sec.600.235 Financial disclosure and recusal.
(a) * * *
Close causal link means that a Council decision would reasonably be
expected to directly impact or affect the financial interests of an
affected individual.
* * * * *
Expected and substantially disproportionate benefit means a positive
or negative impact with regard to a Council decision that is likely to
affect a fishery or sector of a fishery in which the affected individual
has a significant financial interest.
* * * * *
Significant financial interest means:
(1) A greater than 10-percent interest in the total harvest of the
fishery or sector of the fishery affected by the Council decision;
(2) A greater than 10-percent interest in the marketing or
processing of the total harvest of the fishery or sector of the fishery
affected by the Council decision; or
(3) 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
affected by the Council decision.
* * * * *
(b) * * *
(5) The Regional Administrator must retain the Financial Interest
Form for a Council member for 20 years from the date the form is signed
by the Council member or in accordance with the current NOAA records
schedule.
* * * * *
(8) The Regional Administrator must retain the Financial Interest
Forms of all SSC members for at least five years after the expiration of
that individual's term on the SSC. Such forms are not subject to
sections 302(j)(5)(B) and (C) of the Magnuson-Stevens Act.
(c) * * *
(3) In making a determination under paragraph (f) of this section as
to whether a Council decision will have a significant and predictable
effect on an affected individual's financial interests, the designated
official will:
(i) Initially determine whether the action before the Council is a
Council decision, and whether the affected individual has any financial
interest in the fishery or sector of the fishery affected by the action.
(ii) If the designated official determines that the action is not a
Council decision or that the affected individual does not have any
financial interest in the fishery or sector of the fishery affected by
the action, the designated official's inquiry ends and the designated
official will determine that a voting recusal is not required under 50
CFR 600.235.
(iii) However, if the designated official determines that the action
is a Council decision and that the affected individual has a financial
interest in the fishery or sector of the fishery affected by the Council
decision, a voting recusal is required under 50 CFR 600.235 if there is:
(A) An expected and substantially disproportionate benefit to the
affected individual's financial interest (see paragraph (c)(5) of this
section), and
(B) A close causal link (see paragraph (c)(4) of this section)
between the Council decision and the expected and substantially
disproportionate benefit to the affected individual's financial
interest.
(4) A close causal link for Council decisions that either require or
do not require implementing regulations is determined as follows:
(i) For all Council decisions that require implementing regulations
and that affect a fishery or sector of a fishery in which an affected
individual has a financial interest, a close causal link exists unless:
(A) The chain of causation between the Council decision and the
affected individual's financial interest is attenuated or is contingent
on the occurrence of events that are speculative or that are independent
of and unrelated to the Council decision; or
(B) There is no real, as opposed to speculative, possibility that
the Council decision will affect the affected individual's financial
interest.
(ii) For Council decisions that do not require implementing
regulations, a close causal link exists if there is a real, as opposed
to speculative, possibility that the Council decision will affect the
affected individual's financial interest.
(5) A designated official will determine that an expected and
substantially disproportionate benefit exists if an affected individual
has a significant financial interest (see paragraph (c)(6) of this
section) in the fishery or sector of the fishery that is likely to be
positively or negatively affected by the Council decision. The magnitude
of the positive or negative impact is not determinative of whether there
is an expected and substantially disproportionate benefit. The
determining factor is the affected individual's significant financial
interest in the fishery or
[[Page 32]]
sector of the fishery affected by the Council decision.
(6) When calculating significant financial interest, the designated
official will rely on certain information.
(i) The information to be used is as follows:
(A) The designated official will use the information included in the
Financial Interest Form and any other reliable and probative information
provided in writing.
(B) The designated official may contact an affected individual to
better understand the reported financial interest or any information
provided in writing.
(C) The designated official will presume that the information
reported on the Financial Interest Form is true and correct and the
designated official is not responsible for determining the veracity of
the reported information when preparing a determination under paragraph
(f) of this section.
(D) If an affected individual does not provide information
concerning the specific percentage of ownership of a financial interest
reported on his or her Financial Interest Form, the designated official
will attribute all harvesting, processing, or marketing activity of, and
vessels owned by, the financial interest to the affected individual.
(ii) The designated official will apply the following principles
when calculating an affected individual's financial interests relative
to the significant financial interest thresholds for the fishery or
sector of the fishery affected by the action. For purposes of this
paragraph, use of the term ``company'' includes any business, vessel, or
other entity.
(A) For attributions concerning direct ownership (companies owned by
or that employ an affected individual) the designated official will
attribute to an affected individual all harvesting, processing, and
marketing activity of, and all vessels owned by, a company when the
affected individual owns 100 percent of that company. If an affected
individual owns less than 100 percent of a company, the designated
official will attribute to the affected individual the harvesting,
processing, and marketing activity of, and vessels owned by, the company
commensurate with the affected individual's percentage of ownership. The
designated official will attribute to an affected individual all
harvesting, processing, and marketing activity of, and all vessels owned
by, a company that employs the affected individual.
(B) For attributions concerning indirect ownership (companies owned
by an affected individual's company or employer) the designated official
will attribute to the affected individual the harvesting, processing,
and marketing activity of, and vessels owned by, a company that is owned
by that affected individual's company or employer commensurate with the
affected individual's percentage ownership in the directly owned
company, and the directly owned company's ownership in the indirectly
owned company.
(C) For attributions concerning parent ownership (companies that own
some percentage of an affected individual's company or employer) the
designated official will attribute to an affected individual all
harvesting, processing, and marketing activity of, and all vessels owned
by, a company that owns fifty percent or more of a company that is owned
by the affected individual or that employs the affected individual. The
designated official will not attribute to an affected individual the
harvesting, processing, or marketing activity of, or any vessels owned
by, a company that owns less than fifty percent of a company that is
owned by the affected individual or that employs the affected
individual.
(D) For attributions concerning employment or service with
associations or organizations, an affected individual may be employed by
or serve, either compensated or unpaid, as an officer, director, board
member or trustee of an association or organization. The designated
official will not attribute to the affected individual the vessels owned
by, or the harvesting, processing, or marketing activity conducted by,
the members of that association or organization if such organization or
association, as an entity separate from its members, does not own any
vessels and is not directly engaged in harvesting, processing or
marketing. However, if such organization or association receives from
NMFS an allocation of harvesting or processing privileges, owns vessels,
or is directly engaged in harvesting, processing or marketing, the
designated official will attribute to the affected individual the
vessels owned by, and all harvesting, processing, and marketing activity
of, that association or organization.
(E) For the financial interests of a spouse, partner or minor child,
the designated official will consider the following factors for
ownership and employment.
(1) For the financial interests of a spouse, partner or minor child
related to ownership, the designated official will attribute to an
affected individual all harvesting, processing, and marketing activity
of, and all vessels owned by, a company when the affected individual's
spouse, partner or minor child owns 100 percent of that company. If an
affected individual's spouse, partner or minor child owns less than 100
percent of a company, the designated official will attribute to the
affected individual the harvesting, processing, and marketing activity
of, and vessels owned by, the company commensurate with the spouse's,
partner's or minor child's percentage of ownership.
[[Page 33]]
(2) For the financial interests of a spouse, partner or minor child
related to employment, the designated official will not attribute to an
affected individual the harvesting, processing, or marketing activity
of, or any vessels owned by, a company that employs the affected
individual's spouse, partner or minor child when the spouse's, partner's
or minor child's compensation are not influenced by, or fluctuate with,
the financial performance of the company. The designated official will
attribute to an affected individual all harvesting, processing, and
marketing activity of, and all vessels owned by, a company that employs
the Council member's spouse, partner or minor child when the spouse's,
partner's or minor child's compensation are influenced by, or fluctuate
with, the financial performance of the company.
* * * * *
(f) Process and procedure for determination. (1) At the request of
an affected individual, and as provided under paragraphs (c)(3)-(6) of
this section, 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. Unless subject to
confidentiality requirements, 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.
* * * * *
(6) Regional Recusal Determination Procedure Handbooks shall be
developed for reach NMFS Region.
(i) Each NMFS Regional Office, in conjunction with NOAA Office of
General Counsel, will publish and make available to the public its
Regional Recusal Determination Procedure Handbook, which explains the
process and procedure typically followed in preparing and issuing
recusal determinations.
(ii) A Regional Recusal Determination Procedure Handbook must
include:
(A) A statement that the Regional Recusal Determination Procedure
Handbook is intended as guidance to describe the recusal determination
process and procedure typically followed within the region.
(B) Identification of the Council(s) to which the Regional Recusal
Determination Procedure Handbook applies. If the Regional Recusal
Determination Procedure Handbook applies to multiple Councils, any
procedure that applies to a subset of those Councils should clearly
identify the Council(s) to which the procedure applies.
(C) A description of the process for identifying the fishery or
sector of the fishery affected by the action before the Council.
(D) A description of the process for preparing and issuing a recusal
determination relative to the timing of a Council decision.
(E) A description of the process by which the Council, Council
members, and the public will be made aware of recusal determinations.
(F) A description of the process for identifying the designated
official(s) who will prepare recusal determinations and attend Council
meetings.
(iii) A Regional Recusal Determination Procedure Handbook may
include additional material related to the region's process and
procedure for recusal determinations not specifically identified in
paragraph (f)(6)(ii) of this section. A Regional Recusal Determination
Procedure Handbook may be revised at any time upon agreement by the NMFS
Regional Office and NOAA Office of General Counsel.
(g) * * *
(2) A Council member may request a review of any aspect of the
recusal determination, including but not limited to, whether the action
is a Council decision, the description of the fishery or sector of the
fishery affected by the Council action, the calculation of an affected
individual's financial interests or the finding of a significant
financial interest, and the existence of a close causal link. A request
for review must include a full statement in support of the review,
including a concise statement as to why the Council member believes that
the recusal determination is in error and why the designated official's
determination should be reversed.
* * * * *
(h) The provisions of 18 U.S.C. 208 regarding conflicts of interest
do not apply to an affected individual who is a voting member of a
Council appointed by the Secretary, as described under section
302(j)(1)(A)(ii) of the Magnuson-Stevens Act, and who is in compliance
with the requirements of this section for filing a Financial Interest
Form. The provisions of 18 U.S.C. 208 do not apply to a member of an
SSC, unless that individual is an officer or employee of the United
States or is otherwise covered by the requirements of 18 U.S.C. 208.
* * * * *
Sec.600.240 Security assurances.
(a) DOC Office of Security will issue security assurances to Council
members following completion of favorable
[[Page 34]]
background investigations. A Council member's appointment is conditional
until such time as the background investigation has been favorably
adjudicated. The Secretary will revoke the member's appointment if that
member receives an unfavorable background investigation. 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., Department of State, U.S. Coast Guard) 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.
[61 FR 32540, June 24, 1996, as amended 75 FR 59153, Sept. 27, 2010]
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]
Sec.600.250 Council member training.
(a) The Secretary shall provide a training course covering a variety
of topics relevant to matters before the Councils and shall make the
training course available to all Council members and staff and staff
from NMFS regional offices and science centers. To the extent resources
allow, the Secretary will make the training available to Council
committee and advisory panel members.
(b) Council members appointed after January 12, 2007, shall, within
one year of appointment, complete the training course developed by the
Secretary. Any Council member who completed such a training course
within 24 months of
[[Page 35]]
January 12, 2007, is considered to have met the training requirement of
this section.
[75 FR 59154, Sept. 27, 2010]
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 (MSA), and other applicable law. The Secretary
has an obligation under section 301(b) of the MSA to inform the Councils
of the Secretary's interpretation of the national standards so that they
will have an understanding of the basis on which FMPs will be reviewed.
(3) The national standards are statutory principles that must be
followed in any FMP. The guidelines summarize Secretarial
interpretations that have been, and will be, applied under these
principles. The guidelines are intended as aids to decision-making; FMPs
formulated according to the guidelines will have a better chance for
expeditious Secretarial review, approval, and implementation. FMPs that
are not formulated according to the guidelines may not be approved by
the Secretary if the FMP or FMP amendment is inconsistent with the MSA
or other applicable law (16 U.S.C. 1854(a)(3)).
(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) To reflect the changing needs of the fishery over time, Councils
should reassess the FMP's management objectives on a regular basis.
(3) 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) Stocks that require conservation and management. (1) Magnuson-
Stevens Act section 302(h)(1) requires a Council to prepare an FMP for
each fishery under its authority that requires (or in other words, is in
need of) conservation and management. 16 U.S.C. 1852(h)(1). Not every
fishery requires Federal management. Any stocks that are predominately
caught in Federal waters and are overfished or subject to overfishing,
or likely to become overfished or subject to overfishing, are considered
to require conservation and management. Beyond such stocks, Councils may
determine that additional stocks require ``conservation and
management.'' (See Magnuson-Stevens Act definition at 16 U.S.C.
1802(5)). Based on this definition of conservation and management, and
other relevant provisions of the Magnuson-Stevens Act, a Council should
consider the following non-exhaustive list of factors when deciding
whether additional stocks require conservation and management:
(i) The stock is an important component of the marine environment.
(ii) The stock is caught by the fishery.
(iii) Whether an FMP can improve or maintain the condition of the
stock.
[[Page 36]]
(iv) The stock is a target of a fishery.
(v) The stock is important to commercial, recreational, or
subsistence users.
(vi) The fishery is important to the Nation or to the regional
economy.
(vii) The need to resolve competing interests and conflicts among
user groups and whether an FMP can further that resolution.
(viii) The economic condition of a fishery and whether an FMP can
produce more efficient utilization.
(ix) The needs of a developing fishery, and whether an FMP can
foster orderly growth.
(x) The extent to which the fishery is already adequately managed by
states, by state/Federal programs, or by Federal regulations pursuant to
other FMPs or international commissions, or by industry self-regulation,
consistent with the requirements of the Magnuson-Stevens Act and other
applicable law.
(2) In evaluating factors in paragraphs (c)(1)(i) through (x) of
this section, a Council should consider the specific circumstances of a
fishery, based on the best scientific information available, to
determine whether there are biological, economic, social and/or
operational concerns that can and should be addressed by Federal
management.
(3) When considering adding a stock to an FMP, no single factor is
dispositive or required. One or more of the above factors, and any
additional considerations that may be relevant to the particular stock,
may provide the basis for determining that a stock requires conservation
and management. Based on the factor in paragraph (c)(1)(iii) of this
section, if the amount and/or type of catch that occurs in Federal
waters is a significant contributing factor to the stock's status, such
information would weigh heavily in favor of adding a stock to an FMP.
However, Councils should consider the factor in paragraph (c)(1)(x) of
this section before deciding to include a stock in an FMP. In many
circumstances, adequate management of a fishery by states, state/Federal
programs, or another Federal FMP would weigh heavily against a Federal
FMP action. See, e.g., 16 U.S.C. 1851(a)(7) and 1856(a)(3).
(4) When considering removing a stock from, or continuing to include
a stock in, an FMP, Councils should prepare a thorough analysis of
factors in paragraphs (c)(1)(i) through (x) of this section, and any
additional considerations that may be relevant to the particular stock.
As mentioned in paragraph (c)(3) of this section, if the amount and/or
type of catch that occurs in Federal waters is a significant
contributing factor to the stock's status, such information would weigh
heavily in favor of continuing to include a stock in an FMP. Councils
should consider weighting the factors as follows. Factors in paragraphs
(c)(1)(i) through (iii) of this section should be considered first, as
they address maintaining a fishery resource and the marine environment.
See 16 U.S.C. 1802(5)(A). These factors weigh in favor of continuing to
include a stock in an FMP. Councils should next consider factors in
paragraphs (c)(1)(iv) through (ix) of this section, which set forth key
economic, social, and other reasons contained within the MSA for an FMP
action. See 16 U.S.C. 1802(5)(B). Finally, a Council should consider the
factor in paragraph (c)(1)(x) of this section before deciding to remove
a stock from, or continue to include a stock in, an FMP. In many
circumstances, adequate management of a fishery by states, state/Federal
programs, or another Federal FMP would weigh in favor of removing a
stock from an FMP. See e.g., 16 U.S.C. 1851(a)(7) and 1856(a)(3).
(5) Councils may choose to identify stocks within their FMPs as
ecosystem component (EC) species (see Sec.Sec.600.305(d)(13) and
600.310(d)(1)) if a Council determines that the stocks do not require
conservation and management based on the considerations and factors in
paragraph (c)(1) of this section. EC species may be identified at the
species or stock level, and may be grouped into complexes. Consistent
with National Standard 9, MSA section 303(b)(12), and other applicable
MSA sections, management measures can be adopted in order to, for
example, collect data on the EC species, minimize bycatch or bycatch
mortality of EC species, protect the associated role of
[[Page 37]]
EC species in the ecosystem, and/or to address other ecosystem issues.
(6) A stock or stock complex may be identified in more than one FMP.
In this situation, the relevant Councils should choose which FMP will be
the primary FMP in which reference points for the stock or stock complex
will be established. In other FMPs, the stock or stock complex may be
identified as ``other managed stocks'' and management measures that are
consistent with the objectives of the primary FMP can be established.
(7) Councils should periodically review their FMPs and the best
scientific information available and determine if the stocks are
appropriately identified. As appropriate, stocks should be reclassified
within an FMP, added to or removed from an existing FMP, or added to a
new FMP, through an FMP amendment that documents the rationale for the
decision.
(d) Word usage within the National Standard Guidelines. 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 statement of organization, practices, and procedures (SOPP)
or an FMP.
(4) May is used in a permissive sense.
(5) Will is used descriptively, as distinguished from denoting an
obligation to act or the future tense.
(6) Could is used when giving examples, in a hypothetical,
permissive sense.
(7) Can is used to mean ``is able to,'' as distinguished from
``may.''
(8) Examples are given by way of illustration and further
explanation. They are not inclusive lists; they do not limit options.
(9) 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.
(10) Council includes the Secretary, as applicable, when preparing
FMPs or amendments under section 304(c) and (g) of the Magnuson-Stevens
Act.
(11) Target stocks are stocks or stock complexes that fishers seek
to catch for sale or personal use, including such fish that are
discarded for economic or regulatory reasons as defined under Magnuson-
Stevens Act section 3(9) and 3(38).
(12) Non-target species and non-target stocks are fish caught
incidentally during the pursuit of target stocks in a fishery. Non-
target stocks may require conservation and management and, if so, must
be included in a FMP and be identified at the stock or stock complex
level. If non-target species are not in need of conservation and
management, they may be identified in an FMP as ecosystem component
species.
(13) Ecosystem Component Species (see Sec. Sec.600.305(c)(5) and
600.310(d)(1)) are stocks that a Council or the Secretary has determined
do not require conservation and management, but desire to list in an FMP
in order to achieve ecosystem management objectives.
(e) Relationship of National Standard 1 to other national
standards--General. National Standard 1 addresses preventing overfishing
and achieving optimum yield. See 16 U.S.C. 1851(a)(1) and 50 CFR
600.310. National Standards 2 through 10 provide further requirements
for conservation and management measures in FMPs. See 16 U.S.C.
1851(a)(2) through (10) and 50 CFR 600.315 through 600.355. Below is a
description of how some of the other National Standards intersect with
National Standard 1.
(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 Sec.600.310(e)(1)(v)(B)). In cases where
scientific data are severely limited, effort should also be directed to
identifying and gathering the needed data. SSCs
[[Page 38]]
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 Sec.
600.310(e)(1)(ii) and (iii)).
(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
addresses economic and social considerations and minimizing to the
extent practicable adverse economic impacts on fishing communities
within the context of preventing overfishing and rebuilding overfished
stocks as required under National Standard 1 and other MSA provisions.
Calculation of OY as reduced from maximum sustainable yield (MSY) also
includes consideration of 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.
[81 FR 71893, Oct. 18, 2016]
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.
(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 in an FMP;
(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 (i.e., accountability measures (AMs)); 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
must not jeopardize the capacity of a stock or stock complex to produce
MSY; the abundance of an overfished stock or stock complex must be
rebuilt to a level that is capable of producing MSY; and OY must 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 an FMP's 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)(A) and (B) 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 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)).
(iv) Reference points. SDC, MSY, OY, 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.''
[[Page 39]]
(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 (paragraphs (b)(2)(v)(A) through (D) of this section). See
the National Standard 2 guidelines for further guidance on SSCs and the
peer review process (Sec.600.315).
(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
to be 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 both the SSC and peer review
process should work in conjunction with each other. 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 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. When specifying limits and
accountability measures, Councils must take an approach that considers
uncertainty in scientific information and management control of the
fishery. These guidelines describe how the Councils could address
uncertainty such that there is a low risk that limits are exceeded as
described in paragraphs (f)(2) and (g)(4) of this section.
(4) Vulnerability. A stock's vulnerability to fishing pressure 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 of the fishery (e.g., loss of habitat quality).
(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. Councils must describe fisheries data for the stocks and
stock complexes in their FMPs, or associated public documents such as
Stock Assessment and Fishery Evaluation (SAFE) Reports. For all stocks
and stock complexes that require conservation and management (see Sec.
600.305(c)), 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 and to achieve OY:
(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)(2) of this section).
(4) Mechanisms for specifying ACLs (see paragraph (f)(4) of this
section).
(5) AMs (see paragraph (g) of this section).
(6) Stocks and stock complexes that have statutory exceptions from
ACLs and AMs (see paragraph (h)(1) of this section) or which fall under
limited circumstances which require different approaches to meet the
Magnuson-Stevens Act requirements (see paragraph (h)(2) of this
section).
[[Page 40]]
(d) Stocks and stock complexes--
(1) Introduction. As described in Sec.600.305(c), Councils should
identify in their FMPs the stocks that require conservation and
management. Such stocks must have ACLs, other reference points, and
accountability measures. Other stocks that are identified in an FMP
(i.e., EC species or stocks that the fishery interacts with but are
managed primarily under another FMP, see Sec.600.305(c)(5) through
(6)) do not require ACLs, other reference points, or accountability
measures.
(2) Stock complex. Stocks that require conservation and management
can be grouped into stock complexes. A ``stock complex'' is a tool to
manage a group of stocks within a FMP.
(i) At the time a stock complex is established, the FMP should
provide, to the extent practicable, a full and explicit description of
the proportional composition of each stock in the stock complex. Stocks
may be grouped into complexes for various reasons, including where
stocks in a multispecies fishery cannot be targeted independent of one
another; where there is insufficient data to measure a stock's status
relative to SDC; or when it is not feasible for fishermen to distinguish
individual stocks among their catch. Where practicable, the group of
stocks should have a similar geographic distribution, life history
characteristics, and vulnerabilities to fishing pressure such that the
impact of management actions on the stocks is similar. The vulnerability
of individual stocks should be considered when determining if a
particular stock complex should be established or reorganized, or if a
particular stock should be included in a complex.
(ii) Indicator stocks. (A) An indicator stock is a stock with
measurable and objective SDC that can be used to help manage and
evaluate more poorly known stocks that are in a stock complex.
(B) Where practicable, stock complexes should include one or more
indicator stocks (each of which has SDC and ACLs). Otherwise, stock
complexes may be comprised of: Several stocks without an indicator stock
(with SDC and an ACL for the complex as a whole), or one or 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). Councils should review the available quantitative
or qualitative information (e.g., catch trends, changes in
vulnerability, fish health indices, etc.) of stocks within a complex on
a regular basis to determine if they are being sustainably managed.
(C) If an indicator stock is used to evaluate the status of a
complex, it should be representative of the typical vulnerability of
stocks within the complex. If the stocks within a stock complex have a
wide range of vulnerability, they 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 should
be more conservative so that the more vulnerable members of the complex
are not at risk from the fishery.
(D) More than one indicator stock can be selected to provide more
information about the status of the complex.
(E) 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)(v) of this
section.
(e) Features of MSY, SDC, and OY-- (1) MSY. Each FMP must include an
estimate of MSY for the stocks and stock complexes that require
conservation and management. MSY may also be specified for the fishery
as a whole.
(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.
[[Page 41]]
(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. When stock complexes are used, MSY
should be estimated for one or more indicator stocks or for the complex
as a whole (see paragraph (d)(2)(ii)).
(iv) Methods of estimating MSY for an aggregate group of stocks.
Estimating MSY for an aggregate group of stocks (including stock
complexes and the fishery as a whole) can be done using models that
account for multi-species interactions, composite properties for a group
of similar species, biomass (energy) flow and production patterns, or
other relevant factors (see paragraph (e)(3)(iv)(C) of this section).
(v) Specifying MSY. (A) 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.
(B) When data are insufficient to estimate MSY directly, Councils
should adopt other measures of reproductive potential that can serve as
reasonable proxies for MSY, Fmsy, and Bmsy.
(C) The MSY for a stock or stock complex is influenced by its
interactions with other stocks in its ecosystem and these interactions
may shift as multiple stocks in an ecosystem are fished. Ecological and
environmental information should be taken into account, to the extent
practicable, when assessing stocks and specifying MSY. Ecological and
environmental information that is not directly accounted for in the
specification of MSY can be among the ecological factors considered when
setting OY below MSY.
(D) 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 identified, when practicable,
through the stock assessment process and peer review (see Sec.
600.335), and should be taken into account when specifying the ABC
Control rule (see paragraph (f)(2) of this section).
(2) Status determination criteria--(i) Definitions. (A) Status
determination criteria (SDC) mean the measurable and objective 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 occurs whenever a stock or stock complex is
subjected to a level of fishing mortality or 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 (i.e. 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.
(E) Overfished. A stock or stock complex is considered
``overfished'' when its biomass has declined below MSST.
(F) Minimum stock size threshold (MSST) means the level of biomass
[[Page 42]]
below which the capacity of the stock or stock complex to produce MSY on
a continuing basis has been jeopardized.
(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. Each FMP must describe how objective and measurable SDCs
will be specified, as described in paragraphs (e)(2)(ii)(A) and (B) of
this section. To be measurable and objective, SDC must be expressed in a
way that enables the Council to monitor the status of each stock or
stock complex in the FMP. Applying the SDC set forth in the FMP, the
Secretary determines if overfishing is occurring and whether the stock
or stock complex is overfished (Magnuson-Stevens Act section 304(e)).
SDCs are often based on fishing rates or biomass levels associated with
MSY or MSY based proxies. When data are not available to specify SDCs
based on MSY or MSY proxies, alternative types of SDCs that promote
sustainability of the stock or stock complex can be used. For example,
SDC could be based on recent average catch, fish densities derived from
visual census surveys, length/weight frequencies, or other methods. In
specifying SDC, a Council must provide an analysis of how the SDC were
chosen and how they relate to reproductive potential of stocks of fish
within the fishery. If alternative types of SDCs are used, the Council
should explain how the approach will promote sustainability of the stock
or stock complex on a long term basis. A Council should consider a
process that allows SDCs to be quickly updated to reflect the best
scientific information available. In the case of internationally-managed
stocks, the Council may decide to use the SDCs defined by the relevant
international body. In this instance, the SDCs should allow the Council
to monitor the status of a stock or stock complex, recognizing that the
SDCs may not be defined in such a way that a Council could monitor the
MFMT, OFL, or MSST as would be done with a domestically managed stock or
stock complex.
(A) SDC to Determine Overfishing Status. Each FMP must specify a
method used to determine the overfishing status for each stock or stock
complex. For domestically-managed stocks or stock complexes, one of the
following methods (described in (e)(2)(ii)(A)(1) and (2) of this
section) should be specified. If the necessary data to use one of the
methods described in either subparagraph (e)(2)(ii)(A)(1) or (2) is not
available, a Council may use an alternate type of overfishing SDC as
described in paragraph (e)(2)(ii).
(1) Fishing Mortality Rate Exceeds MFMT. Exceeding the MFMT for a
period of 1 year constitutes overfishing.
(2) Catch Exceeds the OFL. Exceeding the annual OFL for 1 year
constitutes overfishing.
(3) Multi-Year Approach to Determine Overfishing Status.
Subparagraphs (e)(2)(ii)(A) (1) and (2) establish methods to determine
overfishing status based on a period of 1 year. As stated in paragraph
(e)(2)(ii)(A), a Council should specify, within the FMP, which of these
methods will be used to determine overfishing status. However, in
certain circumstances, a Council may utilize a multi-year approach to
determine overfishing status based on a period of no more than 3 years.
The Council should identify in its FMP or FMP amendment, circumstances
when the multi-year approach is appropriate and will be used. Such
circumstances may include situations where there is high uncertainty in
the estimate of F in the most recent year, cases where stock abundance
fluctuations are high and assessments are not timely enough to forecast
such changes, or other circumstances where the most recent catch or F
data does not reflect the overall status of the stock. The multi-year
approach to determine overfishing status may not be used to specify
future annual catch limits at levels that do not prevent 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. MSST should be between \1/2\ Bmsy and
Bmsy, and could be informed by
[[Page 43]]
the life history of the stock, the natural fluctuations in biomass
associated with fishing at MFMT over the long-term, the requirements of
internationally-managed stocks, or other considerations.
(C) Where practicable, all sources of mortality including that
resulting from bycatch, scientific research catch, and all fishing
activities should be accounted for in the evaluation of stock status
with respect to reference points.
(iii) Relationship of SDC to environmental and habitat 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 may 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 (see also paragraph (j)(3)(i) of this
section). SDC should not be respecified.
(B) If environmental, ecosystem, or habitat 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's biomass being below MSST, 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) Is based on the best scientific information available;
(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. For stocks that require conservation and
management, OY may be established at the stock, stock complex, or
fishery level.
(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.
(B) In NS1, use of the phrase ``achieving, on a continuing basis,
the OY from each fishery'' means: producing, from each stock, stock
complex, or fishery, an amount of catch that is, on average, equal to
the Council's specified OY; prevents overfishing; maintains the long
term average biomass near or above Bmsy; and rebuilds
overfished stocks and stock complexes 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. If these measures cannot meet the dual
requirements of NS1
[[Page 44]]
(preventing overfishing while achieving, on a continuing basis, OY),
Councils should either modify the measures or reexamine their OY
specifications to ensure that the dual NS1 requirements can be met.
(iii) Assessing OY. An FMP must contain an assessment and
specification of OY (MSA section 303(a)(3)). The assessment should
include: a summary of information utilized in making such specification;
an explanation of how the OY specification will produce the greatest
benefits to the nation and prevent overfishing and rebuild overfished
stocks; and a consideration of the economic, social, and ecological
factors relevant to the management of a particular stock, stock complex,
or fishery. Consistent with Magnuson-Stevens Act section 302(h)(5), the
assessment and specification of OY should be reviewed on a continuing
basis, so that it is responsive to changing circumstances in the
fishery.
(A) 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, or its proxy, to obtain OY are:
(1) The benefits of food production 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.
(2) 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.
(3) 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 productive habitat, maintaining the evolutionary potential
of species and ecosystems, and accommodating human use.
(B) Economic, Ecological, and Social Factors. Councils should
consider the management objectives of their FMPs and their management
framework to determine the relevant social, economic, and ecological
factors used to determine OY. There will be inherent trade-offs when
determining the objectives of the fishery. The following is a non-
exhaustive list of potential considerations for social, economic, and
ecological factors.
(1) 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.), and preference for a particular type of
fishery (e.g., size of the fishing fleet, type of vessels in the fleet,
permissible gear types). 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 tribal
treaties, proportions of affected minority and low-income groups, and
worldwide nutritional needs.
(2) 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 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
[[Page 45]]
catch per unit of effort, alternate employment opportunities, and
economic contribution to fishing communities, coastal areas, affected
states, and the nation.
(3) Ecological factors. Examples include impacts on EC 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 or their
habitat, such as natural and manmade changes in wetlands or nursery
grounds, and effects of pollutants on habitat and stocks.
(iv) Specifying OY. 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.
(A) The OY can be expressed in terms of numbers or weight of fish,
and either as a single value or a range. When it is not possible to
specify OY quantitatively, OY may be described qualitatively.
(B) 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.
(C) An OY established at a fishery level may not exceed the sum of
the MSY values for each of the stocks or stocks complexes within the
fishery. Aggregate level MSY estimates could be used as a basis for
specifying OY for the fishery (see paragraph (e)(1)(iv) of this
section). When aggregate level MSY is estimated, single stock MSY
estimates can also be used to inform single stock management. For
example, OY could be specified for a fishery, while other reference
points are specified for individual stocks in order to prevent
overfishing on each stock within the fishery.
(D) For internationally-managed stocks, fishing levels that are
agreed upon by the U.S. at the international level are considered to be
consistent with OY requirements under the MSA and these guidelines.
(v) 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) The OY specification is the basis for establishing any total
allowable level of foreign fishing (TALFF).
(B) Part of the OY may be held as a reserve to allow for 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.
(C) 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.
(D) 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
[[Page 46]]
harvested by domestic vessels, but not processed (e.g., marketed as
fresh whole fish, used for private consumption, or used for bait).
(E) Joint venture processing (JVP). When DAH exceeds DAP, the
surplus is available for JVP.
(f) Acceptable biological catch and annual catch limits--(1)
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, which is based on an ABC control rule that
accounts for the scientific uncertainty in the estimate of OFL, any
other scientific uncertainty, and the Council's risk policy.
(iii) Annual catch limit (ACL) is a limit on the total annual catch
of a stock or stock complex, which cannot exceed the ABC, that serves as
the basis for invoking AMs. An ACL may be divided into sector-ACLs (see
paragraph (f)(4) of this section).
(iv) Control rule is a policy for establishing a limit or target
catch level that is based on the best scientific information available
and is established by the Council in consultation with its SSC.
(v) Management uncertainty refers to uncertainty in the ability of
managers to constrain catch so that the ACL is not exceeded, and the
uncertainty in quantifying the true catch amounts (i.e., estimation
errors). The sources of management uncertainty could include: Late catch
reporting; misreporting; underreporting of catches; lack of sufficient
inseason management, including inseason closure authority; or other
factors.
(vi) Scientific uncertainty refers to uncertainty in the information
about a stock and its reference points. Sources of scientific
uncertainty could include: Uncertainty in stock assessment results;
uncertainty in the estimates of MFMT, MSST, the biomass of the stock,
and OFL; time lags in updating assessments; the degree of retrospective
revision of assessment results; uncertainty in projections;
uncertainties due to the choice of assessment model; longer-term
uncertainties due to potential ecosystem and environmental effects; or
other factors.
(2) ABC control rule.-- (i) For stocks and stock complexes required
to have an ABC, each Council must establish an ABC control rule that
accounts for scientific uncertainty in the OFL and for the Council's
risk policy, and that is based on a comprehensive analysis that shows
how the control rule prevents overfishing. The Council's risk policy
could be based on an acceptable probability (at least 50 percent) that
catch equal to the stock's ABC will not result in overfishing, but other
appropriate methods can be used. When determining the risk policy,
Councils could consider the economic, social, and ecological trade-offs
between being more or less risk averse. The Council's choice of a risk
policy cannot result in an ABC that exceeds the OFL. The process of
establishing an ABC control rule may involve science advisors or the
peer review process established under Magnuson-Stevens Act section
302(g)(1)(E).
(ii) 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 taking into account scientific uncertainty (see
paragraph (f)(1)(vi) of this section). The ABC control rule should
consider reducing fishing mortality as stock size declines below
Bmsy and as scientific uncertainty increases, and may
establish a stock abundance level below which fishing would not be
allowed. When scientific uncertainty cannot be directly calculated, such
as when proxies are used, then a proxy for the uncertainty should be
established based on the best scientific information, including
comparison to other stocks. The control rule may be used in a tiered
approach to address different levels of scientific uncertainty. Councils
can develop ABC control rules that allow for changes in catch limits to
be phased-in over time or to account for the carry-over of some of the
unused portion of the ACL from one year to the next. The Council must
articulate within its FMP when
[[Page 47]]
the phase-in and/or carry-over provisions of the control rule can and
cannot be used and how each provision prevents overfishing, based on a
comprehensive analysis.
(A) Phase-in ABC control rules. Large changes in catch limits due to
new scientific information about the status of the stock can have
negative short-term effects on a fishing industry. To help stabilize
catch levels as stock assessments are updated, a Council may choose to
develop a control rule that phases in changes to ABC over a period of
time, not to exceed 3 years, as long as overfishing is prevented each
year (i.e., the phased-in catch level cannot exceed the OFL in any
year). In addition, the Councils should evaluate the appropriateness of
phase-in provisions for stocks that are overfished and/or rebuilding, as
the overriding goal for such stocks is to rebuild them in as short a
time as possible.
(B) Carry-over ABC control rules. An ABC control rule may include
provisions for the carry-over of some of the unused portion of an ACL
(i.e., an ACL underage) from one year to increase the ABC for the next
year, based on the increased stock abundance resulting from the fishery
harvesting less than the full ACL. The resulting ABC recommended by the
SSC must prevent overfishing and must consider scientific uncertainty
consistent with the Council's risk policy. Carry-over provisions could
also allow an ACL to be adjusted upwards as long as the revised ACL does
not exceed the specified ABC. When considering whether to use a carry-
over provision, Councils should consider the likely reason for the ACL
underage. ACL underages that result from management uncertainty (e.g.,
premature fishery closure) may be appropriate circumstances for
considering a carry-over provision. ACL underages that occur as a result
of poor or unknown stock status may not be appropriate to consider in a
carry-over provision. In addition, the Councils should evaluate the
appropriateness of carry-over provisions for stocks that are overfished
and/or rebuilding, as the overriding goal for such stocks is to rebuild
them in as short a time as possible.
(3) Specification of ABC. ABC may not exceed OFL (see paragraph
(e)(2)(i)(D) of this section). Councils and their SSC should develop a
process by which the SSC can access the best scientific information
available when implementing the ABC control rule (i.e., specifying the
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 provide an explanation for the deviation. For
Secretarial FMPs or amendments, agency scientists or a peer review
process would provide the scientific advice to establish ABC. For
internationally-assessed stocks, an ABC as defined in these guidelines
is not required if stocks fall under the international exception (see
paragraph (h)(1)(ii) of this section). 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.
(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 (i.e.,
Frebuild) in the rebuilding plan.
(4) 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 an Annual Catch Target (ACT), or functional equivalent,
is not used, management uncertainty should be accounted for in the ACL.
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
[[Page 48]]
``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 implemented 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. If sector-ACLs are used, sector-AMs should also be
specified. ``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 sector-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 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 16 U.S.C. 1856. 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.
(iv) Relationship between OY and the ACL framework. The dual goals
of NS1 are to prevent overfishing and achieve OY on a continuing basis.
The ABC is an upper limit on catch that prevents overfishing within an
established framework of risk and other considerations. As described in
paragraph (e)(3) of this section, ecological, economic, and social
factors, as well as values associated with determining the greatest
benefit to the Nation, are important considerations in specifying OY.
These types of considerations can also be considered in the ACL
framework. For example, an ACL (or ACT) could be set lower than the ABC
to account for ecological, economic, and social factors (e.g., needs of
forage fish, promoting stability, addressing market conditions, etc.).
Additionally, economic, social, or ecological trade-offs could be
evaluated when determining the risk policy for an ABC control rule (see
paragraph (f)(2) of this section). While OY is a long-term average
amount of desired yield, there is, for each year, an amount of fish that
is consistent with achieving the long-term OY. A Council can choose to
express OY on an annual basis, in which case the FMP or FMP amendment
should indicate that the OY is an ``annual OY.'' An annual OY cannot
exceed the ACL.
(g) Accountability measures (AMs)--(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. The FMP should identify what
sources of data will be used to implement AMs (e.g., inseason data,
annual catch compared to the ACL, or multi-year averaging approach).
(2) Inseason AMs. Whenever possible, FMPs should include inseason
monitoring and management measures to prevent catch from exceeding ACLs.
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Inseason AMs could include, but are not limited to: An annual catch
target (see paragraph (g)(4) of this section); 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 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 from the overage when it is known. These AMs could
include, among other things, modifications of inseason AMs, the use or
modification of ACTs, or overage adjustments. The type of AM chosen by a
Council will likely vary depending on the sector of the fishery, status
of the stock, the degree of the overage, recruitment patterns of the
stock, or other pertinent information. If an ACL is set equal to zero
and the AM for the fishery is a closure that prohibits fishing for a
stock, additional AMs are not required if only small amounts of catch
(including bycatch) occur, and the catch is unlikely to result in
overfishing. 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 overage, unless the best
scientific information available shows that a reduced overage
adjustment, or no adjustment, is needed to mitigate the effects of the
overage.
(4) Annual Catch Target (ACT) and ACT control rule. ACTs, or the
functional equivalent, are recommended in the system of AMs so that ACL
is not exceeded. An 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 catch at or below the ACL. ACT
control rules can be used to articulate how management uncertainty is
accounted for in setting the ACT. ACT control rules can be developed by
the Council, in coordination with the SSC, to help the Council account
for management uncertainty.
(5) 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, 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 if the average catch exceeds the average ACL, appropriate
AMs should be implemented consistent with paragraph (g)(3) of this
section.
(6) 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.
(7) Performance Standard. 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 reevaluated, and modified if necessary, to
improve its performance and effectiveness. If AMs are based on multi-
year average data, the performance standard is based on a comparison of
the average catch to the average ACL. A Council could choose a
[[Page 50]]
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.
(h) Establishing ACL mechanisms and AMs in FMPs. FMPs or FMP
amendments must establish ACL mechanisms and AMs for all stocks and
stock complexes that require conservation and management (see Sec.
600.305(c)), unless paragraph (h)(1) of this section is applicable.
These mechanisms should describe the annual or multiyear process by
which ACLs, AMs, and other reference points such as OFL and ABC will be
established.
(1) 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 have a life cycle of approximately 1 year unless the
Secretary has determined the fishery is subject to overfishing of that
species'' (Pub. L. 109-479 104(b)(2)). This exception applies to a stock
for which the average age of spawners in the population is approximately
1 year or less. 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'' (Pub.
L. 109-479 104(b)(1)). 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, MSY, and OY.
(2) 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, stocks with unusual life history characteristics
(e.g., Pacific salmon, where the spawning potential for a stock is
spread over a multi-year period), and stocks for which data are not
available either to set reference points based on MSY or MSY proxies, or
to manage to reference points based on MSY or MSY proxies. In these
circumstances, Councils may propose alternative approaches for
satisfying requirements of the Magnuson-Stevens Act other than those set
forth in these guidelines. Councils must document their rationale for
any alternative approaches 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 and stock complexes in their FMPs, 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 (e.g., 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 require conservation and
management.
(j) Council actions to address overfishing and rebuilding for stocks
and stock complexes--
[[Page 51]]
(1) Notification. The Secretary will immediately notify in writing a
Regional Fishery Management Council whenever the Secretary determines
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
(see MSA section 304(e)).
(2) Timing of actions--(i) If a stock or stock complex is undergoing
overfishing. Upon notification that a stock or stock complex is
undergoing overfishing, a Council should immediately begin working with
its SSC (or agency scientists or peer review processes in the case of
Secretarially-managed fisheries) to ensure that the ABC is set
appropriately to end overfishing. Councils should evaluate the cause of
overfishing, address the issue that caused overfishing, and reevaluate
their ACLs and AMs to make sure they are adequate.
(ii) If a stock or stock complex is overfished or approaching an
overfished condition. Upon notification that a stock or stock complex is
overfished or approaching an overfished condition, 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.
(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).
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,
where such probabilities can be calculated. The starting year for the
Tmin calculation should be the first year that the rebuilding
plan is expected to be implemented.
(B) The maximum time for rebuilding a stock or stock complex to its
Bmsy (Tmax).
(1) If Tmin for the stock or stock complex is 10 years or
less, then Tmax is 10 years.
(2) If Tmin for the stock or stock complex exceeds 10
years, then one of the following methods can be used to determine
Tmax:
(i) 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,
(ii) The amount of time the stock or stock complex is expected to
take to rebuild to Bmsy if fished at 75 percent of MFMT, or
(iii) Tmin multiplied by two.
(3) In situations where Tmin exceeds 10 years,
Tmax establishes a maximum time for rebuilding that is linked
to the biology of the stock. When selecting a method for determining
Tmax, a Council, in consultation with its SSC, should
consider the relevant biological data and scientific uncertainty of that
data, and must provide a rationale for its decision based on the best
scientific
[[Page 52]]
information available. One of the methods listed in subparagraphs
(j)(3)(i)(B)(2)(ii) and (iii) may be appropriate, for example, if given
data availability and the life history characteristics of the stock,
there is high uncertainty in the estimate of generation time, or if
generation time does not accurately reflect the productivity of the
stock.
(C) Target time to rebuilding a stock or stock complex
(Ttarget). Ttarget is the specified time period
for rebuilding a stock that is considered to be as short a time as
possible, taking into account the factors described in paragraph
(j)(3)(i) of this section. Ttarget shall not exceed
Tmax, and the fishing mortality associated with achieving
Ttarget is referred to as Frebuild.
(ii) Council action addressing an overfished fishery must allocate
both overfishing restrictions and recovery benefits fairly and equitably
among sectors of the fishery.
(iii) 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.
(iv) Adequate Progress. The Secretary shall review rebuilding plans
at routine intervals that may not exceed two years to determine whether
the plans have resulted in adequate progress toward ending overfishing
and rebuilding affected fish stocks (MSA section 304(e)(7)). Such
reviews could include the review of recent stock assessments,
comparisons of catches to the ACL, or other appropriate performance
measures. The Secretary may find that adequate progress is not being
made if Frebuild or the ACL associated with
Frebuild is exceeded, and AMs are not correcting the
operational issue that caused the overage, nor addressing any biological
consequences to the stock or stock complex resulting from the overage
when it is known (see paragraph (g)(3) of this section). A lack of
adequate progress may also be found when the rebuilding expectations of
a stock or stock complex are significantly changed due to new and
unexpected information about the status of the stock. If a determination
is made under this provision, the Secretary will notify the appropriate
Council and recommend further conservation and management measures, and
the Council must develop and implement a new or revised rebuilding plan
within two years (see MSA sections 304(e)(3) and (e)(7)(B)). For
Secretarially-managed fisheries, the Secretary would take immediate
action necessary to achieve adequate progress toward rebuilding and
ending overfishing.
(v) While a stock or stock complex is rebuilding, revising
rebuilding timeframes (i.e., Ttarget and Tmax) or
Frebuild is not necessary, unless the Secretary finds that
adequate progress is not being made.
(vi) If a stock or stock complex has not rebuilt by Tmax,
then the fishing mortality rate should be maintained at its current
Frebuild or 75 percent of the MFMT, whichever is less, until
the stock or stock complex is rebuilt or the fishing mortality rate is
changed as a result of the Secretary finding that adequate progress is
not being made.
(4) Emergency actions and interim measures. If a Council is
developing a rebuilding plan or revising an existing rebuilding plan due
to a lack of adequate progress (see MSA section 304(e)(7)), the
Secretary may, in response to a Council request, implement interim
measures that reduce, but do not necessarily end, overfishing (see MSA
section 304(e)(6)) if all of the following criteria are met:
(i) The interim measures are needed to address an unanticipated and
significantly changed understanding of the status of the stock or stock
complex;
(ii) Ending overfishing immediately is expected to result in severe
social and/or economic impacts to a fishery; and
(iii) The interim measures will ensure that the stock or stock
complex will increase its current biomass through the duration of the
interim measures.
(5) Discontinuing a rebuilding plan based on new scientific
information. A Council may discontinue a rebuilding plan for a stock or
stock complex before it reaches Bmsy if the Secretary
determines that the stock was not overfished in the year that the
overfished determination (see MSA section
[[Page 53]]
304(e)(3)) was based on and has never been overfished in any subsequent
year including the current year.
(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-Stevens Act and paragraph (j)(3)(iii) 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) 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:
(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 characteristics 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.
[81 FR 71895, Oct. 18, 2016]
Sec.600.315 National Standard 2--Scientific Information.
(a) Standard 2. Conservation and management measures shall be based
upon the best scientific information available.
[[Page 54]]
(1) Fishery conservation and management require high quality and
timely biological, ecological, environmental, economic, and sociological
scientific information to effectively conserve and manage living marine
resources. Successful fishery management depends, in part, on the
thorough analysis of this information, and the extent to which the
information is applied for:
(i) Evaluating the potential impact that conservation and management
measures will have on living marine resources, essential fish habitat
(EFH), marine ecosystems, fisheries participants, fishing communities,
and the nation; and
(ii) Identifying areas where additional management measures are
needed.
(2) Scientific information that is used to inform decision making
should include an evaluation of its uncertainty and identify gaps in the
information. Management decisions should recognize the biological (e.g.,
overfishing), ecological, sociological, and economic (e.g., loss of
fishery benefits) risks associated with the sources of uncertainty and
gaps in the scientific information.
(3) Information-limited fisheries, commonly referred to as ``data-
poor'' fisheries, may require use of simpler assessment methods and
greater use of proxies for quantities that cannot be directly estimated,
as compared to data-rich fisheries.
(4) Scientific information includes, but is not limited to, factual
input, data, models, analyses, technical information, or scientific
assessments. Scientific information includes data compiled directly from
surveys or sampling programs, and models that are mathematical
representations of reality constructed with primary data. The complexity
of the model should not be the defining characteristic of its value; the
data requirements and assumptions associated with a model should be
commensurate with the resolution and accuracy of the available primary
data. Scientific information includes established and emergent
scientific information. Established science is scientific knowledge
derived and verified through a standard scientific process that tends to
be agreed upon often without controversy. Emergent science is relatively
new knowledge that is still evolving and being verified, therefore, may
potentially be uncertain and controversial. Emergent science should be
considered more thoroughly, and scientists should be attentive to
effective communication of emerging science.
(5) Science is a dynamic process, and new scientific findings
constantly advance the state of knowledge. Best scientific information
is, therefore, not static and ideally entails developing and following a
research plan with the following elements: Clear statement of
objectives; conceptual model that provides the framework for
interpreting results, making predictions, or testing hypotheses; study
design with an explicit and standardized method of collecting data;
documentation of methods, results, and conclusions; peer review, as
appropriate; and communication of findings.
(6) Criteria to consider when evaluating best scientific information
are relevance, inclusiveness, objectivity, transparency and openness,
timeliness, verification and validation, and peer review, as
appropriate.
(i) Relevance. Scientific information should be pertinent to the
current questions or issues under consideration and should be
representative of the fishery being managed. In addition to the
information collected directly about the fishery being managed, relevant
information may be available about the same species in other areas, or
about related species. For example, use of proxies may be necessary in
data-poor situations. Analysis of related stocks or species may be a
useful tool for inferring the likely traits of stocks for which stock-
specific data are unavailable or are not sufficient to produce reliable
estimates. Also, if management measures similar to those being
considered have been introduced in other regions and resulted in
particular behavioral responses from participants or business decisions
from industry, such social and economic information may be relevant.
(ii) Inclusiveness. Three aspects of inclusiveness should be
considered when developing and evaluating best scientific information:
[[Page 55]]
(A) The relevant range of scientific disciplines should be consulted
to encompass the scope of potential impacts of the management decision.
(B) Alternative scientific points of view should be acknowledged and
addressed openly when there is a diversity of scientific thought.
(C) Relevant local and traditional knowledge (e.g., fishermen's
empirical knowledge about the behavior and distribution of fish stocks)
should be obtained, where appropriate, and considered when evaluating
the BSIA.
(iii) Objectivity. Scientific information should be accurate, with a
known degree of precision, without addressable bias, and presented in an
accurate, clear, complete, and balanced manner. Scientific processes
should be free of undue nonscientific influences and considerations.
(iv) Transparency and openness. (A) The Magnuson-Stevens Act
provides broad public and stakeholder access to the fishery conservation
and management process, including access to the scientific information
upon which the process and management measures are based. Public comment
should be solicited at appropriate times during the review of scientific
information. Communication with the public should be structured to
foster understanding of the scientific process.
(B) Scientific information products should describe data collection
methods, report sources of uncertainty or statistical error, and
acknowledge other data limitations. Such products should explain any
decisions to exclude data from analysis. Scientific products should
identify major assumptions and uncertainties of analytical models.
Finally, such products should openly acknowledge gaps in scientific
information.
(v) Timeliness. Mandatory management actions should not be delayed
due to limitations in the scientific information or the promise of
future data collection or analysis. In some cases, due to time
constraints, results of important studies or monitoring programs may be
considered for use before they are fully complete. Uncertainties and
risks that arise from an incomplete study should be acknowledged, but
interim results may be better than no results to help inform a
management decision. Sufficient time should be allotted to audit and
analyze recently acquired information to ensure its reliability. Data
collection methods are expected to be subjected to appropriate review
before providing data used to inform management decisions.
(A) For information that needs to be updated on a regular basis, the
temporal gap between information collection and management
implementation should be as short as possible, subject to regulatory
constraints, and such timing concerns should be explicitly considered
when developing conservation and management measures. Late submission of
scientific information to the Council process should be avoided if the
information has circumvented the review process. Data collection is a
continuous process, therefore analysis of scientific information should
specify a clear time point beyond which new information would not be
considered in that analysis and would be reserved for use in subsequent
analytical updates.
(B) Historical information should be evaluated for its relevance to
inform the current situation. For example, some species' life history
characteristics might not change over time. Other historical data (e.g.,
abundance, environmental, catch statistics, market and trade trends)
provide time-series information on changes in fish populations, fishery
participation, and fishing effort that may inform current management
decisions.
(vi) Verification and validation. Methods used to produce scientific
information should be verified and validated to the extent possible.
(A) Verification means that the data and procedures used to produce
the scientific information are documented in sufficient detail to allow
reproduction of the analysis by others with an acceptable degree of
precision. External reviewers of scientific information require this
level of documentation to conduct a thorough review.
(B) Validation refers to the testing of analytical methods to ensure
that they perform as intended. Validation should include whether the
analytical method has been programmed correctly in the computer
software, the accuracy and precision of the estimates is adequate,
[[Page 56]]
and the estimates are robust to model assumptions. Models should be
tested using simulated data from a population with known properties to
evaluate how well the models estimate those characteristics and to
correct for known bias to achieve accuracy. The concept of validation
using simulation testing should be used, to the extent possible, to
evaluate how well a management strategy meets management objectives.
(vii) Peer review. Peer review is a process used to ensure that the
quality and credibility of scientific information and scientific methods
meet the standards of the scientific and technical community. Peer
review helps ensure objectivity, reliability, and integrity of
scientific information. The peer review process is an organized method
that uses peer scientists with appropriate and relevant expertise to
evaluate scientific information. The scientific information that
supports conservation and management measures considered by the
Secretary or a Council should be peer reviewed, as appropriate. Factors
to consider when determining whether to conduct a peer review and if so,
the appropriate level of review, include the novelty and complexity of
the scientific information to be reviewed, the level of previous review
and the importance of the information to be reviewed to the decision
making process. Routine updates based on previously reviewed methods
require less review than novel methods or data. If formal peer review is
not practicable due to time or resource constraints, the development and
analysis of scientific information used in or in support of fishery
management actions should be as transparent as possible, in accordance
with paragraph (a)(6)(iv) of this section. Other applicable guidance on
peer review can be found in the Office of Management and Budget Final
Information Quality Bulletin for Peer Review.
(b) Peer review process. The Secretary and each Council may
establish a peer review process for that Council for scientific
information used to advise about the conservation and management of the
fishery. 16 U.S.C. 1852(g)(1)(E). A peer review process is not a
substitute for an SSC and should work in conjunction with the SSC (see
Sec.600.310(b)(2)(v)(C)). This section provides guidance and standards
that should be followed in order to establish a peer review process per
Magnuson-Stevens Act section 302(g)(1)(E).
(1) The objective or scope of the peer review, the nature of the
scientific information to be reviewed, and timing of the review should
be considered when selecting the type of peer review to be used. The
process established by the Secretary and Council should focus on
providing review for information that has not yet undergone rigorous
peer review, but that must be peer reviewed in order to provide
reliable, high quality scientific advice for fishery conservation and
management. Duplication of previously conducted peer review should be
avoided.
(i) Form of process. The peer review process may include or consist
of existing Council committees or panels if they meet the standards
identified herein. The Secretary and Council have discretion to
determine the appropriate peer review process for a specific information
product. A peer review can take many forms, including individual letter
or written reviews and panel reviews.
(ii) Timing. The peer review should, to the extent practicable, be
conducted early in the process of producing scientific information or a
work product, so peer review reports are available for the SSC to
consider in its evaluation of scientific information for its Council and
the Secretary. The timing will depend in part on the scope of the
review. For instance, the peer review of a new or novel method or model
should be conducted before there is an investment of time and resources
in implementing the model and interpreting the results. The results of
this type of peer review may contribute to improvements in the model or
assessment.
(iii) Scope of work. The scope of work or charge (sometimes called
the terms of reference) of any peer review should be determined in
advance of the selection of reviewers. The scope of work contains the
objectives of the peer review, evaluation of the various stages of the
science, and specific recommendations for improvement of the
[[Page 57]]
science. The scope of work should be carefully designed, with specific
technical questions to guide the peer review process; it should ask peer
reviewers to ensure that scientific uncertainties are clearly identified
and characterized, it should allow peer reviewers the opportunity to
offer a broad evaluation of the overall scientific or technical product
under review, as well as to make recommendations regarding areas of
missing information, future research, data collection, and improvements
in methodologies, and it must not change during the course of the peer
review. The scope of work may not request reviewers to provide advice on
policy or regulatory issues (e.g., amount of precaution used in
decision-making) which are within the purview of the Secretary and the
Councils, or to make formal fishing level recommendations which are
within the purview of the SSC.
(2) Peer reviewer selection. The selection of participants in a peer
review should be based on expertise, independence, and a balance of
viewpoints, and be free of conflicts of interest.
(i) Expertise and balance. Peer reviewers must be selected based on
scientific expertise and experience relevant to the disciplines of
subject matter to be reviewed. The group of reviewers that constitute
the peer review should reflect a balance in perspectives, to the extent
practicable, and should have sufficiently broad and diverse expertise to
represent the range of relevant scientific and technical perspectives to
complete the objectives of the peer review.
(ii) Conflict of interest. Peer reviewers who are federal employees
must comply with all applicable federal ethics requirements. Potential
reviewers who are not federal employees must be screened for conflicts
of interest in accordance with the NOAA Policy on Conflicts of Interest
for Peer Review Subject to OMB's Peer Review Bulletin or other
applicable rules or guidelines.
(A) Under the NOAA policy, peer reviewers must not have any
conflicts of interest with the scientific information, subject matter,
or work product under review, or any aspect of the statement of work for
the peer review. For purposes of this section, a conflict of interest is
any financial or other interest which conflicts with the service of the
individual on a review panel because it: could significantly impair the
reviewer's objectivity, or could create an unfair competitive advantage
for a person or organization.
(B) No individual can be appointed to a review panel if that
individual has a conflict of interest that is relevant to the functions
to be performed. For reviews requiring highly specialized expertise, the
limited availability of qualified reviewers might result in an exception
when a conflict of interest is unavoidable; in this situation, the
conflict must be promptly and publicly disclosed. Conflicts of interest
include, but are not limited to, the personal financial interests and
investments, employer affiliations, and consulting arrangements, grants,
or contracts of the individual and of others with whom the individual
has substantial common financial interests, if these interests are
relevant to the functions to be performed.
(iii) Independence. Peer reviewers must not have contributed or
participated in the development of the work product or scientific
information under review. For peer review of products of higher novelty
or controversy, a greater degree of independence is necessary to ensure
credibility of the peer review process. Peer reviewer responsibilities
should rotate across the available pool of qualified reviewers or among
the members on a standing peer review panel to prevent a peer reviewer
from repeatedly reviewing the same scientific information, recognizing
that, in some cases, repeated service by the same reviewer may be needed
because of limited availability of specialized expertise.
(3) Transparency. A transparent process is one that ensures that
background documents and reports from peer review are publicly
available, subject to Magnuson-Stevens Act confidentiality requirements,
and allows the public full and open access to peer review panel
meetings. The evaluation and review of scientific information by the
Councils, SSCs or advisory panels must be conducted in accordance with
meeting procedures at Sec.600.135. Consistent with that section,
public notice
[[Page 58]]
of peer review panel meetings should be announced in the Federal
Register with a minimum of 14 days and with an aim of 21 days before the
review to allow public comments during meetings. Background documents
should be available for public review in a timely manner prior to
meetings. Peer review reports describing the scope and objectives of the
review, findings in accordance with each objective, and conclusions
should be publicly available. Names and organizational affiliations of
reviewers also should be publicly available.
(4) Publication of the peer review process. The Secretary will
announce the establishment of a peer review process under Magnuson-
Stevens Act section 302(g)(1)(E) in the Federal Register along with a
brief description of the process. In addition, detailed information on
such processes will be made publicly available on the Council's Web
site, and updated as necessary.
(c) SSC scientific evaluation and advice to the Council. Each
scientific and statistical committee shall provide its Council ongoing
scientific advice for fishery management decisions, including
recommendations for acceptable biological catch, preventing overfishing,
maximum sustainable yield, achieving rebuilding targets, and reports on
stock status and health, bycatch, habitat status, social and economic
impacts of management measures, and sustainability of fishing practices.
16 U.S.C. 1852(g)(1)(B).
(1) SSC scientific advice and recommendations to its Council are
based on scientific information that the SSC determines to meet the
guidelines for best scientific information available as described in
paragraph (a) of this section. SSCs may conduct peer reviews or evaluate
peer reviews to provide clear scientific advice to the Council. Such
scientific advice should attempt to resolve conflicting scientific
information, so that the Council will not need to engage in debate on
technical merits. Debate and evaluation of scientific information is the
role of the SSC.
(2) An SSC member may participate in a peer review when such
participation is beneficial to the peer review due to the expertise and
institutional memory of that member, or beneficial to the Council's
advisory body by allowing that member to make a more informed evaluation
of the scientific information. Participation of an SSC member in a peer
review should not impair the ability of that member to fulfill his or
her responsibilities to the SSC.
(3) If an SSC as a body conducts a peer review established under
Magnuson-Stevens Act section 302(g)(1)(E) or individual members of an
SSC participate in such a peer review, the SSC members must meet the
peer reviewer selection criteria as described in paragraph (b)(2) of
this section. In addition, the financial disclosure requirements under
Sec.600.235, Financial Disclosure for Councils and Council committees,
apply. When the SSC as a body is conducting a peer review, it should
strive for consensus and must meet the transparency guidelines under
paragraphs (a)(6)(iv) and (b)(3) of this section. If consensus cannot be
reached, minority viewpoints should be recorded.
(4) The SSC's evaluation of a peer review conducted by a body other
than the SSC should consider the extent and quality of peer review that
has already taken place. For Councils with extensive and detailed peer
review processes (e.g., a process established pursuant to Magnuson-
Stevens Act section 302(g)(1)(E)), the evaluation by the SSC of the peer
reviewed information should not repeat the previously conducted and
detailed technical peer review. However, SSCs must maintain their role
as advisors to the Council about scientific information that comes from
a peer review process. Therefore, the peer review of scientific
information used to advise the Council, including a peer review process
established by the Secretary and the Council under Magnuson-Stevens Act
section 302(g)(1)(E), should be conducted early in the scientific
evaluation process in order to provide the SSC with reasonable
opportunity to consider the peer review report and make recommendations
to the Council as required under Magnuson-Stevens Act section
302(g)(1)(B).
(5) If an SSC disagrees with the findings or conclusions of a peer
review, in whole or in part, the SSC must prepare
[[Page 59]]
a report outlining the areas of disagreement, and the rationale and
information used by the SSC for making its determination. This report
must be made publicly available.
(6) Annual catch limits (ACLs) developed by a Council may not exceed
its SSC's fishing level recommendations. 16 U.S.C. 1852(h)(6). Per the
National Standard 1 Guidelines, the SSC fishing level recommendation
that is most relevant to ACLs is acceptable biological catch (ABC), as
both ACL and ABC are levels of annual catch (see Sec.
600.310(b)(2)(v)(D)). The SSC is expected to take scientific uncertainty
into account when making its ABC recommendation (Sec.600.310(f)(4)).
The ABC recommendation may be based upon input and recommendations from
the peer review process. Any such peer review related to such
recommendations should be conducted early in the process as described in
paragraph (c)(4) of this section. The SSC should resolve differences
between its recommendations and any relevant peer review recommendations
per paragraph (c)(5) of this section.
(d) SAFE Report. The term SAFE (Stock Assessment and Fishery
Evaluation) report, as used in this section, refers to a public document
or a set of related public documents, that provides the Secretary and
the Councils with a summary of scientific information concerning the
most recent biological condition of stocks, stock complexes, and marine
ecosystems in the fishery management unit (FMU), essential fish habitat
(EFH), and the social and economic condition of the recreational and
commercial fishing interests, fishing communities, and the fish
processing industries. Each SAFE report must be scientifically based
with appropriate citations of data sources and information. Each SAFE
report summarizes, on a periodic basis, the best scientific information
available concerning the past, present, and possible future condition of
the stocks, EFH, marine ecosystems, and fisheries being managed under
Federal regulation.
(1) The Secretary has the responsibility to ensure that SAFE reports
are prepared and updated or supplemented as necessary whenever new
information is available to inform management decisions such as status
determination criteria (SDC), overfishing level (OFL), optimum yield, or
ABC values (Sec.600.310(c)). The SAFE report and any comments or
reports from the SSC must be available to the Secretary and Council for
making management decisions for each FMP to ensure that the best
scientific information available is being used. The Secretary or
Councils may utilize any combination of personnel from Council, State,
Federal, university, or other sources to acquire and analyze data and
produce the SAFE report.
(2) The SAFE report provides information to the Councils and the
Secretary for determining annual catch limits (Sec.600.310(f)(5)) for
each stock in the fishery; documenting significant trends or changes in
the resource, marine ecosystems, and fishery over time; implementing
required EFH provisions (Sec.600.815(a)(10)); and assessing the
relative success of existing relevant state and Federal fishery
management programs. The SAFE report should contain an explanation of
information gaps and highlight needs for future scientific work.
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
descriptions.
(3) Each SAFE report should contain the following scientific
information when it exists:
(i) Information on which to base catch specifications and status
determinations, including the most recent stock assessment documents and
associated peer review reports, and recommendations and reports from the
Council's SSC.
(A) A description of the SDC (e.g., maximum fishing mortality rate
threshold and minimum stock size threshold for each stock or stock
complex in the fishery) (Sec.600.310(e)(2)).
(B) Information on OFL and ABC, preventing overfishing, and
achieving rebuilding targets. Documentation of the data collection,
estimation methods, and consideration of uncertainty in formulating
catch specification recommendations should be included
[[Page 60]]
(Sec.600.310(f)(2)). The best scientific information available to
determine 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; and
(C) The best scientific information available in support of
management measures necessary to rebuild an overfished stock or stock
complex (if any) in the fishery to a level consistent with producing the
MSY in that fishery.
(ii) Information on sources of fishing mortality (both landed and
discarded), including commercial and recreational catch and bycatch in
other fisheries and a description of data collection and estimation
methods used to quantify total catch mortality, as required by the
National Standard 1 Guidelines (Sec.600.310(i)).
(iii) Information on bycatch of non-target species for each fishery.
(iv) Information on EFH to be included in accordance with the EFH
provisions (Sec.600.815(a)(10)) .
(v) Pertinent economic, social, community, and ecological
information for assessing the success and impacts of management measures
or the achievement of objectives of each FMP.
(4) Transparency in the fishery management process is enhanced by
complementing the SAFE report with the documentation of previous
management actions taken by the Council or Secretary including a summary
of the previous ACLs, ACTs, and accountability measures (AMs), and
assessment of management uncertainty.
(5) To facilitate the use of the information in the SAFE report, and
its availability to the Council, NMFS, and the public:
(i) The SAFE report should contain, or be supplemented by, a summary
of the information and an index or table of contents to the components
of the report. Sources of information in the SAFE report should be
referenced, unless the information is proprietary.
(ii) The SAFE report or compilation of documents that comprise the
SAFE report and index must be made available by the Council or NMFS on a
readily accessible Web site.
(e) FMP development. (1) 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.
(2) 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)).
(3) An FMP must specify whatever information fishermen and
processors will be required or requested to submit to the Secretary.
Information about harvest within state waters, as well as in the EEZ,
may be collected if it is needed for proper implementation of the FMP
and cannot be obtained otherwise. Scientific information collections for
stocks managed cooperatively by Federal and State governments should be
coordinated with the appropriate state jurisdictions, to the extent
practicable, to ensure harvest information is available for the
management of stocks that utilize habitats in state and federal managed
waters. 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.
(4) An FMP should identify scientific information needed from other
sources to improve understanding and management of the resource, marine
ecosystem, the fishery, and fishing communities.
(5) The information submitted by various data suppliers should be
comparable and compatible, to the maximum extent possible.
[[Page 61]]
(6) FMPs should be amended on a timely basis, as new information
indicates the necessity for change in objectives or management measures
consistent with the conditions described in paragraph (d) of this
section (SAFE reports). Paragraphs (e)(1) through (5) of this section
apply equally to FMPs and FMP amendments.
[78 FR 43086, July 19, 2013]
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.
(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.
(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.
(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 stocks of fish for which
there is not enough information available to specify MSY and OY or their
proxies.
(e) Analysis. An FMP should include discussion 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 exists 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.
[81 FR 71903, Oct. 18, 2016]
[[Page 62]]
Sec.600.325 National Standard 4--Allocations.
(a) Standard 4. Conservation and management measures shall not
discriminate between residents of different states. If it becomes
necessary to allocate or assign fishing privileges among various U.S.
fishermen, such allocation shall be:
(1) Fair and equitable to all such fishermen.
(2) Reasonably calculated to promote conservation.
(3) Carried out in such manner that no particular individual,
corporation, or other entity acquires an excessive share of such
privileges.
(b) Discrimination among residents of different states. An FMP may
not differentiate among U.S. citizens, nationals, resident aliens, or
corporations on the basis of their state of residence. An FMP may not
incorporate or rely on a state statute or regulation that discriminates
against residents of another state. Conservation and management measures
that have different effects on persons in various geographic locations
are permissible if they satisfy the other guidelines under Standard 4.
Examples of these precepts are:
(1) An FMP that restricted fishing in the EEZ to those holding a
permit from state X would violate Standard 4 if state X issued permits
only to its own citizens.
(2) An FMP that closed a spawning ground might disadvantage
fishermen living in the state closest to it, because they would have to
travel farther to an open area, but the closure could be justified under
Standard 4 as a conservation measure with no discriminatory intent.
(c) Allocation of fishing privileges. An FMP may contain management
measures that allocate fishing privileges if such measures are necessary
or helpful in furthering legitimate objectives or in achieving the OY,
and if the measures conform with paragraphs (c)(3)(i) through
(c)(3)(iii) of this section.
(1) Definition. An ``allocation'' or ``assignment'' of fishing
privileges is a direct and deliberate distribution of the opportunity to
participate in a fishery among identifiable, discrete user groups or
individuals. Any management measure (or lack of management) has
incidental allocative effects, but only those measures that result in
direct distributions of fishing privileges will be judged against the
allocation requirements of Standard 4. Adoption of an FMP that merely
perpetuates existing fishing practices may result in an allocation, if
those practices directly distribute the opportunity to participate in
the fishery. Allocations of fishing privileges include, for example,
per-vessel catch limits, quotas by vessel class and gear type, different
quotas or fishing seasons for recreational and commercial fishermen,
assignment of ocean areas to different gear users, and limitation of
permits to a certain number of vessels or fishermen.
(2) Analysis of allocations. Each FMP should contain a description
and analysis of the allocations existing in the fishery and of those
made in the FMP. The effects of eliminating an existing allocation
system should be examined. Allocation schemes considered, but rejected
by the Council, should be included in the discussion. The analysis
should relate the recommended allocations to the FMP's objectives and OY
specification, and discuss the factors listed in paragraph (c)(3) of
this section.
(3) Factors in making allocations. An allocation of fishing
privileges must be fair and equitable, must be reasonably calculated to
promote conservation, and must avoid excessive shares. These tests are
explained in paragraphs (c)(3)(i) through (c)(3)(iii) of this section:
(i) Fairness and equity. (A) An allocation of fishing privileges
should be rationally connected to the achievement of OY or with the
furtherance of a legitimate FMP objective. Inherent in an allocation is
the advantaging of one group to the detriment of another. The motive for
making a particular allocation should be justified in terms of the
objectives of the FMP; otherwise, the disadvantaged user groups or
individuals would suffer without cause. For instance, an FMP objective
to preserve the economic status quo cannot be achieved by excluding a
group of long-time participants in the fishery. On the other hand, there
is a rational connection between an objective of harvesting
[[Page 63]]
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.
(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.
[[Page 64]]
(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 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]
[[Page 65]]
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 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.
[[Page 66]]
(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) 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.
(c) 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.
[81 FR 71904, Oct. 18, 2016]
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 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
[[Page 67]]
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 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
[[Page 68]]
(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 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
[[Page 69]]
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 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
[[Page 70]]
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 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.
[[Page 71]]
(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.
(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
[[Page 72]]
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.
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
[[Page 73]]
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/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: Office of International
Affairs, 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.
[[Page 74]]
(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 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
[[Page 75]]
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; 76 FR 59305, Sept. 26, 2011]
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 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
[[Page 76]]
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 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
[[Page 77]]
must be transmitted within 12 hours after the transfer is completed and
delivered within 24 hours of its transmittal and before the FFV ceases
fishing in the EEZ.
(8) ``RECEIVED''. Each operator must specify the date, time,
position and area the vessel ``RECEIVED'' fish or fisheries products
FROM another FFV in a transfer, the other FFV's or U.S. vessel's name,
IRCS, Permit Activity Code under which the receipt was made, species (by
species code) and quantity of fish and fisheries products (by product
code and by product weight, to the nearest hundredth of a metric ton)
received (action code ``RECEIVED FROM''). The message must be
transmitted within 12 hours after the transfer is completed and
delivered within 24 hours of its transmittal and before the vessel
ceases fishing in the EEZ.
(9) ``CEASE''. Each operator must specify the date, time, position,
and area the FFV will ``CEASE'' fishing in order to leave the EEZ
(action code ``CEASE''). The message must be delivered at least 24 hours
before the FFV's departure.
(10) ``CHANGE''. Each operator must report any ``CHANGE'' TO the
FFV's operations if the position or time of an event specified in an
activity report will vary more than 5 nautical miles (9.26 km) or 4
hours from that previously reported, by sending a revised message
inserting the word ``CHANGE'' in front of the previous report, repeating
the name, IRCS, date, and time of the previous report, adding the word
``TO'' and the complete revised text of the new report (action code
``CHANGE TO''). Changes to reports specifying an early beginning of
fishing by an FFV or other changes to reports contained in paragraphs
(c)(1) through (c)(9) of this section must be transmitted and delivered
as if the ``CHANGE'' report were the original message.
(11) ``CANCEL''. Each operator wanting to ``CANCEL'' a previous
report may do so by sending a revised message, and inserting the word
``CANCEL'' in front of the previous report's vessel name, IRCS, date,
time and action code canceled (action code ``CANCEL''). The message must
be transmitted and delivered prior to the date and time of the event in
the original message.
(d) The operator of an FFV will be in violation of paragraphs (c)(1)
through (c)(9) of this section if the FFV does not pass within 5
nautical miles (9.26 km) of the position given in the report within 4
hours of the time given in the report.
(e) The notices required by this section may be provided for
individual or groups of FFV's (on a vessel-by-vessel basis) by
authorized persons. An FFV operator may retransmit reports on the behalf
of another FFV, if authorized by that FFV's operator. This does not
relieve the individual vessel operator of the responsibility of filing
required reports. In these cases, the message format should be modified
so that each line of text under ``VESREP'' is a separate vessel report.
(f) Weekly reports. (1) The operator of each FFV in the EEZ must
submit appropriate weekly reports through the Nation's designated
representative. The report must arrive at the address and time specified
in paragraph (g) of this section. The reports may be sent by facsimile
or Telex, but a completed copy of the report form must be mailed or hand
delivered to confirm the Telex. Appropriate forms, instructions, codes,
and examples are contained in the conditions and restrictions of the
FFV's permit. Designated representatives may include more than one
vessel report in a facsimile or Telex message, if the information is
submitted on a vessel-by-vessel basis. Requests for corrections to
previous reports must be submitted through the Nation's designated
representative and mailed or hand-delivered, together with a written
explanation of the reasons for the errors. The appropriate Regional
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
[[Page 78]]
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.
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, 263 13th Center, National Guard, Governor's
Ave. South, St. Petersburg, Marine Fisheries Island, New York
FL 33701. Service, NOAA, 75 10004.
Virginia Beach
Drive, Miami, FL
33149.
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.
[[Page 79]]
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, 1845 Wasp Blvd., National Marine Ala Moana Blvd.,
Bldg. 176, Honolulu, HI Fisheries Service, Honolulu, HI 96850.
96818. NOAA, 1845 Wasp
Blvd., Bldg. 176,
Honolulu, HI 96818.
------------------------------------------------------------------------
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.
...................... 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
------------------------------------------------------------------------
[[Page 80]]
[61 FR 32540, June 24, 1996, as amended at 63 FR 7073, Feb. 12, 1998; 64
FR 39020, July 21, 1999; 69 FR 8341, Feb. 24, 2004; 76 FR 34902, June
15, 2011; 79 FR 64111, Oct. 28, 2014]
Sec.600.503 Vessel and gear identification.
(a) Vessel identification. (1) The operator of each FFV assigned an
IRCS must display that call sign amidships on both the port and
starboard sides of the deckhouse or hull, so that it is visible from an
enforcement vessel, and on an appropriate weather deck so it is visible
from the air.
(2) The operator of each FFV not assigned an IRCS, such as a small
trawler associated with a mothership or one of a pair of trawlers, must
display the IRCS of the associated vessel, followed by a numerical
suffix. (For example, JCZM-1, JCZM-2, etc., would be displayed on small
trawlers not assigned an IRCS operating with a mothership whose IRCS is
JCZM; JANP-1 would be displayed by a pair trawler not assigned an IRCS
operating with a trawler whose IRCS is JANP.)
(3) The vessel identification must be in a color in contrast to the
background and must be permanently affixed to the FFV in block Roman
alphabet letters and Arabic numerals at least 1 m in height for FFV's
over 20 m in length, and at least 0.5 m in height for all other FFV's.
(b) Navigational lights and shapes. Each FFV must display the lights
and shapes prescribed by the International Regulations for Preventing
Collisions at Sea, 1972 (TIAS 8587, and 1981 amendment TIAS 10672), for
the activity in which the FFV is engaged (as described at 33 CFR part
81).
(c) Gear identification. (1) The operator of each FFV must ensure
that all deployed fishing gear that is not physically and continuously
attached to an FFV:
(i) Is clearly marked at the surface with a buoy displaying the
vessel identification of the FFV (see paragraph (a) of this section) to
which the gear belongs.
(ii) Has attached a light visible for 2 nautical miles (3.70 km) at
night in good visibility.
(iii) Has a radio buoy.
Trawl codends passed from one vessel to another are considered
continuously attached gear and are not required to be marked.
(2) The operator of each FFV must ensure that deployed longlines,
strings of traps or pots, and gillnets are marked at the surface at each
terminal end with: (see paragraphs (c)(1)(i) through (c)(1)(iii) of this
section).
(3) Additional requirements may be specified for the fishery in
which the vessel is engaged.
(4) Unmarked or incorrectly identified fishing gear may be
considered abandoned and may be disposed of in accordance with
applicable Federal regulations by any authorized officer.
(d) Maintenance. The operator of each FFV must--
(1) Keep the vessel and gear identification clearly legible and in
good repair.
(2) Ensure that nothing on the FFV obstructs the view of the
markings from an enforcement vessel or aircraft.
(3) Ensure that the proper navigational lights and shapes are
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).
[[Page 81]]
(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 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--
[[Page 82]]
(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 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
[[Page 83]]
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 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;
[[Page 84]]
(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) 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
[[Page 85]]
and personnel upon demand to determine the vessel's position.
(5) Allow the observer free and unobstructed access to the FFV's
bridge, trawl, or working decks, holding bins, processing areas, freezer
spaces, weight scales, cargo holds and any other space that may be used
to hold, process, weigh, or store fish or fish products at any time.
(6) Allow the observer to inspect and copy the FFV's daily log,
communications log, transfer log, and any other log, document, notice,
or record required by these regulations.
(7) Provide the observer copies of any records required by these
regulations upon demand.
(8) Notify the observer at least 15 minutes before fish are brought
on board or fish or fish products are transferred from the FFV to allow
sampling the catch or observing the transfer, unless the observer
specifically requests not to be notified.
(9) Provide all other reasonable assistance to enable the observer
to carry out his or her duties.
(d) Health and safety standards. All foreign fishing vessels to
which an observer is deployed must maintain, at all times that the
vessel is in the EEZ, the following:
(1) At least one working radar.
(2) Functioning navigation lights as required by international law.
(3) A watch on the bridge by appropriately trained and experienced
personnel while the vessel is underway.
(4) Lifeboats and/or inflatable life rafts with a total carrying
capacity equal to or greater than the number of people aboard the
vessel. Lifeboats and inflatable life rafts must be maintained in good
working order and be readily available.
(5) Life jackets equal or greater in number to the total number of
persons aboard the vessel. Life jackets must be stowed in readily
accessible and plainly marked positions throughout the vessel, and
maintained in a state of good repair.
(6) At least one ring life buoy for each 25 ft (7.6 m) of vessel
length, equipped with automatic water lights. Ring life buoys must have
an outside diameter of not more than 32 inches (81.3 cm) nor less than
30 inches (76.2 cm), and must be maintained in a state of good repair.
Ring life buoys must be readily available, but not positioned so they
pose a threat of entanglement in work areas. They must be secured in
such a way that they can be easily cast loose in the event of an
emergency.
(7) At least one VHF-FM radio with a functioning channel 16 (156.8
mHz), International Distress, Safety and Calling Frequency, and one
functioning AM radio (SSB-Single Side Band) capable of operating at 2182
kHz (SSB). Radios will be maintained in a radio room, chartroom, or
other suitable location.
(8) At least one Emergency Position Indicating Radio Beacon (EPIRB),
approved by the USCG for offshore commercial use, stowed in a location
so as to make it readily available in the event of an emergency.
(9) At least six hand-held, rocket-propelled, parachute, red-flare
distress signals, and three orange-smoke distress signals stowed in the
pilothouse or navigation bridge in portable watertight containers.
(10) All lights, shapes, whistles, foghorns, fog bells and gongs
required by and maintained in accordance with the International
Regulations for Preventing Collisions at Sea.
(11) Clean and sanitary conditions in all living spaces, food
service and preparation areas and work spaces aboard the vessel.
(e) Observer transfers. (1) The operator of the FFV must ensure that
transfers of observers at sea via small boat or raft are carried out
during daylight hours as weather and sea conditions allow, and with the
agreement of the observer involved. The FFV operator must provide the
observer 3 hours advance notice of at-sea transfers, so that the
observer may collect personal belongings, equipment, and scientific
samples.
(2) The FFV's involved must provide a safe pilot ladder and conduct
the transfer according to the procedures of Sec.600.504(d) to ensure
the safety of the during the transfer.
(3) An experienced crew member must assist the observer in the small
boat or raft in which the transfer is made.
[[Page 86]]
(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 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.
[[Page 87]]
(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. 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
[[Page 88]]
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 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.
[[Page 89]]
(d) Daily fishing log. (1) The owner or operator of each FFV
authorized to catch fish (Activity Code 1) must maintain a daily fishing
log of the effort, catch and production of the FFV, as modified by
paragraph (d)(2) of this section and the regulations for the fishery in
which the FFV is engaged. The operator must maintain on a daily and
cumulative basis for the permit period a separate log for each fishery
(see table 2 to Sec.600.502) in which the FFV is engaged according to
this section and in the format specified in the instructions provided
with the permit or other format authorized under paragraph (i) of this
section. Daily effort entries are required for each day the vessel
conducts fishing operations within the EEZ. Daily entries are not
required whenever the FFV is in port or engaged in a joint venture in
the internal waters of a state. Each page of log may contain entries
pertaining to only one day's fishing operations or one gear set,
whichever is longer.
(2) The owner or operator of each FFV authorized to catch fish
(Activity Code 1) and that delivers all catches to a processing vessel,
must maintain only ``SECTION ONE-EFFORT'', of the daily fishing log,
provided the processing vessel maintains a daily consolidated fishing
log as described in paragraphs (f) and (g) of this section.
(e) Daily fishing log--contents. The daily fishing log must contain
the following information, as modified by paragraph (d)(2) of this
section and the regulations for the fishery in which the FFV is engaged,
and be completed according to the format and instructions provided with
the permit or other format authorized under paragraph (i) of this
section.
(1) ``SECTION ONE-EFFORT'' must contain on a daily basis--
(i) A consecutive page number, beginning with the first day the
vessel started fishing operations within the EEZ and continuing
throughout the log.
(ii) The date (based on GMT).
(iii) The FFV's name.
(iv) The FFV's IRCS.
(v) The FFV's U.S. permit number.
(vi) The FFV's noon (1200 GMT) position in geographic coordinates.
(vii) The master or operator's signature or title.
(2) ``SECTION ONE-EFFORT'' must contain, for each trawl or set, as
appropriate to the gear type employed--
(i) The consecutive trawl or set number, beginning with the first
set of the calendar year.
(ii) The fishing area in which the trawl or set was completed.
(iii) The gear type.
(iv) The time the gear was set.
(v) The position of the set.
(vi) The course of the set.
(vii) The sea depth.
(viii) The depth of the set.
(ix) The duration of the set.
(x) The hauling time.
(xi) The position of the haul.
(xii) The number of pots or longline units (where applicable).
(xiii) The average number of hooks per longline unit (where
applicable).
(xiv) The trawl speed (where applicable).
(xv) The mesh size of the trawl's codend (where applicable).
(xvi) The estimated total weight of the catch for the trawl of set,
to at least the nearest metric ton round weight.
(3) ``SECTION TWO-CATCH'' must contain, for each trawl or set--
(i) The consecutive set or trawl number from ``SECTION ONE''.
(ii) The catch of each allocated species or species group to at
least the nearest 0.1 mt round weight.
(iii) The prohibited species catch to at least the nearest 0.1 mt
round weight or by number, as required by the 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
[[Page 90]]
nearest 0.1 mt and the daily disposition, daily total catch by fishing
area, daily total catch for all fishing areas, and cumulative total
catch.
(iv) The catch by fishing area, daily total, and cumulative total of
each prohibited species.
(5) ``SECTION THREE--PRODUCTION'' must contain, on a daily basis,
for each allocated species caught and product produced--
(i) The product by species code and product type.
(ii) The daily product recovery rate of each species and product.
(iii) The daily total product produced by species to at least the
nearest 0.01 mt.
(iv) The cumulative total of each product to at least the nearest
0.01 mt.
(v) The cumulative amount of product transferred.
(vi) The balance of product remaining aboard the FFV.
(vii) The total daily amount, cumulative amount, transferred product
and balance of frozen product aboard the FFV to the nearest 0.01 mt.
(viii) Transferred amount and balance of fishmeal and fish oil
aboard to at least the nearest 0.01 mt.
(f) Daily consolidated fishing or joint venture log. The operator of
each FFV that receives unsorted, unprocessed fish from foreign catching
vessels (Activity Code 2) for processing or receives U.S.-harvested fish
from U.S. fishing vessels in a joint venture (Activity Code 4) must
maintain a daily joint venture log of the effort, catch and production
of its associated U.S. or foreign fishing vessels and the processing
vessel as modified by the regulations for the fishery in which the FFV
is engaged. This log is separate and in addition to the log required by
paragraph (d) of this section. The operator must maintain a separate log
for each fishery in which the FFV is engaged, on a daily and cumulative
basis, according to this section and in the format specified in the
instructions provided with the permit or other format authorized under
paragraph (i) of this section. Receipts of fish caught outside the EEZ
must be included. Each page of the log may contain entries pertaining to
only one day's fishing operations.
(g) Daily joint venture log--contents. Daily joint venture logs must
contain the following information, as modified by the fishery in which
the vessel is engaged, and be completed according to the format and
instructions provided with the permit or other format authorized under
paragraph (i) of this section.
(1) ``SECTION ONE-EFFORT'' must contain, on a daily basis, that
information required in paragraph (e)(1) of this section.
(2) ``SECTION ONE-EFFORT'' must contain for each receipt of a
codend--
(i) The consecutive codend number, beginning with the first codend
received for the calendar year.
(ii) The name of the U.S. fishing vessel or the name and IRCS of the
foreign fishing vessel the codend was received from.
(iii) The fishing area where the codend was received.
(iv) The time the codend was received.
(v) The position the codend was received.
(vi) The estimated weight of the codend to at least the nearest
metric ton round weight.
(3) ``SECTION TWO-CATCH'' must contain, for each codend received--
(i) The consecutive codend number from ``SECTION ONE''.
(ii) The receipts of each authorized species or species group and
its disposition, either processed for human consumption, used for
fishmeal, discarded, or returned to the U.S. fishing vessel, to at least
the nearest 0.1 mt round weight.
(iii) The estimated receipts of each prohibited species or species
group and its disposition, either discarded or returned to the U.S.
fishing vessel if authorized in the fishery in which the U.S. vessel is
engaged, to at least the nearest 0.1 mt round weight.
(iv) The species code of each marine mammal received and its
condition when released.
(4) ``SECTION TWO-CATCH'' must contain on a daily basis--
(i) The species codes of all authorized or prohibited species or
species groups received.
(ii) The daily disposition, as described in paragraph (g)(3)(ii) of
this
[[Page 91]]
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 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
[[Page 92]]
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 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
[[Page 93]]
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 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
[[Page 94]]
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, 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
[[Page 95]]
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 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 Office of International Affairs (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.
[[Page 96]]
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.
(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;
[[Page 97]]
(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; 76 FR 59305, Sept.
26, 2011]
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, 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
[[Page 98]]
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.
[GRAPHIC] [TIFF OMITTED] TR24JN96.000
[61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998]
[[Page 99]]
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 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]
[[Page 100]]
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.
(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
[[Page 101]]
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.
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
[[Page 102]]
decision to the Secretary. If the Secretary, upon consideration of the
state's application or any response to the notice published under Sec.
600.630(a)(2), the hearing record, the recommended decision, and any
other relevant materials finds that the reasons for regulation of the
fishery within the boundaries of the state no longer prevail, the
Secretary will promptly terminate such regulation and publish in the
Federal Register any regulatory amendments necessary to accomplish that
end.
Subpart H_General Provisions for Domestic Fisheries
Sec.600.705 Relation to other laws.
(a) General. Persons affected by these regulations should be aware
that other Federal and state statutes and regulations may apply to their
activities. Vessel operators may wish to refer to USCG regulations found
in the Code of Federal Regulations title 33--Navigation and Navigable
Waters and 46--Shipping; 15 CFR part 904, subpart D--Permit Sanctions
and Denials; and title 43--Public Lands (in regard to marine
sanctuaries).
(b) State responsibilities. Certain responsibilities relating to
data collection and enforcement may be performed by authorized state
personnel under a state/Federal agreement for data collection and a
tripartite agreement among the state, the USCG, and the Secretary for
enforcement.
(c) Submarine cables. Fishing vessel operators must exercise due
care in the conduct of fishing activities near submarine cables. Damage
to the submarine cables resulting from intentional acts or from the
failure to exercise due care in the conduct of fishing operations
subjects the fishing vessel operator to the criminal penalties
prescribed by the Submarine Cable Act (47 U.S.C. 21) which implements
the International Convention for the Protection of Submarine Cables.
Fishing vessel operators also should be aware that the Submarine Cable
Act prohibits fishing operations at a distance of less than 1 nautical
mile (1.85 km) from a vessel engaged in laying or repairing a submarine
cable; or at a distance of less than 0.25 nautical mile (0.46 km) from a
buoy or buoys intended to mark the position of a cable when being laid
or when out of order or broken.
(d) Marine mammals. Regulations governing exemption permits and the
recordkeeping and reporting of the incidental take of marine mammals are
set forth in part 229 of this title.
(e) Halibut fishing. Fishing for halibut is governed by regulations
of the International Pacific Halibut Commission set forth at part 300 of
this title.
(f) Marine sanctuaries. Regulations governing fishing activities
inside the boundaries of national marine sanctuaries are set forth in 15
CFR part 922.
(g) High seas fishing activities. Regulations governing permits and
requirements for fishing activities on the high seas are set forth in 50
CFR part 300, subparts A and R. Any vessel operating on the high seas
must obtain a permit issued pursuant to the High Seas Fishing Compliance
Act.
[61 FR 32540, June 24, 1996, as amended at 80 FR 62500, Oct. 16, 2015;
81 FR 51138, Aug. 3, 2016; 85 FR 15392, Mar. 18, 2020]
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, export or re-export, any fish or
parts thereof taken or retained in violation of the Magnuson-Stevens Act
or any other statute administered by NOAA or any regulation
[[Page 103]]
or permit issued thereunder, or import, export, transport, sell,
receive, acquire, or purchase in interstate or foreign commerce any fish
taken, possessed, transported, or sold in violation of any foreign law
or regulation, or any treaty or in contravention of a binding
conservation measure adopted by an international agreement or
organization to which the United States is a party.
(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 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
[[Page 104]]
(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:
------------------------------------------------------------------------
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.
[[Page 105]]
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.
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.
[[Page 106]]
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.
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.
[[Page 107]]
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.
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.
[[Page 108]]
2. Crab Fishery (Non-FMP):
A. Dredge fishery.................... A. Dredge.
B. Trawl fishery..................... B. Trawl.
C. Trap and pot fishery.............. C. Trap, pot.
3. Atlantic Red Drum Fishery (FMP) No harvest or possession in
the EEZ.
4. Coral and Coral Reef Fishery (FMP):
A. Octocoral commercial fishery...... Hand harvest.
B. Live rock aquaculture fishery..... Hand harvest.
5. South Atlantic Shrimp Fishery (FMP) Trawl.
6. South Atlantic Snapper-Grouper
Fishery (FMP):
A. Commercial fishery................ A. Longline, rod and reel,
bandit gear, handline,
spear, powerhead.
B. Black sea bass pot fishery........ B. Pot.
C. Wreckfish fishery................. C. Rod and reel, bandit gear,
handline.
D. Recreational fishery.............. D. Handline, rod and reel,
bandit gear, spear,
powerhead.
7. South Atlantic Spiny Lobster Fishery
(FMP):
A. Commercial fishery................ A. Trap, pot, dip net, bully
net, snare, hand harvest.
B. Recreational fishery.............. B. Dip net, bully net, snare,
hand harvest.
8. South Atlantic Coastal Migratory
Pelagics Fishery (FMP):
A. Commercial Spanish mackerel A. Handline, rod and reel,
fishery. bandit gear, gillnet, cast
net.
B. Commercial king mackerel fishery.. B. Handline, rod and reel,
bandit gear.
C. [Reserved]........................
D. Recreational fishery.............. D. Bandit gear, rod and reel,
handline, spear.
9. Spiny Dogfish Fishery (FMP jointly
managed by NEFMC and SAFMC):
A. Gillnet fishery................... A. Gillnet.
B. Trawl fishery..................... B. Trawl.
C. Hook and line fishery............. C. Hook and line, rod and
reel, spear, bandit gear.
D. Dredge fishery.................... D. Dredge.
E. Longline fishery.................. E. Longline.
F. Recreational fishery.............. F. Hook and line, rod and
reel, spear.
10. Smooth Dogfish Fishery (Non-FMP):
A. Gillnet fishery................... A. Gillnet.
B. Trawl fishery..................... B. Trawl.
C. Hook and line fishery............. C. Hook and line, rod and
reel, spear, bandit gear.
D. Dredge fishery.................... D. Dredge.
E. Longline fishery.................. E. Longline.
F. Recreational fishery.............. F. Hook and line, rod and
reel, spear.
11. Atlantic Menhaden Fishery (Non-FMP):
A. Purse seine fishery............... A. Purse seine.
B. Trawl fishery..................... B. Trawl.
C. Gillnet fishery................... C. Gillnet.
D. Commercial hook-and-line.......... D. Hook and line fishery.
E. Recreational fishery.............. E. Hook and line, snagging,
cast nets.
12. Atlantic Mackerel, Squid, and 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.
[[Page 109]]
23. Octopus Fishery (Non-FMP) Trap, pot.
24. Dolphin/wahoo fishery (FMP) Automatic reel, bandit gear,
handline, pelagic longline,
rod and reel, spear
(including powerheads).
25. Atlantic Migratory Group Cobia (Non-
FMP):
A. Commercial Fishery................ A. Longline, handline, rod
and reel, bandit gear,
spear.
B. Recreational Fishery.............. B. Bandit gear, rod and reel,
handline, spear.
------------------------------------------------------------------------
IV. Gulf of Mexico Fishery Management Council
------------------------------------------------------------------------
1. Gulf of Mexico Red Drum Fishery (FMP) No harvest or possession in
the EEZ.
2. Coral Reef Fishery (FMP):
A. Commercial fishery................ A. Hand harvest.
B. Recreational fishery.............. B. Hand harvest.
3. Gulf of Mexico Reef Fish Fishery
(FMP):
A. Snapper-Grouper reef fish longline 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.
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.
21. Offshore aquaculture (FMP) Cages, net pens
------------------------------------------------------------------------
V. Caribbean Fishery Management Council
------------------------------------------------------------------------
1. Caribbean Spiny Lobster Fishery
(FMP):
A. Trap/pot fishery.................. A. Trap/pot.
B. Dip net fishery................... B. Dip net.
C. Hand harvest fishery.............. C. Hand harvest, snare.
D. Recreational fishery.............. D. Dip net, trap, pot.
2. Caribbean Reef Fish Fishery (FMP):
[[Page 110]]
A. Longline/hook and line fishery.... A. Longline, hook and line.
B. Trap/pot fishery.................. B. Trap, pot.
C. Recreational fishery.............. C. Dip net, handline, rod and
reel, slurp gun, spear.
D. Other commercial fishery.......... D. Spear.
3. Coral and Reef Resources Fishery
(FMP):
A. Commercial fishery................ A. Dip net, slurp gun.
B. Recreational fishery.............. B. Dip net, slurp gun, hand
harvest.
4. Queen Conch Fishery (FMP):
A. Commercial fishery................ A. Hand harvest.
B. Recreational fishery.............. B. Hand harvest.
5. Caribbean Pelagics Fishery (Non-FMP):
A. Pelagics drift gillnet fishery.... A. Gillnet.
B. Pelagics longline/hook and line 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. Pacific Coast Salmon Fisheries (FMP):
A. Commercial........................ A. Hook and line.
B. Recreational...................... B. Hook and line.
2. Pacific Coast Groundfish Fisheries
(FMP):
A. Commercial........................ A. Trawl, hook and line, pot/
trap, demersal seine, set
net, spear, and hand
collection.
B. Recreational...................... B. Hook and line, spear.
3. Coastal Pelagic Species Fisheries
(FMP):
A. Commercial........................ A. Purse seine, lampara net,
brail net, dip net, cast
net, hook and line.
B. Recreational...................... B. Hook and line, spear, pot/
trap, dip net, cast net,
hand harvest, rake, harpoon,
bow and arrow.
4. Highly Migratory Species Fisheries
(FMP):
A. Commercial........................ A. Hook and line, gillnet,
harpoon, purse seine.
B. Recreational...................... B. Hook and line, spear,
harpoon, bow and arrow.
5. Pacific Halibut Fisheries (Non-FMP):
A. Commercial........................ A. Hook and line.
B. Recreational...................... B. Hook and line, spear.
6. Dungeness Crab Fisheries (Non-FMP):
A. Commercial........................ A. Pot/trap.
B. Recreational North of B. Pot/trap, dip net, hand
46[deg]15[min] N. lat. harvest.
C. Recreational South of C. Pot/trap, hook and line,
46[deg]15[min] N. lat. and North of dip net, hand harvest, rake,
42[deg] N. lat. crab loop.
D. Recreational South of 42[deg] N. D. Pot/trap, hand harvest,
lat. hoop net, crab loop.
7. Crab Fisheries for Species other than
Dungeness crab (Non-FMP):
A. Commercial Pot/Trap Fisheries A. Pot/trap.
South of 46[deg]15[min] N. lat.
B. Recreational North of B. Pot/trap, dip net, hand
46[deg]15[min] N. lat. harvest.
C. Recreational South of C. Pot/trap, hook and line,
46[deg]15[min] N. lat. and North of dip net, hand harvest, rake,
42[deg] N. lat. crab loop.
D. Recreational South of 42[deg] N. D. Pot/trap, hand harvest,
lat. hoop net, crab loop.
8. Shrimp and Prawn Fisheries (Non-FMP):
A. Commercial spot prawn............. A. Pot/trap.
B. Commercial pink shrimp North of B. Trawl.
46[deg]15[min] N. lat.
C. Commercial pink shrimp South of C. Pot/trap, trawl.
46[deg]15[min] N. lat.
D. Commercial coonstripe shrimp South D. Pot/trap.
of 46[deg]15[min] N. lat.
E. Commercial ridgeback prawn South E. Trawl.
of 42[deg] N. lat.
F. Recreational North of F. Pot/trap, dip net, hand
46[deg]15[min] N. lat. harvest.
G. Recreational South of G. Pot/trap, hook and line,
46[deg]15[min] N. lat. and North of dip net, hand harvest, rake.
42[deg] N. lat.
H. Recreational South of 42[deg] N. H. Pot/trap, hand harvest,
lat. dip net.
9. Hagfish Commercial Fisheries (Non-FMP) Pot/trap.
10. Squid, all spp. except market squid
or not otherwise prohibited, and Octopus
Fisheries (Non-FMP):
A. Commercial........................ A. Hook and line, pot/trap,
dip net, seine, trawl, set
net, spear, hand harvest.
B. Recreational Squid North of B. Hook and line, cast net,
42[deg] N. lat. dip net, hand harvest.
C. Recreational Octopus North of C. Hook and line, pot/trap,
42[deg] N. lat. dip net, hand harvest.
D. Recreational South of 42[deg] N. D. Hook and line, dip net,
lat. hand harvest.
11. White Sturgeon Fisheries (Non-FMP):
A. Commercial South of 46[deg]15[min] A. Trawl, pot/trap, hook and
N. lat. and North of 42[deg] N. lat. line, seine, dip net, spear.
B. Recreational North of 42[deg] N. B. Hook and line.
lat.
C. Recreational South of 42[deg] N. C. Hook and line, spear.
lat.
[[Page 111]]
12. Sea Cucumber Fishery (Non-FMP):
A. Commercial hand harvest fishery A. Hand harvest.
South of 46[deg]15[min] N. lat.
B. Commercial trawl South of 42[deg] B. Trawl.
N. lat.
13. Minor Finfish Commercial Fisheries Trawl, pot/trap, hook and
South of 46[deg]15[min] N. lat. and line, seine, dipnet, spear.
North of 42[deg] N. lat. for: Salmon
shark, Pacific pomfret, slender sole,
wolf-eel, eelpout species, Pacific
sandfish, skilfish, and walleye pollock
Fisheries (Non-FMP).
14. Weathervane Scallop Commercial Trawl.
Fishery South of 46[deg]15[min] N. lat.
and North of 42[deg] N. lat. (Non-FMP).
15. California Halibut, White Seabass
Commercial Fisheries South of 42[deg] N.
lat. (Non-FMP):
A. California halibut trawl.......... A. Trawl.
B. California halibut and white B. Gillnet, trammel net.
seabass set net.
C. California halibut hook and line.. C. Hook and line.
D. White seabass hook and line....... D. Hook and line.
16. California Barracuda, White Seabass, Gillnet.
and Yellowtail Drift-Net Commercial
Fishery South of 42[deg] N. lat. (Non-
FMP).
17. Pacific Bonito Commercial Net Fishery Purse seine.
South of 42[deg] N. lat. (Non-FMP).
18. Lobster Commercial Pot and Trap Pot/trap.
Fishery South of 42[deg] N. lat. (Non-
FMP).
19. Finfish and Invertebrate Fisheries
Not Listed Above and Not Otherwise
Prohibited (Non-FMP):
A. Commercial South of 46[deg]15[min] A. Hook and line, pot/trap,
N. lat. spear.
B. Recreational...................... B. Hook and line, spear, pot/
trap, dip net, cast net,
hand harvest, rake, harpoon,
bow and arrow.
------------------------------------------------------------------------
VII. North Pacific Fishery Management Council
------------------------------------------------------------------------
1. Alaska Scallop Fishery (FMP) Dredge.
2. Bering Sea (BS) and Aleutian Islands
(AI) King and Tanner Crab Fishery (FMP):
Pot fishery.......................... Pot.
3. Bering Sea (BS) and Aleutian Islands
(AI) King and Tanner Crab Fishery (FMP):
Recreational fishery................. Pot.
4. BS and AI Groundfish Fishery (FMP):
A. Groundfish trawl fishery.......... A. Trawl.
B. Bottomfish hook-and-line, and 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, pot.
B. Recreational...................... B. Single line with no more
than 2 hooks attached or
spear.
C. Subsistence....................... C. Setline gear and hand held
gear of not more than 30
hooks, including longline,
handline, rod and reel,
spear, jig, and hand-troll
gear.
8. Alaska High Seas Salmon Hook and Line
Fishery:
(FMP)................................ Hook and line.
9. Alaska Salmon Fishery (Non-FMP):
A. Hook-and-line fishery............. A. Hook and line.
B. Gillnet fishery................... B. Gillnet.
C. Purse seine fishery............... C. Purse seine.
D. Recreational fishery.............. D. Handline, rod and reel,
hook and line.
10. Finfish Purse Seine Fishery (Non-FMP) Purse seine.
11. Octopus/Squid Longline Fishery (Non- 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.
------------------------------------------------------------------------
VIII. Western Pacific Fishery Management Council
------------------------------------------------------------------------
1. Western Pacific Crustacean Fishery Trap, hand harvest, hoop net.
(FMP) (Fishery Ecosystem Plan, FEP)
2. Western Pacific Crustacean Fishery
(Non-FEP):
[[Page 112]]
A. Commercial fishery................ A. Gillnet, hand harvest,
hoop net, spear, snare,
trap, trawl.
B. Recreational fishery.............. B. Gillnet, hand harvest,
hoop net, spear, snare,
trap.
C. Charter fishery................... C. Hand harvest, spear.
3. Western Pacific Precious Corals
Fishery (FEP):
A. Tangle net dredge fishery......... A. Tangle net dredge.
B. Submersible fishery............... B. Submersible.
C. Dive fishery...................... C. Hand harvest.
D. Recreational fishery.............. D. Hand harvest.
4. Western Pacific Precious Corals Hand harvest, submersible,
Fishery (Non-FEP) tangle net dredge.
5. Western Pacific Bottomfish and
Seamount Groundfish Fishery (FEP)
A. Bottomfish hook-and-line fishery.. A. Bandit gear, buoy gear,
handline, hook and line, rod
and reel, hand harvest.
B. Seamount groundfish fishery....... B. Longline, trawl.
C. Bottom longline fishery........... C. Longline, hook and line.
D. Trap fishery...................... D. Trap.
E. Spear fishery..................... E. Spear, powerhead.
6. Western Pacific Bottomfish and
Seamount Groundfish Fishery (Non-FEP):
A. Commercial fishery................ A. Bandit gear, buoy gear,
gillnet, handline, hook-and-
line, longline, rod and
reel, spear, trap.
B. Recreational fishery.............. B. Bandit gear, buoy gear,
Gillnet, handline, hook and
line, longline, rod and
reel, spear, trap, slurp
gun, hand harvest.
C. Charter fishery................... C. Bandit gear, buoy gear,
handline, hook-and-line, rod
and reel, spear.
7. Western Pacific Pelagics Fishery
(FEP):
A. Longline Fishery.................. A. Longline.
B. Hook and line fishery............. B. Bandit gear, buoy gear,
handline, hook and line, rod
and reel.
C. Purse seine fishery............... C. Lampara net, purse seine.
D. Spear fishery..................... D. Spear, powerhead.
E. Squid jig fishery................. E. Squid jig.
8. Western Pacific Pelagics Fishery (Non-
FEP):
A. Recreational fishery.............. A. Bandit gear, buoy gear,
dip net, handline, hook and
line, hoop net, powerhead,
rod and real, spear.
B. Commercial fishery................ B. Bandit gear, buoy gear,
dip net, handline, hook and
line, hoop net, powerhead,
rod and reel, spear.
C. Charter fishery................... C. Bandit gear, buoy gear,
dip net, handline, hook and
line, hoop net, powerhead,
rod and reel, spear.
9. Western Pacific Coastal Pelagics Bandit gear, buoy gear, dip
Fishery (Non-FEP) 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-FEP) hook and line, rod and reel,
spear, trap.
11. Western Pacific Coral Reef Fishery Allowable chemical, barrier
(Non-FEP) net, dip net, gillnet, hand
harvest, seine, slurp gun,
trap, spear, rod and reel,
hook and line.
12. Recreational Fishery (Non-FEP) Rod and reel, hook and line,
handline, hand harvest,
spear.
13. Commercial Fishery (Non-FEP) Trawl, gillnet, hook and
line, longline, handline,
rod and reel, bandit gear,
cast net, spear.
------------------------------------------------------------------------
IX. Secretary of Commerce
------------------------------------------------------------------------
1. Atlantic Highly Migratory Species
Fisheries (FMP):
A. Swordfish handgear fishery........ A. Rod and reel, harpoon,
handline, bandit gear, buoy
gear, green-stick gear.
B. Swordfish recreational fishery.... B. Rod and reel, handline.
C. Pelagic longline fishery.......... C. Longline.
D. Shark gillnet fishery............. D. Gillnet
E. Shark bottom longline fishery..... E. Longline.
F. Shark handgear fishery............ F. Rod and reel, handline,
bandit gear.
G. Shark recreational fishery........ G. Rod and reel, handline.
H. Tuna purse seine fishery.......... H. Purse seine.
I. Tuna recreational fishery......... I. Speargun gear (for bigeye,
albacore, yellowfin, and
skipjack tunas only); Rod
and reel, handline (all
tunas); green-stick gear
(HMS Charter/Headboat
Category only).
J. Tuna handgear fishery............. J. Rod and reel, harpoon,
handline, bandit gear.
K. Tuna harpoon fishery.............. K. Harpoon.
L. Atlantic billfish recreational L. Rod and reel.
fishery.
M. Tuna green-stick fishery.......... M. Green-stick gear.
N. Commercial Caribbean Small Boat N. Rod and reel, handline,
Fishery. harpoon, bandit gear, green-
stick gear, buoy gear.
[[Page 113]]
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]
Editorial Note: For Federal Register citations affecting Sec.
600.725, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
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 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
[[Page 114]]
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; 81 FR 88998, Dec.
9, 2016]
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 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
[[Page 115]]
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 or
on the high seas 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 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
[[Page 116]]
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 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
[[Page 117]]
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.
(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
[[Page 118]]
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 exempted
educational activity authorization is the final action of NMFS. Exempted
educational activities may not
[[Page 119]]
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.
(iii) The authorization will specify the scope of the authorized
activity and will include, at a minimum, the duration, vessel(s),
persons, species,
[[Page 120]]
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; 80 FR 62500, Oct. 16, 2015]
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 dockside examination report
form indicating the decal number and date and place of issue.
[[Page 121]]
(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 when fishing gear or a fishery is sufficiently different
from those listed to
[[Page 122]]
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:
(1) Recommend to the RA that the list be amended;
[[Page 123]]
(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.
Interest means, with respect to an issue or matter, multiple parties
that
[[Page 124]]
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 125]]
(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 126]]
(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 127]]
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.
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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.
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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.
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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,
[[Page 137]]
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
[[Page 138]]
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.
[[Page 139]]
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.
[[Page 141]]
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) or a state governor for a fishery identified in Sec.
600.1001(d), or a majority of permit holders in the fishery.
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.
[65 FR 31443, May 18, 2000, as amended at 75 FR 62328, Oct. 8, 2010]
Sec.600.1001 Requests.
(a) A Council, the Governor of a State under whose authority a
proposed reduction fishery is subject, or a majority of permit holders
in the fishery may request that NMFS conduct a program in that fishery.
Each request shall be in writing. 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.
[65 FR 31443, May 18, 2000, as amended at 75 FR 62328, Oct. 8, 2010]
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
[[Page 144]]
protect the borrower's reduction investment in the program and support
the borrower's ability to repay the reduction loan.
(c) The Secretary may not make a fishing capacity reduction program
payment with respect to a reduction vessel that will not be scrapped
unless the Secretary certifies that the vessel will not be used for
fishing in the waters of the U.S., a foreign nation, or on the high
seas.
[65 FR 31443, May 18, 2000, as amended at 75 FR 62328, Oct. 8, 2010]
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
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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:
(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
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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
(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
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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 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
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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 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.
[[Page 149]]
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 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
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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.
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:
(1) In any area subject to the jurisdiction of the United States, or
any state, territory, commonwealth, or possession of the United States,
or
(2) On the high seas, or
(3) In the waters of a foreign nation; or
(B) Scrapping of all reduction vessels involved in a fishing
capacity reduction program, unless the reduction program vessel has been
certified by the Secretary, and the requirements established under Sec.
600.1002(c) are met. 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, the
Secretary may 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, damages, or other expense NMFS incurred in the scrapping
of the reduction vessel.
(6) Money damages not being an adequate remedy for a bidder's breach
of a
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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 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.
[65 FR 31443, May 18, 2000, as amended at 75 FR 62329, Oct. 8, 2010]
[[Page 152]]
Sec.600.1010 Referenda.
(a) Referendum success. A referendum is successful if at least a
majority of the permit holders in the fishery who participate in the
fishery cast ballots 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-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
[[Page 153]]
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 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
[[Page 154]]
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 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.
[65 FR 31443, May 18, 2000, as amended at 75 FR 62329, Oct. 8, 2010]
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
[[Page 155]]
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 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
[[Page 156]]
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 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
[[Page 157]]
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 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,
[[Page 158]]
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 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;
[[Page 159]]
(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 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
[[Page 160]]
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;
(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
[[Page 161]]
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. 53735, 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.
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
[[Page 162]]
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 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,
[[Page 163]]
(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 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
[[Page 164]]
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 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
[[Page 165]]
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 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,
[[Page 166]]
(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 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
[[Page 167]]
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 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.
[[Page 168]]
(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.
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
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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 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),
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(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, 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:
[[Page 171]]
(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
(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
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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:
(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
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(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 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,
[[Page 174]]
(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 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
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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 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,
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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.
(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
[[Page 177]]
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,
(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.
[[Page 178]]
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
(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
[[Page 179]]
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 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.
[[Page 180]]
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 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.
[[Page 181]]
(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.
(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
[[Page 182]]
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 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,
[[Page 183]]
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 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
[[Page 184]]
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.
(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.
[[Page 185]]
(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 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
[[Page 186]]
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 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
[[Page 187]]
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 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
[[Page 188]]
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 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
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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 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
[[Page 190]]
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, 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
[[Page 191]]
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 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,
[[Page 192]]
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.
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
[[Page 193]]
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 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
[[Page 194]]
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 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
[[Page 195]]
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.
------------------------------------------------------------------------
OFFEROR NAME(S) If Offeror or co- Check appropriate box for each name
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 or Check appropriate box for each address
co-Offeror consists of more than listed in the adjacent column
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 Name(s) Co-Offeror (if
table in section 46.b(1), i.e., Offeror any)
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)
------------------------------------------------------------------------
[[Page 196]]
(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.
------------------------------------------------------------------------
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)
------------------------------------------------------------------------
[[Page 197]]
(4)
------------------------------------------------------------------------
(5)
------------------------------------------------------------------------
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-
[[Page 198]]
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.
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)
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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
[[Page 199]]
(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.
(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]
Sec.600.1107 Southeast Alaska Purse Seine Salmon Fishery capacity
reduction program, including fee payment and collection system.
(a) Purpose. This section implements the fishing capacity reduction
program for the Southeast Alaska purse seine salmon fishery enacted by
Section 209 of Public Law 108-447 and amended by Section 121 of Public
Law 109-479, with appropriations authorized by Section 121 of Public Law
109-479 and Public Law 110-161. The intent of the program is to
permanently reduce, through an industry-financed permit buyback, the
most harvesting capacity in the Reduction Fishery at the least cost,
increase harvesting productivity for post-reduction Permit Holders and
improve flexibility in the conservation and management of the fishery.
Fishery participants will finance this program through a federal loan
that will be repaid over 40 years through a fee collection system. The
intent of the fee collection system is to establish the post-reduction
Permit Holders' obligation to repay the Reduction Loan's principal and
accrued interest over the repayment term, and to ensure repayment of the
loan.
(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:
Acceptance means SRA acceptance of a bid.
Act means Section 209 of Title II of Division B of Public Law 108-
447, Consolidated Appropriations Act of 2005, as amended by Section 121
of Public Law 109-447, Magnuson-Stevens Reauthorization Act of 2006.
[[Page 200]]
Authorized party means the individuals authorized by the Permit
Holder on the application form to execute and submit Bids, protests and
other documents and/or notices on behalf of the Permit Holder.
Bid means a bidder's irrevocable offer to relinquish a permit.
Bid amount means the dollar amount submitted by a bidder.
Bidder means a permit holder who submits a bid.
Commercial Fisheries Entry Commission (CFEC) means the Alaska state
commission mandated to conserve and maintain the economic health of
Alaska's commercial fisheries by limiting the number of participating
fishers, by issuing permits and vessel licenses to qualified individuals
in both limited and unlimited fisheries, and by providing due process
hearings and appeals.
CFEC documents means any documents issued by the CFEC in connection
with the Southeast Alaska purse seine salmon fishery.
Conditional notice means the CFEC form that any Bidder must sign and
agree to abide by upon submission of a Bid Agreement (Appendix B to
Sec.600.1107).
Conditional relinquishment means the CFEC form that any Permit
Holder, agreeing to relinquish a permit, must sign and agree to abide by
upon SRA acceptance of the bid (Appendix C to Sec.600.1107).
Fishery means the Southeast Alaska administrative area as defined
under Title 5 Alaska Administrative Code Section 33.100 for salmon with
purse seine gear.
Magnuson-Stevens Act means the Magnuson-Stevens Fishery Conservation
and Management Act codified at 16 U.S.C. 1801 et seq.
Permit (Southeast Salmon Purse Seine Entry Permit) means a valid
entry permit issued by CFEC to operate in the Southeast Alaska purse
seine salmon fishery.
Permit holder means an individual who at the time of bidding is the
holder of record of a permit.
Reduction fishery means the Southeast Alaska Purse Seine Salmon
Fishery.
Reduction loan means the loan used to purchase the relinquished
permits pursuant to the approved Reduction Plan.
Reduction loan amount means the Reduction Loan's original principal
amount up to $23,476,500.
Reduction plan means the aggregate of all Bids, Relinquishment
Contracts, Conditional Notices, Conditional Relinquishments, and
supporting documents and rationale, submitted to the Secretary for
approval.
Relinquishment contract means the contract that any Permit Holder
agreeing to relinquish a permit pursuant to Alaska Statute (A.S.
16.43.150(i)) must sign and agree to abide by upon acceptance of the
Bid, and before payment of the bid amount (Appendix A to Sec.
600.1107).
Secretary means the Secretary of Commerce or his/her designee.
Southeast Revitalization Association (SRA) means the qualified
fishery association authorized to develop and implement this capacity
reduction program under Alaska Statute 16.40.250 and Federal law.
(c) Enrollment in the capacity reduction program--(1) Distribution.
The SRA shall mail a copy of the following four documents via certified
mail to each Permit Holder: Bid; Fleet Consolidation Relinquishment
Contract (Relinquishment Contract); Conditional Notice to CFEC and
Request by Permit Holder; and (Conditional Relinquishment of Southeast
Salmon Purse Seine Entry Permit. Such mailing shall include a closing
date after which the SRA will not accept new bids.
(2) Application. Any Permit Holder, regardless of whether having
received the mailing described in paragraph (c)(1) of this section, may
participate in the Capacity Reduction Program by submitting all of the
following documents to the SRA no later than the bid closing date:
(i) A fully executed Bid consistent with Appendix A to this section;
(ii) A photocopy of the permit evidencing the applicant's
qualification as a participant in the fishery;
(iii) A fully executed Relinquishment Contract: Southeast Alaska
Salmon Purse Seine Permit Holders consistent with the appendix B to this
section;
[[Page 201]]
(iv) A fully executed Conditional Notice to CFEC and Request by
Permit Holder consistent with the appendix C to this section; and
(v) A fully executed Conditional Relinquishment of Southeast Salmon
Purse Seine Entry Permit consistent with the appendix D to this section.
(A) The submitted Bid shall include the following information: Name,
address, telephone number, social security number, and (if available)
electronic mail address of the submitting Permit Holder, permit number,
and whether any authorized party holds a security interest in the
permit. Each application must be submitted to the SRA, c/o Elgee,
Rehfeld, Mertz, LLC, Professional Plaza Building B, 9309 Glacier
Highway, Suite B-200, Juneau, Alaska 99801. The initial determination
that an application conforms to the prescribed requirements is made by
this independent accounting firm and not the SRA.
(B) The SRA or the independent accounting firm will notify the
Permit Holder if the Bid is non-conforming and, in such cases, the
Permit Holder may submit a revised, conforming Bid within the prescribed
period (i.e., until the bid closing date).
(3) Enrollment period. Applications that meet all requirements will
be accepted until the bid selection process is completed but no later
than the bid closing date specified by the SRA. The SRA will have a
period of 21 days after the bid closing date to consult with CFEC and
examine bid results to complete the selection process.
(4) Effective date. The effective date of any Bid shall be when the
SRA has completed the selection process and signed the Bid.
(5) Notice. The SRA will notify each Accepted Bidder, via certified
mail, of the effective date of the Bid Agreement.
(6) Conflicts. Where terms and conditions in the Bid, Relinquishment
Contract, Conditional Notice, and Conditional Relinquishment conflict
with this regulation, the terms and conditions in the regulation are
controlling.
(d) Bid selection process. The fishing capacity removed by the
Reduction Plan shall be represented by the total number of valid CFEC
permits, whether active or latent, that are voluntarily offered by
Permit Holders and selected by the SRA up to an aggregate amount of
$23,476,500. Due to a rescission of funds, the underlying appropriations
for this Reduction Program were reduced from $250,000 to $234,765,
resulting in a loan ceiling of $23,476,500.
(1) Overview. The Selection Process shall begin upon the receipt by
the SRA of the first application and shall continue until: The bid
closing date specified by the SRA (paragraph (c)(1) of this section); or
the ranking of the next lowest bid would cause the total program costs
to exceed $23,476,500. The SRA will have a period of 21 days after the
bid closing date to consult with CFEC and examine bid results to
complete the selection process. When either one of these events is
reached, the Selection Process shall be completed.
(i) During the selection process, the SRA in consultation with the
CFEC shall examine each submitted Bid for consistency and the necessary
elements, including the validity of the permit and whether any
authorized party holds a security interest in the permit.
(ii) [Reserved]
(2) Bids. By submitting the Bid, the bidder expressly acknowledges
that he makes an irrevocable offer to relinquish to CFEC a permit for a
specific price, and once having submitted the Bid, the bidder is not
entitled to withdraw or in any way amend the Bid. The permit will be
relinquished for the price set forth in the Bid contingent on such Bid
being accepted by the SRA at the closing of the Selection Process. Any
attempted withdrawal by a bidder shall be invalid, and the Bid shall
remain a binding, irrevocable offer, unaffected by the attempted
withdrawal. Any bid that is submitted by a Permit Holder but is not
accepted by the SRA shall be deemed terminated and both the Permit
Holder and the SRA will have no further obligation with respect to the
Bid.
(i) If a Permit Holder holds more than one permit, the Permit Holder
must submit a separate Bid for each permit that he/she offers to
relinquish.
(ii) By submitting a Bid, the Permit Holder warrants and represents
that he/she has read and understands the
[[Page 202]]
terms of the Program Regulations, Bid, Relinquishment Contract,
Conditional Notice and Conditional Relinquishment, and has had the
opportunity to seek independent legal counsel regarding such documents
and the consequences of submitting the Bid Agreement.
(3) Ranking. The SRA shall rank all conforming bids by using a
reverse auction in which the SRA ranks the Bid with the lowest dollar
amount and successively ranks each additional Bid with the next lowest
dollar amount until there are no more Bids or the ranking of the next
lowest bid would cause the total program cost to exceed $23,476,500. In
the event of a tie with bids which results in the tied bids exceeding
$23,476,500, the SRA will select the tied bid first received, if known.
If the receipt time cannot be determined, neither bid will be accepted.
(4) Acceptance and post-acceptance restriction of renewals and
transfers. Upon expiration of the bid closing date, the SRA shall
determine whether the number of ranked bids it is willing to accept is
sufficient to achieve a substantial reduction in harvest capacity and
increased economic efficiencies for those Permit Holders remaining in
the fishery. If the SRA makes such a determination and thereafter
accepts bids, the SRA shall send CFEC the Conditional Notice form
restricting renewal and transfer of each permit for which a bid was
accepted. The Bid, Relinquishment Contract, Conditional Notice and
Conditional Relinquishment are terminated for any rejected bid and the
applicant is no longer bound by the terms of these documents.
(e) Plan submission and approval--(1) Submitting the reduction plan.
Within 30 days of concluding the selection process, the SRA shall submit
the Reduction Plan, consisting of the aggregate of all Bid Agreements,
Relinquishment Contracts, Conditional Notices and Conditional
Relinquishments, together with supporting documents and rationale, to
NMFS for final approval on behalf of the Secretary. The Reduction Plan
shall include a listing of accepted bids arranged by bid amount from
lowest to highest bid, attended by a statement from the SRA that all
other bids received were higher than the largest dollar amount of the
last bid accepted.
(2) Required findings. In order to approve a Reduction Plan, the
Assistant Administrator of NMFS, on behalf of the Secretary, must find
that: The Reduction Plan is consistent with the amended Consolidated
Appropriations Act of 2005 and applicable sections of the Magnuson-
Stevens Act, particularly that it is cost-effective; the Reduction Plan
will result in the maximum sustained reduction in fishing capacity at
the least cost; and the Reduction Plan will increase harvesting
productivity for post-reduction Permit Holders participating in the
fishery.
(3) The referendum. If NMFS approves the Reduction Plan and
subsequent to the publication of a final rule resulting from this rule,
NMFS shall conduct a referendum to determine the industry's willingness
to repay a fishing capacity reduction loan to purchase the permits
identified in the Reduction Plan. NMFS shall publish a notice in the
Federal Register requesting votes by Permit Holders on whether to accept
or reject the Reduction Plan for implementation. The notice shall state
the starting and ending dates and times of the voting period, which
shall be not less than twenty one (21) nor more than thirty (30)
calendar days from the date of such notice.
(i) 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, and
will provide a 15 day period to make these changes. If, in NMFS'
discretion, the comments received in response to such notice warrants
it, or for other good cause, NMFS may modify such list by publishing
another notice in the Federal Register. NMFS shall issue ballots to
eligible voters, tally votes, and notify voters whether the referendum
was successful or unsuccessful in approving the Reduction Plan
consistent with the provisions of Sec.600.1010.
(ii) A successful referendum by a majority of the Permit Holders in
the Reduction Fishery shall bind all parties
[[Page 203]]
and complete the reduction process. NMFS shall publish a notice in the
Federal Register advising the public that the referendum was successful.
Thereafter the Reduction Program shall be implemented.
(iii) The provisions of Sec.600.1010 and Sec.600.1017(a)(1)-(4)
shall apply to any referendum on the Reduction Plan of this section to
the extent that they do not conflict with this section or with subpart M
of this part.
(f) Implementation--(1) Reduction payments. Within 60 days of a
successful referendum, the CFEC will provide notice to NMFS of the
permits retired from the Reduction Fishery. Upon receiving such
notification, NMFS will then tender the accepted bid amounts to the
Permit Holders. Reduction payments may not exceed $23,476,500 and if the
SRA accepts a total number of bids in an aggregate amount less than
$23,476,500, any remaining funds would be available for reduction
payments as part of a later, separate Reduction Plan conforming to these
regulations. Upon NMFS tendering the reduction program's payments to the
selected Permit Holders, each such Permit Holder must permanently stop
all fishing with the relinquished permit(s).
(2) Repayment term. As authorized by the Act, the Reduction Loan
shall be amortized over a forty (40) year term. The Reduction Loan's
original principal amount may not exceed $23,476,500, but may be less if
the ultimate reduction cost is less. The final Reduction Loan periodic
payment amount will be determined by NMFS' analysis of the ability of
the post-reduction fishery to service debt. The provisions of Sec. Sec.
600.1012-600.1017 shall apply to any reduction loan, fee payment and
collection under this section to the extent they do not conflict with
this section or with subpart M of this part.
(3) Loan repayment. Permit Holders operating in the fishery shall be
obligated to pay the fee in accordance with this section. In the event
that payments made under the Reduction Plan are insufficient to pay the
Reduction Loan within the 40-year term, NMFS shall extend the term of
the repayment until the Reduction Loan is paid in full.
(i) Interest. The Reduction Loan's interest rate will be the U.S.
Treasury's cost of borrowing equivalent maturity funds plus two 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. Interest will begin accruing on the Reduction Loan
from the date on which NMFS disburses such loan. 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 two 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 fixed and
will not vary over the remainder of the reduction loan's 40-year term.
The Reduction Loan will be subject to a level debt amortization. There
is no prepayment penalty.
(ii) Fees. Post-reduction Permit Holders operating in the fishery
shall be obligated to pay the fee in accordance with paragraph (f) of
this section. The amount of such fee will be calculated by NMFS on an
annual basis as the principal and interest payment amount necessary to
amortize the loan over a 40-year term. The fee shall be expressed as a
percentage of the ex-vessel value of all salmon harvested and landed in
the fishery. In the event that payments made under the Reduction Plan
are insufficient to repay the Reduction Loan within the 40-year term,
NMFS shall extend the term of the repayment until the Reduction Loan is
paid in full.
(A) Fees must be assessed and collected on all salmon harvested in
the fishery. Although the fee could be up to three percent of the ex-
vessel price of all post-reduction landings, the fee will be less than
three percent if NMFS projects that a lesser rate can amortize the
Reduction Loan over the 40-year term. To verify that the fees collected
do not exceed three percent of the fishery revenues, NMFS will compare
the annual total of principal and interest due with the latest available
annual revenues in the fishery to ensure that it is equal to or less
than three percent
[[Page 204]]
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 postponed, the fee will remain at the previous year's amount until
such time as new calculations are made and communicated to the post-
reduction fishery participants.
(B) If the fishery does not open during a year, interest will
continue to accrue on the principal balance even though no fee revenue
will be generated. When this happens, if the fee is not already at the
maximum three percent, NMFS shall increase the fee to the maximum three
percent, apply all subsequent fee revenue first to the payment of
accrued interest, and continue the maximum fee rates until the principal
and interest payments become current. Once all principal and interest
payments are current, NMFS will make a determination about adjusting the
fee rate.
(iii) Collection. The buyer who first purchases the salmon landed in
the fishery shall be responsible for collecting and submitting the
repayment fees to NMFS monthly. The fees shall be submitted to NMFS no
later than fifteen (15) calendar days following the end of each calendar
month.
(iv) Recordkeeping and reporting. The dealer who first purchases the
salmon landed in the fishery shall be responsible for compliance with
the applicable recordkeeping and reporting requirements.
(A) All requirements and penalties set forth in the provisions of
Sec. Sec.600.1013 (Fee payment and collection), 600.1014 (Fee
collection deposits, disbursements, records, and reports), 600.1015
(Late charges), and 600.1017 (Prohibitions and penalties) shall apply to
any dealer who purchases salmon in the fishery, and to any fee
collection under this section, to the extent they do not conflict with
this section or with subpart M of this part.
(B) [Reserved]
(g) Specific performance under the relinquishment contract. The
parties to the Relinquishment Contract have agreed that the opportunity
to develop and submit a capacity reduction program for the fishery under
the terms of the Act is both unique and finite. The failure of a Permit
Holder, whose bid was accepted, to perform the obligations under the
Relinquishment Contract will result in irreparable damage to the SRA and
all the other Permit Holders. Accordingly, the parties to the
Relinquishment Contract expressly acknowledge that money damages are an
inadequate means of redress and agree, that upon failure of the Permit
Holder to fulfill his/her obligations under the Relinquishment Contract,
that specific performance of those obligations may be obtained by suit
in equity brought by the SRA in any court of competent jurisdiction
without obligation to arbitrate such action.
(h) Enforcement for failure to pay fees. The provisions and
requirements of Sec.600.1016 (Enforcement) shall also apply to fish
sellers and fish buyers subject to this fishery.
(i) Prohibitions and penalties. Fish buyers are prohibited from
purchasing fish from fish sellers who do not pay the required landing
fees. Fish sellers are prohibited from selling to fish buyers who do not
pay the required landing fees.
Appendix A to Sec.600.1107--Bid
This Bid (Bid) is entered between the individual named in section
III, 11(a) of the Agreement and the Southeast Revitalization Association
(SRA).
I. Definitions
Unless otherwise defined, the following terms have the following
meanings for the purpose of this Agreement.
Acceptance means SRA acceptance of a Bid.
Act means Section 209 of Title II of Division B of Public Law 108-
447, Consolidated Appropriations Act of 2005; as amended by Section 121
of Public Law 109-447, Magnuson-Stevens (MSA) Reauthorization Act of
2006.
Bid means a bidder's irrevocable offer to relinquish a permit.
Bid amount means the dollar amount submitted by a bidder.
Bidder means a permit holder who submits a bid.
Conditional notice means the Commercial Fisheries Entry Commission
(CFEC) form that any Bidder must sign and agree to abide by upon
submission of a Bid Agreement.
Conditional relinquishment means the CFEC form that any Permit
Holder, agreeing to relinquish a permit, must sign and agree to abide by
upon SRA acceptance of the bid.
Fishery means the Southeast Alaska administrative area as defined
under Title 5
[[Page 205]]
Alaska Administrative Code Section 33.100 for salmon with purse seine
gear.
Permit means a valid entry permit issued by CFEC to operate in the
Southeast Alaska purse seine salmon fishery.
Permit holder means an individual who at the time of bidding is the
holder of record of a permit.
Reduction plan means the aggregate of all Bids, Relinquishment
Contracts (Appendix B), Commercial Fisheries Entry Commission (``CFEC'')
Conditional Notice and Conditional Relinquishment (Appendices C & D),
and supporting documents and rationale; submitted to the Secretary for
approval.
Referendum means the voting procedure to determine the Permit
Holder's willingness to repay a fishing capacity reduction loan to
purchase the permits identified in the Plan.
Relinquishment contract means the contract that any bidder agreeing
to relinquish a permit pursuant to Alaska Statute (A.S. 16.43.150(i)
must sign and agree to abide by upon acceptance of the Bid, and before
payment of the bid amount.
Secretary means the Secretary of Commerce or his/her designee.
Southeast Revitalization Association (SRA) means the qualified
fishery association authorized to develop and implement this capacity
reduction program under Alaska Statute 16.40.250 and Federal law.
II. Recitals
Whereas Alaska Statute 16.40.250 and the Act authorize a fishing
capacity reduction program for the fishery;
Whereas, within 30 days of concluding the selection process, the SRA
shall submit the Reduction Plan, together with supporting documents and
rationale, to NMFS for final approval on behalf of the Secretary;
Whereas, the reduction Plan's express objective is to reduce fishing
capacity by permanently revoking permits thereby promoting economic
efficiency, improving flexibility in the conservation and management of
the fishery and obtain the maximum reduction in permits at the least
cost;
Whereas, the SRA can implement the Reduction Plan only after giving
notice to all Permit Holders and subsequent approval of the reduction
Plan by referendum.
Whereas, the Agreement submitted by the bidder and the SRA is an
integral element of the Reduction Plan.
Now, therefore, for good and valuable consideration, the sufficiency
of which is hereby acknowledged, the SRA and bidder agree as follows:
III. Terms and Conditions
1. Form. By completing and submitting this Bid to the SRA the bidder
hereby offers to permanently relinquish, and have the CFEC revoke, the
permit. The SRA signing the Bid and subsequent NMFS payment to bidder in
the exact bid amount set forth in section III, 11(f) of the Bid is full
and complete consideration.
2. Irrevocable. The bidder expressly acknowledges that by submitting
the Bid he/she makes an irrevocable offer to relinquish the permit and
once having submitted the Bid is not entitled to withdraw or in any
manner amend the Bid. The receipt date that the SRA marks on the Bid
constitutes the date of the bidder's submittal.
3. Warranty. The bidder warrants and represents that he/she is the
holder of record of the permit, according to the CFEC records, and that
he/she has read and understands the terms of the Program Regulations,
Bid, Relinquishment Contract, Conditional Notice and the Conditional
Relinquishment and has had the opportunity to seek independent legal
counsel regarding such documents and the consequences of submitting the
Bid.
4. Validity. The SRA, in consultation with the CFEC, shall examine
each Bid for completeness and consistency. The SRA shall notify the
bidder if the Bid is non-conforming. In such cases, the bidder may
submit a revised, conforming Bid within the prescribed period (i.e.,
until the bid closing date).
5. Ranking. The SRA shall rank the bid amount entered in section
III, 11(f) of this Bid by using a reverse auction in which the SRA ranks
the Bid with the lowest dollar amount and successively ranks each
additional Bid with the next lowest dollar amount until there are no
more Bids or the ranking of the next lowest Bid would exceed the total
program cost. In the event of a tie with bids which results in the tied
bids exceeding $23,476,500, the SRA will select the tied bid first
received.
6. Acceptance and Rejection. If the Bid is accepted, the SRA shall
formally notify the bidder in writing. If the SRA rejects the Bid, the
SRA will formally notify the bidder in writing and the Bid shall
terminate without further obligation.
7. Restriction of Transfer of permit: Upon acceptance, the SRA will
send the CFEC the Conditional Notice, restricting transfer of the permit
until such time as: The SRA notifies the bidder that the Plan is not in
compliance with the Act and will not be approved; or NMFS notifies the
bidder the referendum was unsuccessful.
8. Payment. Within 60 days from the close of the voting period of a
successful referendum, the CFEC will provide notice to NMFS of the
permits retired from the Reduction Fishery. Upon receiving such notice,
NMFS will then tender the accepted bid amounts to the Permit Holders.
9. Specific Performance. The failure of a bidder whose Bid was
accepted to comply with the terms of this Bid will result in irreparable
damage to the SRA and its members because the Bid was part of the basis
for the
[[Page 206]]
Plan submitted to the Secretary for approval. Accordingly, the SRA and
bidder expressly acknowledge that money damages are an inadequate means
of redress and agree that specific performance of those obligations may
be obtained by suit in equity brought by the SRA in any court of
competent jurisdiction without obligation to arbitrate such action.
10. Submission. This Bid must be submitted within the prescribed
period to the SRA, c/o Elgee, Rehfeld, Mertz, LLC, Professional Plaza
Building B, 9309 Glacier Highway, Suite B-200, Juneau, AK 99801.
11. Complete Bid Information: To fully and accurately complete this
Bid, the bidder must fully complete the following questions and provide
an exact photocopy of the permit. The Bidder must further sign this
form, Appendices B, C, and D to Sec.600.1107, and acknowledge the
signature before a notary public.
(a) BIDDER'S NAME. This must be the full and exact legal name of
record of the person bidding. Insert the name of the bidder.
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-------------------------------------------------------------------------
------------------------------------------------------------------------
(b) BIDDER'S ADDRESS OF RECORD. Insert the full and exact address of
record for the bidder.
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-------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(c) BIDDER'S TELEPHONE NUMBER. Insert the full and exact telephone
number of the bidder.
------------------------------------------------------------------------
-------------------------------------------------------------------------
------------------------------------------------------------------------
(d) BIDDER'S ELECTRONIC MAIL ADDRESS (if available). Insert the full
and exact e-mail address of the bidder.
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------------------------------------------------------------------------
(e) PERMIT. Insert the full and exact permit number(s) of the
bidder. Enclose with this Bid an exact photocopy of the permit.
------------------------------------------------------------------------
-------------------------------------------------------------------------
------------------------------------------------------------------------
(f) BID AMOUNT. Insert, in U.S. dollars, the bid's full and exact
amount, both in words and numbers.
------------------------------------------------------------------------
In words In numbers
------------------------------------------------------------------------
$
------------------------------------------------------------------------
(g) SECURITY INTERESTS. Insert the name of any authorized third
party that may hold a security interest in the permit.
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-------------------------------------------------------------------------
------------------------------------------------------------------------
(h) SOCIAL SECURITY NUMBER. Insert the full and exact social
security number of the bidder.
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-------------------------------------------------------------------------
------------------------------------------------------------------------
(i) BID SIGNATURE. In compliance with applicable law and this Bid,
the bidder submits the above bid amount as an offer to the SRA for the
permanent relinquishment of his/her permit. By completing the sections
above and signing below, the bidder acknowledges that the bidder has
completely reviewed this Bid and attachments. The bidder warrants that
the bidder is fully able to enter into the Relinquishment Contract. The
bidder expressly warrants and attests that all information included
herein is accurate.
------------------------------------------------------------------------
------------------------------------------------------------------------
Signature
------------------------------------------------------------------------
Printed Name
------------------------------------------------------------------------
Date of Signature
------------------------------------------------------------------------
State of: ________ County/Borough of: ________
I certify that ____________ is the person who appeared before me and
said person acknowledged that he/she signed this Bid and on oath stated
that he/she was authorized to execute such document and acknowledged it
to be the free and voluntary act of him/her for the uses and purposes
mentioned in such document.
Notary Public's Signature: ____________Dated: ______
My Commission Expires: ____________
[[Page 207]]
12. SRA SIGNATURE. By signing below, the SRA acknowledges acceptance
of this Bid, including the bidder's bid amount.
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------------------------------------------------------------------------
Signature
------------------------------------------------------------------------
Printed Name
------------------------------------------------------------------------
Date of Signature
------------------------------------------------------------------------
Appendix B to Sec.600.1107--Relinquishment Contract: Southeast Alaska
Salmon Purse Seine Permit Holders
This Relinquishment Contract (``Contract'') and agreement is entered
into between the Southeast Revitalization Association (``SRA'') and the
bidder named in Section 11(a) of the Bid. The contract is effective when
the bidder signs the Bid and this contract and, thereby, agrees to
relinquish his/her permit, issued by the Alaska Commercial Fisheries
Entry Commission (``CFEC'') for the Southeast Alaska salmon purse seine
fishery (``fishery'').
Whereas Alaska Statute 16.40.250 and Federal law authorize a fishing
capacity reduction program for the fishery;
Whereas, upon accepting and signing the Bid, the SRA shall submit a
Reduction Plan to NMFS;
Whereas, the Reduction Plan's express objective is to reduce fishing
capacity by permanently revoking permits thereby promoting economic
efficiency, improving flexibility in the conservation and management of
the fishery and obtain the maximum reduction in permits at the least
cost;
Whereas, this contract is subject to the terms and conditions set
forth herein, including the CFEC forms marked as Appendices C and D to
Sec.600.1107;
Now, therefore, for valuable consideration and the covenants
hereinafter set forth, the parties hereto agree as follows:
1. The foregoing, including the Bid and specifically the definitions
under section 1, are expressly incorporated herein by this reference.
2. Under AS 16.43.150(i), the Bidder agrees to permanently
relinquish and have the CFEC revoke the permit.
3. The Bidder represents that, as of the date of submitting the
contract, he or she is the holder of record of the permit according to
the CFEC official permit records.
4. Upon notification by the SRA to the Bidder that the SRA accepted
the bid; the SRA will submit to the CFEC the Permit Holder's executed
notice form (Appendix C to Sec.600.1107) and executed relinquishment
form (Appendix D to Sec.600.1107).
5. In the event an authorized third party holds a security interest
in the permit, NMFS will not make payment until receiving notice of
written consent by the third party to the SRA and the CFEC on a form
provided by the CFEC.
6. NMFS' payment to the accepted bidder in the exact amount of the
accepted bid amount is full and complete consideration for the CFEC
revoking the permit.
7. The bidder shall, upon the SRA or the CFEC request, furnish such
additional documents, information, or take such other actions as may be
reasonably required to enable the CFEC to implement relinquishment of
the permit.
8. The bidder consents to the public release of any information
provided in connection with the contract or program requirements after
completion of the plan.
9. The contract contains the final terms and conditions of this
agreement between the parties and represents the entire and exclusive
agreement between them.
10. The contract terms are severable, and, in the event that any
portion of the contract is held to be unenforceable, the remaining
portion shall remain fully enforceable against the parties.
11. Any and all disputes involving the contract shall be governed by
laws of the State of Alaska. The bidder expressly acknowledges that by
submitting the Bid, he/she makes an irrevocable offer to relinquish the
permit, and once having submitted the Bid, is not entitled to withdraw
or in any way amend the Bid.
12. The failure of a bidder to perform his/her obligations under the
Bid will result in irreparable damage to the SRA and its members upon
submittal of the Plan to the Secretary for approval. Accordingly, the
SRA and the bidder expressly acknowledge that money damages are an
inadequate means of redress and agree that upon failure of the bidder to
fulfill his/her obligations under the Bid that specific performance of
those obligations may be obtained by suit in equity brought by the SRA
in any court of competent jurisdiction without obligation to arbitrate
such action.
Bidder's Signature and Notary's Acknowledgement and Certification
------------------------------------------------------------------------
Bidder signature Notary signature
------------------------------------------------------------------------
(1) Sign (1) Sign
(2) Print the following: (2) Print the following:
(a) signer's name (a) name
[[Page 208]]
(b) signing date (b) signing date
(c) state and city/borough (3) date commission expires, and
State and city/borough. Each
notary signature attests to the
following: ``I certify that I know
or have satisfactory evidence that
the person who is signed in the
1st column of this same row is the
person who appeared before me and:
(1) Acknowledged his/her
signature; (2) on oath, stated
that he/she was authorized to
sign; and (3) acknowledged that he/
she did so freely and
voluntarily.''
(1) (1)
(2)(a) (2)(a)
(2)(b) (2)(b)
(2)(c) (3)
------------------------------------------------------------------------
II. Southeast Revitalization Association signature Southeast
Revitalization Association
Dated:_________________________________________________________________
By:____________________________________________________________________
Appendix C to Sec.600.1107--Conditional Notice to CFEC and Request by
Permit Holder
In support of my Bid to the Southeast Revitalization Association
(SRA), I have executed this Conditional Notice and request and authorize
the Southeast Revitalization Association (SRA) to submit this executed
document to the Alaska Commercial Fisheries Entry Commission (CFEC) in
the event that the SRA accepts my bid to permanently relinquish my
Southeast Salmon Purse Seine Entry Permit under AS 16.43.150(i).
I hereby notify the CFEC that the SRA has accepted my Bid to
permanently relinquish my Southeast Salmon Purse Seine Entry Permit
_______.
I request the CFEC: (1) not to renew my above-identified entry
permit; and (2) not to authorize any transfer of my entry permit.
DATED this ___ day of _____ , 2011.
________________________________________________________________________
(Permit Holder/Bidder)
SUBSCRIBED AND SWORN TO before me this ___ day of _____ , 2011.
________________________________________________________________________
Notary Public, State of _________
My commission expires: _______
Appendix D to Sec.600.1107--Conditional Relinquishment of Southeast
Salmon Purse Seine Entry Permit
[AS 16.43.150(i)]
Upon satisfaction of the conditions that the Southeast
Revitalization Association (SRA) accepts my bid and that NMFS agrees to
pay my full bid amount to me, the SRA may submit this executed
Conditional Relinquishment of Southeast Salmon Purse Seine Entry Permit
to the Commercial Fisheries Entry Commission.
I fully understand this relinquishment of my permanent entry permit
_______ under AS 16.43.150(i) is permanent, and I will not be able to
reinstate the permit.
DATED this ___ day of _____ , 2011.
________________________________________________________________________
(Permit Holder/Bidder)
SUBSCRIBED AND SWORN TO before me this ___ day of _____ , 2011.
________________________________________________________________________
Notary Public, State of _________
My commission expires: _______
[76 FR 61990, Oct. 6, 2011]
Sec.600.1108 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 established 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 and Sec.600.1105 of subpart M
of this part expressly apply to this section. The following terms have
the following meanings for the purpose of this section:
Reduction fishery means 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 rounded number of pounds in a metric ton)or the
Longline Subsector of the BSAI non-pollock groundfish
[[Page 209]]
fishery that Sec.679.2 of this chapter defined as groundfish area/
species endorsement.
(c) Capacity Reduction Program. As a result of the completion of the
Selection Process, written notification from the FLCC to NMFS
identifying the selected offeror, and submission of the reduction plan,
the capacity reduction program is implemented as follows:
(1) Loan repayment--(i) Term. As authorized by section 219(B)(2) of
the Appropriations 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 the amount approved by the
subsector. The subsector has currently approved a loan of two million
seven hundred thousand dollars ($2,700,000). 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. Repayment calculations
and records will be kept separately for each program.
(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 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 Longline Subsector. 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 assessed and collected on Pacific cod to the extent possible
and if not, will be assessed and collected as provided for in paragraph
(c)(1)(iii)(B) of this section.
(B) Fees must be assessed 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 standardized additional
fee will be assessed. The additional fee shall be one cent per pound
round weight, which is 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) 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. 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
[[Page 210]]
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 fishery's fee rate to the maximum 5 percent of revenue
for Pacific cod, 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 in
subpart L of this part. The reduction loan shall be subject to the
provisions of Sec.600.1012, except that: the subsector members'
obligation to repay the reduction loan shall be discharged by the owner
of the Longline Subsector license regardless of which vessel 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 holders of vessels harvesting in the
post-capacity reduction plan Longline Subsector shall be responsible for
self-collecting the repayment fees owed by the 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) Recordkeeping and reporting. The holder of the LLP Licenses on
which vessels harvesting in the post-capacity reduction plan Longline
Subsector is designated shall be responsible for compliance with the
applicable recordkeeping and reporting requirements.
(2) Agreement with Secretary. The Selected Offeror 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. The LLP License set forth on the Selected Offer
shall be included as Reduction Fishing Interests in such Reduction
Contract.
(d) Decisions of the Auditor and the FLCC. Time was of the essence
in developing and implementing a Reduction Plan and, accordingly, the
Offeror is 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 was solely ministerial in nature.
That is, the Auditor verified whether the documents submitted by
Subsector Members were, 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
presumed the validity of all signatures on documents submitted. The
Auditor made no 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
was material).
(2) [Reserved]
(e) 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
Appropriations Act is both unique and finite and that failure of the
Selected Offeror to perform the obligations provided by the Reduction
Agreement will result in irreparable damage to the FLCC and the
Subsector Members. 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 to
fulfill their 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.
(f) Miscellaneous-- (1) Termination. 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.
[[Page 211]]
(2) 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 litigation arising
out of or relating to the Reduction Agreement or out of the performance
of services hereunder.
(3) 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.
(4) 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]
(g) Amendment. All Subsector Members acknowledge 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.
(h) Warranties. The Offeror must expressly warrant and represent in
the Reduction Agreement that:
(1) The Offeror has had an opportunity to consult with an attorney
or other advisors 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) The Offeror 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 the Offeror;
(3) The execution and delivery of the Reduction Agreement, does not
and will not conflict with any provisions of the governing documents of
the Offeror;
(4) The person executing the Reduction Agreement has been duly
authorized by the Offeror to execute and deliver the Reduction Agreement
and to undertake and perform the actions contemplated herein; and
(5) The Offeror has taken all actions necessary for the Reduction
Agreement to constitute a valid and binding obligation, enforceable in
accordance with its terms.
(i) Approval of the Reduction Plan. Acceptance of the Offer is 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 of
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 (Pub. L. 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))
[[Page 212]]
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 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.
(j) Referendum. The following provisions apply to the Reduction Plan
of this section to the extent that they do not conflict with subpart L
of this part including Sec. Sec.600.1009, 600.1010, 600.1013, and
600.1014 or 16 U.S.C. 1861a; except where the referendum is successful
if a majority of all permit holders within the fishery vote in favor of
the Reduction Program is accordance with 18 U.S.C. 1861a(d)(1)(B).
(k)(1) Fee payment and collection system. Upon successful completion
of the Referendum discussed above as authorized by Public Law 108-447
and in accordance with 16 U.S.C. 1861a and Sec.600.1012 this fee
collection system establishes:
(i) The subsector members' obligation to repay the reduction loan,
and
(ii) The loan's principal amount, interest rate, and repayment term;
and
(iii) In accordance with Sec. Sec.600.1013 through 600.1016,
implements an industry fee system for the reduction fishery.
(2) Reduction loan amount. The reduction loan's original principal
amount is $2,700,000.
(3) Interest accrual from inception. Interest begins accruing on the
reduction loan from the date which NMFS disburses such loan.
(4) 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 in which loan is disbursed plus 2 percent.
(5) Repayment terms. For the purpose of determining fee rates, the
reduction loan's repayment term is 30 years from the date NMFS disburses
the loan. However, fee collections shall continue indefinitely until the
loan is fully repaid.
(6) Reduction loan repayment. The subsector members shall repay the
reduction loan in accordance with Sec.600.1012. Both fish buyers and
fish sellers are considered subsector members for purposes of fee
collection, deposit, disbursement, and accounting in accordance with
Sec.600.1013.
(i) Subsector members in the reduction fishery shall collect and pay
the fee amount in accordance with Sec.600.1105;
(ii) Subsector members in the reduction fishery shall deposit and
disburse, as well as keep records for and submit reports about, the
applicable fees in accordance with Sec.600.1014, except the
requirements under paragraphs (c) and (e) of this section. All collected
fee revenue a fish buyer collects to repay the loan identified in
paragraph (c) of this section shall be made to NMFS no later than
fifteen (15) calendar days following the end of each calendar month. The
annual reports identified in paragraph (e) of this section shall be
submitted to NMFS by February 1 of each calendar year.
(iii) The reduction loan is, in all other respects, subject to the
provisions of Sec. Sec.600.1012 through 600.1017.
(l) Enforcement for failure to pay fees. The provisions and
requirements of Sec.600.1016 (Enforcement) shall also apply to fish
sellers and fish buyers subject to this fishery.
[77 FR 58779, Sept. 24, 2012]
Subpart N_Shark Fin Removal, Possession, Transfer and Landing
Source: 81 FR 42289, June 29, 2016, unless otherwise noted.
Sec.600.1200 Purpose and scope.
The regulations in this subpart implement the Shark Conservation Act
of 2010.
[[Page 213]]
Sec.600.1201 Relation to other laws.
(a) Regulations pertaining to conservation and management (including
record keeping and reporting) for certain shark fisheries are also set
forth in parts 635 (for Federal Atlantic Ocean, Gulf of Mexico, and
Caribbean shark fisheries), 648 (for spiny dogfish fisheries), 660 (for
fisheries off West Coast states), and 665 (for fisheries in the western
Pacific) of this chapter.
(b) This subpart does not apply to an individual engaged in
commercial fishing for smooth dogfish (Mustelus canis) when the
conditions in Sec.635.30(c)(5) have been met.
(c) This subpart does not supersede state laws or regulations
governing conservation and management of state shark fisheries in state
waters.
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:
Fin means any of the fins of a shark (including the tail) or a
portion thereof.
Land or landing means offloading fish, or causing fish to be
offloaded, from a fishing vessel, either to another vessel or to a shore
side location or facility, or arriving in port, or at a dock, berth,
beach, seawall, or ramp to begin offloading fish.
Naturally attached, with respect to a shark fin, means attached to
the corresponding shark carcass through some portion of uncut skin.
(b) If there is any difference between a definition in this section
and in Sec.600.10, the definition in this section is the operative
definition for the purposes of this subpart.
Sec.600.1203 Prohibitions.
(a) It is unlawful for any person to do, or attempt to do, any of
the following:
(1) Remove a fin at sea.
(2) To have custody, control, or possession of a fin, aboard a
fishing vessel, unless the fin is naturally attached.
(3) Transfer a fin from one vessel to another vessel at sea unless
the fin is naturally attached.
(4) Receive a fin in a transfer from one vessel to another vessel at
sea unless the fin is naturally attached.
(5) Land a fin unless the fin is naturally attached.
(6) Land a shark carcass without all of its fins naturally attached.
(7) Possess, purchase, offer to sell, or sell fins or shark
carcasses taken, transferred, landed, or possessed in violation of this
section.
(8) When requested, fail to allow an authorized officer or any
employee of NMFS designated by a Regional Administrator, or by the
Director of the Office of Sustainable Fisheries in the case of the
Atlantic Highly Migratory Species, access to or inspection or copying of
any records pertaining to the landing, sale, transfer, purchase, or
other disposition of fins or shark carcasses.
(b) For purposes of this section, it is a rebuttable presumption
that:
(1) If a fin is found aboard a vessel, other than a fishing vessel,
without being naturally attached, such fin was transferred in violation
of this section.
(2) If, after landing, the total weight of fins landed from any
vessel exceeds five percent of the total weight of shark carcasses
landed, such fins were taken, held, or landed in violation of this
section.
Subpart O_Limited Access Privilege Programs
Authority: 16 U.S.C. 1801 et seq.
Source: 73 FR 75973, Dec. 15, 2008, unless otherwise noted.
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
[[Page 214]]
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 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.
[[Page 215]]
(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:
(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
[[Page 216]]
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 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.
[[Page 217]]
(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.
(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.
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.
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
Angler means a person who is angling (see 50 CFR 600.10) in tidal
waters.
Authorized officer has the same meaning as in 50 CFR 600.10.
Combination license means either:
(1) A single state fishing license that permits fishing in fresh
waters and tidal waters at one price; or
[[Page 218]]
(2) A single state license that permits a group of fishing and
hunting activities, including fishing in tidal waters, at a price that
is less than the sum of the cost of the individual licenses.
Commercial fishing has the same meaning as in 16 U.S.C. 1802.
Continental shelf fishery resources has the same meaning as in 16
U.S.C. 1802.
Exempted state means a state that has been designated as an exempted
state by NMFS pursuant to Sec.600.1415.
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.
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.
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).
State has the same meaning as in 16 U.S.C. 1802.
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.
[77 FR 42191, July 18, 2012]
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:
(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 660.707(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) or a MHI Non-
commercial Bottomfish permit under 50 CFR 665.203(a)(2);
(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.
[[Page 219]]
(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, as amended at 77 FR 42191, July 18, 2012]
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 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 update and 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 vessel operators, and the name and state
registration number or U.S. Coast Guard documentation number of for-hire
vessels that are licensed to fish, or are registered as fishing, in the
EEZ, in the tidal waters of the
[[Page 220]]
state, or for anadromous species. The Memorandum of Agreement developed
in accordance with Sec.600.1415(b)(2) will specify the timetable for a
state to compile and submit complete information 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 17 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.
(7) Fishing on days designated as ``free fishing days'' by states.
``Free fishing days'' means fishing promotion programs by which states
allow new anglers to fish for a specified day without a license or
registration.
(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 or registration program excludes anglers in any
category other than those listed in paragraph (b) of this section.
(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 is later, and thereafter in
accordance with the Memorandum of Agreement. States that provide NMFS
with notice that they are required to enact legislation or to enter into
formal memoranda of agreement or contracts with other state agencies to
comply with this requirement must submit the data within three years of
the effective date of the Memorandum of Agreement:
(1) Name, address and telephone number, updated annually, of
excluded anglers over age 59, unless the state can demonstrate that the
number of anglers excluded from the license or registration requirement
based on having a date of birth before June 1, 1940 is so small it has
no significant probability of biasing estimates of fishing effort if
these anglers are not included in a representative sample;
(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.
[73 FR 79717, Dec. 30, 2008, as amended at 77 FR 42191, July 18, 2012]
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;
(iv) U.S. Virgin Islands;
(v) California, Oregon and Washington;
(vi) Alaska;
(vii) Hawaii; or
[[Page 221]]
(viii) 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, mail or Internet if such regional survey includes
a telephone survey component; and
(4) Meet NMFS survey design and data collection standards.
[73 FR 79717, Dec. 30, 2008, as amended at 77 FR 42192, July 18, 2012]
Subpart Q_Vessel Monitoring System Type-Approval
Source: 85 FR 40921, July 8, 2020, unless otherwise noted.
Sec.600.1500 Definitions and acronyms.
In addition to the definitions in the Magnuson-Stevens Act and in
Sec.600.10, and the acronyms in Sec.600.15, the terms and acronyms
in this subpart have the following meanings:
Authorized entity means a person, defined at 16 U.S.C. 1802(36),
authorized to receive data transmitted by a VMS unit.
Bench configuration means the configuration of a VMS unit after it
has been customized to meet the Federal VMS requirements.
Bundle means a mobile communications service and VMS unit sold as a
package and considered one product. If a bundle is type-approved, the
requestor will be the type-approval holder for the bundled MCS and VMS
unit.
Cellular communication means the wireless transmission of VMS data
via a cellular network.
Communication class means the satellite or cellular communications
operator from which communications services originate.
Electronic form means a pre-formatted message transmitted by a VMS
unit that is required for the collection of data for a specific fishery
program (e.g., declaration system, catch effort reporting).
Enhanced Mobile Transceiver Unit (EMTU) means a type of MTU that is
capable of supporting two-way communication, messaging, and electronic
forms transmission via satellite. An EMTU is a transceiver or
communications device, including an antenna, and dedicated message
terminal and display which can support a dedicated input device such as
a tablet or keyboard, installed on fishing vessels participating in
fisheries with a VMS requirement.
Enhanced Mobile Transceiver Unit, Cellular Based (EMTU-C) means an
EMTU that transmits and receives data via cellular communications,
except that it may not need a dedicated message terminal and display
component at the time of approval as explained at Sec.600.1502(a)(6).
An EMTU-C only needs to be capable of transmission and reception when in
the range of a cellular network.
Latency means the state of untimely delivery of Global Positioning
System position reports and electronic forms to NMFS (i.e., information
is not delivered to NMFS consistent with timing requirements of this
subpart).
Mobile Communications Service (MCS) means the satellite and/or
cellular communications services used with particular VMS units.
Mobile Communications Service Provider (MCSP) means an entity that
sells VMS satellite and/or cellular communications services to end
users.
Mobile Transmitter Unit (MTU) means a VMS unit capable of
transmitting Global Positioning System position reports via satellite.
(MTUs are no longer approved for new installations on VMS vessels).
Notification Letter means a letter issued by NMFS to a type-approval
holder identifying an alleged failure of a VMS unit, MCS, or the type-
approval holder to comply with the requirements of this subpart.
Position report means the unique global positioning system (GPS)
report generated by a vessel's VMS unit, which identifies the vessel's
latitude/longitude position at a point in time. Position reports are
sent from the VMS unit via the MCS, to authorized entities.
Requestor means a vendor seeking type-approval.
[[Page 222]]
Service life means the length of time during which a VMS unit
remains fully operational with reasonable repairs.
Sniffing means the unauthorized and illegitimate monitoring and
capture, through use of a computer program or device, of data being
transmitted over a network.
Spoofing means the reporting of a false Global Positioning System
position and/or vessel identity.
Time stamp means the time, in hours, minutes, and seconds in a
position report. Each position report is time stamped.
Type-approval holder means an applicant whose type-approval request
has been approved pursuant to this subpart.
Vendor means a commercial provider of VMS hardware, software, and/or
mobile communications services.
Vessel Monitoring System (VMS) means, for purposes of this subpart,
a satellite and/or cellular based system designed to monitor the
location and movement of vessels using onboard VMS units that send
Global Positioning System position reports to an authorized entity.
Vessel Monitoring System (VMS) data means the data transmitted to
authorized entities from a VMS unit.
Vessel Monitoring System Program means the Federal program that
manages the vessel monitoring system, data, and associated program-
components, nationally and in each NMFS region; it is housed in the
Department of Commerce, National Oceanic and Atmospheric Administration,
National Marine Fisheries Service's Office of Law Enforcement.
Vessel Monitoring System (VMS) Unit means MTU, EMTU or EMTU-C, as
well as the units that can operate as both an EMTU and an EMTU-C.
Vessel Monitoring System (VMS) Vessels means vessels that operate in
federally managed fisheries with a requirement to carry and operate a
VMS unit.
Sec.600.1501 Vessel Monitoring System type-approval process.
(a) Applicability. Unless otherwise specified, this section applies
to EMTUs, EMTU-Cs, units that operate as both an EMTU and EMTU-C, and
MCSs. Units that can operate as both an EMTU and EMTU-C must meet the
requirements for both an EMTU and an EMTU-C in order to gain type-
approval as both. MTUs are no longer eligible for type-approval.
(b) Application submission. A requestor must submit a written type-
approval request and electronic copies of supporting materials that
include the information required under this section to the NMFS Office
of Law Enforcement (OLE) at: U.S. Department of Commerce; National
Oceanic and Atmospheric Administration; National Marine Fisheries
Service; Office of Law Enforcement; Attention: Vessel Monitoring System
Office; 1315 East-West Highway, SSMC3, Suite 3301, Silver Spring,
Maryland 20910.
(c) Application requirements. (1) EMTU, EMTU-C, and MCS Identifying
Information: In a type-approval request, the requestor should indicate
whether the requestor is seeking approval for an EMTU, EMTU-C, MCS, or
bundle and must specify identifying characteristics, as applicable:
Communication class; manufacturer; brand name; model name; model number;
software version and date; firmware version number and date; hardware
version number and date; antenna type; antenna model number and date;
tablet, monitor or terminal model number and date; MCS to be used in
conjunction with the EMTU/EMTU-C; entity providing MCS to the end user;
and current global and regional coverage of the MCS.
(2) Requestor-approved third party business entities: The requestor
must provide the business name, address, phone number, contact name(s),
email address, specific services provided, and geographic region covered
for the following third party business entities:
(i) Entities providing bench configuration for the EMTU/EMTU-C at
the warehouse or point of supply.
(ii) Entities distributing/selling the EMTU/EMTU-C to end users.
(iii) Entities currently approved by the requestor to install the
EMTU/EMTU-C onboard vessels.
(iv) Entities currently approved by the requestor to offer a limited
warranty.
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(v) Entities approved by the requestor to offer a maintenance
service agreement.
(vi) Entities approved by the requestor to repair or install new
software on the EMTU/EMTU-C.
(vii) Entities approved by the requestor to train end users.
(viii) Entities approved by the requestor to advertise the EMTU/
EMTU-C.
(ix) Entities approved by the requestor to provide other customer
services.
(3) Regulatory Requirements and Documentation: In a type-approval
request, a requestor must:
(i) Identify the NMFS region(s) and/or Federal fisheries for which
the requestor seeks type-approval.
(ii) Include copies of, or citation to, applicable VMS regulations
and requirements in effect for the region(s) and Federal fisheries
identified under paragraph (c)(3)(i) of this section that require use of
VMS.
(iii) Provide a table with the type-approval request that lists in
one column each requirement set out in Sec. Sec.600.1502 through
600.1509 and regulations described under paragraph (c)(3)(ii) of this
section. NMFS OLE will provide a template for the table upon request.
The requestor must indicate in subsequent columns in the table:
(A) Whether the requirement applies to the type-approval; and
(B) Whether the EMTU, EMTU-C, MCS, or bundle meets the requirement.
(iv) Certify that the features, components, configuration and
services of the requestor's EMTU/EMTU-C, MCS, or bundle comply with each
requirement set out in Sec. Sec.600.1502 through 600.1509 and the
regulations described under paragraph (c)(3)(ii) of this section.
(v) Certify that, if the request is approved, the requestor agrees
to be responsible for ensuring compliance with each requirement set out
in Sec. Sec.600.1502 through 600.1509 and the regulations described
under paragraph (c)(3)(ii) of this section over the course of the type-
approval period.
(vi) Provide NMFS OLE with two EMTU/EMTU-Cs loaded with forms and
software, if applicable, for each NMFS region or Federal fishery, with
activated MCS, for which a type-approval request is submitted for a
minimum of 90 calendar days for testing and evaluation. For EMTU-Cs, the
forms and software may be loaded onto a dedicated message terminal and
display component to which the EMTU-C can connect. Copies of forms
currently used by NMFS are available upon request. As part of its
review, NMFS OLE may perform field tests and at-sea trials that involve
demonstrating every aspect of EMTU/EMTU-C and communications operation.
The requestor is responsible for all associated costs including paying
for: Shipping of the EMTU/EMTU-C to the required NMFS regional offices
and/or headquarters for testing; the MCS during the testing period; and
shipping of the EMTU/EMTU-C back to the vendor.
(vii) Provide thorough documentation for the EMTU/EMTU-C and MCS,
including: EMTU/EMTU-C fact sheets; installation guides; user manuals;
any necessary interfacing software; MCS global and regional coverage;
performance specifications; and technical support information.
(d) Certification. A requestor seeking type-approval of an EMTU/
EMTU-C to operate with a class or type of communications, as opposed to
type-approval for use with a specific MCS, shall certify that the EMTU/
EMTU-C meets requirements under this subpart when using at least one
MCSP within that class or type of communications.
(e) Notification. Unless additional time is required for EMTU/EMTU-C
testing, NMFS OLE will notify the requestor within 90 days after receipt
of a complete type-approval request as follows:
(1) If a request is approved or partially approved, NMFS OLE will
provide notice as described under Sec.600.1510 and the type-approval
letter will serve as official documentation and notice of type-approval.
OLE will publish and maintain the list of type-approved units on their
Vessel Monitoring System web page.
(2) If a request is disapproved or partially disapproved:
(i) OLE will send a letter to the requestor that explains the reason
for the disapproval/partial disapproval.
(ii) The requestor may respond to NMFS OLE in writing with
additional
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information to address the reasons for disapproval identified in the
NMFS OLE letter. The requestor must submit this response within 21
calendar days of the date of the OLE letter sent under paragraph
(e)(2)(i) of this section.
(iii) If any additional information is submitted under paragraph
(e)(2)(ii) of this section, NMFS OLE, after reviewing such information,
may either take action under paragraph (e)(1) of this section or
determine that the request should continue to be disapproved or
partially disapproved. In the latter case, the NMFS OLE Director will
send a letter to the requestor that explains the reasons for the
continued disapproval/partial disapproval. The NMFS OLE Director's
decision is final upon issuance of this letter and is not appealable.
Sec.600.1502 Communications functionality.
(a) Unless otherwise specified, this subsection applies to all VMS
units. Units that can operate as both an EMTU and EMTU-C must meet the
requirements for both an EMTU and an EMTU-C in order to gain type-
approval as both. The VMS unit must:
(1) Be able to transmit all automatically-generated position
reports.
(2) Provide visible or audible alarms onboard the vessel to indicate
malfunctioning of the VMS unit.
(3) Be able to disable non-essential alarms in non-Global Maritime
Distress and Safety System (GMDSS) installations.
(4) EMTU/EMTU-Cs must be able to send communications that function
uniformly throughout the geographic area(s) covered by the type-
approval, except an EMTU-C only needs to be capable of transmission and
reception when in the range of a cellular network.
(5) EMTU/EMTU-Cs must have two-way communications between the unit
and authorized entities, via MCS, or be able to connect to a device that
has two-way communications.
(6) EMTU/EMTU-Cs must be able to run or to connect to a dedicated
message terminal and display component that can run software and/or
applications that send and receive electronic forms and internet email
messages for the purpose of complying with VMS reporting requirements in
Federal fisheries. Depending on the reporting requirements for the
fishery(s) in which the requester is seeking type-approval, an EMTU-C
type-approval may not require the inclusion of a dedicated message
terminal and display component at the time of approval, but the
capability to support such a component must be shown.
(7) Have messaging and communications mechanisms that are completely
compatible with NMFS vessel monitoring and surveillance software.
(b) In addition, messages and communications from a VMS unit must be
able to be parsed out to enable clear billing of costs to the government
and to the owner of a vessel or EMTU/EMTU-C, when necessary. Also, the
costs associated with position reporting and the costs associated with
other communications (for example, personal email or communications/
reports to non-NMFS Office of Law Enforcement entities) must be parsed
out and billed to separate parties, as appropriate.
Sec.600.1503 Position report data formats and transmission.
Unless otherwise specified, this subsection applies to all VMS
units, MCSs and bundles. Units that can operate as both an EMTU and
EMTU-C must meet the requirements for both an EMTU and an EMTU-C in
order to gain type-approval as both. To be type-approved in any given
fishery, a VMS unit must also meet any additional positioning
information as required by the applicable VMS regulations and
requirements in effect for each fishery or region for which the type-
approval applies. The VMS unit must meet the following requirements:
(a) Transmit all automatically-generated position reports, for
vessels managed individually or grouped by fleet, that meet the latency
requirement under Sec.600.1504.
(b) When powered up, must automatically re-establish its position
reporting function without manual intervention.
(c) Position reports must contain all of the following:
(1) Unique identification of an EMTU/EMTU-C and clear indication if
the unit is an EMTU-C.
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(2) Date (year/month/day with century in the year) and time stamp
(GMT) of the position fix.
(3) Date (year/month/day with century in the year) and time stamp
(GMT) that the EMTU-C position report was sent from the EMTU-C.
(4) Position fixed latitude and longitude, including the hemisphere
of each, which comply with the following requirements:
(i) The position fix precision must be to the decimal minute
hundredths.
(ii) Accuracy of the reported position must be within 100 meters
(328.1 ft).
(d) An EMTU/EMTU-C must have the ability to: (1) Store 1,000
position fixes in local, non-volatile memory.
(2) Allow for defining variable reporting intervals between 5
minutes and 24 hours.
(3) Allow for changes in reporting intervals remotely and only by
authorized users.
(e) An EMTU/EMTU-C must generate specially identified position
reports upon:
(1) Antenna disconnection.
(2) Loss of positioning reference signals.
(3) Security events, power-up, power down, and other status data.
(4) A request for EMTU/EMTU-C status information such as
configuration of programming and reporting intervals.
(5) The EMTUs loss of the mobile communications signals.
(6) An EMTU must generate a specially identified position report
upon the vessel crossing of a pre-defined geographic boundary.
Sec.600.1504 Latency requirement.
(a) Ninety percent of all pre-programmed or requested Global
Positioning System position reports during each 24-hour period must
reach NMFS within 15 minutes or less of being sent from the VMS unit,
for 10 out of 11 consecutive days (24-hour time periods).
(b) NMFS will continually examine latency by region and by type-
approval holder.
(c) Exact dates for calculation of latency will be chosen by NMFS.
Days in which isolated and documented system outages occur will not be
used by NMFS to calculate a type-approval holder's latency.
Sec.600.1505 Messaging.
(a) Unless otherwise specified, this section applies to all VMS
units, MCSs, and bundles. Units that can operate as both an EMTU and
EMTU-C must meet the requirements for both an EMTU and an EMTU-C in
order to gain type-approval as both. Depending on the reporting
requirements for the fishery(s) in which the requester is seeking type-
approval, an EMTU-C type-approval may not require the inclusion of a
dedicated message terminal and display component at the time of
approval, but the capability to support such a component must be shown.
To be type-approved in any given fishery, a VMS unit must meet messaging
information requirements under the applicable VMS regulations and
requirements in effect for each fishery or region for which the type-
approval applies. The VMS unit must also meet the following
requirements:
(b) An EMTU must be able to run software and/or applications that
send email messages for the purpose of complying with VMS reporting
requirements in Federal fisheries that require email communication
capability. An EMTU-C must be able to run or connect to a device that
can run such software and/or applications. In such cases, the EMTU/EMTU-
C messaging must provide for the following capabilities:
(1) Messaging from vessel to shore, and from shore to vessel by
authorized entities, must have a minimum supported message length of 1
KB. For EMTU-Cs, this messaging capability need only be functional when
in range of shore-based cellular communications.
(2) There must be a confirmation of delivery function that allows a
user to ascertain whether a specific message was successfully
transmitted to the MCS email server(s).
(3) Notification of failed delivery to the EMTU/EMTU-C must be sent
to the sender of the message. The failed delivery notification must
include sufficient information to identify the specific message that
failed and the cause of failure (e.g., invalid address, EMTU/EMTU-C
switched off, etc.).
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(4) The EMTU/EMTU-C must have an automatic retry feature in the
event that a message fails to be delivered.
(5) The EMTU/EMTU-C user interface must:
(i) Support an ``address book'' capability and a function permitting
a ``reply'' to a received message without re-entering the sender's
address.
(ii) Provide the ability to review by date order, or by recipient,
messages that were previously sent. The EMTU/EMTU-C terminal must
support a minimum message history of 50 sent messages--commonly referred
to as an ``Outbox'' or ``Sent'' message display.
(iii) Provide the ability to review by date order, or by sender, all
messages received. The EMTU/EMTU-C terminal must support a minimum
message history of at least 50 messages in an inbox.
Sec.600.1506 Electronic forms.
Unless otherwise specified, this subsection applies to all EMTUs,
EMTU-Cs, MCSs, and bundles.
(a) Forms. An EMTU/EMTU-C must be able to run, or to connect to and
transmit data from a device that can run electronic forms software.
Depending on the reporting requirements for the fishery(s) in which the
requester is seeking type-approval, an EMTU-C type-approval may not
require the inclusion of a dedicated message terminal and display
component at the time of approval, but the capability to support such a
component must be shown. The EMTU/EMTU-C must be able to support forms
software that can hold a minimum of 20 electronic forms, and it must
also meet any additional forms requirements in effect for each fishery
or region for which the type-approval applies. The EMTU/EMTU-C must meet
the following requirements:
(1) Form Validation: Each field on a form must be capable of being
defined as Optional, Mandatory, or Logic Driven. Mandatory fields are
those fields that must be entered by the user before the form is
complete. Optional fields are those fields that do not require data
entry. Logic-driven fields have their attributes determined by earlier
form selections. Specifically, a logic-driven field must allow for
selection of options in that field to change the values available as
menu selections on a subsequent field within the same form.
(2) A user must be able to select forms from a menu on the EMTU/
EMTU-C.
(3) A user must be able to populate a form based on the last values
used and ``modify'' or ``update'' a prior submission without unnecessary
re-entry of data. A user must be able to review a minimum of 20 past
form submissions and ascertain for each form when the form was
transmitted and whether delivery was successfully sent to the type-
approval holder's VMS data processing center. In the case of a
transmission failure, a user must be provided with details of the cause
and have the opportunity to retry the form submission.
(4) VMS Position Report: Each form must include VMS position data,
including latitude, longitude, date and time. Data to populate these
fields must be automatically generated by the EMTU/EMTU-C and unable to
be manually entered or altered.
(5) Delivery and Format of Forms Data: Delivery of form data to NMFS
must employ the same transport security and reliability as set out in
Sec.600.1507 of this subpart. The forms data and delivery must be
completely compatible with NMFS vessel monitoring software.
(b) Updates to Forms. (1) The EMTU/EMTU-C and MCS must be capable of
providing updates to forms or adding new form requirements via wireless
transmission and without manual installation.
(2) From time to time, NMFS may provide type-approved applicants
with requirements for new forms or modifications to existing forms. NMFS
may also provide notice of forms and form changes through the NMFS Work
Order System. Type-approved applicants will be given at least 60
calendar days to complete their implementation of new or changed forms.
Applicants will be capable of, and responsible for translating the
requirements into their EMTU/EMTU-C-specific forms definitions and
wirelessly transmitting the same to all EMTU/EMTU-C terminals supplied
to fishing vessels.
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Sec.600.1507 Communications security.
Communications between an EMTU/EMTU-C and MCS must be secure from
tampering or interception, including the reading of passwords and data.
The EMTU/EMTU-C and MCS must have mechanisms to prevent to the extent
possible:
(a) Sniffing and/or interception during transmission from the EMTU/
EMTU-C to MCS.
(b) Spoofing.
(c) False position reports sent from an EMTU/EMTU-C.
(d) Modification of EMTU/EMTU-C identification.
(e) Interference with Global Maritime Distress and Safety System
(GMDSS) or other safety/distress functions.
(f) Introduction of malware, spyware, keyloggers, or other software
that may corrupt, disturb, or disrupt messages, transmission, and the
VMS system.
(g) The EMTU/EMTU-C terminal from communicating with, influencing,
or interfering with the Global Positioning System antenna or its
functionality, position reports, or sending of position reports. The
position reports must not be altered, corrupted, degraded, or at all
affected by the operation of the terminal or any of its peripherals or
installed-software.
(h) VMS data must be encrypted and sent securely through all
associated cellular, satellite, and internet communication pathways and
channels.
Sec.600.1508 Field and technical services.
As a requirement of its type-approval, a type-approval holder must
communicate with NMFS to resolve technical issues with a VMS Unit, MCS
or bundle and ensure that field and technical services includes:
(a) Diagnostic and troubleshooting support to NMFS and fishers,
which is available 24 hours a day, seven days per week, and year-round.
(b) Response times for customer service inquiries that shall not
exceed 24 hours.
(c) Warranty and maintenance agreements.
(d) Escalation procedures for resolution of problems.
(e) Established facilities and procedures to assist fishers in
maintaining and repairing their EMTU, EMTU-C, or MTU.
(f) Assistance to fishers in the diagnosis of the cause of
communications anomalies.
(g) Assistance in resolving communications anomalies that are traced
to the EMTU, EMTU-C, or MTU.
(h) Assistance to NMFS Office of Law Enforcement and its
contractors, upon request, in VMS system operation, resolving technical
issues, and data analyses related to the VMS Program or system.
Sec.600.1509 General.
(a) An EMTU/EMTU-C must have the durability and reliability
necessary to meet all requirements of Sec. Sec.600.1502 through
600.1507 regardless of weather conditions, including when placed in a
marine environment where the unit may be subjected to saltwater (spray)
in smaller vessels, and in larger vessels where the unit may be
maintained in a wheelhouse. The unit, cabling and antenna must be
resistant to salt, moisture, and shock associated with sea-going vessels
in the marine environment.
(b) PII and Other Protected Information. Personally identifying
information (PII) and other protected information includes Magnuson-
Stevens Act confidential information as provided at 16 U.S.C. 1881a and
Business Identifiable Information (BII), as defined in the Department of
Commerce Information Technology Privacy Policy. A type-approval holder
is responsible for ensuring that:
(1) All PII and other protected information is handled in accordance
with applicable state and Federal law.
(2) All PII and other protected information provided to the type-
approval holder by vessel owners or other authorized personnel for the
purchase or activation of an EMTU/EMTU-C or arising from participation
in any Federal fishery are protected from disclosure not authorized by
NMFS or the vessel owner or other authorized personnel.
(3) Any release of PII or other protected information beyond
authorized entities must be requested and approved in writing, as
appropriate, by
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the submitter of the data in accordance with 16 U.S.C. 1881a, or by
NMFS.
(4) Any PII or other protected information sent electronically by
the type-approval holder to the NMFS Office of Law Enforcement must be
transmitted by a secure means that prevents interception, spoofing, or
viewing by unauthorized individuals.
Sec.600.1510 Notification of type-approval.
(a) If a request made pursuant to Sec.600.1501 (type-approval) is
approved or partially approved, NMFS will issue a type-approval letter
to indicate the specific EMTU/EMTU-C model, MCSP, or bundle that is
approved for use, the MCS or class of MCSs permitted for use with the
type-approved EMTU, and the regions or fisheries in which the EMTU/EMTU-
C, MCSP, or bundle is approved for use.
(b) The NMFS Office of Law Enforcement will maintain a list of type-
approved EMTUs/EMTU-C, MCSPs, and bundles on a publicly available
website and provide copies of the list upon request.
Sec.600.1511 Changes or modifications to type-approvals.
Type-approval holders must notify NMFS Office of Law Enforcement
(OLE) in writing no later than 2 days following modification to or
replacement of any functional component or piece of their type-approved
EMTU, EMTU-C, or MTU configuration, MCS, or bundle. If the changes are
substantial, NMFS OLE will notify the type-approval holder in writing
within 60 calendar days that an amended type-approval is required or
that NMFS will initiate the type-approval revocation process.
Sec.600.1512 Type-approval revocation process.
(a) If at any time, a type-approved EMTU/EMTU-C, MCS, or bundle
fails to meet requirements at Sec. Sec.600.1502 through 600.1509 or
applicable VMS regulations and requirements in effect for the region(s)
and Federal fisheries for which the EMTU/EMTU-C or MCS is type-approved,
or if an MTU fails to meet the requirements under which it was type-
approved, OLE may issue a Notification Letter to the type-approval
holder that:
(1) Identifies the MTU, EMTU, EMTU-C, MCS, or bundle that allegedly
fails to comply with type-approval regulations and requirements;
(2) Identifies the alleged failure to comply with type-approval
regulations and requirements, and the urgency and impact of the alleged
failure;
(3) Cites relevant regulations and requirements under this subpart;
(4) Describes the indications and evidence of the alleged failure;
(5) Provides documentation and data demonstrating the alleged
failure;
(6) Sets a response date by which the type-approval holder must
submit to NMFS OLE a written response to the Notification Letter,
including, if applicable, a proposed solution; and
(7) Explains the type-approval holder's options if the type-approval
holder believes the Notification Letter is in error.
(b) NMFS will establish a response date between 30 and 120 calendar
days from the date of the Notification Letter. The type-approval
holder's response must be received in writing by NMFS on or before the
response date. If the type-approval holder fails to respond by the
response date, the type-approval will be revoked. At its discretion and
for good cause, NMFS may extend the response date to a maximum of 150
calendar days from the date of the Notification Letter.
(c) A type-approval holder who has submitted a timely response may
meet with NMFS within 21 calendar days of the date of that response to
discuss a detailed and agreed-upon procedure for resolving the alleged
failure. The meeting may be in person, conference call, or webcast.
(d) If the type-approval holder disagrees with the Notification
Letter and believes that there is no failure to comply with the type-
approval regulations and requirements, NMFS has incorrectly defined or
described the failure or its urgency and impact, or NMFS is otherwise in
error, the type-approval holder may submit a written objection letter to
NMFS on or before the response date. Within 21 calendar days of the date
of the objection letter, the type-approval holder may meet with
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NMFS to discuss a resolution or redefinition of the issue. The meeting
may be in person, conference call, or webcast. If modifications to any
part of the Notification Letter are required, then NMFS will issue a
revised Notification Letter to the type-approval holder. However, the
response date or any other timeline in this process would not restart or
be modified unless NMFS decides to do so, at its discretion.
(e) The total process from the date of the Notification Letter to
the date of final resolution should not exceed 180 calendar days, and
may require a shorter timeframe, to be determined by NMFS, depending on
the urgency and impact of the alleged failure. In rare circumstances,
NMFS, at its discretion, may extend the time for resolution of the
alleged failure. In such a case, NMFS will provide a written notice to
the type-approval holder informing him or her of the extension and the
basis for the extension.
(f) If the failure to comply with type-approval regulations and
requirements cannot be resolved through this process, the NMFS OLE
Director will issue a Revocation Letter to the type-approval holder
that:
(1) Identifies the MTU, EMTU, EMTU-C, MCS, or bundle for which type-
approval is being revoked;
(2) Summarizes the failure to comply with type-approval regulations
and requirements, including describing its urgency and impact;
(3) Summarizes any proposed plan, or attempts to produce such a
plan, to resolve the failure;
(4) States that revocation of the MTU, EMTU, EMTU-C, MCS, or
bundle's type-approval has occurred;
(5) States that no new installations of the revoked unit will be
permitted in any NMFS-managed fishery requiring the use of VMS;
(6) Cites relevant regulations and requirements under this subpart;
(7) Explains why resolution was not achieved;
(8) Advises the type-approval holder that:
(i) The type-approval holder may reapply for a type-approval under
the process set forth in Sec.600.1501, and
(ii) A revocation may be appealed pursuant to the process under
Sec.600.1513.
Sec.600.1513 Type-approval revocation appeals process.
(a) If a type-approval holder receives a Revocation Letter pursuant
to Sec.600.1512, the type-approval holder may file an appeal of the
revocation to the NMFS Assistant Administrator.
(b) An appeal must be filed within 14 calendar days of the date of
the Revocation Letter. A type-approval holder may not request an
extension of time to file an appeal.
(c) An appeal must include a complete copy of the Revocation Letter
and its attachments and a written statement detailing any facts or
circumstances explaining and refuting the failures summarized in the
Revocation Letter.
(d) The NMFS Assistant Administrator may, at his or her discretion,
affirm, vacate, or modify the Revocation Letter and send a letter to the
type-approval holder explaining his or her determination, within 21
calendar days of receipt of the appeal. The NMFS Assistant
Administrator's determination constitutes the final agency decision.
Sec.600.1514 Revocation effective date and notification to vessel owners.
(a) Following issuance of a Revocation Letter pursuant to Sec.
600.1512 and any appeal pursuant to Sec.600.1513, NMFS will provide
notice to all vessel owners impacted by the type-approval revocation via
letter and Federal Register notice. NMFS will provide information to
impacted vessel owners on:
(1) The next steps vessel owners should take to remain in compliance
with regional and/or national VMS requirements;
(2) The date, 60-90 calendar days from the notice date, on which the
type-approval revocation will become effective;
(3) Reimbursement of the cost of a new type-approved EMTU/EMTU-C,
should funding for reimbursement be available pursuant to Sec.
600.1516.
Sec.600.1515 Litigation support.
(a) All technical aspects of a type-approved EMTU, EMTU-C, MTU, MCS,
or bundle are subject to being admitted as
[[Page 230]]
evidence in a court of law, if needed. The reliability of all
technologies utilized in the EMTU, EMTU-C, MTU, MCS, or bundle may be
analyzed in court for, inter alia, testing procedures, error rates, peer
review, technical processes and general industry acceptance.
(b) The type-approval holder must, as a requirement of the holder's
type-approval, provide technical and expert support for litigation to
substantiate the EMTU/EMTU-C, MCS, or bundle capabilities to establish
NMFS Office of Law Enforcement cases against violators, as needed. If
the technologies have previously been subject to such scrutiny in a
court of law, the type-approval holder must provide NMFS with a brief
summary of the litigation and any court findings on the reliability of
the technology.
(c) The type-approval holder will be required to sign a non-
disclosure agreement limiting the release of certain information that
might compromise the effectiveness of the VMS operations.
Sec.600.1516 Reimbursement opportunities for revoked Vessel
Monitoring System type-approval products.
(a) Subject to the availability of funds, vessel owners may be
eligible for reimbursement payments for a replacement EMTU/EMTU-C if:
(1) All eligibility and process requirements specified by NMFS are
met as described in NMFS Policy Directive 06-102; and
(2) The replacement type-approved EMTU/EMTU-C is installed on the
vessel, and reporting to NMFS Office of Law Enforcement; and
(3) The type-approval for the previously installed EMTU/EMTU-C has
been revoked by NMFS; or
(4) NMFS requires the vessel owner to purchase a new EMTU/EMTU-C
prior to the end of an existing unit's service life.
(b) The cap for individual reimbursement payments is subject to
change. If this occurs, NMFS Office of Law Enforcement will publish a
notice in the Federal Register announcing the change.
Subpart R_Standardized Bycatch Reporting Methodology
Source: 82 FR 6337, Jan. 19, 2017, unless otherwise noted.
Sec.600.1600 Purpose and scope.
Section 303(a)(11) of the Magnuson-Stevens Act requires that any
fishery management plan (FMP) with respect to any fishery shall
establish a standardized reporting methodology to assess the amount and
type of bycatch occurring in the fishery. 16 U.S.C. 1853(a)(11). The
purpose of a standardized reporting methodology is to collect, record,
and report bycatch data in a fishery that, in conjunction with other
relevant sources of information, are used to assess the amount and type
of bycatch occurring in the fishery and inform the development of
conservation and management measures that, to the extent practicable,
minimize bycatch and bycatch mortality. This subpart sets forth
requirements for and guidance on establishing and reviewing a
standardized reporting methodology.
Sec.600.1605 Definitions and word usage.
(a) Definitions. In addition to the definitions in the Magnuson-
Stevens Act and Sec.600.10, standardized reporting methodology means
an established, consistent procedure or procedures used to collect,
record, and report bycatch data in a fishery, which may vary from one
fishery to another. Bycatch assessment is not part of the standardized
reporting methodology, but must be considered as described in Sec.
600.1610(a)(2)(iv).
(b) Word usage. The terms ``bycatch'' and ``fishery'' are used in
the same manner as in 16 U.S.C. 1802. The terms ``must'', ``should'',
``may'', ``will'', ``could'', and ``can'' are used in the same manner as
in Sec.600.305(c). The term ``Council'' is used in the same manner as
in Sec.600.305(d)(10), and includes the regional fishery management
Councils and the Secretary of Commerce, as appropriate (16 U.S.C.
1854(c) and (g)).
[[Page 231]]
Sec.600.1610 Establishing and reviewing standardized bycatch
reporting methodologies in fishery management plans.
(a) Establishing a standardized reporting methodology--(1) Fishery
management plan contents. An FMP must identify the required procedure or
procedures that constitute the standardized reporting methodology for
the fishery. The required procedures may include, but are not limited
to, one or more of the following: Observer programs, electronic
monitoring and reporting technologies, and self-reported mechanisms
(e.g., recreational sampling, industry-reported catch and discard data).
The FMP, or a fishery research plan authorized under 16 U.S.C. 1862,
must explain how the standardized reporting methodology meets the
purpose described in Sec.600.1600, based on an analysis of the
requirements under Sec.600.1610(a)(2). The FMP, or fishery research
plan authorized under 16 U.S.C. 1862, may reference analyses and
information in other FMPs, FMP amendments, Stock Assessment and Fishery
Evaluation (SAFE) reports, or other documents. Councils should work
together and collaborate on standardized reporting methodologies for
fisheries that operate across multiple jurisdictions, as appropriate. In
addition to proposing regulations necessary to implement the
standardized reporting methodology, a Council should also provide in its
FMP, or a fishery research plan authorized under 16 U.S.C. 1862,
guidance to NMFS on how to adjust implementation of a standardized
reporting methodology consistent with the FMP. See National Standard 6
guidelines, Sec.600.335.
(2) Requirements for standardized reporting methodology. The FMP
must establish a standardized reporting methodology as provided under
Sec.600.1610(a)(1) that meets the specific purpose described in Sec.
600.1600. Due to the inherent diversity of fisheries, different
standardized reporting methodologies may be appropriate for different
fisheries. However, when establishing or reviewing a standardized
reporting methodology, a Council must address the following:
(i) Information about the characteristics of bycatch in the fishery.
A Council must address information about the characteristics of bycatch
in the fishery, when available, including, but not limited to: The
amount and type of bycatch occurring in the fishery, which may vary
based on different fishing activities and operations; the importance of
bycatch in estimating the fishing mortality of fish stocks; and the
effect of bycatch on ecosystems.
(ii) Feasibility. The implementation of a standardized reporting
methodology must be feasible from cost, technical, and operational
perspectives. However, feasibility concerns do not exempt an FMP from
the requirement to establish a standardized reporting methodology.
Recognizing that costs and funding may vary from year to year, a Council
must also address how implementation of the standardized reporting
methodology may be adjusted while continuing to meet the purpose
described under Sec.600.1600.
(iii) Data uncertainty. A Council must address the uncertainty of
the data resulting from the standardized reporting methodology. The
standardized reporting methodology must be designed so that the
uncertainty associated with the resulting bycatch data can be described,
quantitatively or qualitatively. The Council should seek to minimize
uncertainty in the resulting data, recognizing that different degrees of
data uncertainty may be appropriate for different fisheries.
(iv) Data use. A Council must address how data resulting from the
standardized reporting methodology are used to assess the amount and
type of bycatch occurring in the fishery. A Council must consult with
its scientific and statistical committee and/or the regional National
Marine Fisheries Service science center on reporting methodology design
considerations such as data elements, sampling designs, sample sizes,
and reporting frequency. The Council must also consider the scientific
methods and techniques available to collect, record, and report bycatch
data that could improve the quality of bycatch estimates. Different
standardized reporting methodology designs may be appropriate for
different fisheries.
[[Page 232]]
(b) Review of FMPs. All FMPs must be consistent with this subpart by
February 21, 2022. Therefore, a Council, in coordination with NMFS, must
conduct a review of its FMPs for consistency with this subpart. A
Council does not need to amend an FMP if NMFS determines that it is
consistent with this subpart. Thereafter, Councils, in coordination with
NMFS, should conduct a review of standardized reporting methodologies at
least once every 5 years in order to verify continued compliance with
the MSA and this subpart.
PART 622_FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, 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--general.
622.5 Recordkeeping and reporting--general.
622.6 Vessel identification.
622.7 Fishing years.
622.8 Quotas--general.
622.9 Prohibited gear and methods--general.
622.10 Landing fish intact---general.
622.11 Bag and possession limits--general applicability.
622.12 Annual catch limits (ACLs) and accountability measures (AMs) for
Caribbean island management areas/Caribbean EEZ.
622.13 Prohibitions--general.
622.14 [Reserved]
622.15 Notice regarding area closures to protect corals.
622.16 Notice regarding South Atlantic special management zones (SMZs).
622.17 Notice regarding seasonal/area closures to protect Gulf reef
fish.
Subpart B_Reef Fish Resources of the Gulf of Mexico
622.20 Permits and endorsements.
622.21 Individual fishing quota (IFQ) program for Gulf red snapper.
622.22 Individual fishing quota (IFQ) program for Gulf groupers and
tilefishes.
622.23 State management of the red snapper recreational sector private
angling component in the Gulf EEZ.
622.24 [Reserved]
622.25 Exemptions for Gulf groundfish trawling.
622.26 Recordkeeping and reporting.
622.27 At-sea observer coverage.
622.28 Vessel monitoring systems (VMSs).
622.29 Conservation measures for protected resources.
622.30 Required fishing gear.
622.31 Buoy gear identification.
622.32 Prohibited gear and methods.
622.33 Prohibited species.
622.34 Seasonal and area closures designed to protect Gulf reef fish.
622.35 Gear restricted areas.
622.36 Seasonal harvest limitations.
622.37 Size limits.
622.38 Bag and possession limits.
622.39 Quotas.
622.40 Restrictions on sale/purchase.
622.41 Annual catch limits (ACLs), annual catch targets (ACTs), and
accountability measures (AMs).
622.42 Adjustment of management measures.
622.43 Commercial trip limits.
Subpart C_Shrimp Fishery of the Gulf of Mexico
622.50 Permits and fees.
622.51 Recordkeeping and reporting.
622.52 At-sea observer coverage.
622.53 Bycatch reduction device (BRD) requirements.
622.54 Prohibited gear and methods.
622.55 Closed areas.
622.56 Size limits.
622.57 [Reserved]
622.58 Annual catch limits (ACLs), annual catch targets (ACTs), and
accountability measures (AMs).
622.59 Prevention of gear conflicts.
622.60 Adjustment of management measures.
Subpart D_Coral and Coral Reefs of the Gulf of Mexico
622.70 Permits.
622.71 Recordkeeping and reporting.
622.72 Prohibited gear and methods.
622.73 Prohibited species.
622.74 Area closures to protect Gulf corals.
622.75 Harvest limitations.
622.76 Restrictions on sale/purchase.
622.77 Adjustment of management measures.
Subpart E_Red Drum Fishery of the Gulf of Mexico
622.90 Permits.
622.91 Recordkeeping and reporting.
622.92 Prohibited species.
622.93 Adjustment of management measures.
Subpart F_Offshore Marine Aquaculture in the Gulf of Mexico
622.100 General.
[[Page 233]]
622.101 Permits.
622.102 Recordkeeping and reporting.
622.103 Aquaculture facilities.
622.104 Restricted access zones.
622.105 Allowable aquaculture systems and species.
622.106 Aquaculture operations.
622.107 Limitation on aquaculture production.
622.108 Remedial actions.
622.109 Adjustment of management measures.
Subparts G-H [Reserved]
Subpart I_Snapper-Grouper Fishery of the South Atlantic Region
622.170 Permits and endorsements.
622.171 South Atlantic snapper-grouper limited access.
622.172 Wreckfish individual transferable quota (ITQ) system.
622.173-622.175 [Reserved]
622.176 Recordkeeping and reporting.
622.177 Gear identification.
622.178 At-sea observer coverage.
622.179 Conservation measures for protected species.
622.180 Prohibited gear and methods.
622.181 Prohibited and limited-harvest species.
622.182 Gear-restricted areas.
622.183 Area and seasonal closures.
622.184 Seasonal harvest limitations.
622.185 Size limits.
622.186 Landing fish intact.
622.187 Bag and possession limits.
622.188 Required gear, authorized gear, and unauthorized gear.
622.189 Restrictions and requirements for sea bass pots.
622.190 Quotas.
622.191 Commercial trip limits.
622.192 Restrictions on sale/purchase.
622.193 Annual catch limits (ACLs), annual catch targets (ACTs), and
accountability measures (AMs).
622.194 Adjustment of management measures.
Subpart J_Shrimp Fishery of the South Atlantic Region
622.200 Permits.
622.201 South Atlantic rock shrimp limited access.
622.202 [Reserved]
622.203 Recordkeeping reporting.
622.204 At-sea observer coverage.
622.205 Vessel monitoring systems (VMSs).
622.206 Area and seasonal closures.
622.207 Bycatch Reduction Device (BRD) requirements.
622.208 Minimum mesh size applicable to rock shrimp off Georgia and
Florida.
622.209 Restrictions on sale/purchase.
622.210 Adjustment of management measures.
Subpart K_Coral, Coral Reefs, and Live/Hard Bottom Habitats of the South
Atlantic Region
622.220 Permits.
622.221 Recordkeeping and reporting.
622.222 Prohibited gear and methods.
622.223 Prohibited species.
622.224 Area closures to protect South Atlantic corals.
622.225 Harvest limitations.
622.226 Restrictions on sale/purchase.
622.227 Adjustment of management measures.
Subpart L_Golden Crab Fishery of the South Atlantic Region
622.240 Permits.
622.241 South Atlantic golden crab controlled access.
622.242 Recordkeeping and reporting.
622.243 Gear identification.
622.244 At-sea observer coverage.
622.245 Prohibited species.
622.246 Area closures.
622.247 Landing golden crab intact.
622.248 Authorized gear.
622.249 Gear restrictions and requirements.
622.250 Restrictions on sale/purchase.
622.251 Annual catch limits (ACLs), annual catch targets (ACTs), and
accountability measures (AMs).
622.252 Adjustment of management measures.
Subpart M_Dolphin and Wahoo Fishery of the Atlantic
622.270 Permits.
622.271 Recordkeeping and reporting.
622.272 Authorized gear.
622.273 Conservation measures for protected species.
622.274 Pelagic longline closed areas.
622.275 Size limits.
622.276 Landing fish intact.
622.277 Bag and possession limits.
622.278 Commercial trip limits.
622.279 Restrictions on sale/purchase.
622.280 Annual catch limits (ACLs) and accountability measures (AMs).
622.281 Adjustment of management measures.
Subpart N_Pelagic Sargassum Habitat of the South Atlantic Region
622.300 At-sea observer coverage.
622.301 Area and seasonal restrictions.
622.302 Minimum mesh size.
622.303 Quotas.
[[Page 234]]
Subparts O-P [Reserved]
Subpart Q_Coastal Migratory Pelagic Resources (Gulf of Mexico, South
Atlantic, and Mid-Atlantic)
622.369 Description of zones.
622.370 Permits.
622.371 Limited access system for commercial vessel permits for king
mackerel.
622.372 Limited access system for king mackerel gillnet permits
applicable in the Gulf southern zone.
622.373 Limited access system for charter vessel/headboat permits for
Gulf coastal migratory pelagic fish.
622.374 Recordkeeping and reporting.
622.375 Authorized and unauthorized gear.
622.376 Gear identification.
622.377 Gillnet restrictions.
622.378 Seasonal closures of the Gulf migratory group king mackerel
gillnet fishery.
622.379 Incidental catch allowances.
622.380 Size limits.
622.381 Landing fish intact.
622.382 Bag and possession limits.
622.383 Limited harvest species.
622.384 Quotas.
622.385 Commercial trip limits.
622.386 Restrictions on sale/purchase.
622.387 [Reserved]
622.388 Annual catch limits (ACLs), annual catch targets (ACTs), and
accountability measures (AMs).
622.389 Adjustment of management measures.
Subpart R_Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic
622.400 Permits and fees.
622.401 Recordkeeping and reporting.
622.402 Vessel and gear identification.
622.403 Seasons.
622.404 Prohibited gear and methods.
622.405 Trap construction specifications and tending restrictions.
622.406 Areas closed to lobster trap gear.
622.407 Minimum size limits and other harvest limitations.
622.408 Bag/possession limits.
622.409 Spiny lobster import prohibitions.
622.410 Restrictions within Tortugas marine reserves.
622.411 Annual catch limits (ACLs), annual catch targets (ACTs), and
accountability measures (AMs).
622.412 Adjustment of management measures.
622.413 Incorporation by reference.
622.414 [Reserved]
622.415 Limited exemption regarding harvest in waters of a foreign
nation.
622.416 Restrictions on sale/purchase.
Subpart S_Reef Fish Fishery of Puerto Rico and the U.S. Virgin Islands
622.430 Gear identification.
622.431 Trap construction specifications and tending restrictions.
622.432 Anchoring restriction.
622.433 Prohibited gear and methods.
622.434 Prohibited species.
622.435 Seasonal and area closures.
622.436 Size limits.
622.437 Bag limits.
622.438 Restrictions on sale/purchase.
622.439 Annual catch limits (ACLs), annual catch targets (ACTs), and
accountability measures (AMs).
622.440 Adjustment of management measures.
Subpart T_Spiny Lobster Fishery of Puerto Rico and the U.S. Virgin
Islands
622.450 Gear identification.
622.451 Trap construction specifications and tending restrictions.
622.452 Prohibited gear and methods.
622.453 Prohibition on harvest of egg-bearing spiny lobster.
622.454 Minimum size limit.
622.455 Landing spiny lobster intact.
622.456 Bag limit.
622.457 Annual catch limits (ACLs), annual catch targets (ACTs), and
accountability measures (AMs).
622.458 Caribbean spiny lobster import prohibitions.
622.459 Adjustment of management measures.
Subpart U_Corals and Reef Associated Plants and Invertebrates of Puerto
Rico and the U.S. Virgin Islands
622.470 Permits.
622.471 Prohibited gear and methods.
622.472 Prohibited species.
622.473 Restrictions on sale/purchase.
622.474 Adjustment of management measures.
Subpart V_Queen Conch Resources of Puerto Rico and the U.S. Virgin
Islands
622.490 Prohibited gear and methods.
622.491 Seasonal and area closures.
622.492 Minimum size limit.
622.493 Landing Caribbean queen conch intact.
622.494 Bag limit.
622.495 Commercial trip limit.
622.496 Annual catch limits (ACLs), annual catch targets (ACTs), and
accountability measures (AMs).
622.497 Adjustment of management measures.
Appendix A to Part 622--Species Tables
Appendix B to Part 622--Gulf Areas
[[Page 235]]
Appendix C to Part 622--Fish Length Measurements
Appendix D to Part 622--Specifications for Certified BRDs
Appendix E to Part 622--Caribbean Island/Island Group Management Areas
Appendix F to Part 622--Specifications for Sea Turtle Release Gear and
Handling Requirements
Appendix G to Part 622--Coastal Migratory Pelagics Zone Illustrations
Authority: 16 U.S.C. 1801 et seq.
Source: 78 FR 22952, Apr. 17, 2013, unless otherwise noted.
Editorial Note: Nomenclature changes to part 622 appear at 79 FR
57837, Sept. 26, 2014 and at 81 FR 32253, May 23, 2016.
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.
(c) This part also governs importation of Caribbean spiny lobster
into Puerto Rico or the U.S. Virgin Islands.
(d) This part also governs importation of spiny lobster into any
place subject to the jurisdiction of the United States.
Table 1 to Sec. 622.1--FMPs Implemented Under Part 622
----------------------------------------------------------------------------------------------------------------
Responsible fishery
FMP title management council(s) Geographical area
----------------------------------------------------------------------------------------------------------------
FMP for Coastal Migratory Pelagic GMFMC/SAFMC.................. Gulf\1 9\, Mid-Atlantic\1 9\, South
Resources. Atlantic\1 9\.
FMP for Coral, Coral Reefs, and Live/ SAFMC........................ South Atlantic.\5\
Hard Bottom Habitats of the South
Atlantic Region.
FMP for Coral and Coral reefs of the GMFMC........................ Gulf.
Gulf of Mexico.
FMP for Corals and Reef Associated CFMC......................... Caribbean.
Plants and Invertebrates of Puerto
Rico and the U.S. Virgin Islands.
FMP for the Dolphin and Wahoo Fishery SAFMC........................ Atlantic.
off the Atlantic States.
FMP for the Golden Crab Fishery of SAFMC........................ South Atlantic.
the South Atlantic Region.
FMP for Pelagic Sargassum Habitat of SAFMC........................ South Atlantic.
the South Atlantic Region.
FMP for Queen Conch Resources of CFMC......................... Caribbean.
Puerto Rico and the U.S. Virgin
Islands.
FMP for the Red Drum Fishery of the GMFMC........................ Gulf.\1\
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 of GMFMC........................ Gulf.1 3 4 7 10
the Gulf of Mexico.
FMP for Regulating Offshore Marine GMFMC........................ Gulf.
Aquaculture in the Gulf.
FMP for the Shrimp Fishery of the GMFMC........................ Gulf. \1\
Gulf of Mexico.
FMP for the Shrimp Fishery of the SAFMC........................ South Atlantic.
South Atlantic Region.
FMP for the Snapper-Grouper Fishery SAFMC........................ South Atlantic.\1 2 6 8\
of the South Atlantic Region.
FMP for the Spiny Lobster Fishery of CFMC......................... Caribbean.
Puerto Rico and the U.S. Virgin
Islands.
FMP for the Spiny Lobster Fishery of GMFMC/SAFMC.................. Gulf \1\, South Atlantic.\1\
the Gulf of Mexico and South
Atlantic.
----------------------------------------------------------------------------------------------------------------
\1\ Regulated area includes adjoining state waters for purposes of data collection and quota monitoring.
\2\ 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.''
\3\ 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.
\4\ 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.
\5\ Octocorals are managed by the FMP or regulated by this part only in the EEZ off North Carolina, South
Carolina, and Georgia.
\6\ Nassau grouper in the South Atlantic EEZ and the Gulf EEZ are managed under the FMP.
\7\ Hogfish are managed by the FMP in the Gulf EEZ except south of 25[deg]09[min] N. lat. off the west coast of
Florida. Hogfish in the remainder of the Gulf EEZ south of 25[deg]09[min] N. lat. off the west coast of
Florida are managed under the FMP for the Snapper-Grouper Fishery of the South Atlantic Region.
[[Page 236]]
\8\ Hogfish in the Gulf EEZ are managed under the FMP from the South Atlantic and Gulf of Mexico intercouncil
boundary specified in Sec. 600.105(c) and south of 25[deg]09[min] N. lat. off the west coast of Florida.
Hogfish in the remainder of the Gulf EEZ are managed under the FMP for the Reef Fish Resources of the Gulf of
Mexico.
\9\ Cobia is managed by the FMP in the Gulf EEZ and in the South Atlantic EEZ south of a line extending due east
from the Florida/Georgia border.
\10\ Certain provisions for the management of the private angling component of recreational red snapper in the
Gulf EEZ have been delegated to the Gulf states, as specified in Sec. 622.23.
[78 FR 22952, Apr. 17, 2013, as amended at 78 FR 78775, Dec. 27, 2013;
81 FR 1792, Jan. 13, 2016; 82 FR 34580, 34594 July 25, 2017; 82 FR
40075, Aug. 24, 2017; 84 FR 4736, Feb. 19, 2019; 85 FR 6823, Feb. 6,
2020]
Effective Date Note: At 85 FR 10339, Feb. 24, 2020, Sec.622.1 was
amended by removing in Table 1 the entry for ``FMP for the Dolphin and
Wahoo Fishery off the Atlantic States'' and adding in its place the
entry ``FMP for the Dolphin and Wahoo Fishery of the Atlantic,''
effective Sept. 1, 2020. At 85 FR 47917, Aug. 7, 2020, the effective
date was delayed to Jan. 4, 2021. For the convenience of the user, the
revised text is set forth as follows:
Sec.622.1 Purpose and scope.
* * * * *
Table 1 to Sec. 622.1--FMPs Implemented Under Part 622
------------------------------------------------------------------------
Responsible fishery
FMP title management Geographical area
council(s)
------------------------------------------------------------------------
* * * * * * *
FMP for the Dolphin and SAFMC............... Atlantic.
Wahoo Fishery of the
Atlantic.
* * * * * * *
------------------------------------------------------------------------
* * * * *
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 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 price means the total monetary sale amount a
fisherman receives per pound of fish for IFQ landings from a registered
IFQ dealer before any deductions are made for transferred (leased)
allocation and goods and services (e.g. bait, ice, fuel, repairs,
machinery replacement, etc.).
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.
Annual catch target (ACT) means 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.
Aquaculture means all activities, including the operation of an
aquaculture facility, involved in the propagation or rearing, or
attempted propagation or rearing, of allowable aquaculture species in
the Gulf EEZ.
[[Page 237]]
Aquaculture facility means an installation or structure, including
any aquaculture system(s) (including moorings), hatcheries, equipment,
and associated infrastructure used to hold, propagate, or rear allowable
aquaculture species in the Gulf EEZ under authority of a Gulf
aquaculture permit.
Aquaculture system means any cage, net pen, enclosure, structure, or
gear deployed in waters of the Gulf EEZ for holding and producing
allowable aquaculture species.
Aquacultured live rock means live rock that is harvested under a
Federal aquacultured live rock permit, as required under Sec.
622.70(a)(2).
Aquatic animal health expert means a licensed doctor of veterinary
medicine or a person who is certified by the American Fisheries Society,
Fish Health Section, as a ``Fish Pathologist'' or ``Fish Health
Inspector.''
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.
Bottom longline means a longline that is deployed, or in combination
with gear aboard the vessel, e.g., weights or anchors, is capable of
being deployed to maintain contact with the ocean bottom.
BRD means bycatch reduction device.
Bully net means a circular frame attached at right angles to the end
of a pole and supporting a conical bag of webbing. The webbing is
usually held up by means of a cord which is released when the net is
dropped over a lobster.
Buoy gear means fishing gear that fishes vertically in the water
column that consists of a single drop line suspended from a float, from
which no more than 10 hooks can be connected between the buoy and the
terminal end, and the terminal end contains a weight that is no more
than 10 lb (4.5 kg). The drop line can be rope (hemp, manila, cotton or
other natural fibers; nylon, polypropylene, spectra or other synthetic
material) or monofilament, but must not be cable or wire. The gear is
free-floating and not connected to other gear or the vessel. The drop
line must be no greater than 2 times the depth of the water being
fished. All hooks must be attached to the drop line no more than 30 ft
(9.1 m) from the weighted terminal end. These hooks may be attached
directly to the drop line; attached as snoods (defined as an offshoot
line that is directly spliced, tied or otherwise connected to the drop
line), where each snood has a single terminal hook; or as gangions
(defined as an offshoot line connected to the drop line with some type
of detachable clip), where each gangion has a single terminal hook.
Carapace length means the measurement of the carapace (head, body,
or front section) of a spiny lobster from the anteriormost edge (front)
of the groove between the horns directly above the eyes, along the
middorsal line (middle of the back), to the rear edge of the top part of
the carapace, excluding any translucent membrane. (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
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(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 or 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 this part, 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, except for a
charter vessel with a commercial vessel permit for Gulf reef fish or
South Atlantic snapper-grouper. A charter vessel that has a charter
vessel permit for Gulf reef fish and a commercial vessel permit for Gulf
reef fish or a charter vessel permit for South Atlantic snapper-grouper
and a commercial permit for South Atlantic snapper-grouper (either a
South Atlantic snapper-grouper unlimited permit or a 225-lb (102.1-kg)
trip limited permit for South Atlantic snapper-grouper) is considered to
be operating as a charter vessel when it carries a passenger who pays a
fee or when there are more than four persons aboard, including operator
and crew. 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 a whole fish, or a part
thereof, of one or more of the following species:
(1) Cobia, Rachycentron canadum.
(2) King mackerel, Scomberomorus cavalla.
(3) Spanish mackerel, Scomberomorus maculatus.
Commercial fishing means, for the purpose of subpart R of this part
only, any fishing or fishing activities which result in the harvest of
any marine or freshwater organisms, one or more of which (or parts
thereof) is sold, traded, or bartered.
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.
Cultured animals means animals which are propagated and/or reared by
humans.
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, in the Gulf, yellowedge grouper,
warsaw grouper, snowy grouper, and speckled hind. In addition, for the
purposes of the IFQ program for Gulf groupers and tilefishes in Sec.
622.22, scamp are also included as DWG as specified in Sec.
622.22(a)(7).
Deep-water snapper-grouper (DWSG) means, in the South Atlantic,
yellowedge grouper, misty grouper, warsaw grouper, snowy grouper,
speckled hind, blueline tilefish, queen snapper, and silk snapper.
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Dehooking device means a device intended to remove a hook embedded
in a fish to release the fish with minimum damage.
Dolphin means a whole fish, or a part there of, of the species
Coryphaena equiselis or C. hippurus.
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).
Florida Keys/East Florida hogfish means hogfish occurring in the
Gulf EEZ from 25[deg]09[min] N. lat. off the west coast of Florida and
south to the jurisdictional boundary between the Gulf and South Atlantic
Councils, as defined at 50 CFR 600.105(c), and continuing in the South
Atlantic EEZ from the jurisdictional boundary between the Gulf and South
Atlantic Councils to the state boundary between Florida and Georgia.
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.)
Genetically engineered animal means an animal modified by rDNA
techniques, including the entire lineage of animals that contain the
modification. The term genetically engineered animal can refer to both
animals with heritable rDNA constructs and animals with non-heritable
rDNA constructs (e.g., those modifications intended to be used as gene
therapy).
Golden crab means the species Chaceon fenneri, or a part thereof.
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
this part, is considered to be operating as a headboat when it carries a
passenger who pays a fee or--
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(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.
Hoop net means a frame, circular or otherwise, supporting a shallow
bag of webbing and suspended by a line and bridles. The net is baited
and lowered to the ocean bottom, to be raised rapidly at a later time to
prevent the escape of lobster.
IFQ means individual fishing quota.
Import means--
(1) For the purpose of Sec.622.1(c) and subpart T of this part
only--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;
(2) For the purpose of Sec.622.1(d) and subpart R of this part
only--To land on, bring into, or introduce into, or attempt to land on,
bring into, or introduce into, any place subject to the jurisdiction of
the United States, whether or not such landing, bringing, or
introduction constitutes an importation within the meaning of the
customs laws of the United States;
(3) But does not include any activity described in paragraph (1) or
(2) of this definition with respect to fish caught in the U.S. exclusive
economic zone by a vessel of the United States.
Live rock means living marine organisms, or an assemblage thereof,
attached to a hard substrate, including dead coral or rock (excluding
individual mollusk shells).
Live well means a shaded container used for holding live lobsters
aboard a vessel in which aerated seawater is continuously circulated
from the sea. Circulation of seawater at a rate that replaces the water
at least every 8 minutes meets the requirement for aeration.
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 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 mackerel, Spanish mackerel, and cobia,
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
mackerel, Spanish
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mackerel, and cobia are divided into migratory groups--the boundaries
between these groups are specified in Sec.622.369.
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 Alabama means the waters in the Gulf west of a rhumb line at
87[deg]31.1[min] W long., which is a line directly south from the
Alabama/Florida boundary, to a rhumb line at 88[deg]23.1[min] W long.,
which is a line directly south from the Mississippi/Alabama boundary.
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.
Off Louisiana means the waters in the Gulf west of a rhumb line at
89[deg]10.0[min] W long., which is a line extending directly south from
South Pass Light, to a rhumb line beginning at 29[deg]32.1[min] N lat.,
93[deg]47.7[min] W long. and extending to 26[deg]11.4[min] N lat.,
92[deg]53.0[min] W long., which line is an extension of the boundary
between Louisiana and Texas.
Off Mississippi means the waters in the Gulf west of a rhumb line at
88[deg]23.1[min] W long., which is a line directly south from the
Mississippi/Alabama boundary, to a rhumb line at 89[deg]10.0[min] W
long., which is a line extending directly south from South Pass Light.
Off Monroe County, Florida means the area from the Florida coast to
the outer limit of the EEZ between a line extending directly east from
the Dade/Monroe County, Florida boundary (25[deg]20.4[min] N. latitude)
and a line extending directly west from the Monroe/Collier County,
Florida boundary (25[deg]48.0[min] N. latitude).
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[deg]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.
Off the Gulf states, other than Florida means the area from the
coast to the outer limit of the EEZ between the Texas/Mexico border to
the Alabama/Florida boundary (87[deg]31[min]06[sec] W. long.).
Off the southern Atlantic states, other than Florida means the area
from the coast to the outer limit of the EEZ between the Virginia/North
Carolina boundary (36[deg]34[min]55[sec] N. lat.) to the Georgia/Florida
boundary (30[deg]42[min]45.6[sec] N. lat.).
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.
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:
(1) Brown shrimp, Farfantepenaeus aztecus.
(2) Pink shrimp, Farfantepenaeus duorarum.
(3) White shrimp, Litopenaeus setiferus.
[[Page 242]]
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.
Recreational fishing means, for the purpose of subpart R of this
part only, fishing or fishing activities which result in the harvest of
fish, none of which (or parts thereof) is sold, traded, or bartered.
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.
Reporting week means the period of time beginning at 12:01 a.m.,
local time, on Sunday and ending at 11:59 p.m., local time, the
following Saturday.
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, in the Gulf, gag, red grouper,
black grouper, scamp, yellowfin grouper, and yellowmouth grouper. Other
shallow-water grouper (Other SWG) means, in the Gulf, SWG excluding gag
and red grouper (i.e., black grouper, scamp, yellowfin grouper, and
yellowmouth grouper). In addition, for the purposes of the IFQ program
for Gulf groupers and tilefishes in Sec.622.22, speckled hind and
warsaw grouper are also included as Other SWG as specified in Sec.
622.22(a)(6).
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.
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.
Significant risk means likely to adversely affect endangered or
threatened species or their critical habitat; is likely to seriously
injure or kill marine mammals; is likely to result in un-mitigated
adverse effects on essential fish habitat; is likely to adversely affect
wild fish stocks and cause them to become overfished or undergo
overfishing; or otherwise may result in harm to public health or safety,
as determined by the RA.
Smalltooth sawfish means the species Pristis pectinata, or a part
thereof.
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
[[Page 243]]
line of demarcation between the Atlantic Ocean and the Gulf of Mexico,
as specified in Sec.600.105(c) of this chapter.
South Atlantic shallow-water grouper (SASWG) means, in the South
Atlantic, gag, black grouper, red grouper, scamp, red hind, rock hind,
yellowmouth grouper, yellowfin grouper, graysby, and coney.
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.
Tail length means the lengthwise measurement of the entire tail
(segmented portion), not including any protruding muscle tissue, of a
spiny lobster along the top middorsal line (middle of the back) to the
rearmost extremity. The measurement is made with the tail in a flat,
straight position with the tip of the tail closed.
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, 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.
Transgenic animal means an animal whose genome contains a nucleotide
sequence that has been intentionally modified in vitro, and the progeny
of such an animal.
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, sea grasses).
Venting device means a device intended to deflate the abdominal
cavity of a fish to release the fish with minimum damage.
Wahoo means the species Acanthocybium solandri, or a part thereof,
in the Atlantic.
Wild fish means fish that are not propagated or reared by humans.
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.
[78 FR 22952, Apr. 17, 2013, as amended at 78 FR 78775, Dec. 27, 2013;
79 FR 19493, Apr. 9, 2014; 80 FR 4218, Jan. 27, 2015; 81 FR 1792, Jan.
13, 2016; 82 FR 34580, July 25, 2017; 85 FR 6823, Feb. 6, 2020]
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 (e) 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).
[[Page 244]]
(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 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) Alabama, Florida, Louisiana, Mississippi, and Texas are
delegated the authority to specify certain management measures related
to the harvest and possession of red snapper by the private angling
component in the Gulf EEZ. See Sec.622.23 for the Gulf recreational
red snapper management measures that have been delegated.
[78 FR 22952, Apr. 17, 2013, as amended at 85 FR 6823, Feb. 6, 2020]
Sec.622.4 Permits and fees--general.
This section contains general information about procedures related
to permits. See also Sec. Sec.622.70, 622.220, and 622.470 regarding
certain permit procedures unique to coral permits in the Gulf of Mexico,
South Atlantic Region, and Puerto Rico and the U.S. Virgin Islands,
respectively. See subpart F of this part for permit requirements related
to aquaculture of species other than live rock. Permit requirements for
specific fisheries, as applicable, are contained in subparts B through V
of this part.
(a) 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) 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 this part 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).
(2) 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.
[[Page 245]]
(3) Dealer permits. (i) The application for a dealer 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).
(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.
(b) 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 (a) of this section or in Sec. Sec.622.70(b), 622.220(b),
622.400(b), or 622.470(b). The permit is void if any change in the
information is not reported within 30 days.
(c) Fees. Unless specified otherwise, a fee is charged for each
application for a permit, license, or endorsement submitted under this
part, for each request for transfer or replacement of such permit,
license, or endorsement, and for each sea bass pot identification tag
required under Sec.622.177(a)(1). 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.
(d) Initial issuance. (1) The RA will issue an initial permit at any
time to 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.
(e) 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.
(f) 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 part 622 is not transferable or
assignable, except as provided in the permits sections of subparts B
through V of this part, where applicable. 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.
(g) Renewal--(1) Vessel permits, licenses, and endorsements, and
dealer permits. Unless specified otherwise, a vessel or dealer permit
holder who has been issued a permit, license, or endorsement under this
part must renew such permit, license, or endorsement on an annual basis.
The RA will notify a vessel or dealer permit holder whose permit,
license, or endorsement is expiring approximately 2 months prior to the
expiration date. A vessel or dealer
[[Page 246]]
permit holder who does not receive a notification is still required to
submit an application form as specified below. 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 calendar days prior to
the date on which the applicant desires to have the permit made
effective. Application forms and instructions for renewal are available
online at sero.nmfs.noaa.gov or from the RA (Southeast Permits Office)
at 1-877-376-4877, Monday through Friday between 8 a.m. and 4:30 p.m.,
eastern time. 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 calendar days of the notification date
by the RA, 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 part 622
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 (a)(2) of this section.
(h) Display. A vessel permit, license, or endorsement issued under
this part 622 must be carried on board the vessel. A dealer permit
issued under this part 622, 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
fish harvested from the 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.
(i) Sanctions and denials. (1) A permit, license, or endorsement
issued pursuant to this part 622 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.
(j) Alteration. A permit, license, or endorsement that is altered,
erased, or mutilated is invalid.
(k) 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 (a)(2)(ii) of this section.
[78 FR 22952, Apr. 17, 2013, as amended at 79 FR 19493, Apr. 9, 2014; 81
FR 1792, Jan. 13, 2016; 83 FR 64034, Dec. 13, 2018]
Sec.622.5 Recordkeeping and reporting--general.
This section contains recordkeeping and reporting requirements that
are broadly applicable, as specified, to most or all fisheries governed
by this part. Additional recordkeeping and reporting requirements
specific to each fishery are contained in the respective subparts B
through V of this part.
(a) Collection of additional data and fish inspection. In addition
to data required to be reported as specified in subparts B through V of
this part, additional data will be collected by authorized statistical
reporting agents and by authorized officers. A person who fishes
[[Page 247]]
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 on request.
(b) 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 the recordkeeping and reporting requirements in
subparts B through V of this part 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.
(c) Dealers--(1) Permitted Gulf and South Atlantic dealers. (i) A
person issued a Gulf and South Atlantic dealer permit must submit a
detailed electronic report of all fish first received for a commercial
purpose within the time period specified in this paragraph via the
dealer electronic trip ticket reporting system. These electronic reports
must be submitted at weekly intervals via the dealer electronic trip
ticket reporting system by 11:59 p.m., local time, the Tuesday following
a reporting week. If no fish were received during a reporting week, an
electronic report so stating must be submitted for that reporting week.
In addition, during the open season, dealers must submit daily reports
for Gulf migratory group king mackerel harvested by the run-around
gillnet component in the Florida west coast southern subzone via the
port agents, telephone, internet, or other similar means determined by
NMFS. From the beginning of the open season until the commercial ACL
(commercial quota) for the run-around gillnet sector for Gulf migratory
group king mackerel is reached, dealers must submit a daily report if no
king mackerel were received during the previous day. NMFS will provide
written notice to dealers that first receive Gulf king mackerel
harvested by the run-around gillnet component prior to the beginning of
each fishing year if the reporting methods or deadline change from the
previous year.
(ii) Dealers must retain either the paper forms or electronic
reports for at least 1 year after the submittal date and must provide
such records for inspection upon the request of an authorized officer or
the SRD.
(iii) During catastrophic conditions only, the ACL monitoring
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. The paper forms will be
available from NMFS. During catastrophic conditions, the RA has the
authority to waive or modify reporting time requirements.
(iv) Gulf and South Atlantic dealers are not authorized to first
receive Gulf reef fish, Gulf red drum, South Atlantic golden crab, South
Atlantic snapper-grouper, South Atlantic wreckfish, South Atlantic rock
shrimp, coastal migratory pelagic fish, spiny lobster, or Atlantic
dolphin or wahoo from a federally permitted vessel if the required
reports have not been submitted and received by NMFS according to the
reporting requirements under this section. Delinquent reports
automatically result in a Gulf and South Atlantic dealer becoming
ineligible to first receive such fish, regardless of any notification to
dealers by NMFS. Gulf and South Atlantic dealers who become ineligible
to receive such fish due to delinquent reports are authorized to first
receive such fish only after all required and delinquent reports have
been submitted and received by NMFS according to the reporting
requirements under this section.
[[Page 248]]
(2) Non-permitted dealers. See Sec.622.51 for a person who
purchases Gulf 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.
[78 FR 22952, Apr. 17, 2013, as amended at 79 FR 19493, Apr. 9, 2014; 80
FR 78674, Dec. 17, 2015]
Sec.622.6 Vessel identification.
This section does not apply to subpart R of this part, which has its
own specific vessel identification requirements in Sec.622.402.
(a) Applicability--(1) Official number. A vessel for which a permit
has been issued under subparts B through V of this part except for
subpart R, and a vessel that fishes for or possesses pelagic sargassum
in the South Atlantic EEZ, must display its official number--
(i) 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.
(ii) In block arabic numerals permanently affixed to or painted on
the vessel in contrasting color to the background.
(iii) 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.
(2) Official number and color code. The following vessels must
display their official number as specified in paragraph (a)(1) 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.622.170(a)(1); 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--
(i) 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.
(ii) In the form of a circle permanently affixed to or painted on
the vessel.
(iii) 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.
(b) Duties of operator. The operator of a vessel specified in
paragraph (a) 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.
Sec.622.7 Fishing years.
The fishing year for species or species groups governed in this part
is January 1 through December 31 except for the following:
(a) Allowable octocoral--October 1 through September 30.
(b) King and Spanish mackerel. The fishing year for the king and
Spanish mackerel bag limits specified in Sec.622.382 is January 1
through December 31. The following fishing years apply only for the king
and Spanish mackerel quotas specified in Sec.622.384:
(1) Gulf migratory group king mackerel--(i) Southern zone--July 1
through June 30.
(ii) Northern zone--October 1 through September 30.
(iii) Western zone--July 1 through June 30.
(2) Gulf migratory group Spanish mackerel--April through March.
(3) South Atlantic migratory group king and Spanish mackerel--March
through February.
(c) Wreckfish--April 16 through April 15.
(d) South Atlantic greater amberjack--March 1 through the end of
February.
[[Page 249]]
(e) South Atlantic black sea bass recreational sector--April 1
through March 31. (Note: The fishing year for the commercial sector for
black sea bass is January 1 through December 31).
(f) South Atlantic yellowtail snapper--August 1 through July 31.
(g) Gulf of Mexico yellowtail snapper--August 1 through July 31.
(h) Gulf of Mexico greater amberjack recreational sector--August 1
through July 31. (Note: The fishing year for the commercial sector for
greater amberjack is January 1 through December 31).
[78 FR 22952, Apr. 17, 2013, as amended at 79 FR 66322, Nov. 7, 2014; 80
FR 4218, Jan. 27, 2015; 81 FR 45248, July 13, 2016; 81 FR 10311, Feb.
10, 2017; 82 FR 17394, Apr. 11, 2017; 83 FR 13428, Mar. 29, 2018]
Sec.622.8 Quotas--general.
(a) Quotas apply for the fishing year for each species, species
group, sector or component, unless accountability measures are
implemented during the fishing year pursuant to the applicable annual
catch limits and accountability measures sections of subparts B through
V of this part due to a quota overage occurring the previous year, in
which case a reduced quota will be specified through notification in the
Federal Register. Annual quota increases are contingent on the total
allowable catch for the applicable species not being exceeded in the
previous fishing year. If the total allowable catch is exceeded in the
previous fishing year, the RA will file a notification with the Office
of the Federal Register to maintain the quota for the applicable
species, sector or component from the previous fishing year for
following fishing years, unless NMFS determines based upon the best
scientific information available that maintaining the quota from the
previous year is unnecessary. Except for the quotas for Gulf and South
Atlantic coral, the quotas include species harvested from state waters
adjoining the EEZ.
(b) Quota closures. When a quota specified in this part is reached,
or is projected to be reached, the Assistant Administrator will file a
notification to that effect with the Office of the Federal Register. On
and after the effective date of such notification, for the remainder of
the fishing year, the applicable closure restrictions for such a quota,
as specified in this part apply. (See the applicable annual catch limits
(ACLs), annual catch targets (ACTs), and accountability measures (AMs)
sections of subparts B through V of this part for closure provisions
when an applicable ACL or ACT is reached or projected to be reached).
(c) Reopening. When a species, sector or component has been closed
based on a projection of the quota specified in this part, or the ACL
specified in the applicable annual catch limits and accountability
measures sections of subparts B through V of this part being reached and
subsequent data indicate that the quota or ACL was not reached, the
Assistant Administrator may file a notification to that effect with the
Office of the Federal Register. Such notification may reopen the
species, sector or component to provide an opportunity for the quota or
ACL to be harvested.
[78 FR 22952, Apr. 17, 2013, as amended at 80 FR 22429, Apr. 22, 2015]
Sec.622.9 Prohibited gear and methods--general.
This section contains prohibitions on use of gear and methods that
are of general applicability, as specified. Additional prohibitions on
use of gear and methods applicable to specific species or species groups
are contained in subparts B through V of this part.
(a) Explosives. An explosive (except an explosive in a powerhead)
may not be used to fish in the Caribbean, Gulf, or South Atlantic EEZ. A
vessel fishing in the EEZ for a species governed in this part, or a
vessel for which a permit has been issued under this part, may not have
on board any dynamite or similar explosive substance.
(b) Chemicals and plants. A toxic chemical may not be used or
possessed in a coral area, and a chemical, plant, or plant-derived toxin
may not be used to harvest a Caribbean coral reef resource in the
Caribbean EEZ.
(c) Fish traps. A fish trap may not be used or possessed in the Gulf
or South Atlantic EEZ. A fish trap deployed in the Gulf or South
Atlantic EEZ may be disposed of in any appropriate manner
[[Page 250]]
by the Assistant Administrator or an authorized officer.
(d) Weak link. A bottom trawl that does not have a weak link in the
tickler chain may not be used to fish in the Gulf EEZ. For the purposes
of this paragraph, a weak link is defined as a length or section of the
tickler chain that has a breaking strength less than the chain itself
and is easily seen as such when visually inspected.
(e) Use of Gulf reef fish as bait prohibited. Gulf reef fish may not
be used as bait in any fishery, except that, when purchased from a fish
processor, the filleted carcasses and offal of Gulf reef fish may be
used as bait in trap fisheries for blue crab, stone crab, deep-water
crab, and spiny lobster.
Sec.622.10 Landing fish intact---general.
This section contains requirements for landing fish intact that are
broadly applicable to finfish in the Gulf EEZ and Caribbean EEZ, as
specified. See subparts B through V, as applicable, for additional
species specific requirements for landing fish intact.
(a) Finfish in or from the Gulf EEZ or Caribbean EEZ, except as
specified in paragraphs (b) and (c) of this section, must be maintained
with head and fins intact.
(b) Shark, swordfish, and tuna species are exempt from the
requirements of paragraph (a) of this section.
(c) In the Gulf EEZ or Caribbean EEZ:
(1) Bait is exempt from the requirement to be maintained with head
and fins intact.
(i) For the purpose of this paragraph (c)(1), ``bait'' means--
(A) Packaged, headless fish fillets that have the skin attached and
are frozen or refrigerated;
(B) Headless fish fillets that have the skin attached and are held
in brine; or
(C) Small pieces no larger than 3 in\3\ (7.6 cm\3\) or strips no
larger than 3 inches by 9 inches (7.6 cm by 22.9 cm) that have the skin
attached and are frozen, refrigerated, or held in brine.
(ii) Paragraph (c)(1)(i) of this section notwithstanding, a finfish
or part thereof possessed in or landed from the Gulf EEZ or Caribbean
EEZ that is subsequently sold or purchased as a finfish species, rather
than as bait, is not bait.
(2) Legal-sized finfish possessed for consumption at sea on the
harvesting vessel are exempt from the requirement to have head and fins
intact, provided--
(i) Such finfish do not exceed any applicable bag limit;
(ii) Such finfish do not exceed 1.5 lb (680 g) of finfish parts per
person aboard; and
(iii) The vessel is equipped to cook such finfish on board.
(d) The operator of a vessel that fishes in the EEZ is responsible
for ensuring that fish on that vessel in the EEZ are maintained intact
and, if taken from the EEZ, are maintained intact through offloading
ashore, as specified in this section.
Sec.622.11 Bag and possession limits--general applicability.
This section describes the general applicability provisions for bag
and possession limits specified in subparts B through V of this part.
(a) Applicability. (1) The bag and possession limits apply for
species/species groups in or from the EEZ. Unless specified otherwise,
bag limits apply to a person on a daily basis, regardless of the number
of trips in a day. Unless specified otherwise, a person is limited to a
single bag limit for a trip lasting longer than one calendar day. Unless
specified otherwise, possession limits apply to a person on a trip after
the first 24 hours of that trip. The bag and possession limits apply to
a person who fishes in the EEZ in any manner, except a person aboard a
vessel in the EEZ that has on board the commercial vessel permit
required under this part for the appropriate species/species group. The
possession of a commercial vessel permit notwithstanding, the bag and
possession limits apply when the vessel is operating as a charter vessel
or headboat. A person who fishes in the EEZ may not combine a bag limit
specified in subparts B through V of this part with a bag or possession
limit applicable to state waters. A species/species group subject to a
bag limit specified in subparts B through V of this part taken in the
EEZ by a person subject to the bag limits may not be transferred at sea,
regardless of where such transfer takes place, and such fish may
[[Page 251]]
not be transferred in the EEZ. The operator of a vessel that fishes in
the EEZ is responsible for ensuring that the bag and possession limits
specified in subparts B through V of this part are not exceeded.
(2) [Reserved]
(b) [Reserved]
[78 FR 22952, Apr. 17, 2013, as amended at 79 FR 19494, Apr. 9, 2014]
Sec.622.12 Annual catch limits (ACLs) and accountability measures
(AMs) for Caribbean island management areas/Caribbean EEZ.
(a) Puerto Rico management area. See appendix E of this part for
specification of the Puerto Rico management area.
(1) Queen conch. See Sec.622.491 regarding seasonal and area
closure provisions and ACL closure provisions applicable to queen conch.
(i) Commercial ACL. For the EEZ only, 0 lb (0 kg), round weight.
(ii) Recreational ACL. For the EEZ only, 0 lb (0 kg), round weight.
(2) Reef fish. Landings will be evaluated relative to the applicable
ACL based on a moving multi-year average of landings, as described in
the FMP. With the exceptions of goliath grouper, Nassau grouper,
midnight parrotfish, blue parrotfish, and rainbow parrotfish, ACLs are
based on the combined Caribbean EEZ and territorial landings for the
Puerto Rico management area. As described in the FMP, for each species
or species group in this paragraph (a)(2), any fishing season reduction
required under paragraph (a)(2)(i) or (ii) of this section will be
applied from September 30 backward, toward the beginning of the fishing
year. If the length of the required fishing season reduction exceeds the
time period of January 1 through September 30, any additional fishing
season reduction will be applied from October 1 forward, toward the end
of the fishing year.
(i) Commercial sector. If commercial landings, as estimated by the
SRD, have exceeded the applicable species or species group commercial
ACL, as specified in this paragraph (a)(2)(i), and the combined
commercial and recreational landings have exceeded the applicable
combined commercial and recreational sector ACL (total ACL), as
specified in paragraph (a)(2)(iii) of this section, the AA will file a
notification with the Office of the Federal Register, at or near the
beginning of the following fishing year, to reduce the length of the
fishing season for the applicable species or species groups for the
commercial sector that year by the amount necessary to ensure that
commercial landings do not exceed the applicable commercial ACL for the
species or species group. If NMFS determines that either the applicable
commercial ACL or total ACL for a particular species or species group
was exceeded because of enhanced data collection and monitoring efforts
instead of an increase in catch of the species or species group, NMFS
will not reduce the length of the commercial fishing season for the
applicable species or species group the following fishing year. The
commercial ACLs, in round weight, are as follows:
(A) Parrotfishes--52,737 lb (23,915 kg).
(B) Snapper Unit 1--284,685 lb (129,131 kg).
(C) Snapper Unit 2--145,916 lb (66,186 kg).
(D) Snapper Unit 3--345,775 lb (156,841 kg).
(E) Snapper Unit 4--373,295 lb (169,324 kg).
(F) Groupers--177,513 lb (80,519 kg).
(G) Angelfish--8,984 lb (4,075 kg).
(H) Boxfish--86,115 lb (39,061 kg).
(I) Goatfishes--17,565 lb (7,967 kg).
(J) Grunts--182,396 lb (82,733 kg).
(K) Wrasses--54,147 lb (24,561 kg).
(L) Jacks--86,059 lb (39,036 kg).
(M) Scups and porgies, combined--24,739 lb (11,221 kg).
(N) Squirrelfish--16,663 lb (7,558 kg).
(O) Surgeonfish--7,179 lb (3,256 kg).
(P) Triggerfish and filefish, combined--58,475 lb (26,524 kg).
(ii) Recreational sector. If recreational landings, as estimated by
the SRD, have exceeded the applicable species or species group
recreational ACL, as specified in this paragraph (a)(2)(ii), and the
combined commercial and recreational landings have exceeded the
applicable combined commercial and recreational sector ACL (total ACL),
as specified in paragraph (a)(2)(iii) of this section, the AA will file
a notification with the Office of the Federal Register,
[[Page 252]]
at or near the beginning of the following fishing year, to reduce the
length of the fishing season for the applicable species or species
groups for the recreational sector that year by the amount necessary to
ensure that recreational landings do not exceed the applicable species
or species group recreational ACL. If NMFS determines that either the
applicable recreational ACL or total ACL for a particular species or
species group was exceeded because of enhanced data collection and
monitoring efforts instead of an increase in catch of the species or
species group, NMFS will not reduce the length of the fishing season for
the applicable species or species group the following fishing year. The
recreational ACLs, in round weight, are as follows:
(A) Parrotfishes--15,263 lb (6,921 kg).
(B) Snapper Unit 1--95,526 lb (43,330 kg).
(C) Snapper Unit 2--34,810 lb (15,790 kg).
(D) Snapper Unit 3--83,158 lb (37,720 kg).
(E) Snapper Unit 4--28,509 lb (12,931 kg).
(F) Groupers--77,213 lb (35,023 kg).
(G) Angelfish--4,492 lb (2,038 kg).
(H) Boxfish--4,616 lb (2,094 kg).
(I) Goatfishes--362 lb (164 kg).
(J) Grunts--5,028 lb (2,281 kg).
(K) Wrasses--5,050 lb (2,291 kg).
(L) Jacks--51,001 lb (23,134 kg).
(M) Scups and porgies, combined--2,577 lb (1,169 kg).
(N) Squirrelfish--3,891 lb (1,765 kg).
(O) Surgeonfish--3,590 lb (1,628 kg).
(P) Triggerfish and filefish, combined--21,929 lb (9,947 kg).
(iii) Total ACLs. The total ACLs (combined commercial and
recreational ACL), in round weight, are as follows:
(A) Parrotfishes--68,000 lb (30,844 kg).
(B) Snapper Unit 1--380,211 lb (172,461 kg).
(C) Snapper Unit 2--180,726 lb (81,976 kg).
(D) Snapper Unit 3--428,933 lb (194,561 kg).
(E) Snapper Unit 4--401,804 lb (182,255 kg).
(F) Groupers--254,726 lb (115,542 kg).
(G) Angelfish--13,476 lb (6,113 kg).
(H) Boxfish--90,731 lb (41,155 kg).
(I) Goatfishes--17,927 lb (8,132 kg).
(J) Grunts--187,424 lb (85,014 kg).
(K) Wrasses--59,197 lb (26,851 kg).
(L) Jacks--137,060 lb (62,169 kg).
(M) Scups and porgies, combined--27,316 lb (kg).
(N) Squirrelfish--20,554 lb (9,323 kg).
(O) Surgeonfish--10,769 lb (4,885 kg).
(P) Triggerfish and filefish, combined--80,404 lb (36,471 kg).
(3) Spiny lobster. Landings will be evaluated relative to the ACL
based on a moving multi-year average of landings, as described in the
FMP. The ACL is based on the combined Caribbean EEZ and territorial
landings for the Puerto Rico management area. If landings, as estimated
by the SRD, have exceeded the ACL, as specified in this paragraph
(a)(3), the AA will file a notification with the Office of the Federal
Register, at or near the beginning of the following fishing year, to
reduce the length of the fishing season for spiny lobster that year by
the amount necessary to ensure landings do not exceed the ACL. If NMFS
determines the ACL was exceeded because of enhanced data collection and
monitoring efforts instead of an increase in total catch, NMFS will not
reduce the length of the fishing season the following fishing year. As
described in the FMP, any fishing season reduction required as a result
of this paragraph (a)(3) will be applied from September 30 backward,
toward the beginning of the fishing year. If the length of the required
fishing season reduction exceeds the time period of January 1 through
September 30, any additional fishing season reduction will be applied
from October 1 forward, toward the end of the fishing year. The ACL is
327,920 lb (148,742 kg), round weight.
(b) St. Croix management area. See appendix E of this part for
specification of the St. Croix management area.
(1) Queen conch. See Sec.622.491 regarding seasonal and area
closure provisions and ACL closure provisions applicable to queen conch.
The ACL is 50,000 lb (22,680 kg), round weight.
(2) Reef fish. Landings will be evaluated relative to the applicable
ACL based on a moving multi-year average of landings, as described in
the FMP. With the exception of goliath grouper, Nassau grouper, midnight
parrotfish,
[[Page 253]]
blue parrotfish, and rainbow parrotfish, ACLs are based on the combined
Caribbean EEZ and territorial landings for the St. Croix management
area. If landings, as estimated by the SRD, have exceeded the applicable
ACL for a species or species group, as specified in this paragraph
(b)(2), the AA will file a notification with the Office of the Federal
Register, at or near the beginning of the following fishing year, to
reduce the length of the fishing season for the applicable species or
species group that year by the amount necessary to ensure landings do
not exceed the applicable ACL. If NMFS determines the ACL for a
particular species or species group was exceeded because of enhanced
data collection and monitoring efforts instead of an increase in total
catch of the species or species group, NMFS will not reduce the length
of the fishing season for the applicable species or species group the
following fishing year. As described in the FMP, for each species or
species group in this paragraph (b)(2), any fishing season reduction
required as a result of this paragraph (b)(2) will be applied from
September 30 backward, toward the beginning of the fishing year. If the
length of the required fishing season reduction exceeds the time period
of January 1 through September 30, any additional fishing season
reduction will be applied from October 1 forward, toward the end of the
fishing year. The ACLs, in round weight, are as follows:
(i) Parrotfishes--240,000 lb (108,863 kg).
(ii) Snappers--102,946 lb (46,696 kg).
(iii) Groupers--30,435 lb (13,805 kg).
(iv) Angelfish--305 lb (138 kg).
(v) Boxfish--8,433 lb (3,825 kg).
(vi) Goatfishes--3,766 lb (1,708 kg).
(vii) Grunts--36,881 lb (16,729 kg).
(viii) Wrasses--7 lb (3 kg).
(ix) Jacks--15,489 lb (7,076 kg).
(x) Scups and porgies, combined--4,638 lb (2,104 kg).
(xi) Squirrelfish--121 lb (55 kg).
(xii) Surgeonfish--33,603 lb (15,242 kg).
(xiii) Triggerfish and filefish, combined--24,980 lb (11,331 kg).
(3) Spiny lobster. Landings will be evaluated relative to the ACL
based on a moving multi-year average of landings, as described in the
FMP. The ACL is based on the combined Caribbean EEZ and territorial
landings for the St. Croix management area. If landings, as estimated by
the SRD, have exceeded the ACL, as specified in this paragraph (b)(3),
the AA will file a notification with the Office of the Federal Register,
at or near the beginning of the following fishing year, to reduce the
length of the fishing season that year by the amount necessary to ensure
landings do not exceed the ACL. If NMFS determines the ACL was exceeded
because of enhanced data collection and monitoring efforts instead of an
increase in total catch, NMFS will not reduce the length of the fishing
season for the following fishing year. As described in the FMP, any
fishing season reduction required as a result of this paragraph (b)(3)
will be applied from September 30 backward, toward the beginning of the
fishing year. If the length of the required fishing season reduction
exceeds the time period of January 1 through September 30, any
additional fishing season reduction will be applied from October 1
forward, toward the end of the fishing year. The ACL is 107,307 lb
(48,674 kg), round weight.
(c) St. Thomas/St. John management area. See appendix E of this part
for specification of the St. Thomas/St. John management area.
(1) Queen conch. See Sec.622.491 regarding seasonal and area
closure provisions and ACL closure provisions applicable to queen conch.
The ACL is 0 lb (0 kg), round weight, for the EEZ only.
(2) Reef fish. Landings will be evaluated relative to the applicable
ACL based on a moving multi-year average of landings, as described in
the FMP. With the exception of goliath grouper, Nassau grouper, midnight
parrotfish, blue parrotfish, and rainbow parrotfish, ACLs are based on
the combined Caribbean EEZ and territorial landings for St. Thomas/St.
John management area. If landings, as estimated by the SRD, have
exceeded the applicable ACL for a species or species group, as specified
in this paragraph (c)(2), the AA will file a notification with the
Office of the Federal Register, at or near the beginning of the
following fishing year, to reduce the length of the fishing season for
the applicable species or species group that
[[Page 254]]
year by the amount necessary to ensure landings do not exceed the
applicable ACL. If NMFS determines the ACL for a particular species or
species group was exceeded because of enhanced data collection and
monitoring efforts instead of an increase in total catch of the species
or species group, NMFS will not reduce the length of the fishing season
for the applicable species or species group the following fishing year.
As described in the FMP, for each species or species group in this
paragraph (c)(2), any fishing season reduction required as a result of
this paragraph (c)(2) will be applied from September 30 backward, toward
the beginning of the fishing year. If the length of the required fishing
season reduction exceeds the time period of January 1 through September
30, any additional fishing season reduction will be applied from October
1 forward, toward the end of the fishing year. The ACLs, in round
weight, are as follows:
(i) Parrotfishes--42,500 lb (19,278 kg).
(ii) Snappers--133,775 lb (60,679 kg).
(iii) Groupers--51,849 lb (23,518 kg).
(iv) Angelfish--7,897 lb (3,582 kg).
(v) Boxfish--27,880 lb (12,646 kg).
(vi) Goatfishes--320 lb (145 kg).
(vii) Grunts--37,617 lb (17,063 kg).
(viii) Wrasses--585 lb (265 kg).
(ix) Jacks--52,907 lb (23,998 kg).
(x) Scups and porgies, combined--21,819 lb (9,897 kg).
(xi) Squirrelfish--4,241 lb (1,924 kg).
(xii) Surgeonfish--29,249 lb (13,267 kg).
(xiii) Triggerfish and filefish, combined--74,447 lb (33,769 kg).
(3) Spiny lobster. Landings will be evaluated relative to the ACL
based on a moving multi-year average of landings, as described in the
FMP. The ACL is based on the combined Caribbean EEZ and territorial
landings for the St. Thomas/St. John management area. If landings, as
estimated by the SRD, have exceeded the ACL, as specified in this
paragraph (c)(3), the AA will file a notification with the Office of the
Federal Register, at or near the beginning of the following fishing
year, to reduce the length of the fishing season that year by the amount
necessary to ensure landings do not exceed the ACL. If NMFS determines
the ACL was exceeded because of enhanced data collection and monitoring
efforts instead of an increase in total catch, NMFS will not reduce the
length of the fishing season for the following fishing year. As
described in the FMP, any fishing season reduction required as a result
of this paragraph (c)(3) will be applied from September 30 backward,
toward the beginning of the fishing year. If the length of the required
fishing season reduction exceeds the time period of January 1 through
September 30, any additional fishing season reduction will be applied
from October 1 forward, toward the end of the fishing year. The ACL is
104,199 lb (47,264 kg), round weight.
(d) Caribbean EEZ. Landings will be evaluated relative to the
applicable ACL based on a moving multi-year average of landings, as
described in the FMPs. The ACLs are based on the combined Caribbean EEZ
and territorial landings, throughout the Caribbean EEZ. If landings from
the Caribbean EEZ for tilefish and aquarium trade species, as estimated
by the SRD, have exceeded the applicable ACL, as specified in this
paragraph (d), the AA will file a notification with the Office of the
Federal Register, at or near the beginning of the following fishing
year, to reduce the length of the fishing season for the applicable
species or species groups that year by the amount necessary to ensure
landings do not exceed the applicable ACL. If NMFS determines the
applicable ACL was exceeded because of enhanced data collection and
monitoring efforts instead of an increase in total catch, NMFS will not
reduce the length of the fishing season for the following fishing year.
As described in the FMPs, for each species or species group in this
paragraph (d), any fishing season reduction required as a result of this
paragraph (d) will be applied from September 30 backward, toward the
beginning of the fishing year. If the length of the required fishing
season reduction exceeds the time period of January 1 through September
30, any additional fishing season reduction will be applied from October
1 forward, toward the end of the fishing year. The ACLs, in round
weight, are as follows:
(1) Tilefish--14,642 lb (6,641 kg).
(2) Aquarium trade species--8,155 lb (3,699 kg).
[[Page 255]]
(e) Closure provisions--(1) Restrictions applicable after a Puerto
Rico closure. (i) Restrictions applicable after a Puerto Rico commercial
closure for reef fish species or species groups. During the closure
period announced in the notification filed pursuant to paragraph
(a)(2)(i) of this section, the commercial sector for species or species
groups included in the notification is closed and such species or
species groups in or from the Puerto Rico management area may not be
purchased or sold. Harvest or possession of such species or species
groups in or from the Puerto Rico management area is limited to the
recreational bag and possession limits unless the recreational sector
for the species or species group is closed and the restrictions
specified in paragraph (e)(1)(iii) of this section apply.
(ii) Restrictions applicable after a Puerto Rico recreational
closure for reef fish species or species groups. During the closure
period announced in the notification filed pursuant to paragraph
(a)(2)(ii) of this section, the recreational sector for species or
species groups included in the notification is closed and the
recreational bag and possession limits for such species or species
groups in or from the Puerto Rico management area are zero. If the
seasons for both the commercial and recreational sectors for such
species or species groups are closed, the restrictions specified in
paragraph (e)(1)(iii) of this section apply.
(iii) Restrictions applicable when both Puerto Rico commercial and
Puerto Rico recreational sectors for reef fish species or species groups
are closed. If the seasons for both the commercial and recreational
sectors for a species or species group are closed, such species or
species groups in or from the Puerto Rico management area may not be
harvested, possessed, purchased, or sold, and the bag and possession
limits for such species or species groups in or from the Puerto Rico
management area are zero.
(iv) Restrictions applicable after a spiny lobster closure in Puerto
Rico. During the closure period announced in the notification filed
pursuant to paragraph (a)(3) of this section, both the commercial and
recreational sectors are closed. Spiny lobster in or from the Puerto
Rico management area may not be harvested, possessed, purchased, or
sold, and the bag and possession limits for spiny lobster in or from the
Puerto Rico management area are zero.
(2) Restrictions applicable after a St. Croix, St. Thomas/St. John,
or Caribbean EEZ closure. During the closure period announced in the
notification filed pursuant to paragraph (b), (c), or (d) of this
section, such species or species groups in or from the applicable
management area of the Caribbean EEZ may not be harvested, possessed,
purchased, or sold, and the bag and possession limits for such species
or species groups in or from the applicable management area of the
Caribbean EEZ are zero.
[82 FR 56918, Dec. 1, 2017]
Sec.622.13 Prohibitions--general.
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 this part 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
this part.
(c) Fail to display a permit, license, or endorsement, or other
required identification, as specified in this part.
(d) Falsify or fail to maintain, submit, or provide information or
fail to comply with inspection requirements or restrictions, as
specified in this part.
(e) Fail to make a fish, or parts thereof, available for inspection,
as specified in this part.
(f) Falsify or fail to display and maintain vessel and gear
identification, as specified in this part.
(g) Harvest or possess fish if the required headboat reports have
not been submitted in accordance with this part.
(h) First receive fish from federally permitted vessels if the
required reports have not been submitted in accordance with Sec.
622.5(c).
[[Page 256]]
(i) Fail to comply with any requirement or restriction regarding ITQ
coupons, as specified in Sec.622.172.
(j) Possess wreckfish as specified in Sec.622.172, receive
wreckfish except as specified in Sec.622.172, or offload a wreckfish
except as specified in Sec.622.172.
(k) Transfer--
(1) A wreckfish, as specified in Sec.622.172;
(2) A limited-harvest species, as specified in this part;
(3) A species/species group subject to a bag limit, as specified in
this part;
(4) South Atlantic snapper-grouper from a vessel with unauthorized
gear on board, as specified in Sec.622.188; or
(5) A species subject to a commercial trip limit, as specified in
this part.
(l) Use or possess prohibited gear or methods or possess fish in
association with possession or use of prohibited gear, as specified in
this part.
(m) 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, molest or strip
eggs from a lobster, or possess a lobster, or part thereof, from which
eggs, swimmerettes, or pleopids have been removed or stripped, as
specified in this part.
(n) 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 this
part or as may be specified under this part.
(o) Harvest, possess, offload, sell, or purchase fish in excess of
the seasonal harvest limitations, as specified in this part.
(p) Except as allowed for king and Spanish mackerel and Gulf of
Mexico and South Atlantic spiny lobster, possess undersized fish, fail
to release undersized fish, or sell or purchase undersized fish, as
specified in this part.
(q) Fail to maintain a fish intact through offloading ashore, as
specified in this part.
(r) Exceed a bag or possession limit, as specified in this part.
(s) 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 this part.
(t) Fail to comply with the species-specific limitations, as
specified in this part.
(u) Fail to comply with the restrictions that apply after closure of
a fishery, sector, or component of a fishery, as specified in this part.
(v) Possess on board a vessel or land, purchase, or sell fish in
excess of the commercial trip limits, as specified in this part.
(w) Fail to comply with the restrictions on sale/purchase, as
specified in this part.
(x) Interfere with fishing or obstruct or damage fishing gear or the
fishing vessel of another, as specified in this part.
(y) Fail to comply with the requirements for observer coverage as
specified in this part.
(z) Assault, resist, oppose, impede, intimidate, or interfere with a
NMFS-approved observer aboard a vessel.
(aa) Prohibit or bar by command, impediment, threat, coercion, or
refusal of reasonable assistance, an observer from conducting his or her
duties aboard a vessel.
(bb) 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.
622.241.
(cc) Falsify information submitted regarding an application for
testing a BRD or regarding testing of a BRD, as specified in Sec. Sec.
622.53 and 622.207.
(dd) 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.
(ee) 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 this part.
(ff) When a vessel that is subject to Federal fishing regulations is
at sea or offloading, own or operate such vessel
[[Page 257]]
with a person aboard whose operator permit is revoked, suspended, or
modified.
(gg) Fail to comply with any provision related to a vessel
monitoring system (VMS) as specified in this part, 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.
(hh) Fail to comply with the protected species conservation measure
as specified in this part.
(ii) Fail to comply with any provision related to the IFQ program
for Gulf red snapper as specified in Sec.622.21, or the IFQ program
for Gulf groupers and tilefishes as specified in Sec.622.22.
(jj) Falsify any information required to be submitted regarding the
IFQ program for Gulf red snapper as specified in Sec.622.21, or the
IFQ program for Gulf groupers and tilefishes as specified in Sec.
622.22.
(kk) Fail to comply with the Caribbean, Gulf of Mexico, and South
Atlantic spiny lobster import prohibitions, as specified in this part.
(ll) Possess a Gulf of Mexico or South Atlantic spiny lobster trap
in the EEZ at a time not authorized, as specified in subpart R.
(mm) Harvest or attempt to harvest a Gulf of Mexico or South
Atlantic spiny lobster by diving without having and using in the water a
measuring device, as specified in subpart R.
(nn) Possess Gulf of Mexico or South Atlantic spiny lobsters aboard
a vessel that uses or has on board a net or trawl in an amount exceeding
the limits, as specified in subpart R.
(oo) Operate a vessel that fishes for or possesses Gulf of Mexico or
South Atlantic spiny lobster in or from the EEZ with spiny lobster
aboard in an amount exceeding the cumulative bag and possession limit,
as specified in subpart R.
(pp) Fail to comply with any provision related to the Offshore
Marine Aquaculture program in the Gulf of Mexico as specified in this
part.
(qq) Falsify any information required to be submitted regarding the
Offshore Marine Aquaculture program in the Gulf of Mexico as specified
in this part.
(rr) Land allowable aquaculture species cultured in the Gulf at non-
U.S. ports, unless first landed at a U.S. port.
(ss) Fail to comply with any other requirement or restriction
specified in this part or violate any provision(s) in this part.
[78 FR 57535, Sept. 19, 2013, as amended at 78 FR 78781, Dec. 27, 2013;
79 FR 6099, Feb. 3, 2014; 79 FR 19494, Apr. 9, 2014; 81 FR 1792, Jan.
13, 2016]
Effective Date Note: At 85 FR 10339, Feb. 24, 2020, Sec.622.13 was
amended by revising paragraph (g), effective Sept. 1, 2020. At 85 FR
47917, Aug. 7, 2020, the effective date was delayed to Jan. 4, 2021. For
the convenience of the user, the revised text is set forth as follows:
Sec.622.13 Prohibitions--general.
* * * * *
(g) Harvest or possess fish if the required charter vessel or
headboat reports have not been submitted in accordance with this part.
* * * * *
Sec.622.14 [Reserved]
Sec.622.15 Notice regarding area closures to protect corals.
See Sec. Sec.622.74 and 622.224, respectively, regarding coral
protective restrictions in the Gulf EEZ and South Atlantic EEZ that
apply broadly to multiple fisheries and gear types.
Sec.622.16 Notice regarding South Atlantic special management
zones (SMZs).
See Sec. Sec.622.182(a) and 622.382(a)(1)(v), respectively,
regarding fishing and gear restrictions in South Atlantic SMZs that
apply to snapper-grouper and coastal migratory pelagic fisheries and
broadly to gear types of multiple fisheries.
Sec.622.17 Notice regarding seasonal/area closures to protect
Gulf reef fish.
See Sec.622.34, paragraphs (a)(1) and (a)(3) through (6),
regarding Gulf reef fish protective restrictions in the Gulf EEZ that
apply broadly to multiple Gulf fisheries and gear types.
[[Page 258]]
Subpart B_Reef Fish Resources of the Gulf of Mexico
Sec.622.20 Permits and endorsements.
(a) Commercial vessels--(1) Commercial vessel permits. For a person
aboard a vessel to be eligible for exemption from the bag limits, to
fish under a quota, as specified in Sec.622.39, or to sell Gulf reef
fish or Florida Keys/East Florida hogfish 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 or B 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)(1)(i) of this section regarding a limited access system for
commercial vessel permits for Gulf reef fish. See Sec. Sec.
622.21(b)(1) and 622.22(b)(1), respectively, regarding an IFQ vessel
account required to fish for, possess, or land Gulf red snapper or Gulf
groupers and tilefishes, and paragraph (a)(2) of this section regarding
an additional bottom longline endorsement required to fish for Gulf reef
fish with bottom longline gear in a portion of the eastern Gulf.
(i) Limited access system for commercial vessel permits for Gulf
reef fish. (A) No applications for additional commercial vessel permits
for Gulf reef fish will be accepted. Existing vessel permits may be
renewed, are subject to the restriction on transfer in paragraph
(a)(1)(i)(B) of this section, and are subject to the requirement for
timely renewal in paragraph (a)(1)(i)(C) 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.
(B) An owner of a permitted vessel may transfer the commercial
vessel permit for Gulf reef fish to another vessel owned by the same
entity. A permit holder may also transfer the commercial vessel permit
for Gulf reef fish to the owner of another vessel or to a new vessel
owner when he or she transfers ownership of the permitted vessel.
(C) 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.
(ii) 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.
(2) Commercial vessel endorsements--(i) Eastern Gulf reef fish
bottom longline endorsement. For a person aboard a vessel, for which a
valid commercial vessel permit for Gulf reef fish has been issued, to
use a bottom longline for Gulf reef fish in the Gulf EEZ east of
85[deg]30[min] W. long., a valid eastern Gulf reef fish bottom longline
endorsement must have been issued to the vessel and must be on board. A
permit or endorsement that has expired is not valid. This endorsement
must be renewed annually and may only be renewed if the associated
vessel has a valid commercial vessel permit for Gulf reef fish or if the
endorsement and associated permit are being concurrently renewed. The RA
will not reissue this endorsement 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.
(A) Transferability. An owner of a vessel with a valid eastern Gulf
reef fish bottom longline endorsement may transfer that endorsement to
an owner of a vessel that has a valid commercial vessel permit for Gulf
reef fish.
[[Page 259]]
(B) Fees. A fee is charged for each renewal, transfer, or
replacement of an eastern Gulf reef fish bottom longline endorsement.
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 for renewal, transfer,
or replacement.
(ii) [Reserved]
(b) Charter vessel/headboat permits. For a person aboard a vessel
that is operating as a charter vessel or headboat to fish for or possess
Gulf reef fish, in or from the EEZ, a valid charter vessel/headboat
permit for Gulf reef fish must have been issued to the vessel and must
be on board. For a person aboard a vessel that is operating as a charter
vessel or headboat to fish for or possess Florida Keys/East Florida
hogfish in or from the Gulf EEZ, a valid charter vessel/headboat permit
for Gulf reef fish must have been issued to the vessel and must be on
board.
(1) Limited access system for charter vessel/headboat permits for
Gulf reef fish. No applications for additional charter vessel/headboat
permits for Gulf reef fish will be accepted. Existing permits may be
renewed, are subject to the restrictions on transfer in paragraph
(b)(1)(i) of this section, and are subject to the renewal requirements
in paragraph (b)(1)(ii) of this section. An eligible charter vessel/
headboat permit with a historical captain endorsement may be converted
to a charter vessel/headboat permit without a historical captain
endorsement, per the procedure in paragraph (b)(1)(v) of this section.
(i) Transfer of permits--(A) Permits without a historical captain
endorsement. A charter vessel/headboat permit for Gulf reef fish that
does not have a historical captain endorsement is fully transferable,
with or without sale of the permitted vessel.
(B) Permits with a historical captain endorsement. A charter vessel/
headboat permit for Gulf reef fish that has a historical captain
endorsement may only be transferred to a vessel operated by the
historical captain and is not otherwise transferable.
(C) Procedure for permit transfer. To request that the RA transfer a
charter vessel/headboat permit for 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 Sec.622.4(f) for
additional transfer-related requirements applicable to all permits
issued under this part.
(ii) Renewal. (A) Renewal of a charter vessel/headboat permit for
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--
(1) NMFS' Marine Recreational Fishing Vessel Directory Telephone
Survey (conducted by the Gulf States Marine Fisheries Commission);
(2) NMFS' Southeast Headboat Survey (as required by Sec.
622.26(b)(1));
(3) Texas Parks and Wildlife Marine Recreational Fishing Survey; or
(4) A data collection system that replaces one or more of the
surveys in paragraph (b)(1)(ii)(A),(1),(2), or (3) of this section.
(B) A charter vessel/headboat 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, as required, is not
received by the RA within 1 year of the expiration date of the permit.
(iii) Requirement to display a vessel decal. Upon renewal or
transfer of a charter vessel/headboat permit for Gulf reef fish, the RA
will issue the owner of the permitted vessel a vessel decal for Gulf
reef fish. 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.
(iv) Passenger capacity compliance requirement. A vessel operating
as a charter vessel or headboat with a valid charter vessel/headboat
permit for Gulf
[[Page 260]]
reef fish, which is carrying more passengers on board the vessel than is
specified on the permit, is prohibited from harvesting or possessing the
species identified on the permit.
(v) Procedure for conversion of permit with historical captain
endorsement. A charter vessel/headboat permit with a historical captain
endorsement that was valid or renewable on October 25, 2018, may be
converted to a charter vessel/headboat permit for Gulf reef fish without
a historical captain endorsement. A charter vessel/headboat permit with
a historical captain endorsement that is converted to a charter vessel/
headboat permit without a historical captain endorsement will retain the
same vessel permit maximum passenger capacity as the permit it replaces.
To convert an eligible charter vessel/headboat permit with a historical
captain endorsement, the permit holder must submit a permit application
to the RA by May 23, 2022. If no application to convert an eligible
charter vessel/headboat permit with a historical captain endorsement is
submitted by May 23, 2022, the permit holder will retain a charter
vessel/headboat permit with the historical captain endorsement that is
subject to the restrictions described in paragraph (b)(1)(i)(B) of this
section.
(2) 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.
(3) If Federal regulations for Gulf reef fish in subparts A or B 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.
(c) Dealer permits and conditions--(1) Permits. For a dealer to
first receive Gulf reef fish harvested in or from the EEZ, a Gulf and
South Atlantic dealer permit must be issued to the dealer.
(2) 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).
(d) Permit procedures. See Sec.622.4 for information regarding
general permit procedures including, but not limited to application,
fees, duration, transfer, renewal, display, sanctions and denials, and
replacement.
[78 FR 22952, Apr. 17, 2013, as amended 78 FR 46293, July 31, 2013; 79
FR 19494, Apr. 9, 2014; 82 FR 34580, July 25, 2017; 85 FR 22045, Apr.
21, 2020]
Effective Date Note: At 85 FR 44017, July 21, 2020, Sec.622.20 was
amended by revising paragraph (b)(1)(ii)(A)(2), effective Jan. 5, 2021.
For the convenience of the user, the revised text is set forth as
follows:
Sec.622.20 Permits and endorsements.
* * * * *
(b) * * *
(1) * * *
(ii) * * *
(A) * * *
(2) Charter vessel and headboat recordkeeping and reporting
requirements specified in Sec.622.26(b);
* * * * *
Sec.622.21 Individual fishing quota (IFQ) program for Gulf
red snapper.
(a) General. This section establishes an IFQ program for the
commercial red snapper component of the Gulf reef fish fishery. 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. As of January 1, 2012, IFQ shares and
allocation can only be transferred to U.S. citizens and permanent
resident aliens. See paragraph (b)(11) of this section regarding
eligibility to participate in the Gulf red snapper IFQ program as of
January 1, 2012. Shares and annual IFQ allocation are transferable. See
paragraph (b)(1) of this section regarding a requirement for a vessel
landing red snapper subject to this IFQ program to
[[Page 261]]
have a Gulf red snapper IFQ vessel account. See paragraph (b)(2) of this
section 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 regarding the harvest and
possession of Gulf IFQ red snapper 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 paragraph (b)(1) of this section or
for a person with a Gulf IFQ dealer endorsement as required by paragraph
(b)(2) of this section, 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 account to
participate. The computer must have browser software installed, e.g.,
Internet Explorer or 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 mailed initial shareholders and dealers with Gulf reef
fish dealer permits information and instructions pertinent to setting up
an IFQ 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 account. As of January 1, 2012, all U.S. citizens and
permanent resident aliens are eligible to establish an IFQ account. As
of January 1, 2012, all current IFQ participants must complete and
submit the application for an IFQ Account to certify their citizenship
status and ensure their account information (e.g., mailing address,
corporate shareholdings, etc.) is up to date. See Sec.622.21(b)(11)
regarding requirements for the application for an IFQ 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.
(4) 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
[[Page 262]]
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. If the quota is increased after
the beginning of the fishing year, then IFQ allocation is derived by
multiplying a shareholder's IFQ share at the time of the quota increase
by the amount the annual commercial quota for red snapper is increased.
If a reduction in the commercial quota specified in Sec.
622.39(a)(1)(i) is expected to occur after January 1, the beginning of
the fishing year, but before June 1 in that same fishing year, NMFS will
withhold distribution of IFQ allocation on January 1 in the amount equal
to that reduction. If a final rule to implement the commercial quota
reduction is not published in the Federal Register and effective by June
1, NMFS will distribute withheld IFQ allocation of red snapper
commercial quota to current shareholders based on shareholdings on the
date the withheld IFQ allocation is distributed.
(5) Closing an IFQ account. IFQ account holders may close an IFQ
account by completing and submitting a Close IFQ Account Request Form to
NMFS. This form must be signed by an account holder named on the IFQ
account. If the request to close an IFQ account is being made because
the sole account holder is deceased, the person requesting the closure
must sign the Close IFQ Account Request Form, indicating the
relationship to the deceased, provide a death certificate, and provide
any additional information NMFS determines is necessary to complete the
request. IFQ shareholder accounts may not be closed until all shares and
allocation have been transferred from the account to another IFQ account
holder. Dealer accounts may not be closed until all cost recovery fees
have been received by NMFS. NMFS' IFQ Customer Service staff may close
an IFQ account if all shares and allocation have been transferred from
the account, all cost recovery fees have been received by NMFS, and no
landing transactions or IFQ transfers have been completed by the IFQ
account holder in at least 1 year. If an account is closed by NMFS' IFQ
Customer Service staff, it may be reopened at the request of the IFQ
account holder by contacting IFQ Customer Service.
(6) Returning IFQ shares. Any shares contained in IFQ accounts that
have never been activated since January 1, 2010, in the IFQ program are
returned permanently to NMFS on July 12, 2018.
(b) IFQ operations and requirements--(1) IFQ vessel accounts for
Gulf red snapper. 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, regardless of where harvested or possessed, a
Gulf IFQ vessel account for Gulf red snapper must have been established.
As a condition of the IFQ vessel account, a person aboard such vessel
must comply with the requirements of this section, Sec.622.21, when
fishing for red snapper 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 Gulf red snapper as
specified in paragraph (a)(3)(i) of this section, online via the NMFS
IFQ Web site https://portal.southeast.fisheries.noaa.gov/cs/main.html,
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 Web site 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, or its linked IFQ shareholder
account, must hold sufficient IFQ allocation, at least equal to the
pounds in gutted weight of the red snapper on board at the time of
advance notice of landing. Allocation must be transferred to the vessel
account, so that the vessel account holds sufficient IFQ allocation at
the time of the landing transaction (except for any overage allowed as
specified in paragraph (b)(3)(ii) of
[[Page 263]]
this section). 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 red snapper under the bag
limit specified in Sec.622.38(b)3).
(2) Gulf IFQ dealer endorsements. In addition to the requirement for
a Gulf and South Atlantic dealer permit as specified in Sec.
622.20(c)(1), for a dealer to first receive red snapper subject to the
IFQ program for Gulf red snapper, as specified in paragraph (a)(1) of
this section, or for a person aboard a vessel with a Gulf IFQ vessel
account to sell such red snapper directly to an entity other than a
dealer, such persons must also have a Gulf IFQ dealer endorsement. A
dealer with a Gulf and South Atlantic dealer permit can download a Gulf
IFQ dealer endorsement from the NMFS IFQ Web site. If such persons do
not have an IFQ account, they must first contact IFQ Customer Service at
1-866-425-7627 to obtain information necessary to access the IFQ Web
site and establish an IFQ account. There is no fee for obtaining this
endorsement. The endorsement remains valid as long as the Gulf and South
Atlantic dealer permit remains valid and the dealer is in compliance
with all Gulf reef fish and IFQ reporting requirements, has paid all IFQ
fees required, and is not subject to any sanctions under 15 CFR part
904. The endorsement is not transferable.
(3) IFQ Landing and transaction requirements. (i) At the time of
advance notice of landing, the IFQ vessel account, or its linked IFQ
shareholder account, must contain allocation at least equal to the
pounds in gutted weight of red snapper to be landed, except as provided
in paragraph (b)(3)(ii) of this section. At the time of the landing
transaction, the IFQ vessel account must contain allocation at least
equal to the pounds in gutted weight of red snapper to be landed, except
as provided in paragraph (b)(3)(ii) of this section. Such red snapper
must be sold and can be received only by a dealer who has a valid Gulf
IFQ dealer endorsement and an active IFQ dealer account (i.e., not in
delinquent status). All IFQ landings and their actual ex-vessel prices
must be reported via the IFQ Web site.
(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 must complete a landing transaction report for each
landing of Gulf red snapper via the IFQ Web site on the day of offload,
except if the fish are being trailered for transport to a dealer as
specified in paragraph (b)(5)(iv) of this section (in which case the
landing transaction report may be completed prior to the day of
offload), and within 96 hours from the time of landing reported on the
most recent landing notification, in accordance with the reporting
form(s) and instructions provided on the Web site. This report includes
date, time, and location of transaction; weight and actual ex-vessel
price of red snapper landed and sold (when calculating the weight of IFQ
red snapper during a landing transaction, ice and water weight may not
be deducted from the weight of the fish unless the actual weight of the
ice and water can be determined); 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 when the transaction report is submitted. After the dealer
submits the report and the information has been verified, the Web site
will send a transaction approval code to the dealer and the allocation
holder.
[[Page 264]]
(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) must initiate a landing transaction correction
form to correct the landing transaction. This form is available via the
IFQ Web site. 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.
(4) 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 as
described in the Magnuson-Stevens Act. 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 price of Gulf red snapper
landed per trip 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.
(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
Web site 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.
(5) Measures to enhance IFQ program enforceability--(i) Advance
notice of landing--(A) General requirement. 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 24 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(s) where the red
[[Page 265]]
snapper are to be received. The vessel must land within 1 hour after the
time given in the landing notification except as provided in paragraph
(b)(5)(i)(C) of this section. The vessel landing red snapper must have
sufficient IFQ allocation in the IFQ vessel account, or its linked IFQ
shareholder account, at least equal to the pounds in gutted weight of
all red snapper on board (except for any overage up to the 10 percent
allowed on the last fishing trip) at the time of the advance notice of
landing.
(B) Submitting an advanced landing notification. Authorized methods
for contacting NMFS and submitting the report include calling IFQ
Customer Service at 1-866-425-7627, completing and submitting to NMFS a
landing notification provided through the VMS unit, or providing the
required information to NMFS through the web-based form available on the
IFQ Web site.
(C) Landing prior to the notification time. The owner or operator of
a vessel that has completed a landing notification and submitted it to
NMFS may land prior to the notification time, only if an authorized
officer is present at the landing site, is available to meet the vessel,
and has authorized the owner or operator of the vessel to land early.
(D) Changes to a landing notification. The owner or operator of a
vessel who has submitted a landing notification to NMFS may make changes
to the notification by submitting a superseding notification. If the
initial superseding notification makes changes to one or more of the
following: the time of landing (if landing more than 1 hour after the
time on the notification), the dealer(s), or the estimated weights of
fish to be landed, the vessel does not need to wait an additional 3
hours to land. If the initial superseding notification makes changes to
the landing location, the time of landing is earlier than previously
specified, or more than one superseding notification is submitted on a
trip, the vessel must wait an additional 3 hours to land, except as
provided in paragraph (b)(5)(i)(C) of this section.
(ii) Time restriction on offloading. For the purpose of this
paragraph, offloading means to remove IFQ red snapper from a vessel. IFQ
red snapper may be offloaded only between 6 a.m. and 6 p.m., local time,
unless an authorized officer is present at the offloading at 6 p.m., is
available to remain at the site while offloading continues, and
authorizes the owner or operator of the vessel to continue offloading
after 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 transport or are on a vessel that is
trailered for transport, 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 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. A dealer may only receive IFQ red
snapper transported by a vehicle or a trailered vessel that has a
corresponding transaction approval code.
(v) Approved landing locations. IFQ red snapper must be landed at an
approved landing location. Landing locations must be approved by NMFS
Office for Law Enforcement prior to a vessel landing IFQ red snapper at
these sites. Proposed landing locations may be submitted online via the
IFQ Web site, 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:
[[Page 266]]
(A) Landing locations 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.
(B) Landing locations must be publicly accessible by land and water,
and must satisfy the following criteria:
(1) Vehicles must have access to the site via public roads;
(2) Vessels must have access to the site via navigable waters;
(3) No other condition may impede free and immediate access to the
site by an authorized law enforcement officer. Examples of such
conditions include, but are not limited to: A locked gate, fence, wall,
or other barrier preventing 24-hour access to the site; a gated
community entry point; a guard animal; a posted sign restricting access
to the site; or any other physical deterrent.
(6) 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 only to a 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 Web site. An IFQ shareholder must initiate a share
transfer request by logging onto the IFQ Web site. Following the
instructions provided on the IFQ Web site, 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. 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 (b)(8) of this section. Thereafter, share
transferee eligibility will only 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 cannot 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
[[Page 267]]
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 Web site. An IFQ account holder must
initiate an allocation transfer by logging onto the IFQ Web site,
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.
(7) Restricted transactions during the 20-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 2 p.m. eastern time the following fishing year.
The remaining 6 hours prior to the end of the fishing year, and the 14
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 20
hours. An advance notice of landing may still be submitted during the
20-hour maintenance window by using the vessel's VMS unit or calling IFQ
Customer Service at 1-866-425-7627.
(8) 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 and at the time of renewal of the
application for an IFQ Account.
(9) Redistribution of shares resulting from permanent revocation. If
a shareholder's IFQ shares have been permanently revoked, 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.
(10) Annual recalculation and notification of IFQ shares and
allocation. On or about January 1 each year, IFQ shareholders will be
notified, via the IFQ Web site, 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
[[Page 268]]
shares. 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 (b)(3)(ii) of this section. IFQ participants can monitor
the status of their shares and allocation throughout the year via the
IFQ Web site.
(11) Eligibility to participate in the Gulf red snapper IFQ program
as of January 1, 2012. The provisions of paragraph (b)(11) of this
section apply to all eligible participants for the Gulf red snapper IFQ
program beginning January 1, 2012. In addition to eligible participants
who already participate in the Gulf red snapper IFQ program, as of
January 1, 2012, all U.S. citizens and permanent resident aliens who are
in compliance with the provisions of this section are eligible and may
participate in the Gulf red snapper IFQ program as shareholders and
allocation holders. The requirements to meet the definition of a U.S.
citizen are described in the Immigration and Nationality Act of 1952, as
amended, and permanent resident aliens are those individuals who have
been lawfully accorded the privilege of residing permanently in the U.S.
in accordance with U.S. immigration laws. In order to harvest and
possess Gulf IFQ red snapper, the requirements for a Gulf red snapper
IFQ vessel account, as specified in paragraph (b)(1) of this section, or
a Gulf IFQ dealer endorsement, as specified in paragraph (b)(2) of this
section apply.
(i) Gulf red snapper IFQ program participation for current red
snapper IFQ account holders. A current participant in the red snapper
IFQ program must complete and submit the application for an IFQ Account
that is available on the Web site sero.nmfs.noaa.gov, to certify status
as a U.S. citizen or permanent resident alien. The IFQ account holder
must also complete and submit any other information on this form that
may be necessary for the administration of the IFQ account. A person
with an established IFQ account must update and confirm the account
information every 2 years. IFQ accounts are updated through the
submission of the application for an IFQ Account. Accounts must be
updated prior to the account validity date (expiration date of the
account) that is displayed on each account holder's IFQ account page.
The RA will provide each participant who has established an online
account, with an application approximately 2 months prior to the account
validity date. A participant who is not provided an application at least
45 days prior to the account validity date must contact IFQ Customer
Service at 1-866-425-7627 and request an application. Failure to submit
a completed application prior to the account validity date will lead to
the suspension of the participant's IFQ account until a completed
application is submitted. After January 1, 2012, participants who
certify that they are either not U.S. citizens or permanent resident
aliens will be ineligible to receive shares or allocation through
transfer.
(ii) Gulf red snapper IFQ program participation for entities that do
not currently possess an IFQ account. The following procedures apply to
U.S citizens or permanent resident aliens who are not otherwise
described in either paragraphs (a) or (b)(11)(i) of this section.
(A) To establish an IFQ account, a person must first complete the
application for an IFQ Account that is available on the Web site
sero.nmfs.noaa.gov. An applicant for an IFQ account under this paragraph
must provide the following;
(1) Name; address; telephone number; date of birth; tax
identification number; certification of status as either a U.S. citizen
or permanent resident alien; and if a corporation, a list of all
officers, directors, shareholders, and registered agents of the
business; and other identifying information as specified on the
application.
(2) Any other information that may be necessary for the
establishment or administration of the IFQ account.
(B) Completed applications and all required supporting documentation
must be submitted to the RA. There is no fee to access the Web site or
establish an IFQ account. An applicant that submits an incomplete
application will be contacted by the RA to correct any deficiencies. If
an applicant fails to correct the deficiency within 30 days of
[[Page 269]]
being notified of the deficient application, the application will be
considered abandoned.
(C) After an applicant submits a completed application for an IFQ
account, the RA will mail the applicant general instructions regarding
procedures related to the IFQ online system, including how to set up an
online account and a user identification number--the personal
identification number (PIN) will be provided in a subsequent letter.
(D) A participant who has established an IFQ account must notify the
RA within 30 days after there is any change in the information submitted
through the application for an IFQ Account. The IFQ account is void if
any change in the application information is not reported within 30
days.
(E) A person who has established an IFQ account must update and
confirm the account information every 2 years. IFQ accounts are updated
through the submission of the application for an IFQ Account. Accounts
must be updated prior to the account validity date (expiration date of
the account) that is displayed on each account holder's IFQ account
page. The RA will mail each participant who has established an online
account an application approximately 2 months prior to the Account
Validity Date. A participant who does not receive an application at
least 45 days prior to the Account Validity Date must contact IFQ
Customer Service at 1-866-425-7627 and request an application. Failure
to submit a completed application prior to the account validity date
will lead to the suspension of the IFQ account until a completed
application is submitted.
(F) For information regarding transfer of IFQ shares and allocation,
the IFQ share cap, and the annual recalculation and notification of IFQ
shares and allocation, see paragraphs (b)(6), (b)(8), and (b)(10) of
this section, respectively.
(G) Participation in the Gulf red snapper IFQ program beyond
transferring IFQ shares and allocation is explained in paragraphs (a)
through (b)(10) of this section.
[78 FR 22952, Apr. 17, 2013, as amended at 79 FR 19494, Apr. 9, 2014; 79
FR 57834, Sept. 26, 2014; 80 FR 24834, May 1, 2015; 83 FR 27299, June
12, 2018]
Sec.622.22 Individual fishing quota (IFQ) program for Gulf groupers
and tilefishes.
(a) General. This section establishes an IFQ program for the
commercial sectors of the Gulf reef fish fishery for groupers (including
DWG, red grouper, gag, and Other SWG) and tilefishes (including goldface
tilefish, blueline tilefish, and tilefish). For the purposes of this IFQ
program, DWG includes yellowedge grouper, warsaw grouper, snowy grouper,
speckled hind, and scamp, but only as specified in paragraph (a)(7) of
this section. For the purposes of this IFQ program, Other SWG includes
black grouper, scamp, yellowfin grouper, yellowmouth grouper, warsaw
grouper, and speckled hind, but only as specified in paragraph (a)(6) 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, Other SWG, and tilefishes, 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
paragraph (b)(1) of this section 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 paragraph
(b)(2) of this section 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 and tilefishes as required
by paragraph (b)(1) of this section or for a person with a Gulf IFQ
dealer endorsement as required by paragraph (b)(2) of this section,
these provisions apply to Gulf
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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 account to
participate. The computer must have browser software installed, e.g.
Internet Explorer or 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 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 account. All current IFQ participants must complete and submit the
application for an IFQ Account to certify their citizenship status and
ensure their account information (e.g., mailing address, corporate
shareholdings, etc.) is up to date. See paragraph (b)(11) of this
section regarding requirements for the application for an IFQ 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.
(4) 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 is derived at the beginning of each year by
multiplying a shareholder's IFQ share times the annual commercial quota
for Gulf groupers and tilefishes. If the quota is increased after the
beginning of the fishing year, then IFQ allocation is derived by
multiplying a shareholder's IFQ share at the time of the quota increase
by the amount the annual commercial quota for groupers and tilefishes is
increased. If a reduction in the applicable commercial quota specified
in Sec.622.39(a)(1) is expected to occur after January 1, the
beginning of the fishing year, but before June 1 in that same fishing
year, NMFS will withhold distribution of IFQ allocation of the
applicable groupers and tilefishes commercial quota on January 1 in the
amount equal to that reduction. If a final rule
[[Page 271]]
to implement the commercial quota reduction is not published in the
Federal Register and effective by June 1, NMFS will distribute withheld
IFQ allocation of the applicable groupers and tilefishes commercial
quota to current shareholders based on the date the withheld IFQ
allocation is distributed.
(5) Red grouper and gag multi-use allocation--(i) Red grouper multi-
use allocation. (A) At the time the commercial quota for red grouper is
distributed to IFQ shareholders, a percentage of each shareholder's
initial red grouper allocation will be converted to red grouper multi-
use allocation. Red grouper multi-use allocation, determined annually,
will be based on the following formula:
Red Grouper multi-use allocation (in percent) = 100 * [Gag ACL - Gag
commercial quota]/Red grouper commercial quota
(B) 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. However, if gag is
under a rebuilding plan, the percentage of red grouper multi-use
allocation is equal to zero.
(ii) Gag multi-use allocation. (A) At the time the commercial quota
for gag is distributed to IFQ shareholders, a percentage of each
shareholder's initial gag allocation will be converted to gag multi-use
allocation. Gag multi-use allocation, determined annually, will be based
on the following formula:
Gag multi-use allocation (in percent) = 100 * [Red grouper ACL - Red
grouper commercial quota]/Gag commercial quota
(B) 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 (shareholder or allocation holder's) gag allocation has
been landed and sold, or transferred; and to 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 (b)(6)(iv) of this section. However, if red grouper is under a
rebuilding plan, the percentage of gag multi-use allocation is equal to
zero.
(6) 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, after 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.
(7) 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, after all of an 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.
(8) Closing an IFQ account. IFQ account holders may close an IFQ
account by completing and submitting a Close IFQ Account Request Form to
NMFS. This form must be signed by an account holder named on the IFQ
account. If the request to close an IFQ account is being made because
the sole account holder is deceased, the person requesting the closure
must sign the Close IFQ Account Request Form, indicating the
relationship to the deceased, provide a death certificate, and provide
any additional information NMFS determines is necessary to complete the
request. IFQ shareholder accounts may not be closed until all shares and
allocation have been transferred from the account to another IFQ account
holder. Dealer accounts may not be closed until all cost recovery fees
have been received by NMFS. NMFS' IFQ Customer Service staff may close
an IFQ account if all shares and allocation
[[Page 272]]
have been transferred from the account, all cost recovery fees have been
received by NMFS, and no landing transactions or IFQ transfers have been
completed by the IFQ account holder in at least 1 year. If an account is
closed by NMFS' IFQ Customer Service staff, it may be reopened at the
request of the IFQ account holder by contacting IFQ Customer Service.
(9) Returning IFQ shares. Any shares contained in IFQ accounts that
have never been activated since January 1, 2010, in the IFQ program are
returned permanently to NMFS on July 12, 2018.
(b) IFQ operations and requirements--(1) IFQ vessel accounts for
Gulf groupers and tilefishes. 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 groupers (including DWG and SWG, as specified
in paragraph (a) of this section or tilefishes (including goldface
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 this section, Sec.622.22, 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 paragraph (a)(3)(i) of this section, online via the NMFS
IFQ Web site https://portal.southeast.fisheries.noaa.gov/cs/main.html,
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 Web site 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, or its linked IFQ shareholder
account, must hold sufficient IFQ allocation in the appropriate share
category, at least equal to the pounds in gutted weight of the groupers
and tilefishes on board at the time of advance notice of landing.
Allocation must be transferred to the vessel account, so that the vessel
account holds sufficient IFQ allocation at the time of the landing
transaction (except for any overage allowed as specified in paragraph
(b)(3)(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.
622.38(b)(2) and (5) respectively.
(2) Gulf IFQ dealer endorsements. In addition to the requirement for
a Gulf and South Atlantic dealer permit as specified in Sec.
622.20(c)(1), for a dealer to first receive groupers and tilefishes
subject to the IFQ program for groupers and tilefishes, as specified in
paragraph (a)(1) of this section, or for a person aboard a vessel with a
Gulf IFQ vessel account to sell such 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 and South Atlantic dealer
permit can download a Gulf IFQ dealer endorsement from the NMFS IFQ Web
site. If such persons do not have an IFQ account, they must first
contact IFQ Customer Service at 1-866-425-7627 to obtain information
necessary to access the IFQ Web site and establish an IFQ account. There
is no fee for obtaining this endorsement. The endorsement remains valid
as long as the Gulf and South Atlantic dealer permit remains valid and
the dealer is in compliance with all Gulf reef fish and IFQ reporting
requirements, has paid all IFQ fees required, and is not subject to any
sanctions under 15 CFR
[[Page 273]]
part 904. The endorsement is not transferable.
(3) IFQ Landing and transaction requirements. (i) At the time of
advance notice of landing, the IFQ vessel account, or its linked IFQ
shareholder account, must contain allocation at least equal to the
pounds in gutted weight of grouper or tilefish species to be landed,
except as provided in paragraph (b)(3)(ii) of this section. At the time
of the landing transaction, the IFQ vessel account must contain
allocation at least equal to the pounds in gutted weight of grouper or
tilefish species to be landed, except as provided in paragraph
(b)(3)(ii) of this section. Such groupers and tilefishes must be sold
and can be received only by a dealer who has a valid Gulf IFQ dealer
endorsement and an active IFQ dealer account (i.e., not in delinquent
status). All IFQ landings and their actual ex-vessel prices must be
reported via the IFQ Web site.
(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 must complete a landing transaction report for each
landing of Gulf groupers or tilefishes via the IFQ Web site on the day
of offload, except if the fish are being trailered for transport to a
dealer as specified in paragraph (b)(5)(iv) of this section (in which
case the landing transaction report may be completed prior to the day of
offload), and within 96 hours from the time of landing reported on the
most recent landing notification, in accordance with the reporting
form(s) and instructions provided on the Web site. This report includes
date, time, and location of transaction; weight and actual ex-vessel
price of groupers and tilefishes landed and sold (when calculating the
weight of IFQ groupers and tilefishes during a landing transaction, ice
and water weight may not be deducted from the weight of the fish unless
the actual weight of the ice and water can be determined); 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 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) must initiate a landing transaction correction
form to correct the landing transaction. This form is available via the
IFQ Web site. 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.
(4) IFQ cost recovery fees. As required by 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 as
described in the Magnuson-Stevens Act. 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 price of Gulf groupers and
tilefishes landed per trip 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
[[Page 274]]
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 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 31st day after the end of each calendar-year
quarter, the RA will send the dealer an electronic message via the IFQ
Web site 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.
(5) Measures to enhance IFQ program enforceability--(i) Advance
notice of landing--(A) General requirement. 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 24 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(s) where the groupers or tilefishes are to be
received. The vessel must land within 1 hour after the time given in the
landing notification except as provided in paragraph (b)(5)(i)(C) of
this section. The vessel landing groupers or tilefishes must have
sufficient IFQ allocation in the IFQ vessel account, or its linked IFQ
shareholder 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) at the time of the advance
notice of landing.
(B) Submitting an advanced landing notification. Authorized methods
for contacting NMFS and submitting the report include calling IFQ
Customer Service at 1-866-425-7627, completing and submitting to NMFS a
landing notification provided through the VMS unit, or providing the
required information to NMFS through the web-based form available on the
IFQ Web site.
(C) Landing prior to the notification time. The owner or operator of
a vessel that has completed a landing notification and submitted it to
NMFS may land prior to the notification time, only if an authorized
officer is present at the landing site, is available to meet
[[Page 275]]
the vessel, and has authorized the owner or operator of the vessel to
land early.
(D) Changes to a landing notification. The owner or operator of a
vessel who has submitted a landing notification to NMFS may make changes
to the notification by submitting a superseding notification. If the
initial superseding notification makes changes to one or more of the
following: the time of landing (if landing more than 1 hour after the
time on the notification), the dealer(s), or the estimated weights of
fish to be landed, the vessel does not need to wait an additional 3
hours to land. If the initial superseding notification makes changes to
the landing location, the time of landing is earlier than previously
specified, or more than one superseding notification is submitted on a
trip, the vessel must wait an additional 3 hours to land, except as
provided in paragraph (b)(5)(i)(C) of this section.
(ii) Time restriction on offloading. For the purpose of this
paragraph, offloading means to remove IFQ groupers and tilefishes from a
vessel. IFQ groupers or tilefishes may be offloaded only between 6 a.m.
and 6 p.m., local time, unless an authorized officer is present at the
offloading at 6 p.m., is available to remain at the site while
offloading continues, and authorizes the owner or operator of the vessel
to continue offloading after 6 p.m.
(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 transport or are on a vessel
that is trailered for transport, 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 or 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. A dealer may only receive IFQ groupers and
tilefishes transported by a vehicle or a trailered vessel that has a
corresponding transaction approval code.
(v) Approved landing locations. IFQ groupers and tilefishes must be
landed at an approved landing location. Landing locations must be
approved by NMFS Office for Law Enforcement prior to a vessel landing
IFQ groupers or tilefishes at these sites. Proposed landing locations
may be submitted online via the IFQ Web site, 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 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.
(B) Landing locations must be publicly accessible by land and water,
and must satisfy the following criteria:
(1) Vehicles must have access to the site via public roads;
(2) Vessels must have access to the site via navigable water;
(3) No other condition may impede free and immediate access to the
site by an authorized law enforcement officer. Examples of such
conditions include, but are not limited to: A locked gate, fence, wall,
or other barrier preventing 24-hour access to the site; a gated
community entry point; a guard; animal; a posted sign restricting access
to the site; or any other physical deterrent.
(6) 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
[[Page 276]]
can be transferred only to a 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 Web site. An IFQ shareholder must initiate a share
transfer request by logging onto the IFQ Web site. 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 Web site,
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 a valid commercial vessel permit for Gulf reef fish; is
in compliance with all reporting requirements for the Gulf reef fish
fishery and the IFQ program for Gulf groupers and tilefishes; is not
subject to sanctions under 15 CFR part 904; and who would not be in
violation of the share or allocation caps as specified in paragraph
(b)(8) of this section. Thereafter, share transferee eligibility will
only 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 information entered. If the information is not
accepted, the online system will send the shareholder an electronic
message explaining the reason(s). 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 transfer approval code to both the shareholder
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 and restrictions--(A) Allocation
transfer procedures. Allocation transfers must be accomplished online
via the IFQ Web site. An IFQ account holder must initiate an allocation
transfer by logging onto the IFQ Web site, entering the required
information, including but not limited to, the name of an eligible
transferee and amount of IFQ allocation to be transferred and price, and
submitting the transfer electronically.
[[Page 277]]
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 Web site will provide a transfer approval code to the
transferor and transferee confirming the transaction.
(B) Multi-use allocation transfer restrictions--(1) Red grouper
multi-use allocation. Red grouper multi-use allocation may only be
transferred after all an IFQ account holder's red grouper allocation has
been landed and sold, or transferred.
(2) Gag multi-use allocation. Gag multi-use allocation may only be
transferred after all an IFQ account holder's gag allocation has been
landed and sold, or transferred.
(7) Restricted transactions during the 20-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 2 p.m. eastern time the following fishing year.
The remaining 6 hours prior to the end of the fishing year, and the 14
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 or catch allowances for Gulf
groupers and tilefishes have changed, and update shares and allocations
for the upcoming fishing year. No electronic IFQ transactions will be
available during these 20 hours. An advance notice of landing may still
be submitted during the 20-hour maintenance window by using the vessel's
VMS unit or calling IFQ Customer Service at 1-866-425-7627.
(8) IFQ share and allocation caps. A corporation's total IFQ share
(or allocation) is determined by adding the applicable IFQ shares (or
allocation) held by the corporation and any other IFQ shares (or
allocation) 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. An individual's total IFQ
allocation is determined by adding the individual's total allocation to
the allocation derived from the IFQ shares equivalent to the corporate
share the individual holds in a corporation.
(i) IFQ share cap for each share category. No person, including a
corporation or other entity, may individually or collectively hold IFQ
shares in any share category (gag, red grouper, DWG, Other SWG, or
tilefishes) in excess of the maximum share initially issued for the
applicable share category to any person at the beginning of the IFQ
program, as of the date appeals are resolved and shares are adjusted
accordingly. A corporation must provide to the RA the identity of the
shareholders of the corporation and their percent of shares in the
corporation for initial issuance of IFQ shares and allocation, 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
and at the time of renewal of the application for an IFQ Account.
(ii) Total allocation cap. No person, including a corporation or
other entity, may individually or collectively hold, cumulatively during
any fishing year, IFQ allocation in excess of the total allocation cap.
The total allocation cap is the sum of the maximum allocations
associated with the share caps for each individual share category and is
calculated annually based on the applicable quotas or catch allowance
associated with each share category.
(9) Redistribution of shares resulting from permanent revocation. If
a shareholder's IFQ shares have been permanently revoked, the RA will
redistribute the IFQ shares 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
[[Page 278]]
distributed at the beginning of the subsequent fishing year.
(10) Annual recalculation and notification of IFQ shares and
allocation. On or about January 1 each year, IFQ shareholders will be
notified, via the IFQ Web site, of their IFQ shares and allocations, for
each of the five share categories, 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 IFQ shares. Allocation, for each
share category, is calculated by multiplying IFQ share for that category
times the annual commercial quota or commercial catch allowance for that
share category. Updated allocation values will reflect any change in IFQ
share for each share category, any change in the annual commercial quota
or commercial catch allowance for the applicable categories; and any
debits required as a result of prior fishing year overages as specified
in paragraph (b)(3)(ii) of this section. IFQ participants can monitor
the status of their shares and allocation throughout the year via the
IFQ Web site.
(11) Gulf grouper and tilefish IFQ program participation for current
grouper and tilefish IFQ account holders. (i) A current participant in
the Gulf grouper and tilefish IFQ program must complete and submit the
application for an IFQ Account that is available on the Web site
sero.nmfs.noaa.gov, to certify status as a U.S. citizen or permanent
resident alien. The account holder must also complete and submit any
other information on this form that may be necessary for the
administration of the IFQ account.
(ii) A person with an established IFQ account must update and
confirm the account information every 2 years. IFQ accounts are updated
through the submission of the application for an IFQ Account. Accounts
must be updated prior to the account validity date (expiration date of
the account) that is displayed on each account holder's IFQ account
page. The RA will provide each participant who has established an online
account an application approximately 2 months prior to the account
validity date. A participant who is not provided an application at least
45 days prior to the account validity date must contact IFQ Customer
Service at 1-866-425-7627 and request an application. Failure to submit
a completed application prior to the participant's account validity date
will lead to the suspension of the participant's access to his IFQ
account until a completed application is submitted. Participants who
certify that they are either not a U.S. citizen or permanent resident
alien will be ineligible to receive shares or allocation through
transfer.
[78 FR 22952, Apr. 17, 2013, as amended at 79 FR 19494, Apr. 9, 2014; 79
FR 57835, Sept. 26, 2014; 80 FR 18553, Apr. 7, 2015; 80 FR 24834, May 1,
2015; 83 FR 27300, June 12, 2018]
Sec.622.23 State management of the red snapper recreational sector
private angling component in the Gulf EEZ.
(a) Delegation. Alabama, Florida, Louisiana, Mississippi, and Texas
(Gulf states) are delegated the authority to manage certain aspects of
recreational red snapper harvest by the private angling component in the
Gulf EEZ (i.e., delegation). All other management measures for
recreational red snapper in the Gulf EEZ not specified in this section
continue to apply during state management.
(1) Delegation of authority. As described in the FMP for the Reef
Fish Resources of the Gulf of Mexico, each Gulf state must specify the
red snapper private angling component fishing season start and end dates
to maintain harvest levels within the state's ACL, as stated in
paragraph (a)(1)(ii) of this section. Each state must also specify a
recreational bag limit and a minimum size limit within the range of 14
to 18 inches (35.6 cm to 45.7 cm), total length. Each state may specify
a maximum size limit. If NMFS determines that a state's red snapper
private angling component regulations are inconsistent with the FMP and
the state fails to correct the inconsistency after notice and an
opportunity to do so, or a state does not specify the required
management measures set forth above, i.e., fishing season start and end
dates, a recreational bag limit, and a minimum size limit, then NMFS
will publish a notice in the Federal Register stating that the default
management
[[Page 279]]
measures for the red snapper private angling component, as described in
paragraph (a)(2) of this section, apply in the EEZ off that state.
(i) State management areas. For purposes of the delegation of the
authority to establish certain management measures for the red snapper
private angling component, five areas in the Gulf EEZ have been
established; one off each of the five Gulf states: Alabama, Florida,
Louisiana, Mississippi, and Texas. The boundaries off each state are
described in Sec.622.2.
(ii) State private angling component ACLs. All ACLs specified below
are in round weight.
(A) Alabama regional management area--1,122,662 lb (509,231 kg).
(B) Florida regional management area--1,913,451 lb (867,927 kg).
(C) Louisiana regional management area--816,233 lb (370,237 kg).
(D) Mississippi regional management area--151,550 lb (68,742 kg).
(E) Texas regional management area--265,105 lb (120,250 kg).
(2) Default management measures. If a state's delegation is
suspended, the Federal management measures for the private angling
season, recreational bag limit, and minimum size limit as described in
Sec. Sec.622.34(b) (seasonal closure), 622.37(a)(1) (size limit),
622.38(b)(3) (bag limit), and 622.41(q)(2)(i) (season length) apply in
the EEZ off that state. All other management measures not specified in
this section remain in effect.
(b) Post-season ACL adjustments for states with an active
delegation. If a state's red snapper private angling component landings
exceed the applicable state's component ACL specified in paragraph
(a)(1)(ii) of this section, the AA will file a notification with the
Office of the Federal Register, at or near the beginning of the
following fishing year, reducing that state's private angling ACL by the
amount of the ACL overage in the prior fishing year, unless the best
scientific information available determines that a greater, lesser, or
no overage adjustment is necessary.
(c) Area closures. As described in the FMP, for the red snapper
private angling component, a state with an active delegation may request
that NMFS establish an area closure in the EEZ off that state that
prohibits the private angling component from harvesting or possessing
red snapper. If NMFS determines that the request is within the scope of
the analysis in the FMP, NMFS will publish a notice in the Federal
Register to implement the requested closure for the fishing year.
[85 FR 6823, Feb. 6, 2020]
Sec.622.24 [Reserved]
Sec.622.25 Exemptions for Gulf groundfish trawling.
Gulf groundfish trawling means fishing in the Gulf EEZ by a vessel
that uses a bottom trawl, the unsorted catch of which is ground up for
animal feed or industrial products.
(a) Other provisions of this part notwithstanding, the owner or
operator of a vessel trawling for Gulf groundfish is exempt from the
following requirements and limitations for the vessel's unsorted catch
of Gulf reef fish:
(1) The requirement for a valid commercial vessel permit for Gulf
reef fish in order to sell Gulf reef fish.
(2) Minimum size limits for Gulf reef fish.
(3) Bag limits for Gulf reef fish.
(4) The prohibition on sale of Gulf reef fish after a quota or ACL
closure.
(b) Other provisions of this part notwithstanding, a dealer in a
Gulf state is exempt from the requirement for a Gulf and South Atlantic
dealer permit to receive Gulf reef fish harvested from the Gulf EEZ by a
vessel trawling for Gulf groundfish.
[79 FR 19494, Apr. 9, 2014]
Sec.622.26 Recordkeeping and reporting.
(a) Commercial vessel owners and operators. (1) The owner or
operator of a vessel for which a commercial permit for Gulf reef fish
has been issued, as required under Sec.622.20(a)(1), 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. These completed fishing records must
be submitted to the SRD postmarked no later
[[Page 280]]
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 no later than 7 days after the end of that month.
Information to be reported is indicated on the form and its accompanying
instructions.
(2) Advance notice of landing--(i) General requirement. For the
purpose of this paragraph (a)(2), landing means to arrive at a dock,
berth, beach, seawall, or ramp. The owner or operator of a vessel
landing Gulf reef fish not managed under an IFQ program or Florida Keys/
East Florida hogfish harvested in the Gulf is responsible for ensuring
that NMFS is contacted at least 3 hours, but no more than 24 hours, in
advance of landing to report the time, date, and location of landing,
and the vessel identification number (e.g., Coast Guard registration
number or state registration number). The vessel must land at an
approved landing location and within 1 hour after the time given in the
landing notification, except as provided in paragraph (a)(2)(iii) of
this section. A vessel landing Gulf reef fish managed under an IFQ
program must also comply with the requirements in Sec. Sec.622.21 and
622.22, as applicable.
(ii) Submitting an advance landing notification. Authorized methods
for contacting NMFS and submitting a completed landing notification
include the VMS unit, or another contact method approved by NMFS.
(iii) Landing prior to the notification time. The owner or operator
of a vessel that has completed a landing notification and submitted it
to NMFS may land prior to the notification time, only if an authorized
officer is present at the landing site, is available to meet the vessel,
and has authorized the owner or operator of the vessel to land prior to
the notification time.
(iv) Changes to a landing notification. The owner or operator of a
vessel who has submitted a landing notification to NMFS may make changes
to the notification by submitting a superseding notification. If the
initial superseding notification makes changes to the time of landing
that is later than the original time in the notification, the vessel
does not need to wait an additional 3 hours to land. If the initial
superseding notification makes changes to the landing location, the time
of landing is earlier than previously specified, or more than one
superseding notification is submitted on a trip, the vessel must wait an
additional 3 hours to land, except as provided in paragraph (a)(2)(iii)
of this section.
(v) Approved landing locations. Gulf reef fish not managed under an
IFQ program, and Florida Keys/East Florida hogfish harvested in the
Gulf, must be landed at an approved landing location. Landing locations
must be approved by the NOAA Office of Law Enforcement prior to a vessel
landing these species at these sites. Proposed landing locations may be
submitted to NMFS; 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 criteria
at Sec. Sec.622.21(b)(5)(v) and 622.22(b)(5)(v).
(b) Charter vessel/headboat owners and operators--(1) General
reporting requirement--(i) Charter vessels. The owner or operator of a
charter vessel for which a charter vessel/headboat permit for Gulf reef
fish has been issued, as required under Sec.622.20(b), or whose vessel
fishes for or lands such reef fish in or from state waters adjoining the
Gulf 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.
(ii) Headboats. The owner or operator of a headboat for which a
charter vessel/headboat permit for Gulf reef fish has been issued, as
required under Sec.622.20(b), or whose vessel fishes for or lands such
reef fish in or from state waters adjoining the Gulf EEZ, who is
selected to report by the SRD must submit an electronic fishing record
for each trip of all fish harvested within the time period specified in
paragraph (b)(2)(ii) of this section, via the Southeast Region Headboat
Survey.
[[Page 281]]
(2) Reporting deadlines--(i) Charter vessels. Completed fishing
records required by paragraph (b)(1)(i) of this section for charter
vessels must be submitted to the SRD weekly, postmarked no 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. Electronic fishing records required by paragraph
(b)(1)(ii) of this section for headboats must be submitted at weekly
intervals (or intervals shorter than a week if notified by the SRD) by
11:59 p.m., local time, the Sunday following a reporting week. If no
fishing activity occurred during a reporting week, an electronic report
so stating must be submitted for that reporting week by 11:59 p.m.,
local time, the Sunday following a reporting week.
(3) Catastrophic conditions. During catastrophic conditions only,
NMFS provides for use of paper forms for basic required functions as a
backup to the electronic reports required by paragraph (b)(1)(ii) of
this section. 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. The paper forms will be available from NMFS.
During catastrophic conditions, the RA has the authority to waive or
modify reporting time requirements.
(4) Compliance requirement. Electronic reports required by paragraph
(b)(1)(ii) of this section must be submitted and received by NMFS
according to the reporting requirements under this section. A report not
received within the time specified in paragraph (b)(2)(ii) is
delinquent. A delinquent report automatically results in the owner and
operator of a headboat for which a charter vessel/headboat permit for
Gulf reef fish has been issued being prohibited from harvesting or
possessing such species, regardless of any additional notification to
the delinquent owner and operator by NMFS. The owner and operator who
are prohibited from harvesting or possessing such species due to
delinquent reports are authorized to harvest or possess such species
only after all required and delinquent reports have been submitted and
received by NMFS according to the reporting requirements under this
section.
(c) Dealers. (1) A dealer who first receives Gulf reef fish must
maintain records and submit information as specified in Sec.622.5(c).
(2) The operator of a vehicle that is used to pick up from a fishing
vessel Gulf reef fish must maintain a record containing the name of each
fishing vessel from which reef fish on the vehicle have been received.
The vehicle operator must provide such record for inspection upon the
request of an authorized officer.
[78 FR 22952, Apr. 17, 2013, as amended at 79 FR 6099, Feb. 3, 2014; 79
FR 19494, Apr. 9, 2014; 83 FR 27300, June 12, 2018]
Effective Date Note: At 85 FR 44017, July 21, 2020, Sec.622.26 was
amended by revising paragraph (b), effective Jan. 5, 2021, except for
paragraph (b)(5), which is delayed indefinitely. For the convenience of
the user, the revised text is set forth as follows:
Sec.622.26 Recordkeeping and reporting.
* * * * *
(b) Charter vessel/headboat owners and operators--(1) General
reporting requirement. The owner or operator of a charter vessel or
headboat for which a charter vessel/headboat permit for Gulf reef fish
has been issued, as required under Sec.622.20(b), and whose vessel is
operating as a charter vessel or headboat, regardless of fishing
location, must submit an electronic fishing report of all fish harvested
and discarded, and any other information requested by the SRD for each
trip within the time period specified in paragraph (b)(2) of this
section. The electronic fishing report must be submitted to the SRD via
NMFS approved hardware and software, as posted on the NMFS Southeast
Region website. If selected by the SRD, the owner or operator of a
vessel for which a charter vessel/headboat permit for Gulf reef fish has
been issued must report via the NMFS approved software for the Southeast
Region Headboat Survey.
(2) Reporting deadlines. Completed electronic fishing reports
required by paragraph (b)(1) of this section must be submitted to the
SRD prior to removing any fish from the vessel. If no fish were retained
by any person
[[Page 282]]
on the vessel during a trip, the completed electronic fishing report
must be submitted to the SRD within 30 minutes of the completion of the
trip, e.g., arrival at the dock.
(3) Catastrophic conditions. During catastrophic conditions only,
NMFS provides for use of paper forms for basic required functions as a
backup to the electronic reports required by paragraph (b) of this
section. 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, and other appropriate means,
such as fishery bulletins or NOAA weather radio, and will authorize the
affected participants' use of paper forms for the duration of the
catastrophic conditions. The paper forms will be available from NMFS.
During catastrophic conditions, the RA has the authority to waive or
modify reporting time requirements.
(4) Compliance requirement. Electronic reports required by paragraph
(b)(1) of this section must be submitted and received by NMFS according
to the reporting requirements under this section. A report not received
within the applicable time specified in paragraph (b)(2) of this section
is delinquent. A delinquent report automatically results in the owner
and operator of a charter vessel or headboat for which a charter vessel/
headboat permit for Gulf reef fish has been issued being prohibited from
harvesting or possessing such species, regardless of any additional
notification to the delinquent owner and operator by NMFS. The owner and
operator who are prohibited from harvesting or possessing such species
due to delinquent reports are authorized to harvest or possess such
species only after all required and delinquent reports have been
submitted and received by NMFS according to the reporting requirements
under this section.
(5) Hardware and software requirements for vessel location tracking.
An owner or operator of a vessel for which a charter vessel/headboat
permit for Gulf reef fish has been issued must ensure that the vessel is
equipped with NMFS-approved hardware and software with a minimum
capability of archiving GPS locations as posted on the NMFS Southeast
Region website. The vessel location tracking device can be either a
cellular or satellite VMS unit, and must be permanently affixed to the
vessel and have uninterrupted operation.
(i) Use of a NMFS-approved satellite VMS. An owner or operator of a
vessel for which a charter vessel/headboat permit for Gulf reef fish has
been issued, and who uses a NMFS-approved satellite VMS to comply with
the reporting and recordkeeping requirements of this section, must
adhere to the VMS requirements specified in Sec.622.28, except for the
trip declaration requirements specified in Sec.622.28(e). For trip
declaration requirements, see paragraph (b)(6) of this section.
(ii) Use of NMFS-approved cellular VMS. An owner or operator of a
vessel for which a charter vessel/headboat permit for Gulf reef fish has
been issued, and who uses NMFS-approved cellular VMS to comply with the
reporting and recordkeeping requirements of this section must comply
with the following--
(A) Cellular VMS unit operation and replacement. Ensure that such
vessel has an operating cellular VMS unit approved by NMFS on board at
all times whether or not the vessel is underway, unless exempted by NMFS
under the power-down exemption specified in paragraph (b)(5)(ii)(D) of
this section. An operating cellular VMS unit 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 maintains a current list of
approved cellular VMS units and communication providers, which is
available at https://www.fisheries.noaa.gov/southeast/about-us/
sustainable-fisheries-division-gulf-mexico-branch. If NMFS OLE removes a
cellular VMS unit from the approved list, a vessel owner who purchased
and installed such a unit prior to its removal from the approved list
will still comply with the requirement to have an approved unit, unless
otherwise notified by NMFS OLE. At the end of a cellular VMS unit's
service life, it must be replaced with a currently approved unit.
(B) Hourly position reporting requirement. An owner or operator of a
vessel using a NMFS-approved cellular VMS unit as specified in paragraph
(b)(5)(ii)(A) of this section must ensure that the required cellular VMS
unit archives the vessel's accurate position at least once per hour, 24
hours a day, every day of the year, unless exempted from this
requirement under paragraphs (b)(5)(ii)(C) or (D) of this section.
(C) In-port exemption. While in port, an owner or operator of a
vessel with a NMFS-approved cellular VMS unit configured with the 4-hour
position reporting feature may utilize the 4-hour reporting feature
rather than comply with the hourly position reporting requirement
specified in paragraph (b)(5)(ii)(B) of this section. Once the vessel is
no longer in port, the hourly position reporting requirement specified
in paragraph (b)(5)(ii)(B) of this section applies. For the purposes 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.
(D) Power-down exemption. An owner or operator of a vessel subject
to the requirement to have a cellular VMS unit operating at all times as
specified in paragraph (b)(5)(ii)(A) of
[[Page 283]]
this section can be exempted from that requirement and may power down
the required cellular VMS unit if--
(1) The vessel will be continuously out of the water or in port, as
defined in paragraph (b)(5)(ii)(C) of this section, for more than 72
consecutive hours;
(2) The owner or operator of the vessel applies for and obtains a
valid letter of exemption from NMFS. The letter of exemption must be
maintained on board the vessel and remains valid for the period
specified in the letter for all subsequent power-down requests conducted
for the vessel consistent with the provisions of paragraphs
(b)(5)(ii)(D)(3) and (4) of this section.
(3) Prior to each power down, the owner or operator of the vessel
files a report using a NMFS-approved form that includes the name of the
person filing the report, vessel name, U.S. Coast Guard vessel
documentation number or state vessel registration number, charter
vessel/headboat reef fish permit number, vessel port location during
cellular VMS power down, estimated duration of the power-down exemption,
and reason for power down; and
(4) Prior to powering down the cellular VMS unit, the owner or
operator of the vessel receives a confirmation from NMFS that the
information was successfully delivered.
(E) Installation and activation of a cellular VMS unit. Only a
cellular VMS unit that has been approved by NMFS for the Gulf reef fish
fishery may be used, and the cellular VMS unit must be installed by a
qualified marine electrician. When installing and activating or when
reinstalling and reactivating the NMFS-approved cellular VMS unit, the
vessel owner or operator must--
(1) Follow procedures indicated on the VMS installation and
activation form, which is available from NMFS; and
(2) Submit a completed and signed VMS installation and activation
form to NMFS as specified on the form.
(F) Interference with the cellular VMS. No person may interfere
with, tamper with, alter, damage, disable, or impede the operation of
the cellular VMS, or attempt any of the same.
(G) Interruption of operation of the cellular VMS. If a vessel's GPS
is not operating properly, the vessel owner or operator must immediately
contact NMFS and follow NMFS' instructions. If notified by NMFS that a
vessel's cellular VMS is not operating properly, the vessel owner or
operator must follow NMFS' instructions. 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 cellular VMS is operable.
(iii) Access to position data. As a condition of authorized fishing
for or possession of Gulf reef fish subject to the reporting and
recordkeeping requirements in this section, a vessel owner or operator
subject to the hardware and software requirements in this section must
allow NMFS, the U.S. Coast Guard, and their authorized officers and
designees access to the vessel's position data obtained from the
cellular VMS.
(6) Trip declaration requirements. For purposes of this paragraph
(b)(6), a trip begins anytime the vessel departs from a dock, berth,
beach, seawall, or ramp, and terminates with return to a dock, berth,
beach, seawall, or ramp, regardless of the duration or purpose,
including non-fishing activities. Prior to departure for each trip, the
owner or operator of a vessel for which a charter vessel/headboat permit
for Gulf reef fish has been issued must notify NMFS and report the type
of trip, the U.S. Coast Guard vessel documentation number or state
vessel registration number, and whether the vessel will be operating as
a charter vessel or headboat, or is departing on another type of trip,
such as a commercial trip. If the vessel will be operating as a charter
vessel or headboat during the trip, the owner or operator must also
report the expected trip completion date, time, and landing location.
* * * * *
Sec.622.27 At-sea observer coverage.
(a) Required coverage. 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).
(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
[[Page 284]]
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.
Sec.622.28 Vessel monitoring systems (VMSs).
The VMS requirements of this section apply throughout the Gulf of
Mexico and adjacent states.
(a) 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 (d) 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.
(b) Hourly reporting requirement. An owner or operator of a vessel
subject to the requirements of paragraph (a) 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 (c) or (d) of this section.
(c) 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 (b)
of this section. Once the vessel is no longer in port, the hourly
reporting requirement specified in paragraph (b) of this section
applies. For the purposes 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.
(d) 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) of this section can be exempted from that requirement and
may power down the required VMS unit if--
(1) The vessel will be continuously out of the water or in port, as
defined in paragraph (c) of this section, for more than 72 consecutive
hours;
(2) 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 (d)(3) and (4) of this section.
[[Page 285]]
(3) 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
email, that includes the name of the person 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
(4) 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.
(e) 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. This information may be reported to NMFS using the toll-free
number, 888-219-9228, or via an attached VMS terminal.
(f) Installation and activation of a VMS. Only a VMS that has been
approved by NMFS for the Gulf reef fish 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 13th Avenue
South, St. Petersburg, FL 33701; phone: 800-758-4833; and
(2) Submit to NMFS Office for Law Enforcement, Southeast Region, 263
13th 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
13th Avenue South, St. Petersburg, FL 33701, a vendor-completed
installation certification checklist, which is available from NMFS
Office for Law Enforcement, Southeast Region, 263 13th Avenue South, St.
Petersburg, FL 33701; phone: 800-758-4833.
(g) 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.
(h) 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 13th 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.
(i) 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.
Sec.622.29 Conservation measures for protected resources.
(a) Gulf reef fish commercial vessels and charter vessels/
headboats--(1) Sea turtle conservation measures. (i) 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.622.20(a)(1) and (b), respectively, must
have the 2019 version of the NMFS document titled, ``Careful Release
Protocols for Sea Turtle Release with Minimal Injury'' available for
reference on board electronically or have a paper copy on board inside
the wheelhouse, or within a waterproof case if there is no wheelhouse.
In addition, the NMFS sea turtle handling and release guidelines placard
must be
[[Page 286]]
posted inside the wheelhouse or an easily viewable area on the vessel if
there is no wheelhouse.
(ii) Such owner or operator must also comply with the sea turtle
interaction mitigation measures, including the release gear and handling
requirements specified in appendix F of this part.
(iii) Those permitted vessels with a freeboard height of 4 ft (1.2
m) or less must have on board a net or hoist, tire or other support
device, short-handled dehooker(s) for internal and external hooks, long-
nose or needle-nose pliers, bolt cutters, monofilament line cutters, and
at least two types of mouth openers or mouth gags. This equipment must
meet the specifications described in appendix F to this part.
(iv) Those permitted vessels with a freeboard height of greater than
4 ft (1.2 m) must have on board a net or hoist, tire or other support
device, long-handled line clipper or cutter, short-handled dehooker(s)
for internal and external hooks, long-handled dehooker(s) for internal
and external hooks, a long-handled device to pull an inverted ``V'' in
the fishing line, long-nose or needle-nose pliers, bolt cutters,
monofilament line cutters, and at least two types of mouth openers or
mouth gags. This equipment must meet the specifications described in
appendix F to this part.
(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.622.20(a)(1) and 622.20(b), 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.
(b) Incorporation by reference. The standards required in paragraph
(a)(1) of this section are incorporated by reference into this section
with the approval of the Director of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. All approved material is available for
inspection at the National Marine Fisheries Service, Southeast Regional
Office, 263 13th Ave. South, St. Petersburg, FL 33701, phone: 727-824-
5301, website: https://www.fisheries.noaa.gov/southeast/endangered-
species-conservation/sea-turtle-and-smalltooth-sawfish-release-gear-
protocols.html, and is available from the sources listed in paragraphs
(b)(1) and (2) of this section. It is also available for inspection at
the National Archives and Records Administration (NARA). For information
on the availability of this material at NARA, call 202-741-6030 or go to
www.archives.gov/federal-register/cfr/ibr-locations.html.
(1) U.S. Department of Commerce, National Oceanic and Atmospheric
Administration, National Marine Fisheries Service, Southeast Fisheries
Science Center, 75 Virginia Beach Drive, Miami, FL 33149.
(i) Careful Release Protocols for Sea Turtle Release with Minimal
Injury, NOAA Technical Memorandum NMFS-SEFSC-735, Stokes, L., and
Bergmann, C. (Editors), 2019.
(ii) [Reserved]
(2) U.S. Department of Commerce, National Oceanic and Atmospheric
Administration, National Marine Fisheries Service, Southeast Regional
Office, 263 13th Ave. South, St. Petersburg, FL 33701.
(i) Sea Turtle Handling/Release Guidelines: Quick Reference for Hook
and Line Fisheries, English, Spanish, Vietnamese, Revised April 2019.
(ii) [Reserved]
[78 FR 22952, Apr. 17, 2013, as amended at 84 FR 22385, May 17, 2019; 84
FR 67238, Dec. 9, 2019]
Sec.622.30 Required fishing gear.
For a person on board a vessel to fish for Gulf reef fish in the
Gulf EEZ, the vessel must possess on board and such person must use the
gear as specified in paragraphs (a) and (b) of this section.
(a) Non-stainless steel circle hooks. Non-stainless steel circle
hooks are required when fishing with natural baits, except that other
non-stainless steel hook types may be used when commercial fishing for
yellowtail snapper with
[[Page 287]]
natural baits in an area south of a line extending due west from
25[deg]09[min] N. lat. off the west coast of Monroe County, Florida, to
the Gulf of Mexico and South Atlantic inter-council boundary, specified
in Sec.600.105(c).
(b) Dehooking device. At least one dehooking device is required and
must be used to remove hooks embedded in Gulf reef fish with minimum
damage. The hook removal device must be constructed to allow the hook to
be secured and the barb shielded without re-engaging during the removal
process. The dehooking end must be blunt, and all edges rounded. The
device must be of a size appropriate to secure the range of hook sizes
and styles used in the Gulf reef fish fishery.
[78 FR 22952, Apr. 17, 2013, as amended at 78 FR 46822, Aug. 2, 2013; 81
FR 10311, Feb. 10, 2017]
Sec.622.31 Buoy gear identification.
(a) Buoy gear. In the Gulf EEZ, if buoy gear is used or possessed,
each buoy must display the official number of the vessel. See Sec.
622.2 for the definition of buoy gear.
(b) [Reserved]
Sec.622.32 Prohibited gear and methods.
Also see Sec.622.9 for additional prohibited gear and methods that
apply more broadly to multiple fisheries or in some cases all fisheries.
(a) Poisons. A poison may not be used to take Gulf reef fish in the
Gulf EEZ.
(b) [Reserved]
Sec.622.33 Prohibited species.
(a) General. The harvest and possession restrictions of this section
apply without regard to whether the species is harvested by a vessel
operating under a commercial vessel permit. The operator of a vessel
that fishes in the EEZ is responsible for the limit applicable to that
vessel. (Note: Nassau grouper in the Gulf EEZ may not be harvested or
possessed, as specified in Sec.622.181(b)(1).)
(b) Goliath grouper. Goliath grouper may not be harvested or
possessed in or from the Gulf EEZ.
(c) [Reserved]
(d) Gulf reef fish exhibiting trap rash. Possession of Gulf reef
fish in or from the Gulf EEZ that exhibit trap rash is prima facie
evidence of illegal trap use and is prohibited. For the purpose of this
paragraph, trap rash is defined as physical damage to fish that
characteristically results from contact with wire fish traps. Such
damage includes, but is not limited to, broken fin spines, fin rays, or
teeth; visually obvious loss of scales; and cuts or abrasions on the
body of the fish, particularly on the head, snout, or mouth.
[78 FR 22952, Apr. 17, 2013, as amended at 78 FR 78775, Dec. 27, 2013]
Sec.622.34 Seasonal and area closures designed to protect Gulf reef fish.
(a) Closure provisions applicable to the Madison and Swanson sites
and Steamboat Lumps, and the Edges--(1) Descriptions of Areas. (i) The
Madison and Swanson sites are bounded by rhumb lines connecting, in
order, the following points:
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A........................... 29[deg]17[min] 85[deg]50[min]
B........................... 29[deg]17[min] 85[deg]38[min]
C........................... 29[deg]06[min] 85[deg]38[min]
D........................... 29[deg]06[min] 85[deg]50[min]
A........................... 29[deg]17[min] 85[deg]50[min]
------------------------------------------------------------------------
(ii) Steamboat Lumps is bounded by rhumb lines connecting, in order,
the following points:
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
B........................... 28[deg]14[min] 84[deg]37[min]
C........................... 28[deg]03[min] 84[deg]37[min]
D........................... 28[deg]03[min] 84[deg]48[min]
A........................... 28[deg]14[min] 84[deg]48[min]
------------------------------------------------------------------------
(iii) The Edges is bounded by rhumb lines connecting, in order, the
following points:
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A........................... 28[deg]51[min] 85[deg]16[min]
B........................... 28[deg]51[min] 85[deg]04[min]
C........................... 28[deg]14[min] 84[deg]42[min]
D........................... 28[deg]14[min] 84[deg]54[min]
A........................... 28[deg]51[min] 85[deg]16[min]
------------------------------------------------------------------------
(2) Within the Madison and Swanson sites and Steamboat Lumps,
possession of Gulf reef fish is prohibited, except for such possession
aboard a vessel in transit with fishing gear stowed as specified in
paragraph (a)(4) of this section.
[[Page 288]]
(3) Within the Madison and Swanson sites and Steamboat Lumps during
November through April, and within the Edges during January through
April, all fishing is prohibited, and possession of any fish species is
prohibited, except for such possession aboard a vessel in transit with
fishing gear stowed as specified in paragraph (a)(4) of this section.
The provisions of this paragraph, (a)(3), do not apply to highly
migratory species.
(4) For the purpose of paragraph (a) of this section, transit means
non-stop progression through the area; fishing gear appropriately stowed
means--
(i) A longline may be left on the drum if all gangions and hooks are
disconnected and stowed below deck. Hooks cannot be baited. All buoys
must be disconnected from the gear; however, buoys may remain on deck.
(ii) A trawl net may remain on deck, but trawl doors must be
disconnected from the trawl gear and must be secured.
(iii) A gillnet must be left on the drum. Any additional gillnets
not attached to the drum must be stowed below deck.
(iv) A rod and reel must be removed from the rod holder and stowed
securely on or below deck. Terminal gear (i.e., hook, leader, sinker,
flasher, or bait) must be disconnected and stowed separately from the
rod and reel. Sinkers must be disconnected from the down rigger and
stowed separately.
(5) Within the Madison and Swanson sites and Steamboat Lumps, during
May through October, surface trolling is the only allowable fishing
activity. For the purpose of this paragraph (a)(5), surface trolling is
defined as fishing with lines trailing behind a vessel which is in
constant motion at speeds in excess of four knots with a visible wake.
Such trolling may not involve the use of down riggers, wire lines,
planers, or similar devices.
(6) For the purpose of this paragraph (a), fish means finfish,
mollusks, crustaceans, and all other forms of marine animal and plant
life other than marine mammals and birds. Highly migratory species means
tuna species, marlin (Tetrapturus spp. and Makaira spp.), oceanic
sharks, sailfishes (Istiophorus spp.), and swordfish (Xiphias gladius).
(b) Seasonal closure of the recreational sector for red snapper. The
recreational sector for red snapper in or from the Gulf EEZ is closed
from January 1 through May 31, each year. During the closure, the bag
and possession limit for red snapper in or from the Gulf EEZ is zero.
See Sec.622.23(a)(1) regarding the fishing season for states with an
active delegation of state management of the red snapper private angling
component. A person subject to the private angling component bag limit
under an active delegation of state management must be in compliance
with the fishing license (permit) requirements of the state in which
they intend to land the fish and may not possess red snapper in the Gulf
EEZ when that state season is closed.
(c) Seasonal closure of the recreational sector for greater
amberjack. The recreational sector for greater amberjack in or from the
Gulf EEZ is closed from January 1 through April 30, June 1 through July
31, and November 1 through December 31, each year. During the closure,
the bag and possession limit for greater amberjack in or from the Gulf
EEZ is zero.
(d) Seasonal closure of the recreational sector for shallow-water
grouper (SWG). The recreational sector for SWG in or from the Gulf EEZ
is closed each year from February 1 through March 31 in the portion of
the Gulf EEZ seaward of rhumb lines connecting the following points in
order. During the closure, the bag and possession limits for SWG in or
from the Gulf EEZ seaward of the following rhumb lines are zero.
Table 4 to Paragraph (d)
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
1................. 24[deg]48.0[min]......... 82[deg]48.0[min]
2................. 25[deg]07.5[min]......... 82[deg]34.0[min]
3................. 26[deg]26.0[min]......... 82[deg]59.0[min]
4................. 27[deg]30.0[min]......... 83[deg]21.5[min]
5................. 28[deg]10.0[min]......... 83[deg]45.0[min]
6................. 28[deg]11.0[min]......... 84[deg]00.0[min]
7................. 28[deg]11.0[min]......... 84[deg]07.0[min]
8................. 28[deg]26.6[min]......... 84[deg]24.8[min]
9................. 28[deg]42.5[min]......... 84[deg]24.8[min]
10................ 29[deg]05.0[min]......... 84[deg]47.0[min]
11................ 29[deg]02.5[min]......... 85[deg]09.0[min]
12................ 29[deg]21.0[min]......... 85[deg]30.0[min]
13................ 29[deg]27.9[min]......... 85[deg]51.7[min]
14................ 29[deg]45.8[min]......... 85[deg]51.0[min]
15................ 30[deg]05.6[min]......... 86[deg]18.5[min]
16................ 30[deg]07.5[min]......... 86[deg]56.5[min]
17................ 29[deg]43.9[min]......... 87[deg]33.8[min]
18................ 29[deg]43.0[min]......... 88[deg]18.5[min]
[[Page 289]]
19................ 29[deg]18.9[min]......... 88[deg]50.7[min] at State
and Federal Reef Fish
Management Boundary,
follow Reef Fish
Management Boundary to
point 20
20................ 28[deg]58.98[min]........ 89[deg]35.1[min] at State
and Federal Reef Fish
Management Boundary
21................ 29[deg]02.0[min]......... 89[deg]45.5[min]
22................ 28[deg]32.7[min]......... 90[deg]21.5[min]
23................ 28[deg]24.8[min]......... 90[deg]52.7[min]
24................ 28[deg]42.3[min]......... 92[deg]14.4[min]
25................ 28[deg]34.2[min]......... 92[deg]30.4[min]
26................ 28[deg]27.6[min]......... 95[deg]00.0[min]
27................ 28[deg]20.0[min]......... 95[deg]06.9[min]
28................ 28[deg]02.2[min]......... 96[deg]11.1[min]
29................ 27[deg]46.5[min]......... 96[deg]38.1[min]
30................ 27[deg]15.0[min]......... 97[deg]00.0[min]
31................ 26[deg]45.5[min]......... 97[deg]01.4[min]
32................ At EEZ boundary.......... 96[deg]51.0[min]
------------------------------------------------------------------------
(e) Seasonal closure of the recreational sector for gag. The
recreational sector for gag, in or from the Gulf EEZ, is closed from
January 1 through May 31. During the closure, the bag and possession
limits for gag in or from the Gulf EEZ are zero.
(f) Seasonal closures for gray triggerfish. The recreational sector
for gray triggerfish in or from the Gulf EEZ is closed from January 1
through the end of February, and from June 1 through July 31, each year.
During a recreational closure, the bag and possession limits for gray
triggerfish in or from the Gulf EEZ are zero. The commercial sector for
gray triggerfish in or from the Gulf EEZ is closed from June 1 through
July 31, each year. During the period of both the commercial and
recreational closure, all harvest or possession in or from the Gulf EEZ
of gray triggerfish is prohibited and the sale and purchase of gray
triggerfish taken from the Gulf EEZ is prohibited.
(g) Recreational sector for hogfish in the Gulf EEZ south of
25[deg]09[min] N. lat. off the west coast of Florida. See Sec.
622.183(b)(4) for the applicable seasonal closures.
[78 FR 22952, Apr. 17, 2013, as amended at 78 FR 27087, May 9, 2013; 78
FR 33261, June 4, 2013; 81 FR 24039, Apr. 25, 2016; 82 FR 34580, July
25, 2017; 82 FR 59525, Dec. 15, 2017; 82 FR 61487, Dec. 28, 2017; 83 FR
13428, Mar. 29, 2018; 85 FR 6823, Feb. 6, 2020; 85 FR 20613, Apr. 14,
2020]
Sec.622.35 Gear restricted areas.
(a) Reef fish stressed area. The stressed area is that part of the
Gulf EEZ shoreward of rhumb lines connecting, in order, the points
listed in Table 2 in Appendix B of this part.
(1) A powerhead may not be used in the stressed area to take Gulf
reef fish. Possession of a powerhead and a mutilated Gulf reef fish in
the stressed area or after having fished in the stressed area
constitutes prima facie evidence that such reef fish was taken with a
powerhead in the stressed area.
(2) A roller trawl may not be used in the stressed area. Roller
trawl means a trawl net equipped with a series of large, solid rollers
separated by several smaller spacer rollers on a separate cable or line
(sweep) connected to the footrope, which makes it possible to fish the
gear over rough bottom, that is, in areas unsuitable for fishing
conventional shrimp trawls. Rigid framed trawls adapted for shrimping
over uneven bottom, in wide use along the west coast of Florida, and
shrimp trawls with hollow plastic rollers for fishing on soft bottoms,
are not considered roller trawls.
(b) Seasonal prohibitions applicable to bottom longline fishing for
Gulf reef fish. (1) From June through August each year, bottom
longlining for Gulf reef fish is prohibited in the portion of the Gulf
EEZ east of 85[deg]30' W. long. that is shoreward of rhumb lines
connecting, in order, the following points:
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A........................... 28[deg]58.70[min] 85[deg]30.00[min]
B........................... 28[deg]59.25[min] 85[deg]26.70[min]
C........................... 28[deg]57.00[min] 85[deg]13.80[min]
D........................... 28[deg]47.40[min] 85[deg]3.90[min]
E........................... 28[deg]19.50[min] 84[deg]43.00[min]
F........................... 28[deg]0.80[min] 84[deg]20.00[min]
G........................... 26[deg]48.80[min] 83[deg]40.00[min]
H........................... 25[deg]17.00[min] 83[deg]19.00[min]
I........................... 24[deg]54.00[min] 83[deg]21.00[min]
J........................... 24[deg]29.50[min] 83[deg]12.30[min]
K........................... 24[deg]26.50[min] 83[deg]00.00[min]
------------------------------------------------------------------------
(2) Within the prohibited area and time period specified in
paragraph (b)(1) of this section, a vessel with bottom longline gear on
board may not possess Gulf reef fish unless the bottom longline gear is
appropriately stowed, and a vessel that is using bottom longline gear to
fish for species other than Gulf reef fish may not possess
[[Page 290]]
Gulf reef fish. For the purposes of paragraph (b) of this section,
appropriately stowed means that a longline may be left on the drum if
all gangions and hooks are disconnected and stowed below deck; hooks
cannot be baited; and all buoys must be disconnected from the gear but
may remain on deck.
(3) Within the Gulf EEZ east of 85[deg]30[min] W long., a vessel for
which a valid eastern Gulf reef fish bottom longline endorsement has
been issued that is fishing bottom longline gear or has bottom longline
gear on board cannot possess more than 750 hooks rigged for fishing at
any given time. For the purpose of this paragraph, ``hooks rigged for
fishing'' means hooks attached to a line or other device capable of
attaching to the mainline of the longline.
(c) Reef fish longline and buoy gear restricted area. A person
aboard a vessel that uses, on any trip, longline or buoy gear in the
longline and buoy gear restricted area is limited on that trip to the
bag limits for Gulf reef fish specified in Sec.622.38(b) and, for Gulf
reef fish for which no bag limit is specified in Sec.622.38(b), the
vessel is limited to 5 percent, by weight, of all fish on board or
landed. The longline and buoy gear restricted area is that part of the
Gulf EEZ shoreward of rhumb lines connecting, in order, the points
listed in Table 1 in Appendix B of this part.
(d) Alabama SMZ. The Alabama SMZ consists of artificial reefs and
surrounding areas. In the Alabama SMZ, fishing by a vessel that is
operating as a charter vessel or headboat, a vessel that does not have a
commercial permit for Gulf reef fish, as required under Sec.
622.20(a)(1), or a vessel with such a permit fishing for Gulf reef fish
is limited to hook-and-line gear with three or fewer hooks per line and
spearfishing gear. A person aboard a vessel that uses on any trip gear
other than hook-and-line gear with three or fewer hooks per line and
spearfishing gear in the Alabama SMZ is limited on that trip to the bag
limits for Gulf reef fish specified in Sec.622.38(b) and, for Gulf
reef fish for which no bag limit is specified in Sec.622.38(b), the
vessel is limited to 5 percent, by weight, of all fish on board or
landed. The Alabama SMZ is bounded by rhumb lines connecting, in order,
the following points:
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A........................... 30[deg]02.5[min] 88[deg]07.7[min]
B........................... 30[deg]02.6[min] 87[deg]59.3[min]
C........................... 29[deg]55.0[min] 87[deg]55.5[min]
D........................... 29[deg]54.5[min] 88[deg]07.5[min]
A........................... 30[deg]02.5[min] 88[deg]07.7[min]
------------------------------------------------------------------------
[78 FR 22952, Apr. 17, 2013, as amended at 82 FR 34580, July 25, 2017;
83 FR 5212, Feb. 6, 2018]
Sec.622.36 Seasonal harvest limitations.
(a) Greater amberjack. During March, April, and May, each year, the
possession of greater amberjack in or from the Gulf EEZ and in the Gulf
on board a vessel for which a commercial permit for Gulf reef fish has
been issued, as required under Sec.622.20(a)(1), without regard to
where such greater amberjack were harvested, is limited to the bag and
possession limits, as specified in Sec.622.38(b)(1) and (c),
respectively, and such greater amberjack are subject to the prohibition
on sale or purchase of greater amberjack possessed under the bag limit,
as specified in Sec.622.40(a). Also note that if commercial quantities
of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/
possession limits, are on board the vessel, no bag limit of Gulf reef
fish may be possessed, as specified in Sec.622.38(a)(2).
(b) [Reserved]
Sec.622.37 Size limits.
All size limits in this section are minimum size limits unless
specified otherwise. A fish not in compliance with its size limit, as
specified in this section, in or from the Gulf EEZ, may not be
possessed, sold, or purchased. A fish not in compliance with its size
limit must be released immediately with a minimum of harm. The operator
of a vessel that fishes in the EEZ is responsible for ensuring that fish
on board are in compliance with the size limits specified in this
section. See Sec.622.10 regarding requirements for landing fish
intact.
(a) Snapper--(1) Red snapper--16 inches (40.6 cm), TL, for a fish
taken by a person subject to the bag limit specified in Sec.
622.38(b)(3) and 13 inches (33.0 cm), TL, for a fish taken by a person
not subject to the bag limit. See Sec.622.23(a)(1) regarding the
minimum
[[Page 291]]
size limit for states with an active delegation of state management of
the red snapper private angling component. A person subject to the
private angling component bag limit under an active delegation of state
management must be in compliance with the fishing license (permit)
requirements of the state in which they intend to land the fish and may
not possess red snapper in the Gulf EEZ that are smaller than may be
possessed in that state. Additionally, fish taken by persons subject to
the private angling component bag limit under state management may not
be less than 14 inches (35.6 cm), TL, in the Gulf EEZ.
(2) Lane snapper--8 inches (20.3 cm), TL.
(3) Vermilion snapper--10 inches (25.4 cm), TL.
(4) Cubera, gray, and yellowtail snappers--12 inches (30.5 cm), TL.
(5) Mutton snapper--18 inches (45.7 cm), TL.
(b) Grouper--(1) Gag--24 inches (61.0 cm), TL.
(2) Red grouper--(i) For a person not subject to the bag limit
specified in Sec.622.38 (b)(2)--18 inches (45.7 cm), TL.
(ii) For a person subject to the bag limit specified in Sec.
622.38(b)(2)--20 inches (50.8 cm), TL.
(3) Scamp--16 inches (40.6 cm), TL.
(4) Yellowfin grouper--20 inches (50.8 cm), TL.
(5) Black grouper--(i) For a person not subject to the bag limit
specified in Sec.622.38(b)(2)--24 inches (61.0 cm), TL.
(ii) For a person subject to the bag limit specified in Sec.
622.38(b)(2)--24 inches (61.0 cm), TL.
(c) Other Gulf reef fish species--(1) Gray triggerfish. (i) For a
person not subject to the bag limit specified in Sec.622.38(b)(5)--14
inches (35.6 cm), fork length.
(ii) For a person subject to the bag limit specified in Sec.
622.38(b)(5)--15 inches (38.1 cm), fork length.
(2) Hogfish in the Gulf EEZ except south of 25[deg]09[min] N. lat.
off the west coast of Florida--14 inches (40.6 cm), fork length. See
Sec.622.185(c)(3)(ii) for the hogfish size limit in the Gulf EEZ south
of 25[deg]09[min] N. lat. off the west coast of Florida.
(3) Banded rudderfish and lesser amberjack--14 inches (35.6 cm),
fork length (minimum size); 22 inches (55.9 cm), fork length (maximum
size).
(4) Greater amberjack--34 inches (86.4 cm), fork length, for a fish
taken by a person subject to the bag limit specified in Sec.
622.38(b)(1) and 36 inches (91.4 cm), fork length, for a fish taken by a
person not subject to the bag limit.
(d) A person aboard a vessel that has a Federal commercial vessel
permit for Gulf reef fish and commercial quantities of Gulf reef fish,
i.e., Gulf reef fish in excess of applicable bag/possession limits, may
not possess any Gulf reef fish that do not comply with the applicable
commercial minimum size limit.
[78 FR 22952, Apr. 17, 2013, as amended at 80 FR 75436, Dec. 2, 2015; 81
FR 24040, Apr. 25, 2016; 82 FR 34581, July 25, 2017; 82 FR 59526, Dec.
15, 2017; 83 FR 29044, June 22, 2018; 85 FR 6824, Feb. 6, 2020]
Sec.622.38 Bag and possession limits.
(a) Additional applicability provisions for Gulf reef fish. (1)
Section 622.11(a) provides the general applicability for bag and
possession limits. However, Sec.622.11(a) notwithstanding, bag and
possession limits also apply for Gulf reef fish in or from the EEZ to a
person aboard a vessel that has on board a commercial permit for Gulf
reef fish--
(i) When trawl gear or entangling net gear is on board. A vessel is
considered to have trawl gear on board when trawl doors and a net are on
board. Removal from the vessel of all trawl doors or all nets
constitutes removal of trawl gear.
(ii) When a longline or buoy gear is on board and the vessel is
fishing or has fished on a trip in the reef fish longline and buoy gear
restricted area specified in Sec.622.35(c). A vessel is considered to
have a longline on board when a power-operated longline hauler, a cable
of diameter and length suitable for use in the longline fishery, and
gangions are on board. Removal of any one of these three elements, in
its entirety, constitutes removal of a longline.
(iii) For a species/species group when its quota has been reached
and closure has been effected, provided that no commercial quantities of
Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/
possession limits, are on board
[[Page 292]]
as specified in paragraph (a)(2) of this section.
(iv) When the vessel has on board or is tending any trap other than
a stone crab trap or a spiny lobster trap.
(2) A person aboard a vessel that has a Federal commercial vessel
permit for Gulf reef fish and commercial quantities of Gulf reef fish,
i.e., Gulf reef fish in excess of applicable bag/possession limits, may
not possess Gulf reef fish caught under a bag limit.
(b) Bag limits--(1) Greater amberjack--1. However, no greater
amberjack may be retained by the captain or crew of a vessel operating
as a charter vessel or headboat. The bag limit for such captain and crew
is zero.
(2) Groupers, combined, excluding goliath grouper--4 per person per
day, but not to exceed 1 speckled hind or 1 warsaw grouper per vessel
per day, or 2 gag or 2 red grouper per person per day. However, no
grouper may be retained by the captain or crew of a vessel operating as
a charter vessel or headboat. The bag limit for such captain and crew is
zero. (Note: Nassau grouper in the Gulf EEZ may not be harvested or
possessed, as specified in Sec.622.181(b)(4).)
(3) Red snapper--2. However, no red snapper may be retained by the
captain or crew of a vessel operating as a charter vessel or headboat.
The bag limit for such captain and crew is zero. See Sec.622.23(a)(1)
regarding the bag limit applicability for states with an active
delegation of state management of the red snapper private angling
component. A person subject to the private angling component bag limit
under an active delegation of state management must be in compliance
with the fishing license (permit) requirements of the state in which
they intend to land the fish and may not possess more red snapper in the
Gulf EEZ than may be possessed in that state.
(4) Snappers, combined, excluding red, lane, and vermilion snapper--
10. In addition, within the 10-fish aggregate snapper bag limit, no more
than 5 fish may be mutton snapper.
(5) Gulf reef fish, combined, excluding those specified in
paragraphs (b)(1) through (4) and paragraphs (b)(6) and (7) of this
section--20. In addition, within the 20-fish aggregate reef fish bag
limit, no more than 1 fish may be gray triggerfish and no more than 10
fish may be vermilion snapper.
(6) Banded rudderfish and lesser amberjack, combined--5.
(7) Hogfish in the Gulf EEZ except south of 25[deg]09[min] N. lat.
off the west coast of Florida--5. See Sec.622.187(b)(3)(ii) for the
hogfish bag and possession limits in the Gulf EEZ south of
25[deg]09[min] N. lat. off the west coast of Florida.
(c) Possession limits. A person, or a vessel in the case of speckled
hind or Warsaw grouper, on a trip that spans more than 24 hours may
possess no more than two daily bag limits, provided such trip is on a
vessel that is operating as a charter vessel or headboat, the vessel has
two licensed operators aboard, and each passenger is issued and has in
possession a receipt issued on behalf of the vessel that verifies the
length of the trip.
[78 FR 22952, Apr. 17, 2013, as amended at 78 FR 27087, May 9, 2013; 78
FR 46822, Aug. 2, 2013; 78 FR 78775, Dec. 27, 2013; 80 FR 18553, Apr. 7,
2015; 82 FR 34581, July 25, 2017; 82 FR 59526, Dec. 15, 2017; 83 FR
29044, June 22, 2018; 85 FR 6824, Feb. 6, 2020]
Sec.622.39 Quotas.
See Sec.622.8 for general provisions regarding quota applicability
and closure and reopening procedures. This section, provides quotas and
specific quota closure restrictions for Gulf reef fish.
(a) Gulf reef fish--(1) Commercial quotas. The following quotas
apply to persons who fish under commercial vessel permits for Gulf reef
fish, as required under Sec.622.20(a)(1).
(i) Commercial quota for red snapper--7.701 million lb (3.493
million kg), round weight.
(ii) Deep-water groupers (DWG) have a combined quota, as specified
in paragraphs (a)(1)(ii)(A) through (C) of this section. These quotas
are specified in gutted weight, that is eviscerated, but otherwise
whole.
(A) For fishing year 2014--1.110 million lb (0.503 million kg).
(B) For fishing year 2015--1.101 million lb (0.499 million kg).
(C) For fishing year 2016 and subsequent fishing years--1.024
million lb (0.464 million kg).
(iii) Shallow-water groupers (SWG) have separate quotas for gag and
red grouper and a combined quota for other
[[Page 293]]
shallow-water grouper (Other SWG) species (including black grouper,
scamp, yellowfin grouper, and yellowmouth grouper), as specified in
paragraphs (a)(1)(iii)(A) through (C) of this section. These quotas are
specified in gutted weight, that is, eviscerated but otherwise whole.
(A) Other SWG combined. (1) For fishing year 2014--523,000 lb
(237,229 kg).
(2) For fishing year 2015 and subsequent fishing years--525,000 lb
(238,136 kg).
(B) Gag. (1) For fishing year 2012--0.567 million lb (0.257 million
kg).
(2) For fishing year 2013--0.708 million lb (0.321 million kg).
(3) For fishing year 2014--0.835 million lb (0.378 million kg).
(4) For fishing year 2015 and subsequent fishing years--0.939
million lb (0.426 million kg).
(C) Red grouper--3.00 million lb (1.36 million kg).
(iv) Tilefishes (including goldface tilefish, blueline tilefish, and
tilefish)--582,000 lb (263,991 kg), gutted weight, that is, eviscerated
but otherwise whole.
(v) Greater amberjack--(A) For fishing year 2018--277,651 lb
(125,940.38 kg), round weight.
(B) For fishing year 2019--349,766 lb (158,651 kg), round weight.
(C) For fishing year 2020 and subsequent years--421,411 lb (191,149
kg), round weight.
(vi) Gray triggerfish--60,900 lb (27,624 kg), round weight.
(2) Recreational quotas. The following quotas apply to persons who
fish for Gulf reef fish other than under commercial vessel permits for
Gulf reef fish and the applicable commercial quotas specified in
paragraph (a)(1) of this section.
(i) Recreational quota for red snapper--(A) Total recreational. The
total recreational quota is 7.399 million lb (3.356 million kg), round
weight.
(B) Federal charter vessel/headboat component quota. The Federal
charter vessel/headboat component quota applies to vessels that have
been issued a valid Federal charter vessel/headboat permit for Gulf reef
fish any time during the fishing year. A person aboard a vessel that has
been issued a charter vessel/headboat permit for Gulf reef fish any time
during the fishing year may not harvest or possess red snapper in or
from the Gulf EEZ when the Federal charter vessel/headboat component is
closed. The Federal charter vessel/headboat component quota is 3.130
million lb (1.420 million kg), round weight.
(C) Private angling component quota. The private angling component
quota applies to vessels that fish under the bag limit and have not been
issued a Federal charter vessel/headboat permit for Gulf reef fish any
time during the fishing year. The private angling component quota is
4.269 million lb (1.936 million kg), round weight.
(ii) Recreational quota for greater amberjack. (A) For the 2017-2018
fishing year--716,173 lb (324,851 kg).
(B) For the 2018-2019 fishing year--902,185 lb (409,224 kg).
(C) For the 2019-2020 fishing year and subsequent fishing years--
1,086,985 lb (493,048 kg).
(b) Restrictions applicable after a commercial quota closure. (1) If
the recreational fishery for the indicated species is open, the bag and
possession limits specified in Sec.622.38(b) and (c) apply to all
harvest or possession in or from the Gulf EEZ of the indicated species,
and the sale or purchase of the indicated species taken from the Gulf
EEZ is prohibited. In addition, the bag and possession limits for red
snapper, when applicable, apply on board a vessel for which a commercial
permit for Gulf reef fish has been issued, as required under Sec.
622.20(a)(1), without regard to where such red snapper were harvested.
The application of bag limits described in this paragraph (b)(1)
notwithstanding, bag limits of Gulf reef fish may not be possessed on
board a vessel with commercial quantities of Gulf reef fish, i.e., Gulf
reef fish in excess of applicable bag/possession limits, on board, as
specified in Sec.622.38(a)(2). The prohibition on sale/purchase during
a closure for Gulf reef fish does not apply to Gulf reef fish that were
harvested, landed ashore, and sold prior to the effective date of the
closure and were held in cold storage by a dealer or processor.
(2) If the recreational fishery for the indicated species is closed,
all harvest
[[Page 294]]
or possession in or from the Gulf EEZ of the indicated species is
prohibited.
(c) Restrictions applicable after a recreational quota closure or
recreational component quota closure. The bag limit for the applicable
species for the recreational sector or recreational sector component in
or from the Gulf EEZ is zero. When the Federal charter vessel/headboat
component is closed or the entire recreational sector is closed, this
bag and possession limit applies in the Gulf on board a vessel for which
a valid Federal charter vessel/headboat permit for Gulf reef fish has
been issued, without regard to where such species were harvested, i.e.,
in state or Federal waters.
[78 FR 22952, Apr. 17, 2013]
Editorial Note: For Federal Register citations affecting Sec.
622.39, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec.622.40 Restrictions on sale/purchase.
The restrictions in this section are in addition to the restrictions
on sale/purchase related to quota closures as specified in Sec.
622.39(b) and (c).
(a) A Gulf reef fish harvested in the EEZ on board a vessel that
does not have a valid commercial permit for Gulf reef fish, as required
under Sec.622.20(a)(1), or a Gulf reef fish possessed under the bag
limits specified in Sec.622.38(b), may not be sold or purchased.
(b) A Gulf reef fish harvested in or from the EEZ or adjoining state
waters by a vessel that has a valid commercial vessel permit for Gulf
reef fish may be sold or transferred only to a dealer who has a valid
Gulf and South Atlantic dealer permit, as required under Sec.
622.20(c)(1).
(c) A Gulf reef fish harvested in or from the EEZ may be first
received by a dealer who has a valid Gulf and South Atlantic dealer
permit, as required under Sec.622.20(c)(1), only from a vessel that
has a valid commercial vessel permit for Gulf reef fish.
[78 FR 22952, Apr. 17, 2013, as amended at 79 FR 19494, Apr. 9, 2014]
Sec.622.41 Annual catch limits (ACLs), annual catch targets (ACTs),
and accountability measures (AMs).
(a) Greater amberjack--(1) Commercial sector. (i) If commercial
landings, as estimated by the SRD, reach or are projected to reach the
annual catch target (ACT) specified in Sec.622.39(a)(1)(v)(commercial
quota), the Assistant Administrator for Fisheries, NOAA, (AA) will file
a notification with the Office of the Federal Register to close the
commercial sector for the remainder of the fishing year.
(ii) In addition to the measures specified in paragraph (a)(1)(i) of
this section, if commercial landings, as estimated by the SRD, exceed
the commercial ACL, as specified in (a)(1)(iii) of this section, the AA
will file a notification with the Office of the Federal Register, at or
near the beginning of the following fishing year to reduce the
commercial ACT (commercial quota) and the commercial ACL for that
following year by the amount of any commercial ACL overage in the prior
fishing year.
(iii) The commercial ACL for greater amberjack, in round weight, is
319,140 lb (144,759 kg), for 2018, 402,030 lb (182,358 kg), for 2019,
and 484,380 lb (219,711 kg), for 2020 and subsequent fishing years.
(2) Recreational sector. (i) If recreational landings, as estimated
by the SRD, reach or are projected to reach the ACT specified in Sec.
622.39(a)(2)(ii) (recreational quota), the AA will file a notification
with the Office of the Federal Register to close the recreational sector
for the remainder of the fishing year.
(ii) In addition to the measures specified in paragraph (a)(2)(i) of
this section, if recreational landings, as estimated by the SRD, exceed
the recreational ACL, as specified in paragraph (a)(2)(iii) of this
section, the AA will file a notification with the Office of the Federal
Register, at or near the beginning of the following fishing year to
reduce the recreational ACT (recreational quota) and the recreational
ACL for that following year by the amount of any recreational overage in
the prior fishing year.
(iii) The applicable recreational ACL for greater amberjack, in
round weight,
[[Page 295]]
is 862,860 lb (391,387 kg) for the 2017-2018 fishing year, 1,086,970 lb
(493,041 kg) for the 2018-2019 fishing year, and 1,309,620 lb (594,034
kg) for 2019-2020 fishing year and subsequent fishing years.
(b) Gray triggerfish--(1) Commercial sector. If commercial landings,
as estimated by the SRD, reach or are projected to reach the commercial
ACT (commercial quota) specified in Sec.622.39(a)(1)(vi), the AA will
file a notification with the Office of the Federal Register to close the
commercial sector for the remainder of the fishing year. In addition, if
despite such closure, commercial landings exceed the commercial ACL, the
AA will file a notification with the Office of the Federal Register, at
or near the beginning of the following fishing year to reduce the
commercial ACL and ACT (commercial quota) for that following year by the
amount the prior-year ACL was exceeded. The commercial ACL is 64,100 lb
(29,075 kg), round weight.
(2) Recreational sector. (i) Without regard to overfished status, if
gray triggerfish recreational landings, as estimated by the SRD, reach
or are projected to reach the applicable ACT specified in paragraph
(b)(2)(iii) of this section, the AA will file a notification with the
Office of the Federal Register, to close the recreational sector for the
remainder of the fishing year. On and after the effective date of such a
notification, the bag and possession limit of gray triggerfish in or
from the Gulf EEZ is zero. This bag and possession limit applies in the
Gulf on board a vessel for which a valid Federal charter vessel/headboat
permit for Gulf reef fish has been issued, without regard to where such
species were harvested, i.e. in state or Federal waters.
(ii) In addition to the measures specified in paragraphs (b)(2)(i)
of this section, if gray triggerfish recreational landings, as estimated
by the SRD, exceed the applicable ACL specified in paragraph (b)(2)(iii)
of this section, and gray triggerfish are overfished, based on the most
recent Status of U.S. Fisheries Report to Congress, the AA will file a
notification with the Office of the Federal Register, at or near the
beginning of the following fishing year to reduce the ACL and the ACT
for that following year by the amount of the ACL overage in the prior
fishing year, unless the best scientific information available
determines that a greater, lesser, or no overage adjustment is
necessary.
(iii) The recreational ACL for gray triggerfish is 241,200 lb
(109,406 kg), round weight. The recreational ACT for gray triggerfish is
217,100 lb (98,475 kg), round weight.
(c) Other shallow-water grouper (Other SWG) combined (including
black grouper, scamp, yellowfin grouper, and yellowmouth grouper)--(1)
Commercial sector. The IFQ program for groupers and tilefishes in the
Gulf of Mexico serves as the accountability measure for commercial Other
SWG. The commercial ACT for Other SWG is equal to the applicable quota
specified in Sec.622.39(a)(1)(iii)(A). The commercial ACL for Other
SWG, in gutted weight, is 545,000 lb (247,208 kg) for 2014, and 547,000
lb (248,115 kg) for 2015 and subsequent fishing years.
(2) Recreational sector. If the sum of the commercial and
recreational landings, as estimated by the SRD, exceeds the stock
complex ACL specified in paragraph (c)(3) of this section, then during
the following fishing year, if the sum of the commercial and
recreational landings reaches or is projected to reach the applicable
ACL specified in paragraph (c)(3) of this section, the AA will file a
notification with the Office of the Federal Register to close the
recreational sector for the remainder of that fishing year.
(3) The stock complex ACLs for Other SWG, in gutted weight, are
688,000 lb (312,072 kg) for 2012, 700,000 lb (317,515 kg) for 2013,
707,000 lb (320,690 kg) for 2014, and 710,000 lb (322,051 kg) for 2015
and subsequent years.
(d) Gag--(1) Commercial sector. The IFQ program for groupers and
tilefishes in the Gulf of Mexico serves as the accountability measure
for commercial gag. The applicable commercial ACLs for gag, in gutted
weight, are 0.788 million lb (0.357 million kg) for 2012, 0.956 million
lb (0.434 million kg) for 2013, 1.100 million lb (0.499 million kg) for
2014, and 1.217 million lb (0.552 million kg) for 2015 and subsequent
fishing years.
[[Page 296]]
(2) Recreational sector. (i) Without regard to overfished status, if
gag recreational landings, as estimated by the SRD, reach or are
projected to reach the applicable ACLs specified in paragraph (d)(2)(iv)
of this section, the AA will file a notification with the Office of the
Federal Register, to close the recreational sector for the remainder of
the fishing year. On and after the effective date of such a
notification, the bag and possession limit of gag in or from the Gulf
EEZ is zero. This bag and possession limit applies in the Gulf on board
a vessel for which a valid Federal charter vessel/headboat permit for
Gulf reef fish has been issued, without regard to where such species
were harvested, i.e. in state or Federal waters.
(ii) Without regard to overfished status, and in addition to the
measures specified in paragraph (d)(2)(i) of this section, if gag
recreational landings, as estimated by the SRD, exceed the applicable
ACLs specified in paragraph (d)(2)(iv) of this section, the AA will file
a notification with the Office of the Federal Register to maintain the
gag ACT, specified in paragraph (d)(2)(iv) of this section, for that
following fishing year at the level of the prior year's ACT, unless the
best scientific information available determines that maintaining the
prior year's ACT is unnecessary. In addition, the notification will
reduce the length of the recreational gag fishing season the following
fishing year by the amount necessary to ensure gag recreational landings
do not exceed the recreational ACT in the following fishing year.
(iii) If gag are overfished, based on the most recent status of U.S.
Fisheries Report to Congress, and gag recreational landings, as
estimated by the SRD, exceed the applicable ACL specified in paragraph
(d)(2)(iv) of this section, the following measures will apply. In
addition to the measures specified in paragraphs (d)(2)(i) and (ii) of
this section, the AA will file a notification with the Office of the
Federal Register, at or near the beginning of the following fishing year
to reduce the ACL for that following year by the amount of the ACL
overage in the prior fishing year, and reduce the ACT, as determined in
paragraph (d)(2)(ii) of this section, by the amount of the ACL overage
in the prior fishing year, unless the best scientific information
available determines that a greater, lesser, or no overage adjustment is
necessary.
(iv) The applicable recreational ACLs for gag, in gutted weight, are
1.232 million lb (0.559 million kg) for 2012, 1.495 million lb (0.678
million kg) for 2013, 1.720 million lb (0.780 million kg) for 2014, and
1.903 million lb (0.863 million kg) for 2015 and subsequent fishing
years. The recreational ACTs for gag, in gutted weight, are 1.031
million lb (0.468 million kg) for 2012, 1.287 million lb (0.584 million
kg) for 2013, 1.519 million lb (0.689 million kg) for 2014, and 1.708
million lb (0.775 million kg) for 2015 and subsequent fishing years.
(e) Red grouper--(1) Commercial sector. The IFQ program for groupers
and tilefishes in the Gulf of Mexico serves as the accountability
measure for commercial red grouper. The commercial ACT for red grouper
is equal to the applicable quota specified in Sec.
622.39(a)(1)(iii)(C). The applicable commercial ACL for red grouper, in
gutted weight, is 3.16 million lb (1.43 million kg).
(2) Recreational sector. (i) Without regard to overfished status, if
red grouper recreational landings, as estimated by the SRD, reach or are
projected to reach the applicable ACL specified in paragraph (e)(2)(iv)
of this section, the AA will file a notification with the Office of the
Federal Register, to close the recreational sector for the remainder of
the fishing year. On and after the effective date of such a
notification, the bag and possession limit of red grouper in or from the
Gulf EEZ is zero. This bag and possession limit applies in the Gulf on
board a vessel for which a valid Federal charter vessel/headboat permit
for Gulf reef fish has been issued, without regard to where such species
were harvested, i.e. in state or Federal waters.
(ii) Without regard to overfished status, and in addition to the
measures specified in paragraph (e)(2)(i) of this section, if red
grouper recreational landings, as estimated by the SRD, exceed the
applicable ACL specified in paragraph (e)(2)(iv) of this section, the
[[Page 297]]
AA will file a notification with the Office of the Federal Register to
maintain the red grouper ACT, specified in paragraph (e)(2)(iv) of this
section, for that following fishing year at the level of the prior
year's ACT, unless the best scientific information available determines
that maintaining the prior year's ACT is unnecessary. In addition, the
notification will reduce the length of the recreational red grouper
fishing season the following fishing year by the amount necessary to
ensure red grouper recreational landings do not exceed the recreational
ACT in the following fishing year.
(iii) If red grouper are overfished, based on the most recent Status
of U.S. Fisheries Report to Congress, and red grouper recreational
landings, as estimated by the SRD, exceed the applicable ACL specified
in paragraph (e)(2)(iv) of this section, the following measures will
apply. In addition to the measures specified in paragraphs (e)(2)(i) and
(ii) of this section, the AA will file a notification with the Office of
the Federal Register, at or near the beginning of the following fishing
year to reduce the ACL for that following year by the amount of the ACL
overage in the prior fishing year, and reduce the ACT, as determined in
paragraph (e)(2)(ii) of this section, by the amount of the ACL overage
in the prior fishing year, unless the best scientific information
available determines that a greater, lesser, or no overage adjustment is
necessary.
(iv) The recreational ACL for red grouper, in gutted weight, is 1.00
million lb (0.45 million kg). The recreational ACT for red grouper, in
gutted weight, is 0.92 million lb (0.42 million kg).
(f) Deep-water grouper (DWG) combined (including yellowedge grouper,
warsaw grouper, snowy grouper, and speckled hind)--(1) Commercial
sector. The IFQ program for groupers and tilefishes in the Gulf of
Mexico serves as the accountability measure for commercial DWG. The
commercial ACT for DWG is equal to the applicable quota specified in
Sec.622.39(a)(1)(ii). The commercial ACL for DWG, in gutted weight, is
1.160 million lb (0.526 million kg) for 2014, 1.150 million lb (0.522
million kg) for 2015, and 1.070 million lb (0.485 million kg) for 2016
and subsequent fishing years.
(2) Recreational sector. If the sum of the commercial and
recreational landings, as estimated by the SRD, exceeds the stock
complex ACL specified in paragraph (f)(3) of this section, then during
the following fishing year, if the sum of commercial and recreational
landings reaches or is projected to reach the applicable ACL specified
in paragraph (f)(3) of this section, the AA will file a notification
with the Office of the Federal Register to close the recreational sector
for the remainder of that fishing year.
(3) The stock complex ACLs for DWG, in gutted weight, are 1.216
million lb (0.552 million kg) for 2012, 1.207 million lb (0.547 million
kg) for 2013, 1.198 million lb (0.543 million kg) for 2014, 1.189
million lb (0.539 million kg) for 2015, and 1.105 million lb (0.501
million kg) for 2016 and subsequent years.
(g) Tilefishes combined (including goldface tilefish, blueline
tilefish, and tilefish)--(1) Commercial sector. The IFQ program for
groupers and tilefishes in the Gulf of Mexico serves as the
accountability measure for commercial tilefishes. The commercial ACT for
tilefishes is equal to the quota specified in Sec.622.39(a)(1)(iv).
The commercial ACL for tilefishes, in gutted weight, is 606,000 lb
(274,877 kg).
(2) Recreational sector. If the sum of the commercial and
recreational landings, as estimated by the SRD, exceeds the stock
complex ACL specified in paragraph (g)(3) of this section, then during
the following fishing year, if the sum of commercial and recreational
landings reaches or is projected to reach the applicable ACL specified
in paragraph (g)(3) of this section, the AA will file a notification
with the Office of the Federal Register to close the recreational sector
for the remainder of that fishing year.
(3) The stock complex ACL for tilefishes is 608,000 lb (275,784 kg),
gutted weight.
(h) Lesser amberjack, almaco jack, and banded rudderfish, combined.
If the sum of the commercial and recreational landings, as estimated by
the SRD, exceeds the stock complex ACL, then during the following
fishing year, if the sum of commercial and recreational
[[Page 298]]
landings reaches or is projected to reach the stock complex ACL, the AA
will file a notification with the Office of the Federal Register to
close the commercial and recreational sectors for the remainder of that
fishing year. The stock complex ACL for lesser amberjack, almaco jack,
and banded rudderfish, is 312,000 lb (141,521 kg), round weight.
(i) Silk snapper, queen snapper, blackfin snapper, and wenchman,
combined. If the sum of the commercial and recreational landings, as
estimated by the SRD, exceeds the stock complex ACL, then during the
following fishing year, if the sum of commercial and recreational
landings reaches or is projected to reach the stock complex ACL, the AA
will file a notification with the Office of the Federal Register to
close the commercial and recreational sectors for the remainder of that
fishing year. The stock complex ACL for silk snapper, queen snapper,
blackfin snapper, and wenchman, is 166,000 lb (75,296 kg), round weight.
(j) Vermilion snapper. If the sum of the commercial and recreational
landings, as estimated by the SRD, reaches or is projected to reach the
stock ACL, the AA will file a notification with the Office of the
Federal Register to close the commercial and recreational sectors for
the remainder of the fishing year. The stock ACL for vermilion snapper
is 3.11 million lb (1.41 million kg), round weight.
(k) Lane snapper. If the sum of the commercial and recreational
landings, as estimated by the SRD, exceeds the stock ACL, then during
the following fishing year, if the sum of commercial and recreational
landings reaches or is projected to reach the stock ACL, the AA will
file a notification with the Office of the Federal Register to close the
commercial and recreational sectors for the remainder of that fishing
year. The stock ACL for lane snapper is 301,000 lb (136,531 kg), round
weight.
(l) Gray snapper. If the sum of the commercial and recreational
landings, as estimated by the SRD, exceeds the stock ACL, then during
the following fishing year, if the sum of commercial and recreational
landings reaches or is projected to reach the stock ACL, the AA will
file a notification with the Office of the Federal Register to close the
commercial and recreational sectors for the remainder of that fishing
year. The stock ACL for gray snapper is 2.42 million lb (1.10 million
kg), round weight.
(m) Cubera snapper. If the sum of the commercial and recreational
landings, as estimated by the SRD, exceeds the stock ACL, then during
the following fishing year, if the sum of commercial and recreational
landings reaches or is projected to reach the stock ACL, the AA will
file a notification with the Office of the Federal Register to close the
commercial and recreational sectors for the remainder of that fishing
year. The stock ACL for cubera snapper is 5,065 lb (2,297 kg), round
weight.
(n) Yellowtail snapper. If the sum of the commercial and
recreational landings, as estimated by the SRD, exceeds the stock ACL,
then during the following fishing year, if the sum of commercial and
recreational landings reaches or is projected to reach the stock ACL,
the AA will file a notification with the Office of the Federal Register
to close the commercial and recreational sectors for the remainder of
that fishing year. The stock ACL for yellowtail snapper is 901,125 lb
(408,743 kg), round weight.
(o) Mutton snapper. If the sum of the commercial and recreational
landings, as estimated by the SRD, exceeds the stock ACL, then during
the following fishing year, if the sum of commercial and recreational
landings reaches or is projected to reach the stock ACL, the AA will
file a notification with the Office of the Federal Register to close the
commercial and recreational sectors for the remainder of that fishing
year. The stock ACL for mutton snapper, in round weight, is 134,424 lb
(60,974 kg) for 2018, 139,392 lb (63,227 kg) for 2019, and 143,694 lb
(65,179 kg) for 2020 and subsequent fishing years.
(p) Hogfish in the Gulf EEZ except south of 25[deg]09[min] N lat.
off the west coast of Florida. If the sum of the commercial and
recreational landings, as estimated by the SRD, exceeds the stock ACL,
then during the following fishing year, if the sum of commercial and
recreational landings reaches or is projected to reach the stock ACL,
the AA will file a notification with the Office
[[Page 299]]
of the Federal Register to close the commercial and recreational sectors
for the remainder of that fishing year. The stock ACL for hogfish, in
round weight, in the Gulf EEZ except south of 25[deg]09[min] N lat. off
the west coast of Florida, is 129,500 lb (58,740 kg), for the 2019
fishing year, 141,300 lb (64,093 kg), for the 2020 fishing year, and
150,400 lb (68,220 kg) for the 2021 fishing year and subsequent fishing
years. See Sec.622.193(u)(2) for the ACLs, ACT, and AMs for hogfish in
the Gulf EEZ south of 25[deg]09[min] N lat. off the west coast of
Florida.
(q) Red snapper--(1) Commercial sector. The IFQ program for red
snapper in the Gulf of Mexico serves as the accountability measure for
commercial red snapper. The commercial ACL for red snapper is equal to
the applicable commercial quota specified in Sec.622.39(a)(1)(i).
(2) Recreational sector. (i) The recreational ACL is equal to the
total recreational quota specified in Sec.622.39(a)(2)(i)(A). The AA
will determine the length of the red snapper recreational fishing
season, or recreational fishing seasons for the Federal charter vessel/
headboat and private angling components, based on when recreational
landings are projected to reach the recreational ACT, or respective
recreational component ACT specified in paragraph (q)(2)(iii) of this
section, and announce the closure date(s) in the Federal Register. These
seasons will serve as in-season accountability measures. On and after
the effective date of the recreational closure or recreational component
closure notifications, the bag and possession limit for red snapper or
for the respective component is zero. When the recreational sector or
Federal charter vessel/headboat component is closed, this bag and
possession limit applies in the Gulf on board a vessel for which a valid
Federal charter vessel/headboat permit for Gulf reef fish has been
issued, without regard to where such species were harvested, i.e., in
state or Federal waters. See Sec.622.23 (a)(1) regarding the fishing
season for the private angling component for states with an active
delegation.
(ii) In addition to the measures specified in paragraph (q)(2)(i) of
this section, if red snapper recreational landings, as estimated by the
SRD, exceed the total recreational quota specified in Sec.
622.39(a)(2)(i)(A), and red snapper are overfished, based on the most
recent Status of U.S. Fisheries Report to Congress, the AA will file a
notification with the Office of the Federal Register to reduce the total
recreational quota by the amount of the quota overage in the prior
fishing year, and reduce the applicable recreational component quota(s)
specified in Sec.622.39(a)(2)(i)(B) and (C) and the applicable
recreational component ACT(s) specified in paragraph (q)(2)(iii) of this
section (based on the buffer between the total recreational ACT and the
total recreational quota specified in the FMP), unless NMFS determines
based upon the best scientific information available that a greater,
lesser, or no overage adjustment is necessary.
(iii) Recreational ACTs.
(A) [Reserved]
(B) Federal charter vessel/headboat component ACT. The Federal
charter vessel/headboat component ACT applies to vessels that have been
issued a valid Federal charter vessel/headboat permit for Gulf reef fish
any time during the fishing year. A person aboard a vessel that has been
issued a charter vessel/headboat permit for Gulf reef fish any time
during the fishing year may not harvest or possess red snapper in or
from the Gulf EEZ when the Federal charter vessel/headboat component is
closed. The component ACT is 2.848 million lb (1.292 million kg), round
weight.
(C) Private angling component ACT. The private angling component ACT
applies to vessels that fish under the bag limit and have not been
issued a Federal charter vessel/headboat permit for Gulf reef fish any
time during the fishing year. The component ACT is 3.415 million lb
(1.549 million kg), round weight.
[78 FR 22952, Apr. 17, 2013]
Editorial Note: For Federal Register citations affecting Sec.
622.41, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
[[Page 300]]
Sec.622.42 Adjustment of management measures.
In accordance with the framework procedures of the FMP for the Reef
Fish Resources of the Gulf of Mexico, the RA may establish or modify the
items specified in paragraph (a) of this section for Gulf reef fish, or
paragraph (b) of this section for sea turtles and other protected
species.
(a) For a species or species group: Reporting and monitoring
requirements, permitting requirements, bag and possession limits
(including a bag limit of zero), size limits, vessel trip limits, closed
seasons or areas and reopenings, annual catch limits (ACLs), annual
catch targets (ACTs), quotas (including a quota of zero), accountability
measures (AMs), MSY (or proxy), OY, management parameters such as
overfished and overfishing definitions, gear restrictions (ranging from
regulation to complete prohibition), gear markings and identification,
vessel markings and identification, acceptable biological catch (ABC)
and ABC control rules, rebuilding plans, and restrictions relative to
conditions of harvested fish (maintaining fish in whole condition, use
as bait).
(b) Possession, specifications, and use of required release gear and
handling requirements for sea turtles and other protected species.
[78 FR 22952, Apr. 17, 2013, as amended at 84 FR 22386, May 17, 2019]
Sec.622.43 Commercial trip limits.
Commercial trip limits are limits on the amount of the applicable
species that may be possessed on board or landed, purchased, or sold
from a vessel per day. A person who fishes in the EEZ may not combine a
trip limit specified in this section with any trip or possession limit
applicable to state waters. A species subject to a trip limit specified
in this section taken in the EEZ may not be transferred at sea,
regardless of where such transfer takes place, and such species may not
be transferred in the EEZ. Commercial trip limits apply as follows:
(a) Gulf greater amberjack. (1) Until 75 percent of the quota
specified in Sec.622.39(a)(1)(v) is reached, 1,000 lb (454 kg), gutted
weight; 1,040 lb (472 kg), round weight.
(2) After 75 percent of the quota is reached or projected to be
reached, 250 lb (113 kg), gutted weight; 260 lb (118 kg), round weight.
See Sec.622.39(b) for the limitations regarding greater amberjack
after the quota is reached. When the conditions in this paragraph (a)(2)
have been reached, the Assistant Administrator will implement this trip
limit change by filing a notification with the Office of the Federal
Register.
(b) Gray triggerfish. Until the commercial ACT (commercial quota)
specified in Sec.622.39(a)(1)(vi) is reached--16 fish. See Sec.
622.39(b) for the limitations regarding gray triggerfish after the
commercial ACT (commercial quota) is reached.
(c) Hogfish in the Gulf EEZ south of 25[deg]09[min] N. lat. off the
west coast of Florida--see Sec.622.191(a)(12)(ii) for the commercial
trip limit.
[78 FR 22952, Apr. 17, 2013, as amended at 78 FR 27087, May 9, 2013; 80
FR 75436, Dec. 2, 2015; 82 FR 34581, July 25, 2017; 82 FR 59526, Dec.
15, 2017; 85 FR 20614, Apr. 14, 2020]
Subpart C_Shrimp Fishery of the Gulf of Mexico
Sec.622.50 Permits, permit moratorium, and endorsements.
(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 (b) of this section regarding
a moratorium on commercial vessel permits for Gulf shrimp and the
associated provisions. See paragraph (c) of this section, regarding an
additional endorsement requirement related to royal red shrimp.
(b) Moratorium on commercial vessel permits for Gulf shrimp. The
provisions of this paragraph (b) are applicable through October 26,
2026.
(1) Moratorium permits are required. The only valid commercial
vessel permits for Gulf shrimp are commercial vessel moratorium permits
for Gulf shrimp. In accordance with the procedures specified in the
Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico
(Gulf Shrimp FMP),
[[Page 301]]
all commercial vessel moratorium permits for Gulf shrimp have been
issued. No additional permits will be issued.
(2) 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
Sec.622.4(f)(1).
(3) 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.622.51(a).
(ii) Except as provided for in paragraph (b)(3)(iii) of this
section, 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.
(iii) When NMFS has determined that the number of commercial vessel
moratorium permits for Gulf shrimp has reached the threshold number of
permits as described in the FMP, then a commercial vessel moratorium
permit for Gulf shrimp that is not renewed will be converted to a Gulf
shrimp reserve pool permit and held by NMFS for possible reissuance.
Gulf shrimp reserve pool permits will not be issued until eligibility
requirements are developed and implemented through subsequent
rulemaking.
(c) Gulf royal red shrimp endorsement. 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.
(d) Permit procedures. See Sec.622.4 for information regarding
general permit procedures including, but not limited to, application,
fees, duration, transfer, renewal, display, sanctions and denials, and
replacement.
(e) Gulf shrimp transit provision. A vessel that does not have a
valid Gulf shrimp moratorium permit, as described in paragraphs (a) and
(b) of this section, may possess Gulf shrimp when in transit in the Gulf
EEZ provided that the shrimp fishing gear is appropriately stowed. For
the purposes of this paragraph, transit means non-stop progression
through the Gulf EEZ. Fishing gear appropriately stowed means trawl
doors and nets must be out of the water and the bag straps must be
removed from the net.
[78 FR 22952, Apr. 17, 2013, as amended at 81 FR 47735, July 22, 2016;
82 FR 60567, Dec. 21, 2017]
Sec.622.51 Recordkeeping and reporting.
(a) Commercial vessel owners and operators--(1) 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.
(2) 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 the SRD.
In addition, such owner or operator must provide information regarding
the size and number of shrimp trawls deployed and the type of bycatch
reduction device (BRD) and turtle excluder device used, as directed by
the SRD. Compliance with the reporting requirements of this paragraph
(a)(2) is required for permit renewal.
(3) 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
[[Page 302]]
this reporting requirement is required for permit issuance and renewal.
(4) 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.
(b) Gulf shrimp dealers. 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:
(1) 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.
(2) Amount of shrimp received by species and size category for each
receipt.
(3) Ex-vessel value, by species and size category, for each receipt.
Sec.622.52 At-sea observer coverage.
(a) Required coverage. 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).
(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.
Sec.622.53 Bycatch reduction device (BRD) requirements.
(a) BRD requirement for Gulf shrimp. On a shrimp trawler in the Gulf
EEZ, each net that is rigged for fishing must have a BRD installed that
is listed in paragraph (a)(3) of this section and is certified or
provisionally certified for the area in which the shrimp trawler is
located, unless exempted as specified in paragraphs (a)(1)(i) through
(iv) of this section. A trawl net is rigged for fishing if it is in the
water, or if it is shackled, tied, or otherwise connected to a sled,
door, or other device that spreads the net, or to a tow rope, cable,
pole, or extension, either on board or attached to a shrimp trawler.
(1) Exemptions from BRD requirement--(i) Royal red shrimp exemption.
A shrimp trawler is exempt from the requirement to have a certified or
provisionally certified BRD installed in each net provided that at least
90 percent (by weight) of all shrimp on board or offloaded from such
trawler are royal red shrimp.
(ii) Try net exemption. A shrimp trawler is exempt from the
requirement to have a certified or provisionally certified BRD installed
in a single try net with a headrope length of 16 ft (4.9 m) or less
provided the single try net is either placed immediately in front of
another net or is not connected to another net.
(iii) Roller trawl exemption. A shrimp trawler is exempt from the
requirement to have a certified or provisionally certified BRD installed
in up to two rigid-frame roller trawls that are 16 ft (4.9 m) or less in
length used or
[[Page 303]]
possessed on board. A rigid-frame roller trawl is a trawl that has a
mouth formed by a rigid frame and a grid of rigid vertical bars; has
rollers on the lower horizontal part of the frame to allow the trawl to
roll over the bottom and any obstruction while being towed; and has no
doors, boards, or similar devices attached to keep the mouth of the
trawl open.
(iv) BRD certification testing exemption. A shrimp trawler that is
authorized by the RA to participate in the pre-certification testing
phase or to test a BRD in the EEZ for possible certification, has such
written authorization on board, and is conducting such test in
accordance with the ``Bycatch Reduction Device Testing Manual'' is
granted a limited exemption from the BRD requirement specified in this
section. The exemption from the BRD requirement is limited to those
trawls that are being used in the certification trials. All other trawls
rigged for fishing must be equipped with certified or provisionally
certified BRDs.
(2) Procedures for certification and decertification of BRDs. The
process for the certification of BRDs consists of two phases--an
optional pre-certification phase and a required certification phase. The
RA may also provisionally certify a BRD.
(i) Pre-certification. The pre-certification phase allows a person
to test and evaluate a new BRD design for up to 60 days without being
subject to the observer requirements and rigorous testing requirements
specified for certification testing in the ``Bycatch Reduction Device
Testing Manual.''
(A) A person who wants to conduct pre-certification phase testing
must submit an application to the RA, as specified in the ``Bycatch
Reduction Device Testing Manual.'' The ``Bycatch Reduction Device
Testing Manual,'' which is available from the RA, upon request, contains
the application forms.
(B) After reviewing the application, the RA will determine whether
to issue a Gear Test Authorization (GTA) to conduct pre-certification
trials upon the vessel specified in the application. If the RA
authorizes pre-certification, the RA's GTA must be on board the vessel
during any trip involving the BRD testing.
(ii) Certification. A person who proposes a BRD for certification
for use in the Gulf EEZ must submit an application to test such BRD,
conduct the testing, and submit the results of the test in accordance
with the ``Bycatch Reduction Device Testing Manual.'' The RA will issue
a GTA to conduct certification trials upon the vessel specified in the
application if the RA finds that: The operation plan submitted with the
application meets the requirements of the ``Bycatch Reduction Device
Testing Manual''; the observer identified in the application is
qualified; and the results of any pre-certification trials conducted
have been reviewed and deemed to indicate a reasonable scientific basis
for conducting certification testing. If an application for a GTA is
denied, the RA will provide a letter of explanation to the applicant,
together with relevant recommendations to address the deficiencies that
resulted in the denial. To be certified for use in the fishery, the BRD
candidate must successfully demonstrate a 30 percent reduction in total
weight of finfish bycatch. In addition, the BRD candidate must satisfy
the following conditions: There is at least a 50-percent probability the
true reduction rate of the BRD candidate meets the bycatch reduction
criterion and there is no more than a 10-percent probability the true
reduction rate of the BRD candidate is more than 5 percentage points
less than the bycatch reduction criterion. If a BRD meets both
conditions, consistent with the ``Bycatch Reduction Device Testing
Manual,'' NMFS, through appropriate rulemaking procedures, will add the
BRD to the list of certified BRDs in paragraph (a)(3) of this section;
and provide the specifications for the newly certified BRD, including
any special conditions deemed appropriate based on the certification
testing results.
(iii) Provisional certification. Based on data provided consistent
with the ``Bycatch Reduction Device Testing Manual,'' the RA may
provisionally certify a BRD if there is at least a 50-percent
probability the true reduction rate of the BRD is no more than 5
percentage points less than the bycatch reduction
[[Page 304]]
criterion, i.e., 25 percent reduction in total weight of finfish
bycatch. Through appropriate rulemaking procedures, NMFS will add the
BRD to the list of provisionally certified BRDs in paragraph (a)(3) of
this section; and provide the specifications for the BRD, including any
special conditions deemed appropriate based on the certification testing
results. A provisional certification is effective for 2 years from the
date of publication of the notification in the Federal Register
announcing the provisional certification.
(iv) Decertification. The RA will decertify a BRD if NMFS determines
the BRD does not meet the requirements for certification or provisional
certification. Before determining whether to decertify a BRD, the RA
will notify the Gulf of Mexico Fishery Management Council in writing,
and the public will be provided an opportunity to comment on the
advisability of any proposed decertification. The RA will consider any
comments from the Council and public, and if the RA elects to decertify
the BRD, the RA will proceed with decertification via appropriate
rulemaking.
(3) Certified and provisionally certified BRDs--(i) Certified BRDS.
The following BRDs are certified for use in the Gulf EEZ. Specifications
of these certified BRDs are contained in Appendix D to this part.
(A) Fisheye--see Appendix D to part 622 for separate specifications
in the Gulf and South Atlantic EEZ.
(B) Jones-Davis.
(C) Modified Jones-Davis.
(D) Cone Fish Deflector Composite Panel.
(E) Square Mesh Panel (SMP) Composite Panel.
(ii) [Reserved]
(b) [Reserved]
[78 FR 22952, Apr. 17, 2013, as amended at 85 FR 6818, Feb. 6, 2020]
Sec.622.54 Prohibited gear and methods.
Also see Sec.622.9 for additional prohibited gear and methods that
apply more broadly to multiple fisheries or in some cases all fisheries.
(a) Traps for royal red shrimp in the Gulf EEZ and transfer at sea.
A trap may not be used to fish for royal red shrimp in the Gulf EEZ.
Possession of a trap and royal red shrimp on board a vessel is
prohibited. A trap used to fish for royal red shrimp in the Gulf EEZ may
be disposed of in any appropriate manner by the Assistant Administrator
or an authorized officer. In addition, royal red shrimp cannot be
transferred in the Gulf EEZ, and royal red shrimp taken in the Gulf EEZ
cannot be transferred at sea regardless of where the transfer takes
place.
(b) [Reserved]
Sec.622.55 Closed areas.
(a) Texas closure. (1) From 30 minutes after official sunset on May
15 to 30 minutes after official sunset on July 15, trawling, except
trawling for royal red shrimp beyond the 100-fathom (183-m) depth
contour, is prohibited in the Gulf EEZ off Texas.
(2) In accordance with the procedures and restrictions of the Gulf
Shrimp FMP, the RA may adjust the closing and/or opening date of the
Texas closure to provide an earlier, later, shorter, or longer closure,
but the duration of the closure may not exceed 90 days or be less than
45 days. Notification of the adjustment of the closing or opening date
will be published in the Federal Register.
(b) Southwest Florida seasonal trawl closure. From January 1 to 1
hour after official sunset on May 20, each year, trawling, including
trawling for live bait, is prohibited in that part of the Gulf EEZ
shoreward of rhumb lines connecting, in order, the following points:
Table 1 to Paragraph (b)
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
B\1\........................ 26[deg]16.0[min] 81[deg]58.5[min]
C........................... 26[deg]00.0[min] 82[deg]04.0[min]
D........................... 25[deg]09.0[min] 81[deg]47.6[min]
E........................... 24[deg]54.5[min] 81[deg]50.5[min]
M\1\........................ 24[deg]49.3[min] 81[deg]46.4[min]
------------------------------------------------------------------------
\1\ On the seaward limit of Florida's waters.
(c) Tortugas shrimp sanctuary. (1) The Tortugas shrimp sanctuary is
closed to trawling. The Tortugas shrimp sanctuary is that part of the
EEZ off Florida shoreward of rhumb lines connecting, in order, the
following points:
[[Page 305]]
Table 1 to Paragraph (c)(1)
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
N \1\......................................... 25[deg]52[m 81[deg]37[m
in]54[sec] in]56[sec]
F............................................. 24[deg]50[m 81[deg]51[m
in]42[sec] in]18[sec]
G \2\......................................... 24[deg]40[m 82[deg]26[m
in]00[sec] in]39[sec]
H \3\......................................... 24[deg]34[m 82[deg]35[m
in]44[sec] in]27[sec]
P \4\......................................... 24[deg]35[m 82[deg]08[m
in]00[sec] in]00[sec]
------------------------------------------------------------------------
\1\ Coon Key Light.
\2\ New Ground Shoals Light.
\3\ Rebecca Shoals Light.
\4\ Marquesas Keys.
(2) The provisions of paragraph (c)(1) of this section
notwithstanding--
(i) Effective from April 11 through September 30, each year, that
part of the Tortugas shrimp sanctuary seaward of rhumb lines connecting
the following points is open to trawling: From point T at
24[deg]47.8[min] N. lat., 82[deg]01.0[min] W. long. to point U at
24[deg]43.83[min] N. lat., 82[deg]01.0[min] W. long. (on the line
denoting the seaward limit of Florida's waters); thence along the
seaward limit of Florida's waters, as shown on the current edition of
NOAA chart 11439, to point V at 24[deg]42.55[min] N. lat.,
82[deg]15.0[min] W. long.; thence north to point W at 24[deg]43.6[min]
N. lat., 82[deg]15.0[min] W. long.
(ii) Effective from April 11 through July 31, each year, that part
of the Tortugas shrimp sanctuary seaward of rhumb lines connecting the
following points is open to trawling: From point W to point V, both
points as specified in paragraph (c)(2)(i) of this section, to point G,
as specified in paragraph (c)(1) of this section.
(iii) Effective from May 26 through July 31, each year, that part of
the Tortugas shrimp sanctuary seaward of rhumb lines connecting the
following points is open to trawling: From point F, as specified in
paragraph (c)(1) of this section, to point Q at 24[deg]46.7[min] N lat.,
81[deg]52.2[min] W long. (on the line denoting the seaward limit of
Florida's waters); thence along the seaward limit of Florida's waters,
as shown on the current edition of NOAA chart 11439, to point U and
north to point T, both points as specified in paragraph (c)(2)(i) of
this section.
(d) Closures of the Gulf shrimp fishery to reduce red snapper
bycatch. During a closure implemented in accordance with this paragraph
(d), trawling is prohibited within the specified closed area(s).
(1) Procedure for determining need for and extent of closures. Each
year, in accordance with the applicable framework procedure established
by the Gulf Shrimp FMP, the RA will, if necessary, establish a seasonal
area closure for the shrimp fishery in all or a portion of the areas of
the Gulf EEZ specified in paragraphs (d)(2) through (4) of this section.
The RA's determination of the need for such closure and its geographical
scope and duration will be based on an annual assessment, by the
Southeast Fisheries Science Center, of the shrimp effort and associated
shrimp trawl bycatch mortality on red snapper in the 10-30 fathom area
of statistical zones 10-21, compared to the 60-percent target reduction
of shrimp trawl bycatch mortality on red snapper from the benchmark
years of 2001-2003 established in the FMP (which corresponds in terms of
annual shrimp effort to 33,124 days fished). The framework procedure
provides for adjustment of this target reduction level, consistent with
the red snapper stock rebuilding plan and the findings of subsequent
stock assessments, via appropriate rulemaking. The assessment will use
shrimp effort data for the most recent 12-month period available and
will include a recommendation regarding the geographical scope and
duration of the closure. The Southeast Fisheries Science Center's
assessment will be provided to the RA on or about March 1 of each year.
If the RA determines that a closure is necessary, the closure falls
within the scope of the potential closures evaluated in the Gulf Shrimp
FMP, and good cause exists to waive notice and comment, NMFS will
implement the closure by publication of a final rule in the Federal
Register. If such good cause waiver is not justified, NMFS will
implement the closure via appropriate notice and comment rulemaking.
NMFS intends that any closure implemented consistent with this paragraph
(d)(l) will begin on the same date and time as the Texas closure, as
described in paragraph (a) of this section, unless circumstances dictate
otherwise.
(2) Eastern zone. The eastern zone is bounded by rhumb lines
connecting, in order, the following points:
[[Page 306]]
Table 1 to Paragraph (d)
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A........................... 29[deg]14[min] 88[deg]57[min]
B........................... 29[deg]24[min] 88[deg]34[min]
C........................... 29[deg]34[min] 87[deg]38[min]
D........................... 30[deg]04[min] 87[deg]00[min]
E........................... 30[deg]04[min] 88[deg]41[min]
F........................... 29[deg]36[min] 88[deg]37[min]
G........................... 29[deg]21[min] 88[deg]59[min]
A........................... 29[deg]14[min] 88[deg]57[min]
------------------------------------------------------------------------
(3) Louisiana zone. The Louisiana zone is bounded by rhumb lines
connecting, in order, the following points:
Table 2 to Paragraph (d)
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A........................... 29[deg]09.1[min] 93[deg]41.4[min]
B........................... 29[deg]09.25[min] 92[deg]36[min]
C........................... 28[deg]35[min] 90[deg]44[min]
D........................... 29[deg]09[min] 89[deg]48[min]
E........................... 28[deg]57[min] 89[deg]34[min]
F........................... 28[deg]40[min] 90[deg]09[min]
G........................... 28[deg]18[min] 90[deg]33[min]
H........................... 28[deg]25[min] 91[deg]37[min]
I........................... 28[deg]21.7[min] 93[deg]28.4[min]
A........................... 29[deg]09.1[min] 93[deg]41.4[min]
------------------------------------------------------------------------
(4) Texas zone. The Texas zone is bounded by rhumb lines connecting,
in order, the following points:
Table 3 to Paragraph (d)
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A........................... 29[deg]09.1[min] 93[deg]41.4[min]
B........................... 28[deg]44[min] 95[deg]15[min]
C........................... 28[deg]11[min] 96[deg]17[min]
D........................... 27[deg]44[min] 96[deg]53[min]
E........................... 27[deg]02[min] 97[deg]11[min]
F........................... 26[deg]00.5[min] 96[deg]57.3[min]
G........................... 26[deg]00.5[min] 96[deg]35.85[min]
H........................... 26[deg]24[min] 96[deg]36[min]
I........................... 26[deg]49[min] 96[deg]52[min]
J........................... 27[deg]12[min] 96[deg]51[min]
K........................... 27[deg]39[min] 96[deg]33[min]
L........................... 27[deg]55[min] 96[deg]04[min]
M........................... 28[deg]21.7[min] 93[deg]28.4[min]
A........................... 29[deg]09.1[min] 93[deg]41.4[min]
------------------------------------------------------------------------
(e) Shrimp/stone crab separation zones. Five zones are established
in the Gulf EEZ and Florida's waters off Citrus and Hernando Counties
for the separation of shrimp trawling and stone crab trapping. Although
Zone II is entirely within Florida's waters, it is included in this
paragraph (e) for the convenience of fishermen. Restrictions that apply
to Zone II and those parts of the other zones that are in Florida's
waters are contained in Rule 68B-38.001, Florida Administrative Code, in
effect as of March 1, 2005 (incorporated by reference, see Sec.
622.413). Geographical coordinates of the points referred to in this
paragraph (e) are as follows:
Table 1 to Paragraph (e)
------------------------------------------------------------------------
Point North lat. West long.
------------------------------------------------------------------------
A........................... 28[deg]59[min]30[sec 82[deg]45[min]36[sec
] ]
B........................... 28[deg]59[min]30[sec 83[deg]00[min]10[sec
] ]
C........................... 28[deg]26[min]01[sec 82[deg]59[min]47[sec
] ]
D........................... 28[deg]26[min]01[sec 82[deg]56[min]54[sec
] ]
E........................... 28[deg]41[min]39[sec 82[deg]55[min]25[sec
] ]
F........................... 28[deg]41[min]39[sec 82[deg]56[min]09[sec
] ]
G........................... 28[deg]48[min]56[sec 82[deg]56[min]19[sec
] ]
H........................... 28[deg]53[min]51[sec 82[deg]51[min]19[sec
] ]
I \1\....................... 28[deg]54[min]43[sec 82[deg]44[min]52[sec
] ]
J \2\....................... 28[deg]51[min]09[sec 82[deg]44[min]00[sec
] ]
K........................... 28[deg]50[min]59[sec 82[deg]54[min]16[sec
] ]
L........................... 28[deg]41[min]39[sec 82[deg]53[min]56[sec
] ]
M \3\....................... 28[deg]41[min]39[sec 82[deg]38[min]46[sec
] ]
N........................... 28[deg]41[min]39[sec 82[deg]53[min]12[sec
] ]
O........................... 28[deg]30[min]51[sec 82[deg]55[min]11[sec
] ]
P........................... 28[deg]40[min]00[sec 82[deg]53[min]08[sec
] ]
Q........................... 28[deg]40[min]00[sec 82[deg]47[min]58[sec
] ]
R........................... 28[deg]35[min]14[sec 82[deg]47[min]47[sec
] ]
S........................... 28[deg]30[min]51[sec 82[deg]52[min]55[sec
] ]
T........................... 28[deg]27[min]46[sec 82[deg]55[min]09[sec
] ]
U........................... 28[deg]30[min]51[sec 82[deg]52[min]09[sec
] ]
------------------------------------------------------------------------
\1\ Crystal River Entrance Light 1A.
\2\ Long Pt. (southwest tip).
\3\ Shoreline.
(1) Zone I is enclosed by rhumb lines connecting, in order, points
A, B, C, D, T, E, F, G, H, I, and J, plus the shoreline between points A
and J. It is unlawful to trawl in that part of Zone I that is in the EEZ
from October 5 through May 20, each year.
(2) Zone II is enclosed by rhumb lines connecting, in order, points
J, I, H, K, L, and M, plus the shoreline between points J and M.
Restrictions that apply to Zone II and those parts of the other zones
that are in Florida's waters are contained in Rule 68B-38.001, Florida
Administrative Code, in effect as of March 1, 2005 (incorporated by
reference, see Sec.622.413).
(3) Zone III is enclosed by rhumb lines connecting, in order, points
P, Q, R, U, S, and P. It is unlawful to trawl in that part of Zone III
that is in the EEZ from October 5 through May 20, each year.
(4) Zone IV is enclosed by rhumb lines connecting, in order, points
E, N, S, O, and E.
(i) It is unlawful to place a stone crab trap in that part of Zone
IV that is in the EEZ from October 5 through December 1 and from April 2
through May 20, each year.
[[Page 307]]
(ii) It is unlawful to trawl in that part of Zone IV that is in the
EEZ from December 2 through April 1, each year.
(5) Zone V is enclosed by rhumb lines connecting, in order, points
F, G, K, L, and F.
(i) It is unlawful to place a stone crab trap in that part of Zone V
that is in the EEZ from October 5 through November 30 and from March 16
through May 20, each year.
(ii) It is unlawful to trawl in that part of Zone V that is in the
EEZ from December 1 through March 15, each year.
[78 FR 22952, Apr. 17, 2013, as amended at 82 FR 60567, Dec. 21, 2017;
83 FR 29046, June 22, 2018; 85 FR 6818, Feb. 6, 2020]
Sec.622.56 Size limits.
Shrimp not in compliance with the applicable size limit as specified
in this section may not be possessed, sold, or purchased and must be
released immediately with a minimum of harm. The operator of a vessel
that fishes in the EEZ is responsible for ensuring that shrimp on board
are in compliance with the size limit specified in this section.
(a) White shrimp. White shrimp harvested in the Gulf EEZ are subject
to the minimum-size landing and possession limits of Louisiana when
possessed within the jurisdiction of that State.
(b) [Reserved]
Sec.622.57 [Reserved]
Sec.622.58 Annual catch limits (ACLs), annual catch targets (ACTs),
and accountability measures (AMs).
(a) Royal red shrimp in the Gulf--(1) Commercial sector. If
commercial landings, as estimated by the SRD, exceed the commercial ACL,
then during the following fishing year, if commercial landings reach or
are projected to reach the commercial ACL, the AA will file a
notification with the Office of the Federal Register to close the
commercial sector for the remainder of that fishing year. When the
commercial sector is closed, royal red shrimp in or from the Gulf EEZ
may not be retained, and the sale or purchase of royal red shrimp taken
from the Gulf EEZ is prohibited. This prohibition on sale or purchase
during a closure for royal red shrimp does not apply to royal red shrimp
that were harvested, landed ashore, and sold prior to the date of the
closure and were held in cold storage by a dealer or processor. The
commercial ACL for royal red shrimp is 337,000 lb (152,861 kg), tail
weight.
(2) [Reserved]
(b) [Reserved]
[78 FR 22952, Apr. 17, 2013, as amended at 80 FR 15692, Mar. 25, 2015]
Sec.622.59 Prevention of gear conflicts.
(a) No person may knowingly place in the Gulf EEZ any article,
including fishing gear, that interferes with fishing or obstructs or
damages fishing gear or the fishing vessel of another; or knowingly use
fishing gear in such a fashion that it obstructs or damages the fishing
gear or fishing vessel of another.
(b) In accordance with the procedures and restrictions of the Gulf
Shrimp FMP, the RA may modify or establish separation zones for shrimp
trawling and the use of fixed gear to prevent gear conflicts. Necessary
prohibitions or restrictions will be published in the Federal Register.
Sec.622.60 Adjustment of management measures.
In accordance with the framework procedures of the Gulf Shrimp FMP,
the RA may establish or modify the following:
(a) Gulf penaeid shrimp. For a species or species group: Reporting
and monitoring requirements, permitting requirements, size limits,
vessel trip limits, closed seasons or areas and reopenings, quotas
(including a quota of zero), MSY (or proxy), OY, management parameters
such as overfished and overfishing definitions, gear restrictions
(ranging from regulation to complete prohibition), gear markings and
identification, vessel markings and identification, acceptable
biological catch (ABC) and ABC control rules, rebuilding plans,
restrictions relative to conditions of harvested shrimp (maintaining
shrimp in whole condition, use
[[Page 308]]
as bait), target effort and fishing mortality reduction levels, bycatch
reduction criteria, BRD certification and decertification criteria, BRD
testing protocol and certified BRD specifications, and target effort
reduction for juvenile red snapper mortality.
(b) Gulf royal red shrimp. Reporting and monitoring requirements,
permitting requirements, size limits, vessel trip limits, closed seasons
or areas and reopenings, annual catch limits (ACLs), annual catch
targets (ACTs), quotas (including a quota of zero), accountability
measures (AMs), MSY (or proxy), OY, management parameters such as
overfished and overfishing definitions, gear restrictions (ranging from
regulation to complete prohibition), gear markings and identification,
vessel markings and identification, ABC and ABC control rules,
rebuilding plans, and restrictions relative to conditions of harvested
shrimp (maintaining shrimp in whole condition, use as bait), and target
effort reduction for juvenile red snapper mortality.
[78 FR 22952, Apr. 17, 2013, as amended at 80 FR 74712, Nov. 30, 2015;
85 FR 6819, Feb. 6, 2020]
Subpart D_Coral and Coral Reefs of the Gulf of Mexico