Foreign and Domestic Fishing; Scientific Research Activity and Exempted Fishing

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Parts 611 and 620

[Docket No. 960222043-6131-02; 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: Final rule.

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SUMMARY: NMFS issues 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.

EFFECTIVE DATE: June 27, 1996.

ADDRESSES: 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, Director, Office of Fisheries

Conservation and Management, NMFS, 1315 East-West Highway, Silver

Spring, MD 20910, 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 at 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 (Secretary ) to conserve and manage fishery

resources in the exclusive economic zone (EEZ) by regulating

``fishing.'' 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.'' However,

the Magnuson Act does not 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.

In this rule, NMFS defines ``scientific research activity,''

``scientific research vessel,'' and related terms.

``Exempted fishing,'' an activity that has been regulated under

fishery management plans (FMPs) prepared by Regional Fishery Management

Councils (Councils) or the Secretary, is defined in this rule for

domestic vessels only. NMFS anticipates that individual FMPs that

currently authorize ``experimental fishing'' will 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 rules. In the absence of specific

regulations for each fishery, these procedures will be followed.

Authority to allow exempted fishing in any regulated fishery would be

established through the governing FMP and/or its implementing

regulations.

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. In the absence of specific

regulations for each fishery, these procedures will be followed.

NMFS published a proposed rule at 61 FR 10712, March 15, 1996,

requesting comments by April 15, 1996. No comments from the general

public or other agencies were received. The following addresses

internal comments generated during review.

Throughout the rule, the term ``Center Director'' is replaced by

the term ``Science and Research Director'' to reflect accurately the

title of the Directors of NMFS's Fishery Science Centers.

Under the definition of the term ``scientific research plan'' for

both the foreign and domestic regulations, paragraph (5) has been

revised to include expected quantities of fish to be taken instead of

an absolute amount, retaining some flexibility for researchers.

In Sec. 620.10(b)(1), the authority of the Regional Director to

issue EFPs is expanded to include reasons of health and safety,

environmental cleanup, and hazard removal. This provision allows an

exemption for fishing gear to be used in oil rig removal cleanup, oil

spill cleanup, or other contingencies not directly related to fishing.

In Sec. 620.10(b)(3)(i), the requirement for a comment period on

EFPs is modified to allow comment to be taken at a Council meeting

instead of, or in conjunction with, a more formal comment period. This

allows some Councils to continue their current practice, which has

proven sufficient for public comment and is more efficient in providing

timely response to the applicants.

In Sec. 620.10(d)(3)(ii)(F), the paragraph is corrected to

reference exempted educational activity instead of EFP.

Under NOAA Administrative Order 205-11, 7.01, dated December 17,

1990, the Under Secretary for Oceans and Atmosphere has delegated, to

the Assistant Administrator for Fisheries, NOAA, the authority to sign

material for publication in the Federal Register.

Classification

This final rule has been determined to be not significant for

purposes of E.O. 12866.

[[Page 26436]]

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that this rule would not have a

significant economic impact on a substantial number of small entities.

The reasons were published at 61 FR 10712, March 15, 1996. As a result,

a regulatory flexibility analysis was not prepared.

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 Paperwork Reduction Act (PRA), unless that

collection of information displays a currently valid Office of

Management and Budget (OMB) Control Number.

This rule contains a collection-of-information requirement subject

to the PRA. The collection of this information has been approved by the

OMB, OMB Control Number 0648-0309. 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).

List of Subjects

15 CFR Part 902

Reporting and recordkeeping requirements.

50 CFR Part 611

Fisheries, Foreign relations, Reporting and recordkeeping

requirements.

50 CFR Part 620

Fisheries, Fishing.

Dated: May 20, 1996.

Gary Matlock,

Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 15 CFR chapter IX and 50

CFR chapter VI are amended as follows:

15 CFR CHAPTER IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE

PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

1. The authority citation for part 902 continues to read as

follows:

Authority: 44 U.S.C. 3501 et seq.

2. In Sec. 902.1, paragraph (b) the table is amended by adding, in

numerical order, the following entries to read as follows:

Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork

Reduction Act.

* * * * *

(b) * * *

------------------------------------------------------------------------

Current OMB control number

CFR part or section where the information (all numbers begin with 0648-

collection requirement is located )

------------------------------------------------------------------------

* * * * *

50 CFR....................................

* * * * *

611.14.................................... -0309

* * * * *

620.10.................................... -0309

* * * * *

------------------------------------------------------------------------

50 CFR CHAPTER VI

PART 611--FOREIGN FISHING

3. 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.

4. In Sec. 611.2, the definition for ``Center Director'' is removed

and definitions for ``Director'', ``Science and Research 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.

* * * * *

Director means the Director of the Office of Fisheries Conservation

and Management, 1315 East-West Highway, Silver Spring, MD 20910.

* * * * *

Science and Research 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.

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 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

finfish and shellfish (invertebrate) 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 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.

[[Page 26437]]

(5) The expected quantity and species of fish to be taken and their

intended disposition, and, if significant amounts of a managed species

or species otherwise restricted by size or sex are needed, an

explanation of such need.

(6) The name, address, and telephone/telex/fax number of the

sponsoring organization and its director.

(7) The name, address, and telephone/telex/fax number, and

curriculum vitae of the person in charge of the project and, where

different, the person in charge of the research project on board the

vessel.

(8) The identity of any vessel(s) to be used including, but not

limited to, the vessel's name, official documentation number and IRCS,

home port, and name, address, and telephone number of the owner and

master.

Scientific research vessel means a vessel owned or chartered by,

and controlled by, a foreign government agency, U.S. Government agency

(including NOAA or institutions designated as federally funded research

and development centers), U.S. state or territorial agency, university

(or other educational institution accredited by a recognized national

or international accreditation body), international treaty

organization, or scientific institution. In order for a 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.

* * * * *

5. 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;

* * * * *

6. 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 Science and Research

Director.

7. 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

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NMFS Fisheries

NMFS regional directors Science Center U.S. Coast Guard

directors commanders

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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.

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 hours:

98115-0070; Telex: 907-586-7350.

329422; Telephone:

206-526-4000; FAX:

206-526-4004.

[[Page 26438]]

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.

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PART 620--GENERAL PROVISIONS FOR DOMESTIC FISHERIES

8. The authority citation for part 620 continues to read as

follows:

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

9. In Sec. 620.2, definitions for ``Director'', ``Exempted

educational activity'', ``Exempted or experimental fishing'',

``Regional Director'', ``Science and Research 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.

* * * * *

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.

* * * * *

Science and Research Director means the Director of one of the five

NMFS Fisheries Science Centers.

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 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

finfish and shellfish (invertebrate) 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 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 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 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, 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 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.

* * * * *

10. 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

[[Page 26439]]

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.

11. 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, exploratory, health and safety, 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 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.

(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.

(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 given a 15- to 45-day opportunity to

comment and/or comments will be requested during public testimony at a

Council meeting. 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.

(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)

[[Page 26440]]

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 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 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) 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.

(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 Science

and Research 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.

(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.

(ix) The signature of the applicant.

[[Page 26441]]

(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.

(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 exempted educational activity 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),

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. 96-13288 Filed 5-24-96; 8:45 am]

BILLING CODE 3510-22-P