Magnuson Act Provisions; Consolidation and Update of Regulations

SUMMARY: NMFS proposes to consolidate nine CFR parts into one part that

would contain 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 would be reorganized into a

more logical and cohesive order, duplicative and outdated provisions

would be eliminated, and editorial changes would be made for

readability, clarity, and uniformity. In addition, the proposed rule

would make several revisions to the regulations applying to the

operation of the Councils, to codify recent administrative and policy

changes. The purpose of this proposed 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 proposed action is part of the President's Regulatory

Reinvention Initiative.

DATES: Comments must be received on or before May 31, 1996.

ADDRESSES: Comments should be sent to Tom Meyer, Office of Fisheries

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

Spring, MD 02910. Comments regarding burden-hour estimates or other

aspects of the collection-of-information requirements contained in this

rule should be sent to Tom Meyer at the above address and to the Office

of Information and Regulatory Affairs, Office of Management and Budget,

Washington, DC 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Tom Meyer, 301-713-2337.

SUPPLEMENTARY INFORMATION:

Background

In March 1995, President Clinton issued a directive to Federal

agencies regarding their responsibilities under his Regulatory

Reinvention Initiative. This initiative is part of the National

Performance Review and calls for comprehensive regulatory reform. The

President directed all agencies to undertake a review of all their

regulations, with an emphasis on eliminating or modifying those that

are obsolete, duplicative, or otherwise in need of reform. This

proposed rule is intended to carry out the President's directive with

respect to those regulations implementing general provisions of the

Magnuson Act.

Consolidation of regulations into one CFR part (50 CFR part 600).

Currently, regulations pertaining to general provisions of the Magnuson

Act are contained in nine separate parts of title 50 of the CFR. NMFS

is proposing to remove eight of the 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 to consolidate

the regulations contained therein, except for part 605, with the

existing regulations in part 600. The proposed rule would remove part

605 (Guidelines for Council Operations/Administration), and the

material contained in that part would be placed into a Council

Operations and Administration Handbook. These consolidated regulations

would 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;

consolidation would result in one set of regulations that is more

concise, clearer, and easier to use than the existing regulations.

Reorganization of measures within the consolidated regulations and

elimination of obsolete or duplicative provisions. NMFS proposes to

simplify and shorten the codified general Magnuson Act regulations.

Because portions of the existing regulations contain identical or

nearly identical provisions, this rule would combine and restructure

text. Regulatory language would be revised to improve clarity and

consistency.

As a result of the consolidation effort, NMFS identified

duplicative and obsolete provisions; this rule also proposes to remove

those measures from the regulations. This occurs in two areas: (1)

Foreign fishing (subpart F)--proposed revisions to the foreign fishing

regulations would eliminate appendices and sections dealing with

geographical areas where foreign fishing no longer occurs (all but the

Northwest Atlantic fisheries), and update the remaining text to reflect

that only foreign joint venture fishing is currently authorized, and

the need for gear restrictions, closed areas, and gear conflict

regulations are reduced; and (2) the national standards (subpart D)--

the proposed revision would eliminate appendix A, since this

explanatory material and supplementary policy rationale were previously

published in the Federal Register (54 FR 30833, July 24, 1989). No

substantive changes, except for those specifically identified, are

intended to be made to the regulations by this proposed reorganization,

or by the removal of duplicative and obsolete provisions.

The following proposed revisions are substantive changes:

(1) Definitions for the terms ``harass'' and ``sexually harass''

would be added to Sec. 600.10. Prohibitions are proposed to make

unlawful harassment or sexual harassment of an authorized officer or an

observer (Sec. 600.725(o)). In addition, the word ``forcibly'' would be

removed from the prohibitions at Secs. 600.505(a)(3) and (a)(14) and at

600.725(f). Authorized officers and observers should not be subjected

to resistance, intimidation, or interference, whether or not force is

involved.

(2) The constituent states of the Councils are represented by

``principal state officials'' designated by their governors. Each

principal state official under section 302(b) of the Magnuson Act would

be required to be employed, on a full-time basis, in a position related

to the development of fisheries management policies for that state.

Each Governor, when making new or revised designations to a Council of

a principal state official and their designee(s), would submit to the

NMFS Regional Director in writing, within a specified timeframe,

documentation that clearly demonstrates how such individuals meet the

new criteria for designation. When a principal state official names a

designee, that official would also have to ensure that the required

documentation is provided in advance, in a timely manner, to the NMFS

Regional Director. Additionally, this section would specify that

principal state officials who do not meet the new criteria or do not

submit the required

[[Page 19391]]

documentation would not be able to vote (Sec. 600.205).

(3) Additional policies regarding term limits for Secretarial

appointees would be established: one day or more of a voting member's

Council service would be counted as service for the entire 3-year term

of office; voting members, appointed to complete expiring terms, would

be considered to have served the entire term when the remainder of that

expiring term is completed; and voting members who have completed three

consecutive terms would not be considered for appointment to another

Council until one year has elapsed since they last served

(Sec. 600.210).

(4) Governors would be able to nominate residents of another

constituent state of a Council for appointment to an at-large seat on

that Council. Instructions pertaining to the nomination of at-large

nominees would be revised such that, if a Governor chooses to submit

nominations for one or more vacant at-large seats on a Council, he/she

must submit lists of at least three different nominees for each vacant

seat (Sec. 600.215).

(5) Policies in accordance with section 302(b)(5)of the Magnuson

Act regarding removal of Secretarial appointees for cause would be

added. A recommendation of a Council to remove a member would have to

be made to the Secretary in writing accompanied by a statement of the

basis for such recommendation (Sec. 600.230).

(6) Additional timeframes have been specified for when each Council

nominee, voting member appointed to the Council by the Secretary, and

Executive Director is required to complete and submit the NOAA Form 88-

195 (``Statement of Financial Interests for Use by Voting Members,

Nominees, and Executive Directors of the Regional Fishery Management

Councils''). In addition, the NOAA Form 88-195 must be made available

for inspection at each public Council meeting or hearing

(Sec. 600.235).

(7) Issuance of security assurances to Council nominees and members

would be substituted for security clearances, which would only be

considered for issuance on a case-by-case basis by the Department of

Commerce Office of Security. Each Council nominee would have to

complete a ``Certification of Status'' form, certifying whether he/she

serves as an agent of a foreign principal (Sec. 600.240).

(8) Section 302(d) of the Magnuson Act establishes GS-16 of the

General Schedule as Council member's daily pay rate. The GS-16 pay rate

has been abolished. The proposed rule would establish a Council

member's pay rate at 1.2 times the daily rate for GS-15 (step 1) of the

General Schedule (without locality pay), which is equivalent to the

previous GS-16 pay rate (Sec. 600.245).

(9) Contractors of a Council would be given access to confidential

data (Sec. 600.415(d)(3)).

Proposed rule on scientific research activity and exempted fishing.

A proposed rule on ``Foreign and Domestic Fishing; Scientific Research

Activities and Exempted Fishing'' was published by NMFS on March 14,

1996 in the Federal Register at 61 FR 10712. The regulatory text of the

scientific research activity proposed rule has been included in this

proposed rule for the convenience of the public, in the following

locations: (1) Sec. 600.10--definitions for: Director, exempted

educational activity, exempted or experimental fishing, scientific

cruise, scientific research activity, scientific research plan, and

scientific research vessel; (2) Sec. 600.505(a)(27)--prohibition; (3)

Sec. 600.512--scientific research; (4) Sec. 600.725(k) through (n); and

(5) Sec. 600.745--scientific research activity, exempted fishing, and

exempted educational activity. NMFS has requested comments on the

scientific research activity proposed rule during the comment period

for that rule, and is not requesting comments on that proposed text

here. Any changes to the scientific research activity proposed rule

made at the final rule stage will be reflected in the final rule for

the consolidation of part 600.

Request for comments. NMFS specifically requests comments or

suggestions for further consolidation or elimination of obsolete or

duplicative provisions contained in the proposed revision to part 600.

Classification

This action has been determined to be not significant for purposes

of E.O. 12866.

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 proposed rule, if adopted,

would not have a significant economic impact on a substantial number of

small entities. The proposed consolidations and revisions to the

existing regulatory text would have little or no impact on any small

entities. Proposed revisions to Council membership procedures would

have little impact on Council operations, because the rule is merely

codifying changes that, for the most part, are already known to the

Councils and are already in practice.

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 hours per response, and (3) marine mammal report estimated at 0.2

hours per response; Observers (1) effort plan estimated at 0.5 hours

per response, and (2) notification requirement to observers estimated

at 0.2 hours per response; Recordkeeping (1) communications logs

estimated at 0.1 hours per response, (2) transfer logs estimated at 0.2

hours per response, (3) daily fishing logs estimated at 0.4 hours per

response, (4) daily consolidated fishing log estimated at 0.5 hours per

response, and (5) joint venture logs estimated at 0.5 hours per

response; and Gear avoidance and disposal (1) gear conflicts estimated

at 0.2 hours per response, and (2) disposal estimated at 0.2 hours 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

The following collection-of-information requirements have been

submitted OMB for approval:

(a) 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.

(b) Principal state officials and their designees--Estimated at 15

hours per response.

(c) Council appointments--Estimated at 120 hours per appointment

(30 appointments required).

(d) Application for reinstatement of State authority-- Estimated at

2 hours per response.

The estimated response times shown include the time for reviewing

instructions, searching existing data

[[Page 19392]]

sources, gathering and maintaining the data needed, and completing and

reviewing the collection of information. Send comments regarding burden

estimates, or any other aspect of the data requirements, including

suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).

Notwithstanding any other provision of the law, no person is

required to respond to, nor shall any person be subject to a penalty

for failure to comply with a collection of information, subject to the

requirements of the PRA, unless that collection of information displays

a currently valid OMB Control Number.

List of Subjects

50 CFR 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: April 17, 1996.

Gary Matlock,

Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR parts 600, 601,

602, 603, 605, 611, 619, 620, and 621 are proposed to be amended as

follows:

1. 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.

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--Preempting 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.

Figure 1 to Part 600--Fishing areas of the Northwest Atlantic Ocean

fisheries.

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

Subpart A--General

Sec. 600.5 Purpose and scope.

(a) This part contains general provisions governing the operation

of the eight Regional Fishery Management Councils established by the

Magnuson 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

[[Page 19393]]

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 U.S. Coast

Guard;

(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 U.S. Coast Guard to enforce the provisions of the

Magnuson Act; or

(4) Any U.S. Coast Guard 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.

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, NMFS, F/CM, 1315 East-West Highway, Silver Spring,

Maryland 20910.

Discard means to release or return fish to the sea, whether or not

such fish are brought fully on board a fishing 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 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:

(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 paragraph (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.

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.

Harass means to unreasonably interfere with an individual's work

[[Page 19394]]

performance, or to engage in conduct that creates an intimidating,

hostile, or offensive environment.

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.

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, 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, retain aboard, or 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.

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, for the purposes of this part, is an

activity in furtherance of a scientific fishery investigation or study

that would meet the definition of fishing under the Magnuson Act, but

for the exemption applicable to scientific research activity conducted

from a scientific research vessel. Scientific research activity

includes, but is not limited to, sampling, collecting, observing, or

surveying the fish or fishery resources within the EEZ, at sea, on

board scientific research vessels, to increase scientific knowledge of

the fishery resources or their environment, or to test a hypothesis as

part of a planned, directed investigation or study conducted according

to methodologies generally accepted as appropriate for scientific

research. At-sea scientific fishery investigations address one or more

issues involving taxonomy, biology, physiology, behavior, disease,

aging, growth, mortality, migration, recruitment, distribution,

abundance, ecology, stock structure, bycatch, and catch estimation of

fish and shellfish (invertebrate) species considered to be a component

of the fishery resources within the 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

[[Page 19395]]

deployment and removal of equipment, as appropriate;

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

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

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

of such need;

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

sponsoring organization and its director;

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

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

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

vessel; and

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

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

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

master.

Scientific research vessel means a vessel owned or chartered by,

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

(including NOAA or institutions designated as federally funded research

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

(or other educational institution accredited by a recognized national

or international accreditation body), international treaty

organization, or scientific institution. In order for a vessel that is

owned or chartered and controlled by a foreign government to meet this

definition, the vessel must have scientific research as its exclusive

mission during the scientific cruise in question and the vessel

operations must be conducted in accordance with a scientific research

plan.

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, 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 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.

Transship means offloading and onloading or otherwise transferring

fish or fish products and/or transporting fish or products made from

fish.

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

[[Page 19396]]

(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, 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 ``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 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.

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:

(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; and

(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 subordinates of the

principal state official 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

[[Page 19397]]

appointed for a term of 3 years and, except as discussed below, may be

reappointed. A voting member's Council service during any portion of a

3-year term of office (i.e., 1 day or more) will be counted as service

for the entire 3-year term of office. In addition, an individual

appointed to fill a vacancy occurring prior to the expiration of any

term of office will be appointed for the remainder of that term, and

that member will be considered to have served the entire term when the

remainder of that term is completed.

(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 not be eligible for appointment to another

term on any Council until one year has elapsed since the last day of

that member's service.

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;

(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

[[Page 19398]]

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/she must submit lists such that

at least three different nominees will be available to be considered

for each vacant seat.

(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.

(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. 600.230.

(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. 600.230.

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/her statement within 30 days of

acquiring any such financial interest, or of substantially changing a

financial interest; and must update his/her

[[Page 19399]]

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/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 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

[[Page 19400]]

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, 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; and

(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

[[Page 19401]]

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 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

[[Page 19402]]

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.

(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; and

(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

[[Page 19403]]

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 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; and

(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

[[Page 19404]]

or individuals. Any management measure (or lack of management) has

incidental allocative effects, but only those measures that result in

direct distributions of fishing privileges will be judged against the

allocation requirements of Standard 4. Adoption of an FMP that merely

perpetuates existing fishing practices may result in an allocation, if

those practices directly distribute the opportunity to participate in

the fishery. Allocations of fishing privileges include, for example,

per-vessel catch limits, quotas by vessel class and gear type,

different quotas or fishing seasons for recreational and commercial

fishermen, assignment of ocean areas to different gear users, and

limitation of permits to a certain number of vessels or fishermen.

(2) Analysis of allocations. Each FMP should contain a description

and analysis of the allocations existing in the fishery and of those

made in the FMP. The effects of eliminating an existing allocation

system should be examined. Allocation schemes considered, but rejected

by the Council, should be included in the discussion. The analysis

should relate the recommended allocations to the FMP's objectives and

OY specification, and discuss the factors listed in paragraph (c)(3) of

this section.

(3) Factors in making allocations. An allocation of fishing

privileges must be fair and equitable, must be reasonably calculated to

promote conservation, and must avoid excessive shares. These tests are

explained in paragraphs (c)(3)(i) through (c)(3)(iii) of this section:

(i) Fairness and equity. (A) An allocation of fishing privileges

should be rationally connected to the achievement of OY or with the

furtherance of a legitimate FMP objective. Inherent in an allocation is

the advantaging of one group to the detriment of another. The motive

for making a particular allocation should be justified in terms of the

objectives of the FMP; otherwise, the disadvantaged user groups or

individuals would suffer without cause. For instance, an FMP objective

to preserve the economic status quo cannot be achieved by excluding a

group of long-time participants in the fishery. On the other hand,

there is a rational connection between an objective of harvesting

shrimp at their maximum size and closing a nursery area to trawling.

(B) An allocation of fishing privileges may impose a hardship on

one group if it is outweighed by the total benefits received by another

group or groups. An allocation need not preserve the status quo in the

fishery to qualify as ``fair and equitable,'' if a restructuring of

fishing privileges would maximize overall benefits. The Council should

make an initial estimate of the relative benefits and hardships imposed

by the allocation, and compare its consequences with those of

alternative allocation schemes, including the status quo. Where

relevant, judicial guidance and government policy concerning the rights

of treaty Indians and aboriginal Americans must be considered in

determining whether an allocation is fair and equitable.

(ii) Promotion of conservation. Numerous methods of allocating

fishing privileges are considered ``conservation and management''

measures under section 303 of the Magnuson 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.

[[Page 19405]]

(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 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

[[Page 19406]]

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 resources and reducing conflict in the

fishery. The type and level of burden placed on user groups by the

regulations need to be identified. Such an examination should include,

for example: Capital outlays; operating and maintenance costs;

reporting costs; administrative, enforcement, and information costs;

and prices to consumers. Management measures may shift costs from one

level of government to another, from one part of the private sector to

another, or from the government to the private sector. Redistribution

of costs through regulations is likely to generate controversy. A

discussion of these and any other burdens placed on the public through

FMP regulations should be a part of the FMP's supporting analyses.

(2) Gains. The relative distribution of gains may change as a

result of instituting different sets of alternatives, as may the

specific type of gain. The analysis of benefits should focus on the

specific gains produced by each alternative set of management measures,

including the status quo. The benefits to society that result from the

alternative management measures should be identified, and the level of

gain assessed.

Subpart E--Confidentiality of Statistics

Sec. 600.405 Types of statistics covered.

NOAA is authorized under the Magnuson Act and other statutes to

collect proprietary or confidential commercial or financial

information. This part applies to all pertinent data required to be

submitted to the Secretary with respect to any FMP including, but not

limited to, information regarding the type and quantity of fishing gear

used, catch by species in numbers of fish or weight thereof, areas in

which fishing occurred, time of fishing, number of hauls, and the

estimated processing capacity of, and the actual processing capacity

utilized by, U.S. fish processors.

Sec. 600.410 Collection and maintenance of statistics.

(a) General. (1) All statistics required to be submitted to the

Secretary are provided to the Assistant Administrator.

(2) After receipt, the Assistant Administrator will remove all

identifying particulars from the statistics if doing so is consistent

with the needs of NMFS and good scientific practice.

(3) Appropriate safeguards as specified by NOAA Directives, or

other NOAA or NMFS internal procedures, apply to the collection and

maintenance of all statistics, whether separated from identifying

particulars or not, so as to ensure their confidentiality.

(b) Collection agreements with states. (1) The Assistant

Administrator may enter into an agreement with a state authorizing the

state to collect statistics on behalf of the Secretary.

(2) NMFS will not enter into a cooperative collection agreement

with a state unless the state has authority to protect the statistics

from disclosure in a manner at least as protective as these

regulations.

Sec. 600.415 Access to statistics.

(a) General. In determining whether to grant a request for access

to confidential data, the following information will be taken into

consideration:

(1) The specific types of data required;

(2) The relevance of the data to conservation and management

issues;

(3) The duration of time access will be required: continuous,

infrequent, or one-time; and

(4) An explanation of why the availability of aggregate or non-

confidential summaries of data from other sources would not satisfy the

requested needs.

(b) Federal employees. Statistics submitted as a requirement of an

FMP and that reveal the identity of the submitter will only be

accessible to the following:

(1) Personnel within NMFS responsible for the collection,

processing, and storage of the statistics;

(2) Federal employees who are responsible for FMP development,

monitoring, and enforcement;

(3) Personnel within NMFS performing research that requires

confidential statistics;

(4) Other NOAA personnel on a demonstrable need-to-know basis; and

(5) NOAA/NMFS contractors or grantees who require access to

confidential statistics to perform functions authorized by a Federal

contract or grant.

(c) State personnel. Upon written request, confidential statistics

will only be accessible if:

(1) State employees demonstrate a need for confidential statistics

for use in fishery conservation and management; and

[[Page 19407]]

(2) The state has entered into a written agreement between the

Assistant Administrator and the head of the state's agency that manages

marine and/or anadromous fisheries. The agreement shall contain a

finding by the Assistant Administrator that the state has

confidentiality protection authority comparable to the Magnuson Act,

and that the state will exercise this authority to limit subsequent

access and use of the data to fishery management and monitoring

purposes.

(d) Councils. Upon written request by the Council Executive

Director, access to confidential data will be granted to:

(1) Council employees who are responsible for FMP development and

monitoring.

(2) A Council for use by the Council for conservation and

management purposes, with the approval of the Assistant Administrator.

In addition to the information described in paragraph (a) of this

section, the Assistant Administrator will consider the following in

deciding whether to grant access:

(i) The possibility that Council members might gain personal or

competitive advantage from access to the data; and

(ii) The possibility that the suppliers of the data would be placed

at a competitive disadvantage by public disclosure of the data at

Council meetings or hearings.

(3) A contractor of the Council for use in such analysis or studies

necessary for conservation and management purposes, with approval of

the Assistant Administrator and execution of an agreement with NMFS as

described by NOAA Administrative Order (NAO) 216-100.

(e) Prohibitions. Persons having access to these data are

prohibited from unauthorized use or disclosure, and are subject to the

provisions of 18 U.S.C. 1905, 16 U.S.C. 1857, and NOAA/NMFS internal

procedures, including NAO 216-100.

Sec. 600.420 Control system.

(a) The Assistant Administrator maintains a control system to

protect the identity of submitters of statistics required by an FMP.

The control system:

(1) Identifies those persons who have access to the statistics;

(2) Contains procedures to limit access to confidential data to

authorized users; and

(3) Provides for safeguarding the data.

(b) This system requires that all persons who have authorized

access to the data be informed of the confidentiality of the data.

These persons are required to sign a statement that they:

(1) Have been informed that the data are confidential; and

(2) Have reviewed and are familiar with the procedures to protect

confidential statistics.

Sec. 600.425 Release of statistics.

(a) The Assistant Administrator will not release to the public any

statistics required to be submitted under an FMP in a form that would

identify the submitter, except as required by law.

(b) All requests from the public for statistics submitted in

response to a requirement of an FMP will be processed consistent with

the NOAA FOIA regulations (15 CFR part 903), NAO 205-14, Department of

Commerce Administrative Orders 205-12 and 205-14 and 15 CFR part 4.

(c) NOAA does not release or allow access to confidential

information in its possession to members of Council advisory groups,

except as provided by law.

Subpart F--Foreign Fishing

Sec. 600.501 Vessel permits.

(a) General. (1) Each FFV fishing under the Magnuson Act must have

on board a permit issued under this section, unless it is engaged only

in recreational fishing.

(2) Permits issued under this section do not authorize FFV's or

persons to harass, capture, or kill marine mammals. No marine mammals

may be taken in the course of fishing unless that vessel has on board a

currently valid Authorization Certificate under the MMPA. Regulations

governing the taking of marine mammals incidental to commercial fishing

operations are contained in 50 CFR part 229 of this title.

(b) Responsibility of owners and operators. The owners and

operators of each FFV are jointly and severally responsible for

compliance with the Magnuson Act, the applicable GIFA, this subpart,

and any permit issued under the Magnuson Act and this subpart. The

owners and operators of each FFV bear civil responsibility for the acts

of their employees and agents constituting violations, regardless of

whether the specific acts were authorized or even forbidden by the

employer or principal, and regardless of knowledge concerning the

occurrence.

(c) Activity codes. Permits to fish under a GIFA may be issued by

the Assistant Administrator for the activities described in this

paragraph, but the permits may be modified by regulations of this

subpart, and by the conditions and restrictions attached to the permit

(see paragraphs (e)(1) and (e)(1)(v) of this section). The Assistant

Administrator may issue a permit, as appropriate, for one or more of

the activity codes listed below. The activity codes are described as

follows:

(1) Activity Code 1. Catching, scouting, processing, transshipping,

and supporting foreign vessels. Activity is limited to fish harvested

or to be harvested by foreign vessels in the EEZ.

(2) Activity Code 2. Processing, scouting, transshipping, and

supporting foreign vessels. Activity is limited to fish harvested or to

be harvested by foreign vessels in the EEZ.

(3) Activity Code 3. Transshipping, scouting, and supporting

foreign vessels. Activity is limited to fish harvested or to be

harvested by foreign vessels in the EEZ.

(4) Activity Code 4. Processing, scouting, transshipping, and

supporting U.S. vessels delivering fish to foreign vessels. Activity is

limited to the receipt of unprocessed fish harvested or to be harvested

by U.S. vessels.

(5) Activity Code 5. Transshipping, scouting, and supporting

foreign vessels. Transshipment limited to fish received or to be

received from foreign vessels processing fish from U.S. harvesting

vessels.

(6) Activity Code 6. Transshipping, scouting, and supporting U.S.

vessels. Transshipment limited to U.S.-harvested fish processed on

board U.S. vessels.

(7) Activity Code 7. Processing, transshipping, and supporting

foreign vessels. Activity limited to fish harvested or to be harvested

by foreign vessels seaward of the EEZ.

(8) Activity Code 8. Transshipping and supporting foreign vessels.

Activity is limited to fish harvested or to be harvested seaward of the

EEZ by foreign vessels or fish duly authorized for processing in the

internal waters of one of the states.

(9) Activity Code 9. Supporting U.S. fishing vessels and U.S. fish

processing vessels and any foreign fishing vessels authorized under any

activity code under paragraph (c) of this subpart.

(d) Application. (1) Applications for FFV permits must be submitted

by each foreign nation to the DOS. Application forms are available from

OES/OMC, DOS, Washington, DC. The applicant should allow 90 days for

review and comment by the public, involved governmental agencies, and

appropriate Councils, and for processing before the anticipated date to

begin fishing. The permit application fee must be paid at the time of

application according to Sec. 600.518.

[[Page 19408]]

(2) Applicants must provide complete and accurate information

requested on the permit application form.

(3) Applicants for FFV's that will support U.S. vessels in joint

ventures (Activity Code 4) must provide the additional information

specified by the permit application form.

(4) Each foreign nation may substitute one FFV for another by

submitting a new vessel information form and a short explanation of the

reason for the substitution to the DOS. Each substitution is considered

a new application and a new application fee must be paid. NMFS will

promptly process an application for a vessel replacing a permitted FFV

that is disabled or decommissioned, once the DOS has notified the

appropriate Council(s) of the substituted application.

(e) Issuance. (1) Permits may be issued to an FFV by the Assistant

Administrator through the DOS after--

(i) The Assistant Administrator determines that the fishing

described in the application will meet the requirements of the Magnuson

Act and approves the permit application;

(ii) The foreign nation has paid the fees, including any surcharge

fees and provided any assurances required by the Secretary in

accordance with the provisions of Sec. 600.518;

(iii) The foreign nation has appointed an agent;

(iv) The foreign nation has identified a designated representative;

and

(v) The general ``conditions and restrictions'' of receiving

permits, as required by section 204(b)(7) of the Magnuson Act, and any

``additional restrictions'' attached to the permit for the conservation

and management of fishery resources or to prevent significant

impairment of the national defense or security interests, have been

accepted by the nation issuing the FFV's documents.

(2) NMFS will distribute blank permit forms to the designated

representative while the application is being processed. The designated

representative must ensure that each FFV receives a permit form and

must accurately transmit the permit form and the contents of the permit

to the FFV when it is issued. NMFS may authorize the modification and

use of the previous year's permit forms to be used on an interim basis

in place of the current year's permit forms if the current forms were

not made available to the designated representatives for timely

distribution. The FFV owner or operator must accurately complete the

permit form prior to fishing in the EEZ.

(3) A completed permit form must contain--

(i) The name and IRCS of the FFV and its permit number;

(ii) The permitted fisheries and activity codes;

(iii) The date of issuance and expiration date, if other than

December 31; and

(iv) All conditions and restrictions, and any additional

restrictions and technical modifications appended to the permit.

(4) Permits are not issued for boats that are launched from larger

vessels. Any enforcement action that results from the activities of a

launched boat will be taken against the permitted vessel.

(f) Duration. A permit is valid from its date of issuance to its

date of expiration, unless it is revoked or suspended or the nation

issuing the FFV's documents does not accept amendments to the permit

made by the Assistant Administrator in accordance with the procedures

of paragraph (l) of this section. The permit will be valid for no

longer than the calendar year in which it was issued.

(g) Transfer. Permits are not transferable or assignable. A permit

is valid only for the FFV to which it is issued.

(h) Display. Each FFV operator must have a properly completed

permit form available on board the FFV when engaged in fishing

activities and must produce it at the request of an authorized officer

or observer.

(i) Suspension and revocation. NMFS may apply sanctions to an FFV's

permit by revoking, suspending, or imposing additional permit

restrictions on the permit under 15 CFR part 904, if the vessel is

involved in the commission of any violation of the Magnuson Act, the

GIFA, or this subpart; if an agent and a designated representative are

not maintained in the United States; if a civil penalty or criminal

fine imposed under the Magnuson Act has become overdue; or as otherwise

specified in the Magnuson Act.

(j) Fees. Permit application fees are described in Sec. 600.518.

(k) Change in application information. (1) The foreign nation must

report, in writing, any change in the information supplied under

paragraph (d) of this section to the Assistant Administrator within 15

calendar days after the date of the change. Failure to report a change

in the ownership from that described in the current application within

the specified time frame voids the permit, and all penalties involved

will accrue to the previous owner.

(2) The Assistant Administrator may make technical modifications or

changes in the permit application requested or reported by a Nation,

such as a change in radio call sign, processing equipment, or tonnage,

which will be effective immediately.

(3) If, in the opinion of the Assistant Administrator, a permit

change requested by a Nation could significantly affect the status of

any fishery resource, such request will be processed as an application

for a new permit under this section.

(4) The Assistant Administrator will notify the designated

representative of any revision that must be made on the permit form as

the result of a permit change.

(5) The vessel owner or operator must record the modification on

the permit form.

(l) Permit amendments. (1) The Assistant Administrator may amend a

permit by adding ``additional restrictions'' for the conservation and

management of fishery resources covered by the permit, or for the

national defense or security if the Assistant Administrator determines

that such interests would be significantly impaired without such

restrictions. Compliance with the added additional restrictions is a

condition of the permit. Violations of added additional restrictions

will be treated as violations of this subpart.

(2) The Assistant Administrator may make proposed additional

restrictions effective immediately, if necessary, to prevent

substantial harm to a fishery resource of the United States, to allow

for the continuation of ongoing fishing operations, or to allow for

fishing to begin at the normal time for opening of the fishery.

(3) The Assistant Administrator will send proposed additional

restrictions to each Nation whose vessels are affected (via the

Secretary of State), to the appropriate Councils, and to the Commandant

of the Coast Guard. NMFS will, at the same time, publish a document of

any significant proposed additional restrictions in the Federal

Register. The document will include a summary of the reasons underlying

the proposal, and the reasons that any proposed additional restrictions

are made effective immediately.

(4) The Nation whose vessels are involved, the owners of the

affected vessels, their representatives, the agencies specified in

paragraph (l)(3) of this section, and the public may submit written

comments on the proposed additional restrictions within 30 days after

publication in the Federal Register.

[[Page 19409]]

(5) The Assistant Administrator will make a final decision

regarding the proposed additional restrictions as soon as practicable

after the end of the comment period. The Assistant Administrator will

provide the final additional restrictions to the Nation whose vessels

are affected (via the Secretary of State) according to the procedures

of paragraph (e) of this section. The Assistant Administrator will

include with the final additional restrictions to the Nation, a

response to comments submitted.

(6) Additional restrictions may be modified by following the

procedures of paragraphs (l)(2) through (l)(5) of this section.

Sec. 600.502 Vessel reports.

(a) The operator of each FFV must report the FFV's activities

within the EEZ to the USCG and NMFS as specified in this section.

(b) All reports required by this section must be in English and in

the formats specified in the permit additions and restrictions. Reports

must be delivered via private or commercial communications facilities,

facsimile, or other electronic means acceptable to NMFS and the USCG,

directly to the appropriate NMFS Region or Center and USCG commander.

Weekly reports must also be delivered directly to the appropriate NMFS

Region or Center (see tables 1 and 2 of this section). (The required

reports may be delivered to the closest USCG communication station as

indicated in table 3 of this section or other USCG communication

station only if adequate private or commercial communications

facilities have not been successfully contacted.) Radio reports must be

made via radiotelegraphy, Telex, or facsimile where available. For the

purposes of this section, a message is considered ``transmitted'' when

its receipt is acknowledged by a communications facility and considered

``delivered'' upon its receipt by the offices of the appropriate USCG

commander, NMFS Regional Office, or NMFS Center identified in table 3

of this section. Reports required by this section may be submitted by

the vessel's designated representative; however, the operator of the

FFV is responsible for the correct and timely filing of all required

reports.

(c) Activity reports. The operator of each FFV must report the

FFV's movements and activities before or upon the event, as specified

in this paragraph (c). Appropriate forms, instructions, codes, and

examples are contained in the conditions and restrictions of the FFV's

permit. Each FFV report must contain the following information: The

message identifier ``VESREP'' to indicate it is a vessel activity

report, FFV name, international radio call sign IRCS, date (month and

day based on GMT), time (hour and minute GMT), position (latitude and

longitude to the nearest degree and minute) where required, area (by

fishing area code) where required, the appropriate action code,

confirmation codes where required, and the other information specified

in paragraphs (c)(1) through (c)(11) of this section.

(1)``BEGIN''. Each operator must specify the date, time, position

and area the FFV will actually ``BEGIN'' fishing in the EEZ and the

species (by species code), product (by product code), and quantity of

all fish and fish products (by product weight to the nearest hundredth

of a metric ton) on board when entering the EEZ (action code

``BEGIN''). The message must be delivered at least 24 hours before the

vessel begins to fish.

(2) ``DEPART''. Each operator must specify the date, time,

position, and area the FFV will ``DEPART'' the EEZ to embark or debark

an observer, to visit a U.S. port, to conduct a joint venture in

internal waters, or to otherwise temporarily leave an authorized

fishing area, but not depart the seaward limit of the EEZ (action code

``DEPART''). The message must be transmitted before the FFV departs the

present fishing area and delivered within 24 hours of its transmittal.

(3) ``RETURN''. Each operator must specify the date, time,

position, and area the FFV will ``RETURN'' to the EEZ following a

temporary departure, and the species (by species code), product (by

product code), and quantity of all fish and fish products (by product

weight to the nearest hundredth of a metric ton) on board that were

received in a joint venture in internal waters (action code

``RETURN''). The message must be transmitted before returning to the

EEZ and delivered within 24 hours of its transmittal.

(4) ``SHIFT''. Each operator must report each SHIFT in fishing area

(as described for each fishery) by specifying the date, time, and

position the FFV will start fishing, and the new area (action code

``SHIFT''). The message must be transmitted before leaving the original

area and delivered within 24 hours of its transmittal. If a foreign

vessel operates within 20 nautical miles (37.04 km) of a fishing area

boundary, its operator may submit in one message the shift reports for

all fishing area shifts occurring during 1 fishing day (0001-2400 GMT).

This message must be transmitted prior to the last shift expected to be

made in the day and delivered within 24 hours of its transmittal.

(5) ``JV OPS''. Each operator must specify the date, time,

position, and area at which the FFV will ``START'' joint venture

operations (action code ``START JV OPS'') or ``END'' joint venture

operations (action code ``END JV OPS''). These reports must be made in

addition to other activity reports made under this section. Each

message must be transmitted before the event and delivered within 24

hours of its transmittal.

(6) ``TRANSFER''. The operator of each FFV that anticipates a

transshipping operation in which the FFV will receive fish or fisheries

products must specify the date, time, position and area the FFV will

conduct the ``TRANSFER'' and the name and IRCS of the other FFV or U.S.

vessel involved (action code ``TRANSFER''). The report must include the

permit activity code under which the transfer will be made. The message

must be transmitted prior to the transfer and delivered within 24 hours

of its transmittal. The movement of raw fish from a permitted foreign

catching vessel or, under an Activity Code 4, from a U.S. fishing

vessel to the reporting processing vessel and the return of nets or

codends is not considered a transfer.

(7) ``OFFLOADED''. Each operator must specify the date, time,

position and area the FFV ``OFFLOADED'' fish or fisheries products TO

another FFV or a U.S. vessel in a transfer, the other FFV's or U.S.

vessel's name, IRCS, Permit Activity Code under which the transfer was

made, species (by species code) and quantity of fish and fisheries

products (by product code and by product weight, to the nearest

hundredth of a metric ton) offloaded (action code ``OFFLOADED TO'').

The message must be transmitted within 12 hours after the transfer is

completed and delivered within 24 hours of its transmittal and before

the FFV ceases fishing in the EEZ.

(8) ``RECEIVED''. Each operator must specify the date, time,

position and area the vessel ``RECEIVED'' fish or fisheries products

FROM another FFV in a transfer, the other FFV's or U.S. vessel's name,

IRCS, Permit Activity Code under which the receipt was made, species

(by species code) and quantity of fish and fisheries products (by

product code and by product weight, to the nearest hundredth of a

metric ton) received (action code ``RECEIVED FROM''). The message must

be transmitted within 12 hours after the transfer is completed and

delivered within 24 hours of its transmittal and before the vessel

ceases fishing in the EEZ.

[[Page 19410]]

(9) ``CEASE''. Each operator must specify the date, time, position,

and area the FFV will ``CEASE'' fishing in order to leave the EEZ

(action code ``CEASE''). The message must be delivered at least 24

hours before the FFV's departure.

(10) ``CHANGE''. Each operator must report any ``CHANGE'' TO the

FFV's operations if the position or time of an event specified in an

activity report will vary more than 5 nautical miles (9.26 km) or 4

hours from that previously reported, by sending a revised message

inserting the word ``CHANGE'' in front of the previous report,

repeating the name, IRCS, date, and time of the previous report, adding

the word ``TO'' and the complete revised text of the new report (action

code ``CHANGE TO''). Changes to reports specifying an early beginning

of fishing by an FFV or other changes to reports contained in

paragraphs (c)(1) through (c)(9) of this section must be transmitted

and delivered as if the CHANGE report were the original message.

(11) ``CANCEL''. Each operator wanting to CANCEL a previous report

may do so by sending a revised message, and inserting the word

``CANCEL'' in front of the previous report's vessel name, IRCS, date,

time and action code canceled (action code ``CANCEL''). The message

must be transmitted and delivered prior to the date and time of the

event in the original message.

(d) The operator of an FFV will be in violation of paragraphs

(c)(1) through (c)(9) of this section if the FFV does not pass within 5

nautical miles (9.26 km) of the position given in the report within 4

hours of the time given in the report.

(e) The notices required by this section may be provided for

individual or groups of FFV's (on a vessel-by-vessel basis) by

authorized persons. An FFV operator may retransmit reports on the

behalf of another FFV, if authorized by that FFV's operator. This does

not relieve the individual vessel operator of the responsibility of

filing required reports. In these cases, the message format should be

modified so that each line of text under ``VESREP'' is a separate

vessel report.

(f) Weekly reports. (1) The operator of each FFV in the EEZ must

submit appropriate weekly reports through the Nation's designated

representative. The report must arrive at the address and time

specified in paragraph (g) of this section. The reports may be sent by

facsimile or Telex, but a completed copy of the report form must be

mailed or hand delivered to confirm the Telex. Appropriate forms,

instructions, codes, and examples are contained in the conditions and

restrictions of the FFV's permit. Designated representatives may

include more than one vessel report in a facsimile or Telex message, if

the information is submitted on a vessel-by-vessel basis. Requests for

corrections to previous reports must be submitted through the Nation's

designated representative and mailed or hand-delivered, together with a

written explanation of the reasons for the errors. The appropriate

Regional or Science and Research Director may accept or reject any

correction and initiate any appropriate civil penalty actions.

(2) Weekly catch report (CATREP). The operator of each FFV must

submit a weekly catch report stating any catch (Activity Code 1) in

round weight of each species or species group allocated to that Nation

by area and days fished in each area for the weekly period Sunday

through Saturday, GMT, as modified by the fishery in which the FFV is

engaged. Foreign vessels delivering unsorted, unprocessed fish to a

processing vessel are not required to submit CATREP's, if that

processing vessel (Activity Code 2) submits consolidated CATREP's for

all fish received during each weekly period. No report is required for

FFV's that do not catch or receive foreign-caught fish during the

reporting period.

(3) Weekly receipts report (RECREP). The operator of each FFV must

submit a weekly report stating any receipts of U.S.-harvested fish in a

joint venture (Activity Code 4) for the weekly period Sunday through

Saturday, GMT, as modified by the fishery in which the FFV is engaged,

for each fishing area, by authorized or prohibited species or species

group; days fish received; round weight retained or returned to the

U.S. fishing vessel; number of codends received; and number of vessels

transferring codends. The report must also include the names of U.S.

fishing vessels transferring codends during the week. No report is

required for FFV's that do not receive any U.S.-harvested fish during

the reporting period.

(4) Marine mammal report (MAMREP). The operator of each FFV must

submit a weekly report stating any incidental catch or receipt of

marine mammals (Activity Codes 1 or 2 and/or 4), the geographical

position caught, the condition of the animal, number caught (if more

than one of the same species and condition), and nationality of the

catching vessel for the period Sunday through Saturday, GMT, as

modified by the fishery in which the vessel is engaged. Foreign

catching vessels delivering unsorted, unprocessed fish to processing

vessel are not required to submit MAMREP's, provided that the

processing or factory vessel (Activity Code 2) submits consolidated

MAMREP's for all fish received during each weekly period. FFV's

receiving U.S.-harvested fish in a joint venture (Activity Code 4) must

submit consolidated reports for U.S. vessels operating in the joint

venture. No report is required for FFV's that do not catch or receive

marine mammals during the reporting period.

(g) Submission instructions for weekly reports. The designated

representative for each FFV must submit weekly reports in the

prescribed format to the appropriate Regional or Science and Research

Director of NMFS by 1900 GMT on the Wednesday following the end of the

reporting period. However, by agreement with the appropriate Director,

the designated representative may submit weekly reports to some other

facility of NMFS.

Table 1to Sec. 600.502--Addresses

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

NMFS regional directors NMFS science and research directors U.S. Coast Guard commanders

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

Director, Northeast Region, National Director, Northeast Fisheries Science Commander, Atlantic Area,

Marine Fisheries Service, NOAA, One Center, National Marine Fisheries U.S. Coast Guard, Governor's

Blackburn Drive, Gloucester, MA 01930- Service, NOAA, 166 Water Street, Woods Island, New York, NY 10004.

2298. Hole, MA 02543-1097.

Director, Southeast Region, National Director, Southeast Fisheries Science Commander, Atlantic Area,

Marine Fisheries Service, NOAA, 9721 Center, National Marine Fisheries U.S. Coast Guard, Governor's

Exec. Center Drive N., St. Petersburg, Service, NOAA, 75 Virginia Beach Island, New York, NY 10004.

FL 33702. Drive, Miami, FL 33149-1003.

Director, Northwest Region, National Director, Northwest Fisheries Science Commander, Pacific Area, U.S.

Marine Fisheries Service, NOAA, 7600 Center, National Marine Fisheries Coast Guard, Government

Sand Point Way, NE, BIN C15700, Bldg. Service, NOAA, 2725 Montlake Boulevard Island, Alameda, CA 94501

1, Seattle, WA 98115. East, Seattle, WA 98112-2097.

[[Page 19411]]

Director, Alaska Region, National Marine Director, Alaska Fisheries Science Commander, Seventeenth Coast

Fisheries Service, NOAA, P.O. Box 1668, Center, National Marine Fisheries Guard District, P.O. Box

Juneau, AK 99802-1668. Service, NOAA, 7600 Sand Point Way, 25517, Juneau, AK 99802.

NE, BIN C15700, Bldg. 4, Seattle, WA

98115-0070.

Director, Southwest Region National Director, Southwest Fisheries Science Commander, Fourteenth Coast

Marine Fisheries Service, NOAA, 501 Center, National Marine Fisheries Guard District, 300 Ala

West Ocean Blvd, Suite 4200, Long Service, NOAA, P.O. Box 271, La Jolla, Moana Blvd., Honolulu, HI

Beach, CA 90802-4213. CA 92038-0271. 96850.

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

Table 2 to Sec. 600.502--Areas of Responsibility of NMFS and U.S. Coast Guard Offices

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

National Marine

Area of responsibility Fishery Fisheries Service U.S. Coast Guard

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

Atlantic Ocean--North of Cape Northwest Atlantic Ocean Director, Northeast Commander, Atlantic

Hatteras. Fishery, including the Center, Attn: Observer Area.

Hake Fishery. Program.

Atlantic Ocean--South of Cape Atlantic Billfish and Director, Northeast Commander, Atlantic

Hatteras. Sharks Fishery. Center, Attn: Observer Area.

Program.

Gulf of Mexico................... Royal Red Shrimp Fishery

Caribbean Sea--Pacific Ocean off Pacific Coast Groundfish Director, Northwest Commander, Pacific Area.

the States of California, Fishery. Region; Director,

Oregon, and Washington. Northwest Fisheries

Science Center.

North Pacific--Ocean and Bering Gulf of Alaska Groundfish Director, Alaska Region. Commander, Seventeenth

Sea off Alaska. Fishery. Coast Guard District.

Bering Sea and Aleutian Director, Alaska

Islands Groundfish Fisheries Science

Fishery; Snail Fishery. Center.

Pacific Ocean off Hawaii and Seamount Groundfish Director, Southwest Commander, Fourteenth

Other U.S. Insular Possessions Fishery. Region. Coast Guard District.

in the Central and Western

Pacific.

Pacific Pelagic Species Director, Southwest

Fishery; Precious Coral Center.

Fishery.

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

Table 3 to Sec. 600.502--U.S. Coast Guard Communications Stations and Frequencies

U.S. Coast Guard communications Radiotelephone Channel

station IRCS \1\ GMT time

Boston.............................. NMF A-E 2330-1100.

.................... B,C All.

.................... D 1100-2330.

.................... E (On request).

CAMSLANT Chesapeake (Portsmouth, VA) NMN A 2330-1100.

.................... B,C All.

.................... D 1100-2330.

.................... E (On request).

New Orleans......................... NMG A 2330-1100.

.................... B,C All.

.................... D 1100-2330.

.................... E (On request).

CAMSPAC Point Reyes (San Francisco, NMC A-D All.

CA).

.................... E (On request).

Honolulu............................ NMO A-D All.

.................... E (On request).

Kodiak.............................. NOJ A-D All.

.................... E (On request).

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

\1\ Carrier frequencies of duplex, high-frequency single-sideband channels are:

Letter Shore transmit Ship transmit

A.................... 4426.0 4134.0

B.................... 6501.0 6200.0

C.................... 8764.0 8240.0

D.................... 13089.0 12242.0

E.................... 17314.0 16432.0

[[Page 19412]]

Sec. 600.503 Vessel and gear identification.

(a) Vessel identification. (1) The operator of each FFV assigned an

IRCS must display that call sign amidships on both the port and

starboard sides of the deckhouse or hull, so that it is visible from an

enforcement vessel, and on an appropriate weather deck so it is visible

from the air.

(2) The operator of each FFV not assigned an IRCS, such as a small

trawler associated with a mothership or one of a pair of trawlers, must

display the IRCS of the associated vessel, followed by a numerical

suffix. (For example, JCZM-1, JCZM-2, etc., would be displayed on small

trawlers not assigned an IRCS operating with a mothership whose IRCS is

JCZM; JANP-1 would be displayed by a pair trawler not assigned an IRCS

operating with a trawler whose IRCS is JANP.)

(3) The vessel identification must be in a color in contrast to the

background and must be permanently affixed to the FFV in block Roman

alphabet letters and Arabic numerals at least 1 m in height for FFV's

over 20 m in length, and at least 0.5 m in height for all other FFV's.

(b) Navigational lights and shapes. Each FFV must display the

lights and shapes prescribed by the International Regulations for

Preventing Collisions at Sea, 1972 (TIAS 8587, and 1981 amendment TIAS

10672), for the activity in which the FFV is engaged (as described at

33 CFR part 81).

(c) Gear identification. (1) The operator of each FFV must ensure

that all deployed fishing gear that is not physically and continuously

attached to an FFV:

(i) Is clearly marked at the surface with a buoy displaying the

vessel identification of the FFV (see paragraph (a) of this section) to

which the gear belongs;

(ii) Has attached a light visible for 2 nautical miles (3.70 km) at

night in good visibility; and

(iii) Has a radio buoy.

Trawl codends passed from one vessel to another are considered

continuously attached gear and are not required to be marked.

(2) The operator of each FFV must ensure that deployed longlines,

strings of traps or pots, and gillnets ar

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