# Magnuson Act Provisions; Consolidation and Update of Regulations; Collection-of-Information Approval

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A96-15767

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** June 24, 1996
- **Citation:** 61 FR 32538

## Text

SUMMARY: NMFS consolidates nine CFR parts into one part that contains
general provisions under the Magnuson Fishery Conservation and
Management Act (Magnuson Act) as they apply to the operation of
Regional Fishery Management Councils (Councils) and the management of
foreign and domestic fishing in the U.S. Exclusive Economic Zone (EEZ).
The consolidated text is reorganized into a more logical and cohesive
order, duplicative and outdated provisions are eliminated, and
editorial changes are made for readability, clarity, and uniformity. In
addition, the final rule makes several revisions to the regulations
applying to the operation of the Councils to codify recent
administrative and policy changes. The purpose of this final rule is to
make the regulations more concise, better organized and, therefore,
easier for the public to use, and to update the regulations to reflect
current policies and procedures. This rule also adds a reference to
approved collection-of-information requirements under the Paperwork
Reduction Act (PRA) and amends references to previously approved
collections of information. This final action is part of the
President's Regulatory Reinvention Initiative.

EFFECTIVE DATE: July 1, 1996.

FOR FURTHER INFORMATION CONTACT: Tom Meyer, 301-713-2339.

SUPPLEMENTARY INFORMATION: Pursuant to the Regulatory Reinvention
Initiative of the President, this final rule removes eight 50 CFR parts
(parts 601 (Regional Fishery Management Councils), 602 (Guidelines for
Fishery Management Plans), 603 (Confidentiality of Statistics), 605
(Guidelines for Council Operations/Administration), 611 (Foreign
Fishing), 619 (Preemption of State Authority under Section 306(b)), 620
(General Provisions for Domestic Fisheries), and 621 (Civil
Procedures)), and consolidates the regulations contained therein,
except for part 605, with the existing regulations in part 600. The
final rule removes most of part 605 (Guidelines for Council Operations/
Administration), and the material contained in that part has been
placed in a Council Operations and Administration Handbook. These
consolidated regulations provide the public with a single reference
source for the general regulations under the Magnuson Act as they apply
to the operation of Councils and the management of foreign and domestic
fishing in the EEZ, which results in one set of regulations that are
more concise, clearer, and easier to use than the existing regulations.
Additional background for this rule was contained in the preamble
to the proposed rule (61 FR 19390, May 1, 1996).

Comments and Responses

The New England, Mid-Atlantic, Pacific and North Pacific Fishery
Management Councils submitted comments on the proposed rule. These
comments are summarized below with responses to them.
1. Comment: The four Councils objected to the proposed rule that
would require state-designated members on Councils to be full-time
employees of the state agency responsible for marine fishery
management. One wondered whether current members who are not full-time
state employees would have to resign.
Response: No change was made. Section 302(b)(1)(A) of the Magnuson
Act states that voting members include the ``principal State official
with marine fishery management responsibility and expertise in each
constituent State, who is designated as such by the Governor of the
State, so long as the official continues to hold such position.'' We
believe the better interpretation of this language is that the official
must be a state employee with present responsibility within the state
for management of marine fisheries, rather than a retired employee or
someone with only a tenuous relationship with the state government. The
rationale for Section 302(b)(1)(A) is that the principal state official
is expected to represent and espouse the positions of the governor and
the state fishery agency. The Councils cannot function as a state/
federal/public partnership if the principal state official cannot be
counted on to speak officially on behalf of the state.
Section 600.205(a) requires new or revised designations to comply
with this requirement, so no current member would have to resign.
2. Comment: The four Councils criticized the proposed rule that
would require the principal state official's designee to be a
subordinate of the principal state official.
Response: Section 600.205(b) is revised to eliminate the reference
to a subordinate.
3. Comment: The New England and North Pacific Councils disagreed
with the proposed rule that as little as 1 day served in a term counts
toward a full term, in calculating the 3-consecutive-term limit for
Council members. The New England Council proposed that service of less
than 18 months should not count toward a full term. The North Pacific
Council pointed out that the pending Senate bill (S. 39) to amend the
Magnuson Act would insert ``full'' before ``consecutive'' in the second
sentence of section 302(b)(3). This would then conflict with the
restrictions envisioned in Sec. 600.210.
Response: The current language of the Magnuson Act does not define
``term.'' Questions have arisen whether someone who served 2 years and
11 months of a 3-year term should have that term count against the 3-
term limit. NMFS proposed that any length of service within a term
should count, but acknowledges that the New England Council's proposal
is a good compromise. Section 600.210(a) has been revised to count
service of 18 months or more during a term as service for the entire
term.
If the Magnuson Act is amended otherwise, NMFS will make the
appropriate change in the regulation.
4. Comment: The Mid-Atlantic Council wanted Appendix A to Subpart
B--Explanatory Materials (currently in 50 CFR part 602) to be restored
in the final rule.
Response: Appendix A was eliminated; however, the guidance provided
in that Appendix remains relevant. Those wishing to review the guidance
may read it as previously published in the Federal Register (54 FR
30833, July 24, 1989).
5. Comment: The Mid-Atlantic Council thought the last sentence of
current Sec. 601.39(b), which allows state officials to be compensated
if they can document that they were on leave without pay, should be
included in the final rule.
Response: It will not be included. We believe state officials
designated by the governor should be paid by the state,

[[Page 32539]]

not by the Councils. The example cited by the Mid-Atlantic Council,
payment to a Council member appointed by the Secretary but employed by
a state educational institute, could receive pay under Sec. 600.245(a)
if he or she did not receive compensation from the state for the period
of Council service.
6. Comment: The New England Council questioned the procedure for
filling at-large vacancies. The Magnuson Act requires that each
constituent state governor submit a list of at least three qualified
candidates for each vacancy. In the case when more than one at-large
vacancy is available, the New England Council would like the names of
all qualified candidates submitted by the governors for all of the
positions to be placed in a ``pool.'' The Secretary would then be free
to select appointees from this pool who are felt to represent a
balanced and fair representation of the varying interests within the
region.
Response: The procedure suggested by the New England Council for
filling at-large vacancies is consistent with current procedures. As
stated by the Council, this procedure results in a broader pool of
qualified at-large candidates from which the Secretary may choose.
Section 600.215(g)(3) has been revised to clarify the current
procedures.
7. Comment: The New England Council objected to the requirement
that, after a member has completed three consecutive terms, he/she will
not be eligible for appointment to another term on any Council until 1
year has elapsed since the last day of that member's service. Since
nominations must be made in March, this requirement effectively means
that a qualified member leaving a Council in August of 1996 could not
be considered for another appointment until March of 1998, for a term
beginning in August of 1998, which is 2 years of elapsed time. The New
England Council believes a former member should be able to be
renominated in March of the year following his/her leaving a seat, for
appointment the following August, where 1 full year would have elapsed
since last service.
Response: Section 600.210(c) was intended to require a lapse of 1
year between completion of a third consecutive term and the beginning
of a new term. It has been rewritten to clarify that intention.

Changes From the Proposed Rule

(1) Revised Sec. 600.205(b) to eliminate the reference to
subordinate.
(2) Revised Sec. 600.10 definition of ``authorized officer'' to
include ``any other statute administered by NOAA.''
(3) Added definitions to Sec. 600.10 for ``codend,'' ``drift
gillnet,'' ``gillnet,'' ``handgear,'' ``harpoon or harpoon gear,''
``metric ton (mt),'' ``nm,'' ``total length (TL),'' and ``trawl,''
which will apply to these terms throughout Chapter VI.
(4) Revised Sec. 600.10 definition of ``retain, retain aboard, or
retain on board,'' by deleting ``retain'' and ``retain aboard.''
``Retain'' is too general and is used in many contexts throughout the
regulation, while ``retain aboard'' is inconsistent with our usage of
the terms.
(5) Revised Sec. 600.10 definition of ``round weight'' to include
``before processing or removal of any part.''
(6) Revised Sec. 600.10 definition of ``state'' by adding ``the
Northern Mariana Islands.''
(7) Removed definition for ``state employee'' from Sec. 600.10
because the deletion of reference to ``subordinate'' in Sec. 600.205(b)
eliminates the need to retain definition.
(8) Revised sections discussed in the scientific research activity
and exempted fishing final rule (61 FR 26435, May 28, 1996).
(9) Revised Sec. 600.210(a) to count service of 18 months or more
during a term as service for the entire term.
(10) Revised Sec. 600.210(c) to clarify the current procedures for
reappointment after a Council member has served three consecutive
terms.
(11) Revised Sec. 600.215(g)(3) to clarify the current procedures
for filling an at-large vacancy.
(12) Deleted Secs. 600.507 (f) and (g) and combined text with
Secs. 600.507 (h) and (i).
(13) Added ``or any other statute administered by NOAA'' to
Secs. 600.725 (a), (d), (f), (g), (j), and (k) after Magnuson Act.
(14) Added a general prohibition to Sec. 600.725(p) to prohibit the
violation of any other provision of this part, the Magnuson Act, or any
other statute administered by NOAA.
(15) Section 3506(c)(B)(i) of the PRA requires that agencies
inventory and display a current control assigned by the Director,
Office of Management and Budget (OMB), for each agency information
collection. Section 902.1(b) identifies the location of NOAA
regulations for which OMB approval numbers have been issued. This final
rule adds OMB approval numbers for approved collections-of-information
to the table in Sec. 902.1(b) and amends references to previously
approved collections of information.
Under NOAA Organization Handbook, Transmittal #34, dated May 31,
1993, 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.
Because this rule makes only nonsubstantive changes to existing
regulations originally issued after prior notice and an opportunity for
public comment, the Assistant Administrator for Fisheries, NOAA, under
5 U.S.C. 553(b)(B), for good cause finds that providing such procedures
for this rulemaking is unnecessary. Because this rule is not
substantive, it is not subject to a 30-day delay in effective date
under 5 U.S.C. 553(d).
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 final rule would not have a
significant economic impact on a substantial number of small entities.
The reasons were published in the proposed rule (61 FR 19390, May 1,
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 PRA, unless that collection of information displays
a currently valid OMB Control Number.
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA).

Approved Collection-of-Information Requirements

The following collection-of-information requirements have already
been approved by OMB for foreign fishing activities:
(a) Approved under 0648-0089--Foreign fishing permits, estimated at
2 hours per response.
(b) Approved under 0648-0075--Vessel reports (1) activity reports
estimated at 0.1 hours per response, (2) weekly reports estimated at
0.5 hour per response, and (3) marine mammal report estimated at 0.2
hour per response; Observers (1) effort plan estimated at 0.5 hour per
response, and (2) notification requirement to observers estimated at
0.2 hour per response; Recordkeeping (1) communications logs estimated
at 0.1 hour per response, (2) transfer logs estimated at 0.2 hour per
response, (3) daily fishing logs estimated at 0.4 hour per response,
(4) daily consolidated fishing log estimated at 0.5 hour per

[[Page 32540]]

response, and (5) joint venture logs estimated at 0.5 hour per
response; and gear avoidance and disposal (1) gear conflicts estimated
at 0.2 hour per response, and (2) disposal estimated at 0.2 hour per
response.
(c) Approved under 0648-0306--Vessel identification requirements
estimated at 35 minutes per response.
(d) Approved under 0648-0305--Gear identification requirements
estimated at 30 minutes per response.

Collection-of-Information Requirements Submitted for Approval

(e) Approved under 0648-0309--Scientific research activity and
exempted fishing (1) 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) 1 hour per response to complete an
application for an exempted fishing permit or authorization for an
exempted educational activity, and (3) 1 hour per response to collect
information and provide a report at the conclusion of exempted fishing.
The following collection-of-information requirements have been
approved by OMB:
(a) Principal state officials and their designees--Estimated at 15
hours per response (OMB control number 0648-0314).
(b) Council appointments--Estimated at 120 hours per appointment
(30 appointments required)(OMB control number 0648-0314).
(c) Application for reinstatement of State authority-- Estimated at
2 hours per response (OMB control number 0648-0314).
The estimated response times shown include the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.

List of Subjects

15 CFR Part 902

Reporting and recordkeeping requirements.

50 CFR Parts 600, 602, and 620

Fisheries, Fishing.

50 CFR Part 601

Administrative practice and procedure, Fisheries, Fishing.

50 CFR Part 603

Confidential business information, Fisheries, Statistics.

50 CFR Part 605

Administrative practice and procedure, Fisheries, Fishing,
Reporting and recordkeeping requirements.

50 CFR Part 611

Fisheries, Foreign relations, Reporting and recordkeeping
requirements.

50 CFR Part 619

Administrative practice and procedure, Fisheries, Fishing,
Intergovernmental relations.

50 CFR Part 621

Fisheries, Fishing, Fishing vessels, Penalties.

Dated: June 14, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 15 CFR chapter IX and,
under the authority of 16 U.S.C., 1801 et seq., 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 removing
in the left column under 50 CFR, the entries ``601.37'', ``611.3'',
``611.4'', ``611.5'', ``611.6'', ``611.8'', ``611.9'', ``611.12'',
``611.14'', ``611.50'', ``611.61'', ``611.70'', ``611.80'', ``611.81'',
``611.82'', ``611.90'', ``611.92'', ``611.93'', ``611.94'', and
``620.10'', and by removing in the right column the control numbers in
corresponding positions; and 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

* * * * *
600.205................................. -0314
600.215................................. -0314
600.235................................. -0192
600.501................................. -0089
600.502................................. -0075
600.503................................. -0305 and -0306
600.504................................. -0075
600.506................................. -0075
600.507................................. -0075
600.510................................. -0075
600.512................................. -0309
600.520................................. -0075
600.630................................. -0314
------------------------------------------------------------------------

* * * * *

50 CFR CHAPTER VI

3. Part 600 is revised to read as follows:

PART 600--MAGNUSON ACT PROVISIONS

Subpart A--General

Sec.
600.5 Purpose and scope.
600.10 Definitions.
600.15 Other acronyms.
Subpart B--Regional Fishery Management Councils
600.105 Intercouncil boundaries.
600.110 Intercouncil fisheries.
600.115 Statement of organization, practices, and procedures
(SOPP).
600.120 Employment practices.
600.125 Budgeting, funding, and accounting.
600.130 Protection of confidentiality of statistics.

Subpart C--Council Membership

600.205 Principal state officials and their designees.
600.210 Terms of council members.
600.215 Appointments.
600.220 Oath of office.
600.225 Rules of conduct.
600.230 Removal.
600.235 Financial disclosure.
600.240 Security assurances.
600.245 Council member compensation.

Subpart D--National Standards

600.305 General.
600.310 National Standard 1--Optimum Yield.
600.315 National Standard 2--Scientific Information.
600.320 National Standard 3--Management Units.
600.325 National Standard 4--Allocations.
600.330 National Standard 5--Efficiency.
600.335 National Standard 6--Variations and Contingencies.
600.340 National Standard 7--Costs and Benefits.

Subpart E--Confidentiality of Statistics

600.405 Types of statistics covered.
600.410 Collection and maintenance of statistics.
600.415 Access to statistics.
600.420 Control system.
600.425 Release of statistics.

[[Page 32541]]

Subpart F--Foreign Fishing

600.501 Vessel permits.
600.502 Vessel reports.
600.503 Vessel and gear identification.
600.504 Facilitation of enforcement.
600.505 Prohibitions.
600.506 Observers.
600.507 Recordkeeping.
600.508 Fishing operations.
600.509 Prohibited species.
600.510 Gear avoidance and disposal.
600.511 Fishery closure procedures.
600.512 Scientific research.
600.513 Recreational fishing.
600.514 Relation to other laws.
600.515 Interpretation of 16 U.S.C. 1857(4).
600.516 Total allowable level of foreign fishing (TALFF).
600.517 Allocations.
600.518 Fee schedule for foreign fishing.
600.520 Northwest Atlantic Ocean fishery.
600.525 Atlantic herring fishery.
Subpart G--Preemption of State Authority Under Section 306(b)
600.605 General policy.
600.610 Factual findings for Federal preemption.
600.615 Commencement of proceedings.
600.620 Rules pertaining to the hearing.
600.625 Secretary's decision.
600.630 Application for reinstatement of state authority.

Subpart H--General Provisions for Domestic Fisheries

600.705 Relation to other laws.
600.710 Permits.
600.715 Recordkeeping and reporting.
600.720 Vessel and gear identification.
600.725 General prohibitions.
600.730 Facilitation of enforcement.
600.735 Penalties.
600.740 Enforcement policy.
600.745 Scientific research activity, exempted fishing, and
exempted educational activity.

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

Subpart A--General

600.5 Purpose and scope.

(a) This part contains general provisions governing the operation
of the eight Regional Fishery Management Councils established by the
Magnuson Act and describes the Secretary's role and responsibilities
under the Act. The Councils are institutions created by Federal law and
must conform to the uniform standards established by the Secretary in
this part.
(b) This part also governs all foreign fishing under the Magnuson
Act, prescribes procedures for the conduct of preemption hearings under
section 306(b) of the Magnuson Act, and collects the general provisions
common to all domestic fisheries governed by this chapter.

Sec. 600.10 Definitions.

Unless defined otherwise in other parts of Chapter VI, the terms in
this chapter have the following meanings:
Administrator means the Administrator of NOAA (Under Secretary of
Commerce for Oceans and Atmosphere) or a designee.
Advisory group means a Scientific and Statistical Committee (SSC),
Fishing Industry Advisory Committee (FIAC), or Advisory Panel (AP)
established by a Council under the Magnuson Act.
Agent, for the purpose of foreign fishing (subpart F), means a
person appointed and maintained within the United States who is
authorized to receive and respond to any legal process issued in the
United States to an owner and/or operator of a vessel operating under a
permit and of any other vessel of that Nation fishing subject to the
jurisdiction of the United States. Any diplomatic official accepting
such an appointment as designated agent waives diplomatic or other
immunity in connection with such process.
Aggregate or summary form means confidential data structured in
such a way that the identity of the submitter cannot be determined
either from the present release of the data or in combination with
other releases.
Allocated species means any species or species group allocated to a
foreign nation under Sec. 600.517 for catching by vessels of that
Nation.
Allocation means direct and deliberate distribution of the
opportunity to participate in a fishery among identifiable, discrete
user groups or individuals.
Anadromous species means species of fish that spawn in fresh or
estuarine waters of the United States and that migrate to ocean waters.
Assistant Administrator means the Assistant Administrator for
Fisheries, NOAA, or a designee.
Authorized officer means:
(1) Any commissioned, warrant, or petty officer of the USCG;
(2) Any special agent or fishery enforcement officer of NMFS;
(3) Any officer designated by the head of any Federal or state
agency that has entered into an agreement with the Secretary and the
Commandant of the USCG to enforce the provisions of the Magnuson Act or
any other statute administered by NOAA; or
(4) Any USCG personnel accompanying and acting under the direction
of any person described in paragraph (1) of this definition.
Authorized species means any species or species group that a
foreign vessel is authorized to retain in a joint venture by a permit
issued under Activity Code 4 as described by Sec. 600.501(c).
Catch, take, or harvest includes, but is not limited to, any
activity that results in killing any fish or bringing any live fish on
board a vessel.
Center means one of the five NMFS Fisheries Science Centers.
Coast Guard Commander means one of the commanding officers of the
Coast Guard units specified in Table 1 of Sec. 600.502, or a designee.
Codend means the terminal, closed end of a trawl net.
Confidential statistics are those submitted as a requirement of an
FMP and that reveal the business or identity of the submitter.
Continental shelf fishery resources means the species listed under
section 3(4) of the Magnuson Act.
Council means one of the eight Regional Fishery Management Councils
established by the Magnuson Act.
Data, statistics, and information are used interchangeably. Dealer
means the person who first receives fish by way of purchase, barter, or
trade.
Designated representative means the person appointed by a foreign
nation and maintained within the United States who is responsible for
transmitting information to and submitting reports from vessels of that
Nation and establishing observer transfer arrangements for vessels in
both directed and joint venture activities.
Directed fishing, for the purpose of foreign fishing (subpart F),
means any fishing by the vessels of a foreign nation for allocations of
fish granted that Nation under Sec. 600.517.
Director means the Director of the Office of Fisheries Conservation
and Management, 1315 East-West Highway, Silver Spring, MD 20910.
Discard means to release or return fish to the sea, whether or not
such fish are brought fully on board a fishing vessel.
Drift gillnet means a gillnet that is unattached to the ocean
bottom, whether or not attached to a vessel.
Exclusive economic zone (EEZ) means the zone established by
Presidential Proclamation 5030, 3 CFR part 22, dated March 10, 1983,
and is that area adjacent to the United States which, except where
modified to accommodate international boundaries, encompasses all
waters from the seaward boundary of each of the coastal states to a
line on which each point is 200 nautical miles (370.40 km) from the
baseline from which the territorial sea of the United States is
measured.
Exempted educational activity means an activity, conducted by an
educational institution accredited by a recognized national or
international accreditation

[[Page 32542]]

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 part 285 of this title and elsewhere in this
chapter to experimental fishing mean exempted fishing under this part.
Fish means:
(1) When used as a noun, means any finfish, mollusk, crustacean, or
parts thereof, and all other forms of marine animal and plant life
other than marine mammals and birds.
(2) When used as a verb, means to engage in ``fishing,'' as defined
below.
Fishery means:
(1) One or more stocks of fish that can be treated as a unit for
purposes of conservation and management and that are identified on the
basis of geographic, scientific, technical, recreational, or economic
characteristics, or method of catch; or
(2) Any fishing for such stocks.
Fishery management unit (FMU) means a fishery or that portion of a
fishery identified in an FMP relevant to the FMP's management
objectives. The choice of an FMU depends on the focus of the FMP's
objectives, and may be organized around biological, geographic,
economic, technical, social, or ecological perspectives.
Fishery resource means any fish, any stock of fish, any species of
fish, and any habitat of fish.
Fishing, or to fish means any activity, other than scientific
research conducted by a scientific research vessel, that involves:
(1) The catching, taking, or harvesting of fish;
(2) The attempted catching, taking, or harvesting of fish;
(3) Any other activity that can reasonably be expected to result in
the catching, taking, or harvesting of fish; or
(4) Any operations at sea in support of, or in preparation for, any
activity described in paragraphs (1), (2), or (3) of this definition.
Fishing vessel means any vessel, boat, ship, or other craft that is
used for, equipped to be used for, or of a type that is normally used
for:
(1) Fishing; or
(2) Aiding or assisting one or more vessels at sea in the
performance of any activity relating to fishing, including, but not
limited to, preparation, supply, storage, refrigeration,
transportation, or processing.
Foreign fishing means fishing by a foreign fishing vessel.
Foreign fishing vessel (FFV) means any fishing vessel other than a
vessel of the United States, except those foreign vessels engaged in
recreational fishing, as defined in this section.
Gear conflict means any incident at sea involving one or more
fishing vessels:
(1) In which one fishing vessel or its gear comes into contact with
another vessel or the gear of another vessel; and
(2) That results in the loss of, or damage to, a fishing vessel,
fishing gear, or catch.
Gillnet means a panel of netting, suspended vertically in the water
by floats along the top and weights along the bottom, to entangle fish
that attempt to pass through it.
Governing International Fishery Agreement (GIFA) means an agreement
between the United States and a foreign nation or Nations under section
201(c) of the Magnuson Act.
Grants Officer means the NOAA official authorized to sign, on
behalf of the Government, the cooperative agreement providing funds to
support the Council's operations and functions.
Greenwich mean time (GMT) means the local mean time at Greenwich,
England. All times in this part are GMT unless otherwise specified.
Handgear means handline, harpoon, or rod and reel.
Harass means to unreasonably interfere with an individual's work
performance, or to engage in conduct that creates an intimidating,
hostile, or offensive environment.
Harpoon or harpoon gear means fishing gear consisting of a pointed
dart or iron attached to the end of a line several hundred feet in
length, the other end of which is attached to a floatation device.
Harpoon gear is attached to a pole or stick that is propelled only by
hand, and not by mechanical means.
Industry means both recreational and commercial fishing, and
includes the harvesting, processing, and marketing sectors.
International radio call sign (IRCS) means the unique radio
identifier assigned a vessel by the appropriate authority of the flag
state.
Joint venture means any operation by a foreign vessel assisting
fishing by U.S. fishing vessels, including catching, scouting,
processing and/or support. (A joint venture generally entails a foreign
vessel processing fish received from U.S. fishing vessels and
conducting associated support activities.)
Magnuson Act means the Magnuson Fishery Conservation and Management
Act, as amended (16 U.S.C. 1801 et seq.), also known as MFCMA.
Metric ton (mt) means 1,000 kg (2,204.6 lb).
nm means nautical mile (6,076 ft (1,852 m)).
Official number means the documentation number issued by the USCG
or the certificate number issued by a state or by the USCG for an
undocumented vessel.
Operator, with respect to any vessel, means the master or other
individual aboard and in charge of that vessel.
Optimum yield (OY) means the amount of fish:
(1) That will provide the greatest overall benefit to the United
States, with particular reference to food production and recreational
opportunities; and
(2) That is prescribed as such on the basis of the maximum
sustainable yield from such fishery, as modified by any relevant
economic, social, or ecological factor.
Owner, with respect to any vessel, means:
(1) Any person who owns that vessel in whole or in part;
(2) Any charterer of the vessel, whether bareboat, time, or voyage;
(3) Any person who acts in the capacity of a charterer, including,
but not limited to, parties to a management agreement, operating
agreement, or any similar agreement that bestows control over the
destination, function, or operation of the vessel; or
(4) Any agent designated as such by a person described in paragraph
(1), (2), or (3) of this definition.
Plan Team means a Council working group selected from agencies,
institutions, and organizations having a role in the research and/or
management of fisheries, whose primary purpose is to assist the Council
in the preparation and/or review of FMPs, amendments, and supporting
documents for the Council, and/or SSC and AP.
Predominately means, with respect to fishing in a fishery, that
more fishing on a stock or stocks of fish covered by the FMP occurs, or
would occur in the absence of regulations, within or beyond the EEZ
than occurs in the aggregate within the boundaries of all states off
the coasts of which the fishery is conducted.
Processing, for the purpose of foreign fishing (subpart F), means
any operation by an FFV to receive fish from foreign or U.S. fishing
vessels and/or the preparation of fish, including, but not limited to,
cleaning, cooking, canning,

[[Page 32543]]

smoking, salting, drying, or freezing, either on the FFV's behalf or to
assist other foreign or U.S. fishing vessels.
Product recovery rate (PRR) means a ratio expressed as a percentage
of the weight of processed product divided by the round weight of fish
used to produce that amount of product.
Prohibited species, with respect to a foreign vessel, means any
species of fish that that vessel is not specifically allocated or
authorized to retain, including fish caught or received in excess of
any allocation or authorization.
Recreational fishing, with respect to a foreign vessel, means any
fishing from a foreign vessel not operated for profit and not operated
for the purpose of scientific research. It may not involve the sale,
barter, or trade of part or all of the catch (see Sec. 600.513).
Retain on board means to fail to return fish to the sea after a
reasonable opportunity to sort the catch.
Region mean one of five NMFS Regional Offices responsible for
administering the management and development of marine resources in the
United States in their respective geographical regions.
Regional Director (RD) means the Director of one of the five NMFS
Regions described in Table 1 of Sec. 600.502, or a designee.
Regional Program Officer means the NMFS official designated in the
terms and conditions of the grant award responsible for monitoring,
recommending, and reviewing any technical aspects of the application
for Federal assistance and the award.
Round weight means the weight of the whole fish before processing
or removal of any part.
Secretary means the Secretary of Commerce or a designee.
Science and Research Director means the Director of one of the five
NMFS Fisheries Science Centers described in Table 1 of Sec. 600.502 of
this part, or a designee, also known as Center Director.
Scientific cruise means the period of time during which a
scientific research vessel is operated in furtherance of a scientific
research project, beginning when the vessel leaves port to undertake
the project and ending when the vessel completes the project as
provided for in the applicable scientific research plan.
Scientific research activity is, for the purposes of this part, an
activity in furtherance of a scientific fishery investigation or study
that would meet the definition of fishing under the Magnuson 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
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 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.
Scouting means any operation by a vessel exploring (on the behalf
of an FFV or U.S. fishing vessel) for the presence of fish by visual,
acoustic, or other means that do not involve the catching of fish.
State means each of the several states, the District of Columbia,
the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands,
Guam, the Northern Mariana Islands, and any other Commonwealth,
territory, or possession of the United States.
State employee means any employee of the state agency responsible
for developing and monitoring the state's program for marine and/or
anadromous fisheries.
Statement of Organization, Practices, and Procedures (SOPP) means a
statement by each Council describing its organization, practices, and
procedures as required under section 302(f)(6) of the Magnuson Act.
Stock assessment means the process of collecting and analyzing
biological and statistical information to determine the changes in the
abundance of fishery stocks in response to fishing, and, to the extent
possible, to predict future trends of stock abundance. Stock
assessments are based on resource surveys; knowledge of the habitat
requirements, life history, and behavior of the species; the use of
environmental indices to determine impacts on stocks; and catch
statistics. Stock assessments are used as a basis to ``assess and
specify the present and probable future condition of

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a fishery'' (as is required by the Magnuson Act), and are summarized in
the Stock Assessment and Fishery Evaluation or similar document.
Stock Assessment and Fishery Evaluation (SAFE) means a document or
set of documents that provides Councils with a summary of the most
recent biological condition of species in an FMU, and the social and
economic condition of the recreational and commercial fishing
industries and the fish processing industries. It summarizes, on a
periodic basis, the best available scientific information concerning
the past, present, and possible future condition of the stocks and
fisheries being managed under Federal regulation.
Substantially (affects) means, for the purpose of subpart G, with
respect to whether a state's action or omission will substantially
affect the carrying out of an FMP for a fishery, that those effects are
important or material, or considerable in degree. The effects of a
state's action or omission for purposes of this definition include
effects upon:
(1) The achievement of the FMP's goals or objectives for the
fishery;
(2) The achievement of OY from the fishery on a continuing basis;
(3) The attainment of the national standards for fishery
conservation and management (as set forth in section 301(a) of the
Magnuson Act) and compliance with other applicable law; or
(4) The enforcement of regulations implementing the FMP.
Support means any operation by a vessel assisting fishing by
foreign or U.S. vessels, including supplying water, fuel, provisions,
fish processing equipment, or other supplies to a fishing vessel.
Total length (TL) means the straight-line distance from the tip of
the snout to the tip of the tail (caudal fin) while the fish is lying
on its side, normally extended.
Transship means offloading and onloading or otherwise transferring
fish or fish products and/or transporting fish or products made from
fish.
Trawl means a cone or funnel-shaped net that is towed through the
water by one or more vessels.
U.S. observer or observer means any person serving in the capacity
of an observer employed by NMFS, either directly or under contract, or
certified as a supplementary observer by NMFS.
Vessel of the United States or U.S. vessel means:
(1) Any vessel documented under chapter 121 of title 46, United
States Code;
(2) Any vessel numbered under chapter 123 of title 46, United
States Code, and measuring less than 5 net tons;
(3) Any vessel numbered under chapter 123 of title 46, United
States Code, and used exclusively for pleasure; or
(4) Any vessel not equipped with propulsion machinery of any kind
and used exclusively for pleasure.

Sec. 600.15 Other acronyms.

(a) Fishery management terms. (1) ABC--acceptable biological catch
(2) DAH--estimated domestic annual harvest
(3) DAP--estimated domestic annual processing
(4) EIS--environmental impact statement
(5) EY--equilibrium yield
(6) FMP--fishery management plan
(7) JVP--joint venture processing
(8) MSY--maximum sustainable yield
(9) PMP--preliminary FMP
(10) TAC--total allowable catch
(11) TALFF--total allowable level of foreign fishing
(b) Legislation. (1) APA--Administrative Procedure Act
(2) CZMA--Coastal Zone Management Act
(3) ESA--Endangered Species Act
(4) FACA--Federal Advisory Committee Act
(5) FOIA--Freedom of Information Act
(6) FLSA--Fair Labor Standards Act
(7) MFCMA--Magnuson Fishery Conservation and Management Act
(8) MMPA--Marine Mammal Protection Act
(9) MPRSA--Marine Protection, Research, and Sanctuaries Act
(10) NEPA--National Environmental Policy Act
(11) PA--Privacy Act
(12) PRA--Paperwork Reduction Act
(13) RFA--Regulatory Flexibility Act
(c) Federal agencies. (1) CEQ--Council on Environmental Quality
(2) DOC--Department of Commerce
(3) DOI--Department of the Interior
(4) DOS--Department of State
(5) EPA--Environmental Protection Agency
(6) FWS--Fish and Wildlife Service
(7) GSA--General Services Administration
(8) NMFS--National Marine Fisheries Service
(9) NOAA--National Oceanic and Atmospheric Administration
(10) OMB--Office of Management and Budget
(11) OPM--Office of Personnel Management
(12) SBA--Small Business Administration
(13) USCG--United States Coast Guard

Subpart B--Regional Fishery Management Councils

Sec. 600.105 Intercouncil boundaries.

(a) New England and Mid-Atlantic Councils. The boundary begins at
the intersection point of Connecticut, Rhode Island, and New York at
41 deg.18'16.249'' N. lat. and 71 deg.54'28.477'' W. long. and proceeds
south 37 deg.22'32.75'' East to the point of intersection with the
outward boundary of the EEZ as specified in the Magnuson Act.
(b) Mid-Atlantic and South Atlantic Councils. The boundary begins
at the seaward boundary between the States of Virginia and North
Carolina (36 deg.31'00.8'' N. lat.), and proceeds due east to the point
of intersection with the outward boundary of the EEZ as specified in
the Magnuson Act.
(c) South Atlantic and Gulf of Mexico Councils. The boundary
coincides with the line of demarcation between the Atlantic Ocean and
the Gulf of Mexico, which begins at the intersection of the outer
boundary of the EEZ, as specified in the Magnuson Act, and 83 deg.00'
W. long., proceeds northward along that meridian to 24 deg.35' N. lat.,
(near the Dry Tortugas Islands), thence eastward along that parallel,
through Rebecca Shoal and the Quicksand Shoal, to the Marquesas Keys,
and then through the Florida Keys to the mainland at the eastern end of
Florida Bay, the line so running that the narrow waters within the Dry
Tortugas Islands, the Marquesas Keys and the Florida Keys, and between
the Florida Keys and the mainland, are within the Gulf of Mexico.

Sec. 600.110 Intercouncil fisheries.

If any fishery extends beyond the geographical area of authority of
any one Council, the Secretary may--
(a) Designate a single Council to prepare the FMP for such fishery
and any amendments to such FMP, in consultation with the other Councils
concerned; or
(b) Require that the FMP and any amendments be prepared jointly by
all the Councils concerned.
(1) A jointly prepared FMP or amendment must be adopted by a
majority of the voting members, present and voting, of each
participating Council. Different conservation and management measures
may be developed for specific geographic areas, but the FMP should
address the entire geographic range of the stock(s).
(2) In the case of joint FMP or amendment preparation, one Council
will be designated as the

[[Page 32545]]

``administrative lead.'' The ``administrative lead'' Council is
responsible for the preparation of the FMP or any amendments and other
required documents for submission to the Secretary.
(3) None of the Councils involved in joint preparation may withdraw
without Secretarial approval. If Councils cannot agree on approach or
management measures within a reasonable period of time, the Secretary
may designate a single Council to prepare the FMP or may issue the FMP
under Secretarial authority.

Sec. 600.115 Statement of organization, practices, and procedures
(SOPP).

(a) Councils are required to publish and make available to the
public a SOPP in accordance with such uniform standards as are
prescribed by the Secretary (section 302(f)(6)) of the Magnuson Act.
The purpose of the SOPP is to inform the public how the Council
operates within the framework of the Secretary's uniform standards.
(b) Amendments to current SOPPs must be consistent with the
guidelines in this section and the terms and conditions of the
cooperative agreement, the statutory requirements of the Magnuson Act
and other applicable law. Upon approval of a Council's SOPP amendment
by the Secretary, a Notice of Availability will be published in the
Federal Register, including an address where the public may write to
request copies.
(c) Councils may deviate, where lawful, from the guidelines with
appropriate supporting rationale, and Secretarial approval of each
amendment to a SOPP would constitute approval of any such deviations
for that particular Council.

Sec. 600.120 Employment practices.

Council members (except for Federal Government officials) and staff
are not Federal employees subject to OPM regulations. Council staffing
practices are set forth in each Council's SOPP.

Sec. 600.125 Budgeting, funding, and accounting.

Each Council's grant activities are governed by OMB Circular A-110
(Uniform Administrative Requirements for Grants and Agreements with
Institutions of Higher Education, Hospitals, and other Non-Profit
Organizations), OMB Circular A-122 (Cost Principles for Non-Profit
Organizations), 15 CFR Part 29b (Audit Requirements for Institutions of
Higher Education and Other Nonprofit Organizations), and the terms and
conditions of the cooperative agreement. (See 5 CFR 1310.3 for
availability of OMB Circulars.)

Sec. 600.130 Protection of confidentiality of statistics.

Each Council must establish appropriate procedures for ensuring the
confidentiality of the statistics that may be submitted to it by
Federal or state authorities and may be voluntarily submitted to it by
private persons, including, but not limited to (also see Sec. 600.405):
(a) Procedures for the restriction of Council member, employee, or
advisory group access and the prevention of conflicts of interest,
except that such procedures must be consistent with procedures of the
Secretary.
(b) In the case of statistics submitted to the Council by a state,
the confidentiality laws and regulations of that state.

Subpart C--Council Membership

Sec. 600.205 Principal state officials and their designees.

(a) Only a full-time state employee of the state agency responsible
for marine and/or anadromous fisheries shall be designated by a
constituent state Governor as the principal state official for purposes
of section 302(b) of the Magnuson Act. New or revised designations by
state Governors of principal state officials, and new or revised
designations by principal state officials of their designees(s), must
be delivered in writing to the appropriate NMFS Regional Director at
least 48 hours before the individual may vote on any issue before the
Council. Written designation(s) must indicate the employment status of
each principal state official and that of his/her designee(s), how the
official or designee is employed by the state fisheries agency, where
each individual is employed (business address and telephone number),
and whether the official's full salary is paid by the state.
(b) A principal state official may name his/her designee(s) to act
on his/her behalf at Council meetings. Individuals designated to serve
as designees of a principal state official on a Council, pursuant to
section 302(b)(1)(A) of the Magnuson Act, must be full time state
employees involved in the development of fisheries management policies
for that state.

Sec. 600.210 Terms of Council members.

(a) Voting members (other than principal state officials, the
Regional Directors, or their designees) are appointed for a term of 3
years and, except as discussed below, may be reappointed. A voting
member's Council service of 18 months or more during a term of office
will be counted as service for the entire 3-year term.
(b) The anniversary date for measuring terms of membership is
August 11. The Secretary may designate a term of appointment shorter
than 3 years, if necessary, to provide for balanced expiration of terms
of office. Members may not serve more than three consecutive terms.
(c) A member appointed after January 1, 1986, who has completed
three consecutive terms will be eligible for appointment to another
term one full year after completion of the third consecutive term.

Sec. 600.215 Appointments.

The following procedures govern the nomination and appointment of
Council members.
(a) Each year, terms of approximately one-third of the appointed
members of each Council expire. New members will be appointed, or
seated members will be reappointed to another term, by the Secretary to
fill the seats being vacated. The Secretary will select the appointees
from lists of nominees submitted by March 15 of each year by the
Governors of the constituent states that are eligible to nominate
candidates for that vacancy. When an appointed member vacates his/her
seat prior to the expiration of his/her term, the Secretary will fill
the vacancy for the remainder of the term by selecting from among the
nominees submitted by the responsible Governor(s).
(b) A Governor must submit the names of at least three qualified
nominees for each applicable vacancy.
(c) Governors are responsible for ensuring that persons nominated
for appointment meet the qualification requirements of the Magnuson
Act. A Governor must provide a statement explaining how each of his or
her nominees meets the qualification requirements; and must provide
appropriate documentation to the Secretary that each nomination was
made in consultation with commercial and recreational fishing interests
of that state, and that each nominee is knowledgeable and experienced,
by reason of his or her occupational or other experience, scientific
expertise, or training, in one or more of the following ways related to
the fishery resources of the geographical area of concern to the
Council:
(1) Commercial fishing or the processing or marketing of fish, fish
products, or fishing equipment;
(2) Fishing for pleasure, relaxation, or consumption, or experience
in any business supporting fishing;

[[Page 32546]]

(3) Leadership in a state, regional, or national organization whose
members participate in a fishery in the Council's area of authority;
(4) The management and conservation of natural resources, including
related interactions with industry, government bodies, academic
institutions, and public agencies. This includes experience serving as
a member of a Council, AP, SSC, or FIAC;
(5) Representing consumers of fish or fish products through
participation in local, state, or national organizations, or performing
other activities specifically related to the education or protection of
consumers of marine resources; and
(6) Teaching, journalism, writing, consulting, legal practice, or
researching matters related to fisheries, fishery management, and
marine resource conservation.
(d) To assist in identifying necessary qualifications, each nominee
must furnish to the appropriate Governor's office a current resume, or
equivalent, describing career history--with particular attention to
experience related to the above criteria. Nominees may provide such
information in any format they wish. Career and educational history
information sent to the Governors should also be sent to the NMFS
Office of Fisheries Conservation and Management.
(e) The Secretary will review each list submitted by a Governor to
ascertain if the individuals on the list are qualified for the vacancy
on the basis of the criteria prescribed in paragraph (c) of this
section. If the Secretary determines that any nominee is not qualified,
the Secretary will notify the appropriate Governor of that
determination. The Governor shall then submit a revised list or
resubmit the original list with an additional explanation of the
qualifications of the nominee in question. The Secretary reserves the
right to determine whether nominees are qualified.
(f) There are two categories of seats to which voting members are
appointed: ``obligatory'' and ``at-large.''
(1) Each constituent state is entitled to one seat on the Council
on which it is a member, except that Alaska is entitled to five seats
and Washington is entitled to two seats on the North Pacific Fishery
Management Council. When the term of a state's obligatory member is
expiring, or that seat becomes vacant before the expiration of its
term, the Governor of that state must submit the names of at least
three qualified individuals to fill that seat. In order to fill a
state's obligatory seat, the Secretary may select from any of the
nominees for such obligatory seat and from the nominees for any at-
large seat submitted by the Governor of that state. If a Governor fails
to provide a list of at least three qualified nominees for a seat
obligated to that Governor's state, then the state's obligatory seat
will remain vacant until three qualified nominees are submitted by the
Governor and acted upon by the Secretary.
(2) Prior to submitting nominees for appointment to a Council, a
constituent state Governor must determine if each of his or her
nominees is a resident of that constituent state. A State Governor may
not nominate a non-resident of that state for appointment to a Council
seat obligated to that state. If, at any time during a term, an
appointee to an obligatory seat changes residency to another state that
is not a constituent state of that Council, the member may no longer
vote as a representative of that state and must resign from that
obligated seat. For purposes of this paragraph (f)(2), a state resident
is an individual who maintains his/her principal residence within that
constituent state and, if applicable, pays income taxes to that state
and/or to another appropriate jurisdiction within that state.
(g) When the term of an at-large member is expiring, or that seat
becomes vacant before the expiration of a term, the Governors of all
constituent states of that Council must each submit the names of at
least three qualified individuals to fill that seat.
(1) In order to fill an at-large seat, the Secretary may select a
nominee for that seat submitted by any Governor of a constituent state.
When the terms of both an obligatory member and an at-large member
expire concurrently, the Governor of the state holding the expiring
obligatory seat may indicate that the nominees who were not selected
for appointment to the obligatory seat may be considered for
appointment to an at-large seat, provided that the resulting total
number of nominees submitted by that Governor for the expiring at-large
seat is no fewer than three.
(2) If a Governor fails to submit a list of three qualified
nominees for an available at-large seat within the time allotted, then
a new at-large member will be appointed from lists of qualified
nominees submitted by Governors of other constituent states.
(3) If a Governor chooses to submit nominations for one or more
vacant at-large seats on a Council, he or she must submit lists that
contain at least three different nominees for each vacant seat. In
making selections to each of the available at-large seats, the
Secretary will consider all names submitted by the constituent state
governors.
(4) In filling expiring at-large seats, the Secretary will consider
only complete slates of nominees submitted by the Governors of the
Council's constituent states. If nominations are requested to fill more
than one at-large seat and a Governor elects to nominate a total of
four candidates, (i.e., a slate of three candidates for one seat and
one for the other(s)), the set of three candidates will be considered
only for the first seat, but the two candidates who were not selected
will not be considered for the other(s). In this case, the only
candidates considered for the other seat(s) would be derived from the
slates offered by the Governors of the other states that included three
different qualified candidates (i.e., candidates who were not
considered for one of the other seats).
(5) Governors may nominate residents of another constituent state
of a Council for appointment to an at-large seat on that Council.
(6) The Secretary must, to the extent practicable, ensure a fair
and balanced apportionment, on a rotating or other basis, of the active
participants (or their representatives) in the commercial and
recreational fisheries in the Council's area of authority. Further, the
Secretary must take action to ensure, to the extent practicable, that
those persons dependent for their livelihood upon the fisheries in the
Council's area of authority are fairly represented as voting members.

Sec. 600.220 Oath of office.

Each member appointed to a Council must take an oath of office.

Sec. 600.225 Rules of conduct.

(a) Council members, as Federal office holders, and Council
employees are subject to most Federal criminal statutes covering
bribery, conflict-of-interest, disclosure of confidential information,
and lobbying with appropriated funds.
(b) The Councils are responsible for maintaining high standards of
ethical conduct among themselves, their staffs, and their advisory
groups. In addition to abiding by the applicable Federal conflict of
interest statutes, both members and employees of the Councils must
comply with the following standards of conduct:
(1) No employee of a Council may use his or her official authority
or influence derived from his or her position with the Council for the
purpose of interfering with or affecting the result of an election to
or a nomination for any national, state, county, or municipal elective
office.

[[Page 32547]]

(2) No employee of a Council may be deprived of employment,
position, work, compensation, or benefit provided for or made possible
by the Magnuson Act on account of any political activity or lack of
such activity in support of or in opposition to any candidate or any
political party in any national, state, county, or municipal election,
or on account of his or her political affiliation.
(3) No Council member or employee may pay, offer, promise, solicit,
or receive from any person, firm, or corporation a contribution of
money or anything of value in consideration of either support or the
use of influence or the promise of support or influence in obtaining
for any person any appointive office, place, or employment under the
Council.
(4) No employee of a Council may have a direct or indirect
financial interest that conflicts with the fair and impartial conduct
of his or her Council duties. However, an Executive Director may retain
a financial interest in harvesting, processing or marketing activities,
and participate in matters of general public concern on the Council
that might affect that interest, if that interest has been disclosed in
a report filed under Sec. 600.235.
(5) No Council member, employee of a Council, or member of a
Council advisory group may use or allow the use, for other than
official purposes, of information obtained through or in connection
with his or her Council employment that has not been made available to
the general public.
(6) No Council member or employee of the Council may engage in
criminal, infamous, dishonest, notoriously immoral, or disgraceful
conduct.
(7) No Council member or employee of the Council may use Council
property on other than official business. Such property must be
protected and preserved from improper or deleterious operation or use.
(8) No Council member may participate--
(i) Personally and substantially as a member through decision,
approval, disapproval, recommendation, the rendering of advice,
investigation, or otherwise in a particular matter primarily of
individual concern, such as a contract, in which he or she has a
financial interest; or
(ii) In any matter of general public concern that is likely to have
a direct and predictable effect on a member's financial interest,
unless that interest is in harvesting, processing, or marketing
activities and has been disclosed in a report filed under Sec. 600.235.
For purposes of this section, the member's financial interest includes
that of the member's spouse; minor child; partner; organization in
which the member is serving as officer, director, trustee, partner or
employee; or any person or organization with whom the member is
negotiating or has any arrangement concerning prospective employment.

Sec. 600.230 Removal.

The Secretary may remove for cause any Secretarially appointed
member of a Council in accordance with section 302(b)(5) of the
Magnuson Act, wherein the Council concerned first recommends removal of
that member by not less than two-thirds of the voting members. A
recommendation of a Council to remove a member must be made in writing
to the Secretary and accompanied by a statement of the reasons upon
which the recommendation is based.

Sec. 600.235 Financial disclosure.

(a) The Magnuson Act requires the disclosure by each Council
nominee, voting member appointed to the Council by the Secretary, and
Executive Director, of any financial interest of the reporting
individual in any harvesting, processing, or marketing activity that is
being, or will be, undertaken within any fishery under the authority of
the individual's Council, and of any such financial interest of the
reporting individual's spouse, minor child, partner, or any
organization (other than the Council) in which that individual is
serving as an officer, director, trustee, partner, or employee. The
information required to be reported must be disclosed on NOAA Form 88-
195, ``Statement of Financial Interests for Use by Voting Members,
Nominees, and Executive Directors of Regional Fishery Management
Councils'' (Financial Interest Form), or such other form as the
Secretary may prescribe. The report must be filed by each nominee for
Secretarial appointment with the Assistant Administrator by April 15
or, if nominated after March 15, 1 month after nomination by the
Governor. A seated voting member appointed by the Secretary, or an
Executive Director, must file a Financial Interest Form within 45 days
of taking office; must update his or her statement within 30 days of
acquiring any such financial interest, or of substantially changing a
financial interest; and must update his/her statement annually and file
that update by February 1 of each year with the Executive Director of
the appropriate Council, and concurrently provide copies of such
documents to the NMFS Regional Director for the geographic area
concerned. The completed Financial Interest Forms will be kept on file,
and made available for public inspection at reasonable hours at the
Council offices. In addition, the statements will be made available at
each public Council meeting or hearing.
(b) The provisions of 18 U.S.C. 208 do not apply to an individual
who has filed a financial report under this section regarding an
interest that has been reported.
(c) By February 1 of each year, Councils must forward copies of the
completed disclosure from each current Council member and Executive
Director to the Director, Office of Fisheries Conservation and
Management, NMFS. Councils must also include any updates in
disclosures, as well as revisions required for changes of interests.
(d) Councils must retain the disclosure forms for each member for
at least 5 years after the expiration of that member's last term.

Sec. 600.240 Security assurances.

(a) DOC/OS will issue security assurances to Council nominees and
members following completion of background checks. Security assurances
will be valid for 5 years from the date of issuance. A security
assurance will not entitle the member to access classified data. In
instances in which Council members may need to discuss, at closed
meetings, materials classified for national security purposes, the
agency or individual (e.g., DOS, USCG) providing such classified
information will be responsible for ensuring that Council members and
other attendees have the appropriate security clearances.
(b) Each nominee to a Council is required to complete a
Certification of Status form (``form''). All nominees must certify,
pursuant to the Foreign Agents Registration Act of 1938, whether they
serve as an agent of a foreign principal. Each nominee must certify,
date, sign, and return the form with his or her completed nomination
kit. Nominees will not be considered for appointment to a Council if
they have not filed this form. Any nominee who currently is an agent of
a foreign principal will not be eligible for appointment to a Council,
and therefore should not be nominated by a Governor for appointment.

Sec. 600.245 Council member compensation.

(a) The obligatory and at-large voting members of each Council
appointed under section 302(b)(1)(C) of the Magnuson Act who are not
employed by the Federal Government or any state or local government
(i.e., any member who does not receive compensation from any such
government for the period when

[[Page 32548]]

performing duties as a Council member) shall receive compensation at
1.2 times the daily rate for a GS-15 (Step 1) of the General Schedule
(without locality pay) when engaged in actual performance of duties as
assigned by the Chair of the Council. Actual performance of duties, for
the purposes of compensation, may include travel time.
(b) All voting Council members whose eligibility for compensation
has been established in accordance with NOAA guidelines will be paid
through the cooperative agreement as a direct line item on a
contractual basis without deductions being made for Social Security or
Federal and state income taxes. A report of compensation will be
furnished each year by the member's Council to the proper Regional
Program Officer, as required by the Internal Revenue Service. Such
compensation may be paid on a full day's basis, whether in excess of 8
hours a day or less than 8 hours a day. The time is compensable where
the individual member is required to expend a significant private
effort that substantially disrupts the daily routine to the extent that
a work day is lost to the member. ``Homework'' time in preparation for
formal Council meetings is not compensable.
(c) Non-government Council members receive compensation for:
(1) Days spent in actual attendance at a meeting of the Council or
jointly with another Council.
(2) Travel on the day preceding or following a scheduled meeting
that precluded the member from conducting his normal business on the
day in question.
(3) Meetings of standing committees of the Council if approved in
advance by the Chair.
(4) Individual member meeting with scientific and technical
advisors, when approved in advance by the Chair and a substantial
portion of any day is spent at the meeting.
(5) Conducting or attending hearings, when authorized in advance by
the Chair.
(6) Other meetings involving Council business when approved in
advance by the Chair.
(d) The Executive Director of each Council must submit to the
appropriate Regional Office annually a report, approved by the Council
Chair, of Council member compensation authorized. This report shall
identify, for each member, amount paid, dates, and location and purpose
of meetings attended.

Subpart D--National Standards

Sec. 600.305 General.

(a) Purpose. (1) This subpart establishes guidelines, based on the
national standards, to assist in the development and review of FMPs,
amendments, and regulations prepared by the Councils and the Secretary.
(2) In developing FMPs, the Councils have the initial authority to
ascertain factual circumstances, to establish management objectives,
and to propose management measures that will achieve the objectives.
The Secretary will determine whether the proposed management objectives
and measures are consistent with the national standards, other
provisions of the Magnuson Act, and other applicable law. The Secretary
has an obligation under section 301(b) of the Magnuson Act to inform
the Councils of the Secretary's interpretation of the national
standards so that they will have an understanding of the basis on which
FMPs will be reviewed.
(3) The national standards are statutory principles that must be
followed in any FMP. The guidelines summarize Secretarial
interpretations that have been, and will be, applied under these
principles. The guidelines are intended as aids to decisionmaking; FMPs
formulated according to the guidelines will have a better chance for
expeditious Secretarial review, approval, and implementation. FMPs that
are in substantial compliance with the guidelines, the Magnuson Act,
and other applicable law must be approved.
(b) Fishery management objectives. (1) Each FMP, whether prepared
by a Council or by the Secretary, should identify what the FMP is
designed to accomplish (i.e., the management objectives to be attained
in regulating the fishery under consideration). In establishing
objectives, Councils balance biological constraints with human needs,
reconcile present and future costs and benefits, and integrate the
diversity of public and private interests. If objectives are in
conflict, priorities should be established among them.
(2) How objectives are defined is important to the management
process. Objectives should address the problems of a particular
fishery. The objectives should be clearly stated, practicably
attainable, framed in terms of definable events and measurable
benefits, and based upon a comprehensive rather than a fragmentary
approach to the problems addressed. An FMP should make a clear
distinction between objectives and the management measures chosen to
achieve them. The objectives of each FMP provide the context within
which the Secretary will judge the consistency of an FMP's conservation
and management measures with the national standards.
(c) Word usage. The word usage refers to all regulations in this
subpart.
(1) Must is used, instead of ``shall'', to denote an obligation to
act; it is used primarily when referring to requirements of the
Magnuson Act, the logical extension thereof, or of other applicable
law.
(2) Shall is used only when quoting statutory language directly, to
avoid confusion with the future tense.
(3) Should is used to indicate that an action or consideration is
strongly recommended to fulfill the Secretary's interpretation of the
Magnuson Act, and is a factor reviewers will look for in evaluating a
SOPP or FMP.
(4) May is used in a permissive sense.
(5) May not is proscriptive; it has the same force as ``must not.''
(6) Will is used descriptively, as distinguished from denoting an
obligation to act or the future tense.
(7) Could is used when giving examples, in a hypothetical,
permissive sense.
(8) Can is used to mean ``is able to,'' as distinguished from
``may.''
(9) Examples are given by way of illustration and further
explanation. They are not inclusive lists; they do not limit options.
(10) Analysis, as a paragraph heading, signals more detailed
guidance as to the type of discussion and examination an FMP should
contain to demonstrate compliance with the standard in question.
(11) Determine is used when referring to OY.
(12) Adjust is used when establishing a deviation from MSY for
biological reasons, such as in establishing ABC, TAC, or EY.
(13) Modify is used when the deviation from MSY is for the purpose
of determining OY, in accord with relevant economic, social, or
ecological factors.

Sec. 600.310 National Standard 1--Optimum Yield.

(a) Standard 1. Conservation and management measures shall prevent
overfishing while achieving, on a continuing basis, the OY from each
fishery for the U.S. fishing industry.
(b) General. The determination of OY is a decisional mechanism for
resolving the Magnuson Act's multiple purposes and policies, for
implementing an FMP's objectives, and for balancing the various
interests that comprise the national welfare. OY is based on MSY,

[[Page 32549]]

or on MSY as it may be adjusted under paragraph (d)(3) of this section.
The most important limitation on the specification of OY is that the
choice of OY--and the conservation and management measures proposed to
achieve it--must prevent overfishing.
(c) Overfishing. (1) Overfishing is a level or rate of fishing
mortality that jeopardizes the long-term capacity of a stock or stock
complex to produce MSY on a continuing basis. Each FMP must specify, to
the maximum extent possible, an objective and measurable definition of
overfishing for each stock or stock complex covered by that FMP, and
provide an analysis of how the definition was determined and how it
relates to reproductive potential.
(2) The definition of overfishing for a stock or stock complex may
be developed or expressed in terms of a minimum level of spawning
biomass (``threshold''); maximum level or rate of fishing mortality; or
formula, model, or other measurable standard designed to ensure the
maintenance of the stock's productive capacity. Overfishing must be
defined in a way to enable the Council and the Secretary to monitor and
evaluate the condition of the stock or stock complex relative to the
definition.
(3) Different fishing patterns can produce a variety of effects on
local and areawide abundance, availability, size, and age composition
of a stock. Some of these fishing patterns have been called ``growth,''
``localized,'' or ``pulse'' overfishing; however, these patterns are
not necessarily overfishing under the national standard 1 definition,
which focuses on recruitment and long-term reproductive capacity. (Also
see paragraph (c)(6)(v)).
(4) Overfishing definitions must be based on the best scientific
information available. Councils must build into the definition
appropriate consideration of risk, taking into account uncertainties in
estimating domestic harvest, stock conditions, or the effects of
environmental factors (also see Sec. 600.335). In cases where
scientific data are severely limited, the Councils' informed judgment
must be used, and effort should be directed to identifying and
gathering the needed data.
(5) Secretarial approval or disapproval of the overfishing
definition will be based on consideration of whether the proposal:
(i) Has sufficient scientific merit.
(ii) Is likely to result in effective Council action to prevent the
stock from closely approaching or reaching an overfished status.
(iii) Provides a basis for objective measurement of the status of
the stock against the definition.
(iv) Is operationally feasible.
(6) In addition to a specific definition of overfishing for each
stock or stock complex, an FMP must contain management measures
necessary to prevent overfishing.
(i) If overfishing is defined in terms of a threshold biomass
level, the Council must ensure that fishing effort does not cause
spawning biomass to fall and remain below that threshold.
(ii) If overfishing is defined in terms of a maximum fishing
mortality rate, the Council must ensure that fishing effort on that
stock does not cause the maximum rate to be exceeded.
(iii) If data indicate that an overfished condition exists, a
program must be established for rebuilding the stock over a period of
time specified by the Council and acceptable to the Secretary.
(iv) If data indicate that a stock or stock complex is approaching
an overfished condition, the Council should identify actions or
combination of actions to be undertaken in response.
(v) Depending on the objectives of a particular FMP and the
specific definition of overfishing established for the stock or stock
complex under management, a Council may recommend measures to prevent
or permit pulse, localized, or growth overfishing.
(7) Significant adverse alterations in environment/habitat
conditions increase the possibility that fishing effort will contribute
to a stock collapse. Care should be taken to identify the cause of any
downward trends in spawning stock sizes or average annual recruitment.
(i) Whether these trends are caused by environmental changes or by
fishing effort, the only direct control provided by the Magnuson Act is
to reduce fishing mortality.
(ii) Unless the Council asserts, as supported by appropriate
evidence, that reduced fishing effort would not alleviate the problem,
the FMP must include measures to reduce fishing mortality, regardless
of the cause of the low population level.
(iii) If manmade environmental changes are contributing to the
downward trends, in addition to controlling effort, Councils should
recommend restoration of habitat and other ameliorative programs, to
the extent possible, and consider whether to take action under section
302(i) of the Magnuson Act.
(8) There are certain limited exceptions to the requirement to
prevent overfishing. Harvesting the major component of a mixed fishery
at its optimum level may result in the overfishing of a minor (smaller
or less valuable) stock component in the fishery. A Council may decide
to permit this type of overfishing if it is demonstrated by analysis
(paragraph (f)(5) of this section) that it will result in net benefits
to the Nation, and if the Council's action will not cause any stock to
require protection under the ESA.
(9) All FMPs should contain a definition of overfishing for the
stock or stock complex managed under the affected FMP.
(d) MSY. (1) MSY is the largest average annual catch or yield that
can be taken over a significant period of time from each stock under
prevailing ecological and environmental conditions.
(2) MSY may be presented as a range of values. One MSY may be
specified for a related group of species in a mixed-species fishery.
Since MSY is a long-term average, it need not be specified annually,
but must be based on the best scientific information available.
(3) MSY may be only the starting point in providing a realistic
biological description of allowable fishery removals. MSY may need to
be adjusted because of environmental factors, stock peculiarities, or
other biological variables, prior to the determination of OY. An
example of such an adjustment is determination of ABC.
(e) ABC. (1) ABC is a preliminary description of the acceptable
harvest (or range of harvests) for a given stock or stock complex. Its
derivation focuses on the status and dynamics of the stock,
environmental conditions, other ecological factors, and prevailing
technological characteristics of the fishery.
(2) When ABC is used, its specification constitutes the first step
in deriving OY from MSY. Unless the best scientific information
available indicates otherwise (see Sec. 600.315, ABC should be no
higher than the product of the stock's natural mortality rate and the
biomass of the exploitable stock. If a threshold has been specified for
the stock, ABC must equal zero when the stock is at or below that
threshold (also see paragraph (c)(2) of this section). ABC may be
expressed in numeric or nonnumeric terms.
(f) OY--(1) Definition. The term ``optimum'' with respect to the
yield from a fishery, means the amount of fish that will provide the
greatest overall benefit to the Nation, with particular reference to
food production and recreational opportunities; and that is prescribed
as such on the basis of the MSY from each fishery, as modified by

[[Page 32550]]

any relevant economic, social, or ecological factors (section 3(21)(b)
of the Magnuson Act).
(2) Values in determination. In determining the greatest benefit to
the Nation, two values that should be weighed are food production and
recreational opportunities (section 3(21)(a) of the Magnuson Act). They
should receive serious attention as measures of benefit when
considering the economic, ecological, or social factors used in
modifying MSY to obtain OY.
(i) Food production encompasses the goals of providing seafood to
consumers, maintaining an economically viable fishery, and utilizing
the capacity of U.S. fishery resources to meet nutritional needs.
(ii) Recreational opportunities includes recognition of the
importance of the quality of the recreational fishing experience, and
of the contribution of recreational fishing to the national, regional,
and local economies and food supplies.
(3) Factors relevant to OY. The Magnuson Act's definition of OY
identifies three categories of factors to be used in modifying MSY to
arrive at OY: Economic, social, and ecological (section 3(21)(b) of the
Magnuson Act). Not every factor will be relevant in every fishery. For
some fisheries, insufficient information may be available with respect
to some factors to provide a basis for corresponding modifications to
MSY.
(i) Economic factors. Examples are promotion of domestic fishing,
development of unutilized or underutilized fisheries, satisfaction of
consumer and recreational needs, and encouragement of domestic and
export markets for U.S.-harvested fish. Some other factors that may be
considered are the value of fisheries, the level of capitalization,
operating costs of vessels, alternate employment opportunities, and
economies of coastal areas.
(ii) Social factors. Examples are enjoyment gained from
recreational fishing, avoidance of gear conflicts and resulting
disputes, preservation of a way of life for fishermen and their
families, and dependence of local communities on a fishery. Among other
factors that may be considered are the cultural place of subsistence
fishing, obligations under Indian treaties, and worldwide nutritional
needs.
(iii) Ecological factors. Examples are the vulnerability of
incidental or unregulated species in a mixed-species fishery, predator-
prey or competitive interactions, and dependence of marine mammals and
birds or endangered species on a stock of fish. Equally important are
environmental conditions that stress marine organisms, such as natural
and manmade changes in wetlands or nursery grounds, and effects of
pollutants on habitat and stocks.
(4) Specification. (i) The amount of fish that constitutes the OY
need not be expressed in terms of numbers or weight of fish. The
economic, social, or ecological modifications to MSY may be expressed
by describing fish having common characteristics, the harvest of which
provides the greatest overall benefit to the Nation. For instance, OY
may be expressed as a formula that converts periodic stock assessments
into quotas or guideline harvest levels for recreational, commercial,
and other fishing. OY may be defined in terms of an annual harvest of
fish or shellfish having a minimum weight, length, or other
measurement. OY may also be expressed as an amount of fish taken only
in certain areas, or in certain seasons, or with particular gear, or by
a specified amount of fishing effort. In the case of a mixed-species
fishery, the incidental-species OY may be a function of the directed
catch, or absorbed into an OY for related species.
(ii) If a numerical OY is chosen, a range or average may be
specified.
(iii) In a fishery where there is a significant discard component,
the OY may either include or exclude discards, consistent with the
other yield determinations.
(iv) The OY specification can be converted into an annual numerical
estimate to establish any TALFF and to analyze impacts of the
management regime. There should be a mechanism in an FMP for periodic
reassessment of the OY specification, so that it is responsive to
changing circumstances in the fishery.
(v) The determination of OY requires a specification of MSY.
However, even where sufficient scientific data as to the biological
characteristics of the stock do not exist, or the period of
exploitation or investigation has not been long enough for adequate
understanding of stock dynamics, or where frequent large-scale
fluctuations in stock size make this concept of limited value, the OY
should be based on the best scientific information available.
(5) Analysis. An FMP must contain an analysis of how its OY
specification was determined (section 303(a)(3) of the Magnuson Act).
It should relate the explanation of overfishing in paragraph (c) of
this section to conditions in the particular fishery, and explain how
its choice of OY and conservation and management measures will prevent
overfishing in that fishery. If overfishing is permitted under
paragraph (c)(8) of this section, the analysis must contain a
justification in terms of overall benefits and an assessment of the
risk of the species or stock component reaching a threatened or
endangered status. A Council must identify those economic, social, and
ecological factors relevant to management of a particular fishery, then
evaluate them to arrive at the modification (if any) of MSY. The choice
of a particular OY must be carefully defined and documented to show
that the OY selected will produce the greatest benefit to the Nation.
(g) OY as a target. (1) The specification of OY in an FMP is not
automatically a quota or ceiling, although quotas may be derived from
the OY, where appropriate. OY is a target or goal; an FMP must contain
conservation and management measures, and provisions for information
collection, that are designed to achieve OY. These measures should
allow for practical and effective implementation and enforcement of the
management regime, so that the harvest is allowed to reach, but not to
exceed OY by a substantial amount. The Secretary has an obligation to
implement and enforce the FMP so that OY is achieved. If management
measures prove unenforceable--or too restrictive, or not rigorous
enough to realize OY--they should be modified; an alternative is to
reexamine the adequacy of the OY specification.
(2) Exceeding OY does not necessarily constitute overfishing,
although they might coincide. Even if no overfishing resulted,
continual harvest at a level above a fixed-value OY would violate
National Standard 1, because OY was exceeded (not achieved) on a
continuing basis.
(3) Part of the OY may be held as a reserve to allow for
uncertainties in estimates of stock size and of DAH or to solve
operational problems in achieving (but not exceeding) OY. If an OY
reserve is established, an adequate mechanism should be included in the
FMP to permit timely release of the reserve to domestic or foreign
fishermen, if necessary.
(h) OY and foreign fishing. Section 201(d) of the Magnuson Act
provides that fishing by foreign nations is limited to that portion of
the OY that will not be harvested by vessels of the United States.
(1) DAH. Councils must consider the capacity of, and the extent to
which, U.S. vessels will harvest the OY on an annual basis. Estimating
the amount that U.S. fishing vessels will actually harvest is required
to determine the surplus.

[[Page 32551]]

(2) DAP. Each FMP must identify the capacity of U.S. processors. It
must also identify the amount of DAP, which is the sum of two
estimates:
(i) The amount of U.S. harvest that domestic processors will
process. This estimate may be based on historical performance and on
surveys of the expressed intention of manufacturers to process,
supported by evidence of contracts, plant expansion, or other relevant
information.
(ii) The amount of fish that will be harvested by domestic vessels,
but not processed (e.g., marketed as fresh whole fish, used for private
consumption, or used for bait).
(iii) JVP. When DAH exceeds DAP, the surplus is available for JVP.
JVP is derived from DAH.

Sec. 600.315 National Standard 2--Scientific Information.

(a) Standard 2. Conservation and management measures shall be based
upon the best scientific information available.
(b) FMP development. The fact that scientific information
concerning a fishery is incomplete does not prevent the preparation and
implementation of an FMP (see related Secs. 600.320(d)(2) and
600.340(b).
(1) Scientific information includes, but is not limited to,
information of a biological, ecological, economic, or social nature.
Successful fishery management depends, in part, on the timely
availability, quality, and quantity of scientific information, as well
as on the thorough analysis of this information, and the extent to
which the information is applied. If there are conflicting facts or
opinions relevant to a particular point, a Council may choose among
them, but should justify the choice.
(2) FMPs must take into account the best scientific information
available at the time of preparation. Between the initial drafting of
an FMP and its submission for final review, new information often
becomes available. This new information should be incorporated into the
final FMP where practicable; but it is unnecessary to start the FMP
process over again, unless the information indicates that drastic
changes have occurred in the fishery that might require revision of the
management objectives or measures.
(c) FMP implementation. (1) An FMP must specify whatever
information fishermen and processors will be required or requested to
submit to the Secretary. Information about harvest within state
boundaries, as well as in the EEZ, may be collected if it is needed for
proper implementation of the FMP and cannot be obtained otherwise. The
FMP should explain the practical utility of the information specified
in monitoring the fishery, in facilitating inseason management
decisions, and in judging the performance of the management regime; it
should also consider the effort, cost, or social impact of obtaining
it.
(2) An FMP should identify scientific information needed from other
sources to improve understanding and management of the resource and the
fishery.
(3) The information submitted by various data suppliers about the
stocks(s) throughout its range or about the fishery should be
comparable and compatible, to the maximum extent possible.
(d) FMP amendment. FMPs should be amended on a timely basis, as new
information indicates the necessity for change in objectives or
management measures.
(e) SAFE Report. (1) The SAFE report is a document or set of
documents that provides Councils with a summary of the most recent
biological condition of species in the FMU, and the social and economic
condition of the recreational and commercial fishing interests and the
fish processing industries. It summarizes, on a periodic basis, the
best available scientific information concerning the past, present, and
possible future condition of the stocks and fisheries being managed
under Federal regulation.
(i) The Secretary has the responsibility to assure that a SAFE
report or similar document is prepared, reviewed annually, and changed
as necessary for each FMP. The Secretary or Councils may utilize any
combination of talent from Council, state, Federal, university, or
other sources to acquire and analyze data and produce the SAFE report.
(ii) The SAFE report provides information to the Councils for
determining annual harvest levels from each stock, documenting
significant trends or changes in the resource and fishery over time,
and assessing the relative success of existing state and Federal
fishery management programs. In addition, the SAFE report may be used
to update or expand previous environmental and regulatory impact
documents, and ecosystem and habitat descriptions.
(iii) Each SAFE report must be scientifically based, and cite data
sources and interpretations.
(2) Each SAFE report should contain information on which to base
harvest specifications.
(3) Each SAFE report should contain information on which to assess
the social and economic condition of the persons and businesses that
rely on the use of fish resources, including fish processing
industries.
(4) Each SAFE report may contain additional economic, social, and
ecological information pertinent to the success of management or the
achievement of objectives of each FMP.

Sec. 600.320 National Standard 3--Management Units.

(a) Standard 3. To the extent practicable, an individual stock of
fish shall be managed as a unit throughout its range, and interrelated
stocks of fish shall be managed as a unit or in close coordination.
(b) General. The purpose of this standard is to induce a
comprehensive approach to fishery management. The geographic scope of
the fishery, for planning purposes, should cover the entire range of
the stocks(s) of fish, and not be overly constrained by political
boundaries. Wherever practicable, an FMP should seek to manage
interrelated stocks of fish.
(c) Unity of management. Cooperation and understanding among
entities concerned with the fishery (e.g., Councils, states, Federal
Government, international commissions, foreign nations) are vital to
effective management. Where management of a fishery involves multiple
jurisdictions, coordination among the several entities should be sought
in the development of an FMP. Where a range overlaps Council areas, one
FMP to cover the entire range is preferred. The Secretary designates
which Council(s) will prepare the FMP, under section 304(f) of the
Magnuson Act.
(d) Management unit. The term ``management unit'' means a fishery
or that portion of a fishery identified in an FMP as relevant to the
FMP's management objectives.
(1) Basis. The choice of a management unit depends on the focus of
the FMP's objectives, and may be organized around biological,
geographic, economic, technical, social, or ecological perspectives.
For example:
(i) Biological--could be based on a stock(s) throughout its range.
(ii) Geographic--could be an area.
(iii) Economic--could be based on a fishery supplying specific
product forms.
(iv) Technical--could be based on a fishery utilizing a specific
gear type or similar fishing practices.
(v) Social--could be based on fishermen as the unifying element,
such as when the fishermen pursue different

[[Page 32552]]

species in a regular pattern throughout the year.
(vi) Ecological--could be based on species that are associated in
the ecosystem or are dependent on a particular habitat.
(2) Conservation and management measures. FMPs should include
conservation and management measures for that part of the management
unit within U.S. waters, although the Secretary can ordinarily
implement them only within the EEZ. The measures need not be identical
for each geographic area within the management unit, if the FMP
justifies the differences. A management unit may contain, in addition
to regulated species, stocks of fish for which there is not enough
information available to specify MSY and OY or to establish management
measures, so that data on these species may be collected under the FMP.
(e) Analysis. To document that an FMP is as comprehensive as
practicable, it should include discussions of the following:
(1) The range and distribution of the stocks, as well as the
patterns of fishing effort and harvest.
(2) Alternative management units and reasons for selecting a
particular one. A less-than-comprehensive management unit may be
justified if, for example, complementary management exits or is planned
for a separate geographic area or for a distinct use of the stocks, or
if the unmanaged portion of the resource is immaterial to proper
management.
(3) Management activities and habitat programs of adjacent states
and their effects on the FMP's objectives and management measures.
Where state action is necessary to implement measures within state
waters to achieve FMP objectives, the FMP should identify what state
action is necessary, discuss the consequences of state inaction or
contrary action, and make appropriate recommendations. The FMP should
also discuss the impact that Federal regulations will have on state
management activities.
(4) Management activities of other countries having an impact on
the fishery, and how the FMP's management measures are designed to take
into account these impacts. International boundaries may be dealt with
in several ways. For example:
(i) By limiting the management unit's scope to that portion of the
stock found in U.S. waters;
(ii) By estimating MSY for the entire stock and then basing the
determination of OY for the U.S. fishery on the portion of the stock
within U.S. waters; or
(iii) By referring to treaties or cooperative agreements.

Sec. 600.325 National Standard 4--Allocations.

(a) Standard 4. Conservation and management measures shall not
discriminate between residents of different states. If it becomes
necessary to allocate or assign fishing privileges among various U.S.
fishermen, such allocation shall be:
(1) Fair and equitable to all such fishermen.
(2) Reasonably calculated to promote conservation.
(3) Carried out in such manner that no particular individual,
corporation, or other entity acquires an excessive share of such
privileges.
(b) Discrimination among residents of different states. An FMP may
not differentiate among U.S. citizens, nationals, resident aliens, or
corporations on the basis of their state of residence. An FMP may not
incorporate or rely on a state statute or regulation that discriminates
against residents of another state. Conservation and management
measures that have different effects on persons in various geographic
locations are permissible if they satisfy the other guidelines under
Standard 4. Examples of these precepts are:
(1) An FMP that restricted fishing in the EEZ to those holding a
permit from state X would violate Standard 4 if state X issued permits
only to its own citizens.
(2) An FMP that closed a spawning ground might disadvantage
fishermen living in the state closest to it, because they would have to
travel farther to an open area, but the closure could be justified
under Standard 4 as a conservation measure with no discriminatory
intent.
(c) Allocation of fishing privileges. An FMP may contain management
measures that allocate fishing privileges if such measures are
necessary or helpful in furthering legitimate objectives or in
achieving the OY, and if the measures conform with paragraphs (c)(3)(i)
through (c)(3)(iii) of this section.
(1) Definition. An ``allocation'' or ``assignment'' of fishing
privileges is a direct and deliberate distribution of the opportunity
to participate in a fishery among identifiable, discrete user groups or
individuals. Any management measure (or lack of management) has
incidental allocative effects, but only those measures that result in
direct distributions of fishing privileges will be judged against the
allocation requirements of Standard 4. Adoption of an FMP that merely
perpetuates existing fishing practices may result in an allocation, if
those practices directly distribute the opportunity to participate in
the fishery. Allocations of fishing privileges include, for example,
per-vessel catch limits, quotas by vessel class and gear type,
different quotas or fishing seasons for recreational and commercial
fishermen, assignment of ocean areas to different gear users, and
limitation of permits to a certain number of vessels or fishermen.
(2) Analysis of allocations. Each FMP should contain a description
and analysis of the allocations existing in the fishery and of those
made in the FMP. The effects of eliminating an existing allocation
system should be examined. Allocation schemes considered, but rejected
by the Council, should be included in the discussion. The analysis
should relate the recommended allocations to the FMP's objectives and
OY specification, and discuss the factors listed in paragraph (c)(3) of
this section.
(3) Factors in making allocations. An allocation of fishing
privileges must be fair and equitable, must be reasonably calculated to
promote conservation, and must avoid excessive shares. These tests are
explained in paragraphs (c)(3)(i) through (c)(3)(iii) of this section:
(i) Fairness and equity. (A) An allocation of fishing privileges
should be rationally connected to the achievement of OY or with the
furtherance of a legitimate FMP objective. Inherent in an allocation is
the advantaging of one group to the detriment of another. The motive
for making a particular allocation should be justified in terms of the
objectives of the FMP; otherwise, the disadvantaged user groups or
individuals would suffer without cause. For instance, an FMP objective
to preserve the economic status quo cannot be achieved by excluding a
group of long-time participants in the fishery. On the other hand,
there is a rational connection between an objective of harvesting
shrimp at their maximum size and closing a nursery area to trawling.
(B) An allocation of fishing privileges may impose a hardship on
one group if it is outweighed by the total benefits received by another
group or groups. An allocation need not preserve the status quo in the
fishery to qualify as ``fair and equitable,'' if a restructuring of
fishing privileges would maximize overall benefits. The Council should
make an initial estimate of the relative benefits and hardships imposed
by the allocation, and compare its consequences with those of
alternative allocation schemes, including the status quo. Where
relevant, judicial guidance and government policy concerning the rights
of treaty Indians and aboriginal

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Americans must be considered in determining whether an allocation is
fair and equitable.
(ii) Promotion of conservation. Numerous methods of allocating
fishing privileges are considered ``conservation and management''
measures under section 303 of the Magnuson Act. An allocation scheme
may promote conservation by encouraging a rational, more easily managed
use of the resource. Or, it may promote conservation (in the sense of
wise use) by optimizing the yield, in terms of size, value, market mix,
price, or economic or social benefit of the product.
(iii) Avoidance of excessive shares. An allocation scheme must be
designed to deter any person or other entity from acquiring an
excessive share of fishing privileges, and to avoid creating conditions
fostering inordinate control, by buyers or sellers, that would not
otherwise exist.
(iv) Other factors. In designing an allocation scheme, a Council
should consider other factors relevant to the FMP's objectives.
Examples are economic and social consequences of the scheme, food
production, consumer interest, dependence on the fishery by present
participants and coastal communities, efficiency of various types of
gear used in the fishery, transferability of effort to and impact on
other fisheries, opportunity for new participants to enter the fishery,
and enhancement of opportunities for recreational fishing.

Sec. 600.330 National Standard 5--Efficiency.

(a) Standard 5. Conservation and management measures shall, where
practicable, promote efficiency in the utilization of fishery
resources; except that no such measure shall have economic allocation
as its sole purpose.
(b) Efficiency in the utilization of resources--(1) General. The
term ``utilization'' encompasses harvesting, processing, and marketing,
since management decisions affect all three sectors of the industry.
The goal of promoting efficient utilization of fishery resources may
conflict with other legitimate social or biological objectives of
fishery management. In encouraging efficient utilization of fishery
resources, this standard highlights one way that a fishery can
contribute to the Nation's benefit with the least cost to society:
Given a set of objectives for the fishery, an FMP should contain
management measures that result in as efficient a fishery as is
practicable or desirable.
(2) Efficiency. In theory, an efficient fishery would harvest the
OY with the minimum use of economic inputs such as labor, capital,
interest, and fuel. Efficiency in terms of aggregate costs then becomes
a conservation objective, where ``conservation'' constitutes wise use
of all resources involved in the fishery, not just fish stocks.
(i) In an FMP, management measures may be proposed that allocate
fish among different groups of individuals or establish a system of
property rights. Alternative measures examined in searching for an
efficient outcome will result in different distributions of gains and
burdens among identifiable user groups. An FMP should demonstrate that
management measures aimed at efficiency do not simply redistribute
gains and burdens without an increase in efficiency.
(ii) Management regimes that allow a fishery to operate at the
lowest possible cost (e.g., fishing effort, administration, and
enforcement) for a particular level of catch and initial stock size are
considered efficient. Restrictive measures that unnecessarily raise any
of those costs move the regime toward inefficiency. Unless the use of
inefficient techniques or the creation of redundant fishing capacity
contributes to the attainment of other social or biological objectives,
an FMP may not contain management measures that impede the use of cost-
effective techniques of harvesting, processing, or marketing, and
should avoid creating strong incentives for excessive investment in
private sector fishing capital and labor.
(c) Limited access. A ``system for limiting access,'' which is an
optional measure under section 303(b) of the Magnuson Act, is a type of
allocation of fishing privileges that may be used to promote economic
efficiency or conservation. For example, limited access may be used to
combat overfishing, overcrowding, or overcapitalization in a fishery to
achieve OY. In an unutilized or underutilized fishery, it may be used
to reduce the chance that these conditions will adversely affect the
fishery in the future, or to provide adequate economic return to
pioneers in a new fishery. In some cases, limited entry is a useful
ingredient of a conservation scheme, because it facilitates application
and enforcement of other management measures.
(1) Definition. Limited access (or limited entry) is a management
technique that attempts to limit units of effort in a fishery, usually
for the purpose of reducing economic waste, improving net economic
return to the fishermen, or capturing economic rent for the benefit of
the taxpayer or the consumer. Common forms of limited access are
licensing of vessels, gear, or fishermen to reduce the number of units
of effort, and dividing the total allowable catch into fishermen's
quotas (a stock-certificate system). Two forms (i.e., Federal fees for
licenses or permits in excess of administrative costs, and taxation)
are not permitted under the Magnuson Act.
(2) Factors to consider. The Magnuson Act ties the use of limited
access to the achievement of OY. An FMP that proposes a limited access
system must consider the factors listed in section 303(b)(6) of the
Magnuson Act and in Sec. 600.325(c)(3). In addition, it should consider
the criteria for qualifying for a permit, the nature of the interest
created, whether to make the permit transferable, and the Magnuson
Act's limitation on returning economic rent to the public under section
304(d)(1). The FMP should also discuss the costs of achieving an
appropriate distribution of fishing privileges.
(d) Analysis. An FMP should discuss the extent to which
overcapitalization, congestion, economic waste, and inefficient
techniques in the fishery reduce the net benefits derived from the
management unit and prevent the attainment and appropriate allocation
of OY. It should also explain, in terms of the FMP's objectives, any
restriction placed on the use of efficient techniques of harvesting,
processing, or marketing. If, during FMP development, the Council
considered imposing a limited-entry system, the FMP should analyze the
Council's decision to recommend or reject limited access as a technique
to achieve efficient utilization of the resources of the fishing
industry.
(e) Economic allocation. This standard prohibits only those
measures that distribute fishery resources among fishermen on the basis
of economic factors alone, and that have economic allocation as their
only purpose. Where conservation and management measures are
recommended that would change the economic structure of the industry or
the economic conditions under which the industry operates, the need for
such measures must be justified in light of the biological, ecological,
and social objectives of the FMP, as well as the economic objectives.

Sec. 600.335 National Standard 6--Variations and Contingencies.

(a) Standard 6. Conservation and management measures shall take
into account and allow for variations among, and contingencies in,
fisheries, fishery resources, and catches.
(b) Conservation and management. Each fishery exhibits unique
uncertainties. The phrase ``conservation and management'' implies the
wise use

[[Page 32554]]

of fishery resources through a management regime that includes some
protection against these uncertainties. The particular regime chosen
must be flexible enough to allow timely response to resource, industry,
and other national and regional needs. Continual data acquisition and
analysis will help the development of management measures to compensate
for variations and to reduce the need for substantial buffers.
Flexibility in the management regime and the regulatory process will
aid in responding to contingencies.
(c) Variations. (1) In fishery management terms, variations arise
from biological, social, and economic occurrences, as well as from
fishing practices. Biological uncertainties and lack of knowledge can
hamper attempts to estimate stock size and strength, stock location in
time and space, environmental/habitat changes, and ecological
interactions. Economic uncertainty may involve changes in foreign or
domestic market conditions, changes in operating costs, drifts toward
overcapitalization, and economic perturbations caused by changed
fishing patterns. Changes in fishing practices, such as the
introduction of new gear, rapid increases or decreases in harvest
effort, new fishing strategies, and the effects of new management
techniques, may also create uncertainties. Social changes could involve
increases or decreases in recreational fishing, or the movement of
people into or out of fishing activities due to such factors as age or
educational opportunities.
(2) Every effort should be made to develop FMPs that discuss and
take into account these vicissitudes. To the extent practicable, FMPs
should provide a suitable buffer in favor of conservation. Allowances
for uncertainties should be factored into the various elements of an
FMP. Examples are:
(i) Reduce OY. Lack of scientific knowledge about the condition of
a stock(s) could be reason to reduce OY.
(ii) Establish a reserve. Creation of a reserve may compensate for
uncertainties in estimating domestic harvest, stock conditions, or
environmental factors.
(iii) Adjust management techniques. In the absence of adequate data
to predict the effect of a new regime, and to avoid creating unwanted
variations, a Council could guard against producing drastic changes in
fishing patterns, allocations, or practices.
(iv) Highlight habitat conditions. FMPs may address the impact of
pollution and the effects of wetland and estuarine degradation on the
stocks of fish; identify causes of pollution and habitat degradation
and the authorities having jurisdiction to regulate or influence such
activities; propose recommendations that the Secretary will convey to
those authorities to alleviate such problems; and state the views of
the Council on unresolved or anticipated issues.
(d) Contingencies. Unpredictable events--such as unexpected
resource surges or failures, fishing effort greater than anticipated,
disruptive gear conflicts, climatic conditions, or environmental
catastrophes--are best handled by establishing a flexible management
regime that contains a range of management options through which it is
possible to act quickly without amending the FMP or even its
regulations.
(1) The FMP should describe the management options and their
consequences in the necessary detail to guide the Secretary in
responding to changed circumstances, so that the Council preserves its
role as policy-setter for the fishery. The description should enable
the public to understand what may happen under the flexible regime, and
to comment on the options.
(2) FMPs should include criteria for the selection of management
measures, directions for their application, and mechanisms for timely
adjustment of management measures comprising the regime. For example,
an FMP could include criteria that allow the Secretary to open and
close seasons, close fishing grounds, or make other adjustments in
management measures.
(3) Amendment of a flexible FMP would be necessary when
circumstances in the fishery change substantially, or when a Council
adopts a different management philosophy and objectives.

Sec. 600.340 National Standard 7--Costs and Benefits.

(a) Standard 7. Conservation and management measures shall, where
practicable, minimize costs and avoid unnecessary duplication.
(b) Necessity of Federal management--(1) General. The principle
that not every fishery needs regulation is implicit in this standard.
The Magnuson Act does not require Councils to prepare FMPs for each and
every fishery--only for those where regulation would serve some useful
purpose and where the present or future benefits of regulation would
justify the costs. For example, the need to collect data about a
fishery is not, by itself, adequate justification for preparation of an
FMP, since there are less costly ways to gather the data (see
Sec. 600.320(d)(2). In some cases, the FMP preparation process itself,
even if it does not culminate in a document approved by the Secretary,
can be useful in supplying a basis for management by one or more
coastal states.
(2) Criteria. In deciding whether a fishery needs management
through regulations implementing an FMP, the following general factors
should be considered, among others:
(i) The importance of the fishery to the Nation and to the regional
economy.
(ii) The condition of the stock or stocks of fish and whether an
FMP can improve or maintain that condition.
(iii) The extent to which the fishery could be or is already
adequately managed by states, by state/Federal programs, by Federal
regulations pursuant to FMPs or international commissions, or by
industry self-regulation, consistent with the policies and standards of
the Magnuson Act.
(iv) The need to resolve competing interests and conflicts among
user groups and whether an FMP can further that resolution.
(v) The economic condition of a fishery and whether an FMP can
produce more efficient utilization.
(vi) The needs of a developing fishery, and whether an FMP can
foster orderly growth.
(vii) The costs associated with an FMP, balanced against the
benefits (see paragraph (d) of this section as a guide).
(c) Alternative management measures. Management measures should not
impose unnecessary burdens on the economy, on individuals, on private
or public organizations, or on Federal, state, or local governments.
Factors such as fuel costs, enforcement costs, or the burdens of
collecting data may well suggest a preferred alternative.
(d) Analysis. The supporting analyses for FMPs should demonstrate
that the benefits of fishery regulation are real and substantial
relative to the added research, administrative, and enforcement costs,
as well as costs to the industry of compliance. In determining the
benefits and costs of management measures, each management strategy
considered and its impacts on different user groups in the fishery
should be evaluated. This requirement need not produce an elaborate,
formalistic cost/benefit analysis. Rather, an evaluation of effects and
costs, especially of differences among workable alternatives, including
the status quo, is adequate. If quantitative estimates are not
possible, qualitative estimates will suffice.
(1) Burdens. Management measures should be designed to give
fishermen the greatest possible freedom of action in conducting
business and pursuing recreational opportunities that are consistent
with ensuring wise use of the

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resources and reducing conflict in the fishery. The type and level of
burden placed on user groups by the regulations need to be identified.
Such an examination

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-15767. Public record. Not legal advice.