[Federal Register Volume 61, Number 52 (Friday, March 15, 1996)]
[Proposed Rules]
[Pages 10712-10719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6193]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 611 and 620

[Docket No. 960222043-6043-01; I.D. 111595B]
RIN 0648-AC61


Foreign and Domestic Fishing; Scientific Research Activity and 
Exempted Fishing

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes new and revised definitions for certain 
regulatory terms to distinguish clearly among scientific research 
activities, exempted fishing, and exempted educational activities; to 
clarify and standardize issuance procedures for letters of 
acknowledgement of notification of scientific research activity and 
exempted fishing permits (EFPs); and to facilitate scientific research 
activities.

DATES: Comments must be received by April 15, 1996.

ADDRESSES: Comments should be sent to Richard H. Schaefer, Director, 
Office of Fisheries Conservation and Management, NMFS, 1315 East-West 
Highway, Silver Spring, MD 20910. Comments regarding burden-hour 
estimates or other aspects of the collection-of-information 
requirements contained in this rule should be sent to Richard H. 
Schaefer at the above address and to the Office of Management and 
Budget, Paperwork Reduction Project (0648-0214), Washington, DC 20503 
(Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: William D. Chappell, Fishery 
Management Specialist; 301-713-2341.

SUPPLEMENTARY INFORMATION: The Magnuson Fishery Conservation and 
Management Act (16 U.S.C. 1801 et seq.) (Magnuson Act) authorizes the 
Secretary of Commerce to conserve and manage fishery resources in the 
exclusive economic zone (EEZ) by regulating ``fishing.'' Section 3(10) 
of the Magnuson Act, 16 U.S.C. 1802(10), defines ``fishing'' as the 
catching, taking, or harvesting of fish; the attempted catching, 
taking, or harvesting of fish; any other activity that can reasonably 
be expected to result in the catching, taking, or harvesting of fish; 
or any other operations at sea in support of, or in preparation for, 
any of the aforementioned activities. ``Fish'' includes finfish, 
mollusks, crustaceans, and all other forms of marine life other than 
marine mammals and birds.
    Excluded expressly from the definition of fishing, and therefore 
from the Magnuson Act's purview, is ``scientific research activity 
which is conducted by a scientific research vessel.'' The Magnuson Act 
does not, however, define ``scientific research activity'' or 
``scientific research vessel.'' The legislative history provides little 
guidance on Congress' intent in exempting scientific research conducted 
from a scientific research vessel from the Magnuson Act's requirements. 
The sole mention of the subject occurred during the Senate Conference 
Committee's consideration of H.R. 200, which, after amendment, 
ultimately became the Magnuson Act:

    It should be noted that the definition of ``fishing'' in section 
3(10) does not include scientific research conducted by a scientific 
research vessel. The conference committee does not consider the 
conducting of tests of fishing gear to be scientific research within 
the meaning of the bill. (S. Conf. Rep. No. 711, 94th Cong., 2d 
Sess. 43, reprinted in 1976 U.S. Code Cong. & Admin. News 660, 667).

    It seems clear that Congress' intent was that not all activity that 
takes place on board a scientific research vessel be exempt from 
provisions of the Magnuson Act. The focus of the exemption is on the 
research nature of a particular activity conducted on board a 
scientific research vessel, rather than on the fish taken. However, 
because ``scientific research activity'' and ``scientific research 
vessel'' have never been precisely defined, the potential exists for 
abuse by using the exemption to obtain marketable fish outside of 
established fishing seasons or areas, or to otherwise avoid applicable 
regulations. Accordingly, NMFS now proposes definitions for 
``scientific research activity'' and ``scientific research vessel''.
    Consistent with the wording of the Magnuson Act, the proposed 
definition of ``scientific research activity'' has as its focus ``pure 
science,'' as opposed to general gear or market research, or scouting 
for exploitable resources. Such applications would now be included 
under exempted fishing. The proposed definition for ``scientific 
research activity'' for the purposes of these regulations is an 
activity in furtherance of a scientific fishery investigation or study 
that would meet the definition of fishing under the Magnuson Act, but 
for the exemption applicable to scientific research activity conducted 
from a scientific research vessel. Scientific research activity 
includes, but is not limited to, sampling, collecting, observing, or 
surveying the fish or fishery resources within the U.S. EEZ, at sea, on 
board scientific research vessels, to increase scientific knowledge of 
the fishery resources or their environment, or to test a hypothesis as 
part of a planned, directed investigation or study conducted according 
to methodologies generally accepted as appropriate for scientific 
research. At-sea scientific fishery investigations address one or more 
issues involving taxonomy, biology, physiology, behavior, disease, 
aging, growth, mortality, migration, recruitment, distribution, 
abundance, ecology, stock structure, bycatch, and catch estimation of 
fish and shellfish (invertebrate) species considered to be a component 
of the fishery resources within the U.S. EEZ. Scientific research

[[Page 10713]]
activity does not include the collection and retention of fish outside 
the scope of the applicable research plan, or the testing of fishing 
gear. Data collection designed to capture and land quantities of fish 
or invertebrates for product development, market research, and/or 
public display must be permitted under exempted fishing procedures. 
These proposed regulations would allow foreign vessels to conduct data 
collection activities as described above, which might be considered 
exempted fishing in domestic fisheries, as part of scientific research 
activities when they are carried out in full cooperation with the 
United States. This represents the current wording of the scientific 
research rules in part 611. Full cooperation with the United States has 
generally meant the research activity was conducted with a U.S. 
scientist on board or invited to participate in the research and with 
the data generated from the research provided to the United States.
    An accepted convention of any bona fide scientific research project 
is the advance preparation of a written research plan that guides the 
conduct of the research. At a minimum, such a research plan or protocol 
includes (1) a description of the nature and objectives of the project; 
(2) the experimental design of the project, including description of 
the methods to be used, the type and class of vessel(s) to be used, and 
a description of sampling equipment; (3) the geographical areas in 
which the project is to be conducted; (4) the expected date of first 
appearance and final departure of any research vessel(s) to be 
employed, and deployment and removal of equipment, as appropriate; (5) 
the 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, 
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; and (8) the identity of the 
vessel(s) to be used.
    To facilitate scientific research activities, NMFS proposes to 
encourage researchers interested in conducting scientific research 
activities in the EEZ to submit to the appropriate Director, Regional 
Director, or designee, as proposed to be defined in 50 CFR 611.2, a 
scientific research plan 60 days, or as far in advance as practicable, 
before the start of the research. The Director, Regional Director, or 
designee would acknowledge notification of a scientific research 
activity by issuing a letter of acknowledgment. This letter of 
acknowledgment would be separate and distinct from any permit required 
by any other applicable law. Submission and acknowledgment of a 
scientific research plan meeting the minimum standards listed above, in 
advance of the conduct of the research, would allow a presumption that 
activities within the scope of the research plan or protocol are 
scientific research activities. NMFS would advise all persons 
conducting scientific research in the EEZ to carry the scientific 
research plan and letter of acknowledgment on board the scientific 
research vessel. In the event of boarding or inspection for enforcement 
purposes, presentation of an acknowledged scientific research plan 
would facilitate prompt validation by enforcement officers that 
activities covered by the research plan are bona fide scientific 
research activities and not fishing.
    NMFS proposes to define ``scientific research vessel'' as 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. 
The definition further provides that, if the vessel is owned or 
chartered and controlled by a foreign government, that vessel would fit 
within the definition only if the vessel has scientific research as its 
exclusive mission during the scientific cruise in question, and the 
vessel operations are undertaken pursuant to a scientific research 
plan. These conditions are necessary to prevent commercial fishing 
conducted from vessels controlled by foreign scientific agencies from 
qualifying for the scientific research activity exemption merely 
because the vessel is owned or controlled by a governmental agency. A 
definition for ``scientific cruise'' is also proposed in this rule.
    ``Exempted fishing,'' an activity regulated under fishery 
management plans (FMPs) prepared by Regional Fishery Management 
Councils (Councils) or the Secretary of Commerce, would be defined in 
this proposed rule for domestic vessels only. Exempted fishing is 
currently referred to as ``experimental fishing'' in certain existing 
regulations in 50 CFR part 285 and 50 CFR chapter VI. NMFS anticipates 
that individual FMPs that currently authorize ``experimental fishing'' 
would be amended, as necessary, to replace existing references to 
``experimental fishing'' with references to ``exempted fishing,'' and 
to standardize terminology and procedures for issuance of EFPs by 
replacing existing regulatory text with references to these proposed 
additions to 50 CFR part 620. In the absence of specific regulations 
for each fishery, these proposed procedures would be followed. 
Authority to allow exempted fishing in any regulated fishery would be 
established through the governing FMP and/or its implementing 
regulations.
    Because exempted fishing has sometimes been confused with 
scientific research activity, this proposed rule would clarify NMFS' 
view that these are distinct activities. If an activity is undertaken 
in furtherance of exempted fishing, it would not be considered 
scientific research activity. NMFS proposes that collection of fish for 
display purposes, if otherwise prohibited by regulations governing that 
fishery, would fall within the scope of the definition for ``exempted 
fishing.'' Standard procedures for application for EFPs under FMPs, 
issuance of EFPs by NMFS, and reporting requirements for persons 
fishing under an EFP are proposed in this rule. Prior to issuance of an 
EFP, an appropriate consideration of environmental impacts and of 
consistency with applicable law would be required.
    In addition, NMFS proposes to define ``exempted educational 
activity'' for the domestic fishing regulations to distinguish between 
commercially oriented exempted fishing and those activities of very 
limited scope and duration, conducted by educational institutions, that 
may involve activities that are not in accordance with regulations 
implemented under authority of an FMP. Authority to allow exempted 
educational activity in any regulated fishery would be established 
through the governing FMP and/or its implementing regulations. Such 
activities, if determined to be valid by the appropriate NMFS Director 
or Regional Director, after consideration of consistency with the goals 
and objectives of the FMP and with other applicable law, could be 
authorized in writing by the Director or Regional Director to the 
sponsoring educational institution. The authorization would be required 
to be in the possession of the participant during the conduct of the 
exempted educational activity.
    Examples of potentially valid exempted educational activities 
include:

[[Page 10714]]
(1) A small-scale trawl demonstration conducted for teaching purposes 
by a university vessel at a time fishing is closed to trawl gear; and 
(2) collection of a small number of fish for examination for 
educational purposes, when the fish are below a minimum size standard, 
in excess of bag limits, or during seasonal closures specified in 
regulations. The intent is to allow bona fide educational activities to 
take place, with minimal advance notice and paperwork, while still 
protecting the fishery resources. Fish harvested under authorized, 
exempted educational activities could not be traded, bartered, or sold. 
Activities outside the scope of the authorization would be considered 
``fishing'' and subject to fishing regulations. These proposed 
procedures would serve as guidelines for fisheries until the 
regulations governing each fishery are amended to reflect this proposed 
rule.
    NMFS proposes to redefine ``Center Director'' in the foreign 
fishing regulations at 50 CFR part 611 to reflect the correct title of 
``Fishery Science Center Director'', note that there are five centers, 
and add definitions for ``Center Director'' and ``Regional Director'' 
to the domestic regulations at 50 CFR part 620. Appropriate tables are 
proposed to be amended in 50 CFR part 611.
    NMFS also proposes to define ``Director'' to clarify that, where 
regulations so specify, the Director, Office of Fisheries Conservation 
and Management, NMFS, may be the appropriate contact, rather than a 
Regional Director. This would allow the Director, Office of Fisheries 
Conservation and Management, to process requests for exempted fishing 
or exempted educational activities on Atlantic highly migratory species 
(sharks, billfishes, swordfish, and tunas); management of these species 
is the responsibility of that office, rather than one of the NMFS 
regional offices.
    This proposed rule is not intended to inhibit or prevent any 
scientific research activity that is conducted by a scientific research 
vessel, as defined in this proposed rule, nor is it intended to prevent 
exempted fishing conducted under an EFP issued under authority of an 
FMP or exempted educational activities authorized by the Director or 
Regional Director, consistent with the goals and objectives of an FMP. 
Proposed procedures for application for, and issuance of, EFPs and 
authorizations for exempted educational activities are intended to 
standardize these procedures nationwide for equity, clarity, and 
enforcement purposes.

Classification

    This action has been determined to be not significant for purposes 
of E.O. 12866.
    The General Counsel of the Department of Commerce certified to the 
Small Business Administration that this proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities, because it serves only to define terms; clarify 
distinctions between scientific research activity, exempted fishing, 
and exempted educational activities; and standardize procedures for 
applying for and issuing EFPs and authorizations for exempted 
educational activities as allowed under FMPs. As a result, a regulatory 
flexibility analysis was not prepared.
    This rule contains a collection-of-information requirement subject 
to the Paperwork Reduction Act. This collection-of-information 
requirement has been submitted to the Office of Management and Budget 
(OMB) for approval. The public reporting burden for this collection of 
information is estimated: (1) To average 1 hour per response to send 
NMFS a copy of a scientific research plan and provide a copy of the 
cruise report or research publication; (2) to average 1 hour per 
response to complete an application for an EFP or authorization for an 
exempted educational activity; and (3) to average 1 hour per response 
to collect information and provide a report at the conclusion of 
exempted fishing. Send comments regarding this burden estimate, or any 
other aspect of the data requirements, including suggestions for 
reducing the burden, to NMFS and OMB (see ADDRESSES). Notwithstanding 
any other provision of the law, no person is required to respond to, 
nor shall any person be subject to a penalty for failure to comply with 
a collection of information, subject to the requirements of the PRA, 
unless that collection of information displays a currently valid OMB 
Control Number.

List of Subjects

50 CFR Part 611

    Fisheries, Foreign relations, Reporting and recordkeeping 
requirements.

50 CFR Part 620

    Fisheries, Fishing.

    Dated: March 7, 1996.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR parts 611 and 620 
are proposed to be amended as follows:

PART 611--FOREIGN FISHING

    1. The authority citation for part 611 is revised to read as 
follows:

    Authority: 16 U.S.C. 971 et seq., 1361 et seq., 1801 et seq., 
and 22 U.S.C. 1971 et seq.

    2. In Sec. 611.2, the definition for ``Center Director'' is revised 
and definitions for ``Director'', ``Scientific cruise'', ``Scientific 
research activity'', ``Scientific research plan'', and ``Scientific 
research vessel'', are added, in alphabetical order, to read as 
follows:


Sec. 611.2  Definitions.

* * * * *
    Center Director means the Director of one of the five NMFS 
Fisheries Science Centers described in Table 1 of Appendix A to this 
subpart, or a designee.
* * * * *
    Director means the Director of the Office of Fisheries Conservation 
and Management, 1315 East-West Highway, Silver Spring, MD 20910.
* * * * *
    Scientific cruise means the period of time during which a 
scientific research vessel is operated in furtherance of a scientific 
research project, beginning when the vessel leaves port to undertake 
the project and ending when the vessel completes the project as 
provided for in the applicable scientific research plan.
    Scientific research activity is, for the purposes of this part, an 
activity in furtherance of a scientific fishery investigation or study 
that would meet the definition of fishing under the Magnuson Act, but 
for the exemption applicable to scientific research activity conducted 
from a scientific research vessel. Scientific research activity 
includes, but is not limited to, sampling, collecting, observing, or 
surveying the fish or fishery resources within the U.S. EEZ, at sea, on 
board scientific research vessels, to increase scientific knowledge of 
the fishery resources or their environment, or to test a hypothesis as 
part of a planned, directed investigation or study conducted according 
to methodologies generally accepted as appropriate for scientific 
research. At-sea scientific fishery investigations address one or more 
issues involving taxonomy, biology, physiology, behavior, disease, 
aging, growth, mortality, migration, recruitment, distribution, 
abundance, ecology, stock structure, bycatch, and catch estimation of 
fish and shellfish (invertebrate) species considered to be a component 
of the fishery resources within the U.S. EEZ. Scientific research 
activity does not include the collection and retention of fish outside 
the scope of the

[[Page 10715]]
applicable research plan, or the testing of fishing gear. Data 
collection designed to capture and land quantities of fish or 
invertebrates for product development, market research, and/or public 
display are not scientific research activities and must be permitted 
under exempted fishing procedures. For foreign vessels, such data 
collection activities are considered scientific research if they are 
carried out in full cooperation with the United States.
    Scientific research plan means a detailed, written formulation, 
prepared in advance of the research, for the accomplishment of a 
scientific research project. At a minimum, a sound scientific research 
plan should include:
    (1) A description of the nature and objectives of the project, 
including the hypothesis or hypotheses to be tested;
    (2) The experimental design of the project, including a description 
of the methods to be used, the type and class of any vessel(s) to be 
used, and a description of sampling equipment;
    (3) The geographical area(s) in which the project is to be 
conducted;
    (4) The expected date of first appearance and final departure of 
the research vessel(s) to be employed, and deployment and removal of 
equipment, as appropriate;
    (5) The 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; and
    (8) The identity of any vessel(s) to be used including, but not 
limited to, the vessel's name, official documentation number and IRCS, 
home port, and name, address, and telephone number of the owner and 
master.
    Scientific research vessel means a vessel owned or chartered by, 
and controlled by, a foreign government agency, U.S. Government agency 
(including NOAA or institutions designated as federally funded research 
and development centers), U.S. state or territorial agency, university 
(or other educational institution accredited by a recognized national 
or international accreditation body), international treaty 
organization, or scientific institution. In order for a vessel that is 
owned or chartered and controlled by a foreign government to meet this 
definition, the vessel must have scientific research as its exclusive 
mission during the scientific cruise in question and the vessel 
operations must be conducted in accordance with a scientific research 
plan.
* * * * *
    3. In Sec. 611.7, paragraphs (a)(27) and (a)(28) are redesignated 
as paragraphs (a)(29) and (a)(30), respectively, and new paragraphs 
(a)(27) and (a)(28) are added to read as follows:


Sec. 611.7  Prohibitions.

    (a) * * *
    (27) Fish in violation of the terms or conditions of any permit or 
authorization issued under the Magnuson Act;
    (28) On a scientific research vessel, engage in fishing other than 
recreational fishing authorized by applicable state, territorial, or 
Federal regulations;
* * * * *
    4. Section 611.14 is revised to read as follows:


Sec. 611.14  Scientific research activity.

    (a) Scientific research activity. Persons planning to conduct 
scientific research activities in the EEZ that may be confused with 
fishing are encouraged to submit to the appropriate Regional Director, 
Director, or designee, 60 days or as soon as practicable prior to its 
start, a scientific research plan for each scientific cruise. The 
Regional Director, Director, or designee will acknowledge notification 
of scientific research activity by issuing to the operator or master of 
that vessel, or to the sponsoring institution, a letter of 
acknowledgment. This letter of acknowledgment is separate and distinct 
from any permit required under any other applicable law. If the 
Regional Director, Director, or designee, after review of a research 
plan, determines that it does not constitute scientific research 
activity but rather fishing, the Regional Director, Director, or 
designee will inform the applicant as soon as practicable and in 
writing. The Regional Director, Director, or designee may also make 
recommendations to revise the research plan to make the cruise 
acceptable as scientific research activity. In order to facilitate 
identification of activity as scientific research, persons conducting 
scientific research activities are advised to carry a copy of the 
scientific research plan and the letter of acknowledgment on board the 
scientific research vessel. Activities conducted in accordance with a 
scientific research plan acknowledged by such a letter are presumed to 
be scientific research activities. The presumption may be overcome by 
showing that an activity does not fit the definition of scientific 
research activity or is outside the scope of the scientific research 
plan.
    (b) Reports. Persons conducting scientific research are requested 
to submit a copy of any cruise report or other publication created as a 
result of the cruise, including the amount, composition, and 
disposition of their catch, to the appropriate Center Director.
    5. Table 1 to Appendix A to subpart A of part 611 is revised to 
read as follows:

Appendix A to Subpart A--Addresses, Areas of Responsibility and 
Communications

                           Table 1.--Addresses                          
------------------------------------------------------------------------
                                 NMFS Fisheries                         
   NMFS regional directors       Science Center       U.S. Coast Guard  
                                    directors            commanders     
------------------------------------------------------------------------
Director, Northeast Region,   Director, Northeast   Commander, Atlantic 
 National Marine Fisheries     Fisheries Science     Area, U.S. Coast   
 Service, NOAA, One            Center, National      Guard, Governor's  
 Blackburn Drive,              Marine Fisheries      Island, New York,  
 Gloucester, MA 01930-2298;    Service, NOAA, 166    NY 10004; Telex:   
 Telex: 940007; Telephone:     Water Street, Woods   126831; Telephone: 
 508-281-9300; FAX: 508-281-   Hole, MA 02543-       212-668-7877.      
 9333;.                        1097, Attn:                              
                               Observer Program;                        
                               Telex: 322200;                           
                               Telephone: 508-548-                      
                               5123; FAX: 508-548-                      
                               5124.                                    
Director, Southeast Region,   Director, Southeast   Commander, Atlantic 
 National Marine Fisheries     Fisheries Science     Area, U.S. Coast   
 Service, NOAA, 9721 Exec.     Center, National      Guard, New York, NY
 Center Drive N., St.          Marine Fisheries      10004; Telex:      
 Petersburg, FL 33702;         Service, NOAA, 75     126831; Telephone: 
 Telephone: 813-570-5301;      Virginia Beach        212-668-7877.      
 FAX: 813-570-5300.            Drive, Miami, FL                         
                               33149-1003;                              
                               Telephone: 305-361-                      
                               5761; FAX: 305-361-                      
                               4219.                                    

[[Page 10716]]
                                                                        
Director, Northwest Region,   Director, Northwest   Commander, Pacific  
 National Marine Fisheries     Fisheries Science     Area, U.S. Coast   
 Service, NOAA, 7600 Sand      Center, National      Guard, Government  
 Point Way, NE, BIN C15700,    Marine Fisheries      Island, Alameda, CA
 Bldg. 1, Seattle, WA 98115;   Service, NOAA, 2725   94501; Telex:      
 Telex: 9104442786;            Montlake Boulevard    172343; Telephone: 
 Telephone: 206-526-6150;      East, Seattle, WA     510-437-3700; FAX: 
 FAX: 206-526-6426.            98112-2097;           510-437-3017       
                               Telephone: 206-442-                      
                               1872; FAX: 206-442-                      
                               4304.                                    
Director, Alaska Region,      Director, Alaska      Commander,          
 National Marine Fisheries     Fisheries Science     Seventeenth Coast  
 Service, NOAA, P.O. Box       Center, National      Guard District,    
 1668, Juneau, AK 99802-       Marine Fisheries      P.O. Box 3-5000,   
 1668; Telex: 09945377;        Service, NOAA, 7600   Juneau, AK 99801;  
 Telephone: 907-586-7221;      Sand Point Way, NE,   Telex: 45305;      
 FAX: 907-586-7249.            BIN C15700, Bldg.     Telephone: 907-586-
                               4, Seattle, WA        7200 after         
                               98115-0070; Telex:    hours:907-586-7350.
                               329422; Telephone:                       
                               206-526-4000; FAX:                       
                               206-526-4004.                            
Director, Southwest Region    Director, Southwest   Commander,          
 National Marine Fisheries     Fisheries Science     Fourteenth Coast   
 Service, NOAA, 501 West       Center, National      Guard District, 300
 Ocean Blvd, Suite 4200,       Marine Fisheries      Ala Moana Blvd.,   
 Long Beach, CA 90802-4213;    Service, NOAA, P.O.   Honolulu, HI 96813;
 Telephone: 310-980-4001;      Box 271, La Jolla,    Telex: 392401;     
 FAX: 310-980-4018.            CA 92038-0271;        Telephone: 808-546-
                               Telephone: 619-546-   7597.              
                               7000; FAX: 619-546-                      
                               7003.                                    
------------------------------------------------------------------------



PART 620--GENERAL PROVISIONS FOR DOMESTIC FISHERIES

    6. The authority citation for part 620 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    7. In Sec. 620.2, definitions for ``Center Director'', 
``Director'', ``Exempted educational activity'', ``Exempted fishing'', 
``Regional Director'', ``Scientific cruise'', ``Scientific research 
activity'', ``Scientific research plan'', and ``Scientific research 
vessel'', are added, in alphabetical order, to read as follows:


Sec. 620.2  Definitions.

* * * * *
    Center Director means the Director of one of the five NMFS 
Fisheries Science Centers.
* * * * *
    Director means the Director of the Office of Fisheries Conservation 
and Management, 1315 East-West Highway, Silver Spring, MD 20910.
* * * * *
    Exempted educational activity means an activity, conducted by an 
educational institution accredited by a recognized national or 
international accreditation body, of limited scope and duration, that 
is otherwise prohibited by part 285 or chapter VI of this title, but 
that is authorized by the appropriate Director or Regional Director for 
educational purposes.
    Exempted or experimental fishing means fishing from a vessel of the 
United States that involves activities otherwise prohibited by part 285 
or chapter VI of this title, but that are authorized under an exempted 
fishing permit (EFP). These regulations refer exclusively to exempted 
fishing. References in 50 CFR part 285 and elsewhere in this chapter to 
experimental fishing mean exempted fishing under this part.
* * * * *
    Regional Director means the Director of one of the five NMFS 
Regions.
* * * * *
    Scientific cruise means the period of time during which a 
scientific research vessel is operated in furtherance of a scientific 
research project, beginning when the vessel leaves port to undertake 
the project and ending when the vessel completes the project as 
provided for in the applicable scientific research plan.
    Scientific research activity is, for the purposes of this part, an 
activity in furtherance of a scientific fishery investigation or study 
that would meet the definition of fishing under the Magnuson Act, but 
for the exemption applicable to scientific research activity conducted 
from a scientific research vessel. Scientific research activity 
includes, but is not limited to, sampling, collecting, observing, or 
surveying the fish or fishery resources within the U.S. EEZ, at sea, on 
board scientific research vessels, to increase scientific knowledge of 
the fishery resources or their environment, or to test a hypothesis as 
part of a planned, directed investigation or study conducted according 
to methodologies generally accepted as appropriate for scientific 
research. At-sea scientific fishery investigations address one or more 
issues involving taxonomy, biology, physiology, behavior, disease, 
aging, growth, mortality, migration, recruitment, distribution, 
abundance, ecology, stock structure, bycatch, and catch estimation of 
fish and shellfish (invertebrate) species considered to be a component 
of the fishery resources within the U.S. EEZ. Scientific research 
activity does not include the collection and retention of fish that is 
outside the scope of the applicable research plan, or the testing of 
fishing gear. Data collection designed to capture and land quantities 
of fish or invertebrates for product development, market research, and/
or public display are not scientific research activities and must be 
permitted under exempted fishing procedures.
    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 (including the name and tonnage of vessel as soon as identified), 
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 
any research vessel(s) to be employed, and deployment and removal of 
equipment, as appropriate;
    (5) The 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, 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; and
    (8) The identity of any vessel(s) to be used, including, but not 
limited to, the

[[Page 10717]]
vessel's name, official documentation number or state registration 
number, home port, and name, address, and telephone number of the owner 
and master.
    Scientific research vessel means a vessel owned or chartered by, 
and controlled by, a foreign government agency, U.S. Government agency 
(including NOAA or institutions designated as federally funded research 
and development centers), U.S. state or territorial agency, university 
(or other educational institution accredited by a recognized national 
or international accreditation body), international treaty 
organization, or scientific institution. To meet this definition, the 
vessel must have scientific research as its exclusive mission during 
the scientific cruise in question and the vessel operations must be 
conducted in accordance with a scientific research plan.
* * * * *
    8. In Sec. 620.7, paragraphs (i) through (l) are added to read as 
follows:


Sec. 620.7  General prohibitions.

* * * * *
    (i) Fish in violation of the terms or conditions of any permit or 
authorization issued under the Magnuson Act.
    (j) Fail to report catches as required while fishing pursuant to an 
exempted fishing permit.
    (k) On a scientific research vessel, engage in fishing other than 
recreational fishing authorized by applicable state or Federal 
regulations.
    (l) 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.
    9. Section 620.10 is added to read as follows:


Sec. 620.10  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 in the EEZ are encouraged to submit to the 
appropriate Regional Director, Director, or designee, 60 days or as 
soon as practicable prior to its start, a scientific research plan for 
each scientific cruise. The Regional Director, Director, or designee 
will acknowledge notification of scientific research activity by 
issuing to the operator or master of that vessel, or to the sponsoring 
institution, a letter of acknowledgment. This letter of acknowledgment 
is separate and distinct from any permit required by any other 
applicable law. If the Regional Director, Director, or designee, after 
review of a research plan, determines that it does not constitute 
scientific research but rather fishing, the Regional Director, 
Director, or designee will inform the applicant as soon as practicable 
and in writing. The Regional Director, Director, or designee may also 
make recommendations to revise the research plan to make the cruise 
acceptable as scientific research activity or recommend the applicant 
request an EFP. In order to facilitate identification of activity as 
scientific research, persons conducting scientific research activities 
are advised to carry a copy of the scientific research plan and the 
letter of acknowledgment on board the scientific research vessel. 
Activities conducted in accordance with a scientific research plan 
acknowledged by such a letter are presumed to be scientific research 
activity. The presumption may be overcome by showing that an activity 
does not fit the definition of scientific research activity or is 
outside the scope of the scientific research plan.
    (b) Exempted fishing--(1) General. A NMFS Regional Director or 
Director may authorize, for limited testing, public display, data 
collection, and/or exploratory 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 exempted fishing permit (EFP) issued by a 
Regional Director or Director in accordance with the criteria and 
procedures specified in this section. The Regional Director or Director 
may charge a fee to recover the administrative expenses of issuing an 
EFP. The amount of the fee will be calculated, at least annually, in 
accordance with procedures of the NOAA Handbook for determining 
administrative costs of each special product or service; the fee may 
not exceed such costs. Persons may contact the appropriate Regional 
Director or Director to find out the applicable fee.
    (2) Application. An applicant for an EFP shall submit a completed 
application package to the appropriate Regional Director or Director, 
as soon as practicable and at least 60 days before the desired 
effective date of the EFP. Submission of an EFP application less than 
60 days before the desired effective date of the EFP may result in a 
delayed effective date because of review requirements. The application 
package must include payment of any required fee as specified by 
paragraph (b)(1) of this section, and a written application that 
includes, but is not limited to, the following information:
    (i) The date of the application;
    (ii) The applicant's name, mailing address, and telephone number;
    (iii) A statement of the purposes and goals of the exempted fishery 
for which an EFP is needed, including justification for issuance of the 
EFP;
    (iv) For each vessel to be covered by the EFP as soon as the 
information is available and before operations begin under the EFP:
    (A) A copy of the U.S. Coast Guard documentation, state license, or 
registration of each vessel, or the information contained on the 
appropriate document; and
    (B) The current name, address, and telephone number of the owner 
and master, if not included on the document provided for the vessel;
    (v) The species (target and incidental) expected to be harvested 
under the EFP, the amount(s) of such harvest necessary to conduct the 
exempted fishing, the arrangements for disposition of all regulated 
species harvested under the EFP, and any anticipated impacts on marine 
mammals or endangered species;
    (vi) For each vessel covered by the EFP, the approximate time(s) 
and place(s) fishing will take place, and the type, size, and amount of 
gear to be used; and
    (vii) The signature of the applicant.
    (viii) The Regional Director or Director, as appropriate, may 
request from an applicant additional information necessary to make the 
determinations required under this section. An incomplete application 
or an application for which the appropriate fee has not been paid will 
not be considered until corrected in writing and the fee paid. An 
applicant for an EFP need not be the owner or operator of the vessel(s) 
for which the EFP is requested.
    (3) Issuance. (i) The Regional Director or Director, as 
appropriate, will review each application and will make a preliminary 
determination whether the application contains all of the required 
information and constitutes an activity appropriate for further 
consideration. If the Regional Director or Director finds that any 
application does not warrant further consideration, both the applicant 
and the affected Council(s) will be notified in writing of the reasons 
for the decision. If the Regional Director or Director determines that 
any application warrants further consideration, notification of receipt 
of the application will be published in the Federal Register with a 
brief description of the proposal, and the intent of NMFS to issue an 
EFP. Interested persons will be

[[Page 10718]]
given a 15- to 45-day opportunity to comment. The notification may 
establish a cut-off date for receipt of additional applications to 
participate in the same, or a similar, exempted fishing activity. The 
Regional Director or Director also will forward copies of the 
application to the Council(s), the 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 total allowable catch;
    (B) A citation of the regulation or regulations that, without the 
EFP, would prohibit the proposed activity; and
    (C) Biological information relevant to the proposal, including 
appropriate statements of environmental impacts, including impacts on 
marine mammals and threatened or endangered species.
    (ii) If the application is complete and warrants additional 
consultation, the Regional Director or Director may consult with the 
appropriate Council(s) concerning the permit application during the 
period in which comments have been requested. The Council(s) or the 
Director or Regional Director shall notify the applicant in advance of 
any meeting at which the application will be considered, and offer the 
applicant the opportunity to appear in support of the application.
    (iii) As soon as practicable after receiving responses from the 
agencies identified above, and/or after the consultation, if any, 
described in paragraph (b)(3)(ii) of this section, the Regional 
Director or Director shall notify the applicant in writing of the 
decision to grant or deny the EFP, and, if denied, the reasons for the 
denial. Grounds for denial of an EFP include, but are not limited to, 
the following:
    (A) The applicant has failed to disclose material information 
required, or has made false statements as to any material fact, in 
connection with his or her application; or
    (B) According to the best scientific information available, the 
harvest to be conducted under the permit would detrimentally affect the 
well-being of the stock of any regulated species of fish, marine 
mammal, or threatened or endangered species in a significant way; or
    (C) Issuance of the EFP would have economic allocation as its sole 
purpose; or
    (D) Activities to be conducted under the EFP would be inconsistent 
with the intent of this section, the management objectives of the FMP, 
or other applicable law; or
    (E) The applicant has failed to demonstrate a valid justification 
for the permit; or
    (F) The activity proposed under the EFP could create a significant 
enforcement problem.
    (iv) The decision of a Regional Director or Director to grant or 
deny an EFP is the final action of NMFS. If the permit, as granted, is 
significantly different from the original application, or is denied, 
NMFS may publish notification in the Federal Register describing the 
exempted fishing to be conducted under the EFP or the reasons for 
denial.
    (v) Terms and conditions of EFPs. The Regional Director or Director 
may attach terms and conditions to the EFP consistent with the purpose 
of the exempted fishing, including, but not limited to:
    (A) The maximum amount of each regulated species that can be 
harvested and landed during the term of the EFP, including trip 
limitations, where appropriate;
    (B) The number, size(s), name(s), and identification number(s) of 
the vessel(s) authorized to conduct fishing activities under the EFP;
    (C) The time(s) and place(s) where exempted fishing may be 
conducted;
    (D) The type, size, and amount of gear that may be used by each 
vessel operated under the EFP;
    (E) The condition that observers, a vessel monitoring system, or 
other electronic equipment be carried on board vessels operated under 
an EFP, and any necessary conditions, such as predeployment 
notification requirements;
    (F) Reasonable data reporting requirements;
    (G) Other conditions as may be necessary to assure compliance with 
the purposes of the EFP, consistent with the objectives of the FMP and 
other applicable law; and
    (H) Provisions for public release of data obtained under the EFP 
that are consistent with NOAA confidentiality of statistics procedures 
as set out at part 603 of this chapter. An applicant may be required to 
waive the right to confidentiality of information gathered while 
conducting exempted fishing as a condition of an EFP.
    (4) Duration. Unless otherwise specified in the EFP or a 
superseding notice or regulation, an EFP is effective for no longer 
than 1 year, unless revoked, suspended, or modified. EFPs may be 
renewed following the application procedures in this section.
    (5) Alteration. Any permit that has been altered, erased, or 
mutilated is invalid.
    (6) Transfer. EFPs issued under this section are not transferable 
or assignable. An EFP is valid only for the vessel(s) for which it is 
issued.
    (7) Inspection. Any EFP issued under this section must be carried 
on board the vessel(s) for which it was issued. The EFP must be 
presented for inspection upon request of any authorized officer.
    (8) Sanctions. Failure of a permittee to comply with the terms and 
conditions of an EFP may be grounds for revocation, suspension, or 
modification of the EFP with respect to all persons and vessels 
conducting activities under the EFP. Any action taken to revoke, 
suspend, or modify an EFP for enforcement purposes will be governed by 
15 CFR part 904, subpart D.
    (c) Reports. (1) Persons conducting scientific research activity 
are requested to submit a copy of any cruise report or other 
publication created as a result of the cruise, including the amount, 
composition, and disposition of their catch, to the appropriate Center 
Director.
    (2) Persons fishing under an EFP are required to report their 
catches to the appropriate Regional Director or Director, as specified 
in the EFP.
    (d) Exempted educational activities--(1) General. A NMFS Regional 
Director or Director may authorize, for educational purposes, the 
target or incidental harvest of species managed under an FMP or fishery 
regulations that would otherwise be prohibited. The decision of a 
Regional Director or Director to grant or deny an exempted educational 
activity authorization is the final action of NMFS. Exempted 
educational activities may not be conducted unless authorized in 
writing by a Regional Director or Director in accordance with the 
criteria and procedures specified in this section. Such authorization 
will be issued without charge.
    (2) Application. An applicant for an exempted educational activity 
authorization shall submit to the appropriate Regional Director or 
Director, at least 15 days before the desired effective date of the 
authorization, a written application that includes, but is not limited 
to, the following information:
    (i) The date of the application;
    (ii) The applicant's name, mailing address, and telephone number;
    (iii) A brief statement of the purposes and goals of the exempted 
educational activity for which authorization is requested, including a 
general description of the arrangements for disposition of all species 
collected;

[[Page 10719]]

    (iv) Evidence that the sponsoring institution is a valid 
educational institution, such as accreditation by a recognized national 
or international accreditation body;
    (v) The scope and duration of the activity;
    (vi) For each vessel to be covered by the authorization:
    (A) A copy of the U.S. Coast Guard documentation, state license, or 
registration of the vessel, or the information contained on the 
appropriate document;
    (B) The current name, address, and telephone number of the owner 
and master, if not included on the document provided for the vessel;
    (vii) The species and amounts expected to be caught during the 
exempted educational activity;
    (viii) For each vessel covered by the authorization, the 
approximate time(s) and place(s) fishing will take place, and the type, 
size, and amount of gear to be used; and
    (ix) The signature of the applicant.
    (x) The Regional Director or Director may request from an applicant 
additional information necessary to make the determinations required 
under this section. An incomplete application will not be considered 
until corrected in writing.
    (3) Issuance. (i) The Regional Director or Director, as 
appropriate, will review each application and will make a determination 
whether the application contains all of the required information, is 
consistent with the goals, objectives, and requirements of the FMP or 
regulations and other applicable law, and constitutes a valid exempted 
educational activity. The applicant will be notified in writing of the 
decision within 5 working days of receipt of the application.
    (ii) The Regional Director or Director may attach terms and 
conditions to the authorization, consistent with the purpose of the 
exempted educational activity, including, but not limited to:
    (A) The maximum amount of each regulated species that may be 
harvested;
    (B) The time(s) and place(s) where the exempted educational 
activity may be conducted;
    (C) The type, size, and amount of gear that may be used by each 
vessel operated under the authorization;
    (D) Reasonable data reporting requirements;
    (E) Such other conditions as may be necessary to assure compliance 
with the purposes of the authorization, consistent with the objectives 
of the FMP or regulations; and
    (F) Provisions for public release of data obtained under the 
authorization, consistent with NOAA confidentiality of statistics 
procedures at part 603 of this chapter. An applicant may be required to 
waive the right to confidentiality of information gathered while 
conducting experimental fishing as a condition of an EFP.
    (iii) The authorization will specify the scope of the authorized 
activity and will include, at a minimum, the duration, vessel(s), 
species and gear involved in the activity, as well as any additional 
terms and conditions specified under paragraph (d)(3)(ii) of this 
section.
    (4) Duration. Unless otherwise specified, authorization for an 
exempted educational activity is effective for no longer than 1 year, 
unless revoked, suspended, or modified. Authorizations may be renewed 
following the application procedures in this section.
    (5) Alteration. Any authorization that has been altered, erased, or 
mutilated is invalid.
    (6) Transfer. Authorizations issued under this paragraph (d) are 
not transferable or assignable.
    (7) Inspection. Any authorization issued under this paragraph (d) 
must be carried on board the vessel(s) for which it was issued or be in 
possession of the applicant to which it was issued while the exempted 
educational activity is being conducted. The authorization must be 
presented for inspection upon request of any authorized officer. 
Activities that meet the definition of fishing, despite an educational 
purpose, are fishing. An authorization may allow covered fishing 
activities; however, fishing activities conducted outside the scope of 
an authorization for exempted educational activities are illegal.

[FR Doc. 96-6193 Filed 3-14-96; 8:45 am]
BILLING CODE 3510-22-W