[Federal Register: August 25, 2009 (Volume 74, Number 163)]
[Rules and Regulations]
[Page 42786-42796]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25au09-9]
[[Page 42786]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 071121736-91118-03]
RIN 0648-AR78
Magnuson-Stevens Act Provisions; Experimental Permitting Process,
Exempted Fishing Permits, and Scientific Research Activity
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues new and revised definitions for certain regulatory
terms, and procedural and technical changes to the regulations
addressing scientific research activities, exempted fishing, and
exempted educational activities under the Magnuson-Stevens Fishery
Conservation and Management Act (MSA). This action is necessary to
provide better administration of these activities and to revise the
regulations consistent with the Magnuson-Stevens Fishery Conservation
and Management Reauthorization Act (MSRA). NMFS intends to clarify the
regulations, ensure necessary information to complete required analyses
is requested and made available, and provide for expedited review of
permit applications where possible.
DATES: Effective September 24, 2009.
ADDRESSES: Written comments regarding burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be sent to Alan Risenhoover, Director, Office of
Sustainable Fisheries, 1315 East-West Highway, SSMC3, Silver Spring, MD
20910, and to the Office of Information and Regulatory Affairs, Office
of Management and Budget, Washington, D.C. 20503 (Attn: NOAA Desk
Officer), or email to David_Rostker@omb.eop.gov, or fax to (202) 395-
7285.
Copies of the categorical exclusion (CE) prepared for this action
are available from NMFS at the above address or by calling the Office
of Sustainable Fisheries, NMFS, at 301-713-2341.
FOR FURTHER INFORMATION CONTACT: Jason Blackburn at 301-713-2341, or by
e-mail at jason.blackburn@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background and Need for Action
On January 12, 2007, the MSRA was enacted. Section 204 of the MSRA
added a new Cooperative Research and Management Program section
(section 318) to the MSA. Section 318(d) of the revised MSA requires
that the Secretary, through NMFS, ``promulgate regulations that create
an expedited, uniform, and regionally-based process to promote
issuance, where practicable, of experimental fishing permits.'' Under
the 1996 exempted fishing regulations, exempted and experimental
fishing were treated synonymously as the terms had been used
interchangeably in the regions. (March 15, 1996, 61 FR 10712 and May
28, 1996, 61 FR 26435) This rulemaking continues the practice of using
the terms interchangeably.
A proposed rule with revisions and updates to the regulations
addressing scientific research activities, exempted fishing, and
exempted educational activities was published in the Federal Register
on December 21, 2007 (72 FR 72657), with a comment period ending on
March 20, 2008. An extension of the comment period was published on
March 18, 2008 (73 FR 14428) that extended the comment period to April
4, 2008. The extension of the comment period for an additional 15 days
was intended to ensure that NMFS provided adequate time for fishery
management councils, stakeholders and members of the public to comment
on the proposed revisions.
Comments and Responses
A total of 18 relevant comment letters were received from regional
fishery management councils, environmental organizations, industry
representatives, research institutions, and other members of the
public. These comments are summarized below.
Compensation Fishing
Comment 1: Several commenters had questions about how compensation
fishing can be authorized, including when it requires an EFP.
Response: Compensation fishing is authorized under section 402(e)
of the MSA. Historically, the primary purpose of compensation fishing
has been to compensate scientific research vessel owners or operators
for participating in NMFS sponsored resource surveys. More recently,
compensation fishing has also been authorized to compensate vessels
participating in scientific research projects conducted by non-
governmental institutions where additional fish, outside of the scope
of the scientific research plan, are needed to fund the research. The
amount of fish caught during scientific research activities must be
limited to only that which is necessary to meet the needs of the
research, i.e., the amount identified in the scientific research plan
as the necessary sample size to support a robust analysis. Any
additional fish needed to compensate vessels for their participation
requires evaluation of the effects of this additional mortality on the
affected stock(s), for example, to ensure that overfishing does not
occur, consistent with National Standard (NS) 1, the NS1 Guidelines,
and MSA section 303(a)(15). The following scenarios are provided to
assist in determining whether or not compensation fishing requires an
EFP: (1) For research projects where the additional mortality
associated with the compensation fishing has already been evaluated in
a Fishery Management Plan (FMP) or FMP action, which allocates a set
amount of fish to a research set-aside (RSA) and includes analysis of
the impacts of the action (such as the annual specifications process
used for the Mid-Atlantic Council's fisheries), no further analysis is
required, and the compensation fishing may not require an EFP,
depending on whether exemptions from existing regulations would be
requested (e.g., possession limits, seasonal closures, etc.); (2) for
research projects where compensation fishing would be consistent with
the regulations for the fishery, the compensation fishing would not
require an EFP; and (3) for research projects where the additional
mortality associated with the compensation fishing has not been
evaluated, or where the proposed compensation fishing would require an
exemption from a fishery regulation, such as fishing during a closed
season or retaining catch in excess of allowable limits, the
compensation fishing would require an EFP.
Comment 2: One commenter asked for clarification about whether a
contract for compensation fishing can be used in lieu of an EFP outside
of the RSA program.
Response: A contract entered into by NMFS to conduct compensation
fishing does not exempt the participating vessel(s) from any fishing
regulations. An EFP is always required for any fishing activity that
would, or has the potential to, violate any fishing regulation (e.g.,
fishing during a closure or in excess of a possession limit), unless
the fishing activity has been approved to be conducted in concert with
a scientific research activity that was issued a scientific research
permit or a letter of acknowledgment.
[[Page 42787]]
Comment 3: Two commenters suggested that creating a new
compensation fishing permit would help to streamline the process by
alleviating the lengthy EFP review process.
Response: Any permit issued by NMFS is a Federal action, and as
such must comply with any and all applicable laws, including the
Endangered Species Act (ESA), the Marine Mammal Protection Act (MMPA),
and the National Environmental Policy Act (NEPA). Therefore, a separate
permit for compensation fishing would require the same review process
as an EFP, and would not streamline the process.
Comment 4: Two commenters suggested that NMFS should streamline
issuance of an EFP for compensation fishing by issuing the EFP at the
same time as the Letter of Acknowledgment (typically occurring when
projects utilize multiple vessels to conduct scientific research and
compensation fishing), or by combining the EFPs for the principle
investigator (PI) and the vessels.
Response: The time frame involved in reviewing applications and
issuing Letters of Acknowledgment and EFPs is very different, because
issuing an EFP is a Federal action requiring compliance with other
applicable laws, while providing a Letter of Acknowledgment does not
trigger the same requirements. Issuing both at the same time would
essentially delay the receipt of the Letter of Acknowledgment, thus
potentially delaying the start of the scientific research. The decision
to combine, or not combine, the EFPs for the PI and the vessels should
be handled on a case-by-case basis by the Regional Administrator or
Director. In the Mid-Atlantic RSA program, the vessels participating in
a given project are often listed on one EFP, which is issued to the PI.
Other programs and regions may find that a different approach works
better under their particular circumstances. Vessels participating in a
scientific research activity or compensation fishing should be
identified in the Letter of Acknowledgment and/or EFP. It is the PI's
responsibility to manage the project and to ensure that all aspects of
the project are carried out in accordance with the scientific research
plan and the EFP. No research or compensation fishing should occur
until the PI has coordinated with the vessel and provided the vessel
with a copy of the Letter of Acknowledgment and/or EFP.
Conservation Engineering
Comment 5: Many commenters raised concerns about how the two terms,
``conservation engineering'' and ``gear testing,'' appear to limit the
types of cooperative research projects that would be allowed, or not
allowed, particularly in light of the very restrictive ``gear testing''
definition. This caused particular concern for researchers who conduct
catch rate comparisons as part of their research protocols. One
commenter agreed that the distinction between ``conservation
engineering'' and the ``testing of gear'' needs to be clarified.
Response: The definition of ``scientific research activity'' states
that such activity does not include ``the testing of fishing gear.'' As
a result, people have obtained EFPs for many projects that might
otherwise be considered scientific research. In the proposed rule, NMFS
intended the narrow definition of ``gear testing,'' coupled with the
new definition of ``conservation engineering,'' to allow more projects
to be considered scientific research activities that would not require
an EFP because scientific research activities are outside of the scope
of the MSA. Additionally, the proposed rule referred to testing
modified gear as conservation engineering instead of ``gear testing.''
Due to the breadth of concerns raised about the definition of gear
testing, and because the term is often used synonymously with
conservation engineering, NMFS removed the definition of gear testing
from the final rule. Therefore, as clarification, NMFS emphasizes that
according to the MSA definition of fishing, scientific research
activities are not fishing. Accordingly, conservation engineering
activities that also meet the definition of scientific research
activity are not fishing. Alternatively, conservation engineering
activities that do not meet the definition of scientific research
activity, but that do meet the definition of fishing are fishing, and
must be conducted under an EFP if the activity would otherwise be
prohibited by regulations under part 600.
Comment 6: Three commenters suggested that the phrase ``efficient
harvest of target species'' in the definition of ``conservation
engineering'' should be interpreted broadly to include projects that
focus on environmental efficiency, such as testing methods to reduce
fuel consumption and greenhouse gas emissions.
Response: This phrase comes directly from MSA section 404(c)(2). As
such its intent is clearly fisheries conservation, and not other forms
of environmental conservation, which are outside the scope of the MSA
and these regulations. Fishermen will take steps to reduce fuel
consumption and increase efficiency in the course of their normal
business.
Comment 7: Two other commenters focused on the phrase ``efficient
harvest of target species'' in the definition of ``conservation
engineering.'' One suggested that the phrase should be revised so that
it does not encourage increased catch efficiency, while the other
suggested that conservation engineering work should focus on minimizing
bycatch while maintaining or increasing target catches.
Response: ``Conservation engineering'' is defined in the
regulations as relating to fisheries conservation and the research
being conducted to minimize the unintended impacts of fishing. The
phrase ``efficient harvest of target species'' needs to be considered
in the context of ''conservation engineering,'' which includes ``the
study of fish behavior and the development and testing of new gear
technologies and fishing techniques that reduce collateral effects,
such as minimizing bycatch and any adverse effects on EFH.'' This
definition is intended to promote research that focuses on ways to
harvest target species in a manner that conserves and reduces impacts
on non-target species. The definition is not intended to promote
research that focuses on catching more of the target species.
Comment 8: Another commenter was concerned that the phrase
``minimizing bycatch and any adverse affects on EFH'' in the definition
of ``conservation engineering'' might be misconstrued as examples of
``collateral effects.''
Response: To alleviate possible misunderstandings, the reference to
``collateral effects'' has been removed from the definition, and the
language of MSA section 404(c)(2) has been used verbatim.
Comment 9: One commenter raised concern that some activities that
have typically required an EFP in the past may be reclassified as
scientific research and would now receive a Letter of Acknowledgment
and not have to go through the Council review process associated with
EFP proposals.
Response: The new definition of ``conservation engineering'' and
the associated revision of the definition of ``scientific research
activity'' are provided to assist the Regional Administrator or
Director in determining whether an activity is, or is not, scientific
research. This determination is a matter of interpretation, and the
changes to these definitions are provided for clarity. If an activity
that would otherwise be considered fishing is determined to be
[[Page 42788]]
scientific research, then it is not regulated by the MSA.
Comment 10: One commenter inquired about whether or not
``conservation engineering'' includes the deployment of modified
fishing gear under conditions similar to commercial fishing to assess
the effectiveness of the modifications and to make comparisons to gear
allowed under regulations.
Response: The expectation is that some conservation engineering
projects will indeed need to conduct activities such as those described
above in order to scientifically verify the effectiveness of the
modified gear. It is very important that the amount of fish taken
during such activities be kept to the minimum necessary to achieve a
scientifically robust analysis while conserving the resource, and that
any mortality is accounted for consistent with NS1, the NS1 Guidelines,
and MSA section 303(a)(15), as well as other MSA provisions and other
applicable laws, including the ESA. Any additional fish used as
compensation for conducting the research must be caught either by
fishing consistent with existing regulations or through compensation
fishing, which must be approved by NMFS. The definition of conservation
engineering has been revised to identify the activity as the
development and assessment of fishing technologies and fishing
techniques designed to conserve target and non-target species. The
language of MSA section 404(c)(2) is then provided as an example of
conservation engineering.
Comment 11: Two commenters inquired about what is meant by ``new''
gear technologies in the definition of ``conservation engineering.''
Response: To clarify this point, NMFS added additional language to
the definition to indicate that conservation engineering may include
the development and assessment of new gear technologies as well as the
assessment of existing technologies applied in novel ways. An example
would be assessing the ability of a bycatch reduction device (BRD),
designed and proven in one fishery, to reduce bycatch in another
fishery.
Comment 12: Two commenters suggested that NMFS should ensure that
EFPs produce meaningful results and provide information that will
advance fishery management, and that the regulations should include a
list of requirements for EFPs similar to that provided for conservation
engineering and scientific research activities. Another commenter
suggested that we remove the requirement that these activities address
a testable hypothesis, as this undercuts the validity of resource
surveys, which do not test a hypothesis but instead make scientific
observations.
Response: An EFP is a permit issued for an exemption from one or
more fishery regulations. There are many reasons for requesting an EFP.
Not all EFPs are issued for research purposes or to obtain information
for fishery management purposes. The proposed rule included a
discussion of conservation engineering and the distinctions between
fishing activities that require an EFP and scientific research
activities that do not, where a Letter of Acknowledgment is
appropriate. Not all scientific research involves testing a hypothesis.
Resource surveys by their nature record observations instead of testing
a hypothesis. The MSA mandates in section 318(d) that the process be
regionally-based. Councils can set research priorities for the
fisheries that they manage. It is appropriate to leave the decision
regarding the merits of each EFP proposal to the Regional Administrator
or Director, with input from the relevant Council and the public
obtained during the public comment process.
Comment 13: Three commenters suggested that the discussion about
mortality associated with conservation engineering was characterized
with unsupported statements and generalizations, and that in some cases
the mortality has already been accounted for under the relevant FMP(s).
Response: The proposed rule preamble described conservation
engineering and included a description of NMFS concerns about the
impacts of conservation engineering activities and the associated
mortality. Conservation engineering activities may catch substantial
amounts of fish. For example, when conducting catch rate comparisons
between experimental and control gear, projects often conduct multiple
sets of tows to compare catches. The mortality associated with
conservation engineering work needs to be properly accounted for and
analyzed, consistent with NS1, the NS1 Guidelines, and MSA section
303(a)(15). If the activity is scientific research, then the activity
is not regulated under the MSA, but the mortality should be analyzed
under the relevant FMP(s) as scientific research mortality. If the
activity is fishing and the fish are landed against the appropriate
quota, then the mortality has already been analyzed as part of the FMP
action that set the quota (this includes RSA programs). If the activity
is fishing and is being conducted under an EFP, then the mortality
should be analyzed as part of the EFP application if it has not already
been analyzed elsewhere.
Scientific Research Activity
Comment 14: Several commenters raised concerns with various aspects
of the definition of scientific research activity. Some comments
focused on the distinction between scientific research and fishing. It
was suggested in several comments that work done under an EFP is not
considered to be scientific, that there is a perception that EFPs
amount to a lower standard of research, and that EFPs are used as a
``catch all'' for projects that do not meet the specifics of the
definition of scientific research.
Response: Scientific research is not regulated by the MSA, and as
such it is exempt from fisheries regulations. A definition of
scientific research activity is provided to clarify what activities
would qualify for such an exemption. Fishing activities that do not
meet the definition of scientific research activity, and are prohibited
by fishery regulations, require an EFP to exempt the activity from the
relevant regulations. The determination that an EFP is necessary does
not denigrate the scientific nature of an activity; it simply indicates
that some aspect of the activity requires an exemption.
Comment 15: Two commenters inquired about whether or not the fish
caught during a research activity can be sold.
Response: Only fish that are caught during a scientific research
activity that is within the scope of the scientific research plan may
be sold. Under the MSA scientific research activity on board a
scientific research vessel is not fishing. Therefore, the sale of fish
caught and retained during a scientific research activity that is
within the scope of the research plan is not fishing or commercial
fishing as defined by the MSA, and the sale of such fish does not
change the scientific activity to fishing. Alternatively, the retention
and sale of fish exceeding the scope of the research plan is fishing
and requires the appropriate permits.
Scientific Research Vessel
Comment 16: Eleven of the 18 commenters had a comment regarding the
utilization of commercial fishing vessels as research platforms and
many suggested that commercial fishing vessels should be specifically
included in the definition of ``scientific research vessel.'' Many of
the comments focused on the ownership or chartering of vessels and on
the misconception that commercial fishing vessels can not be
[[Page 42789]]
utilized as scientific research vessels under the current regulations.
Response: There were no revisions to the definition of scientific
research vessel in the proposed rule. Under current regulations, a
commercial fishing vessel can be utilized as a scientific research
vessel if: (1) The activities on board the vessel meet the definition
of scientific research activity; and (2) the vessel is ``owned or
chartered by, and controlled by, a ... U.S. Government agency ... U.S.
state or territorial agency, university ... or scientific
institution.'' To date, the evaluation of proposals and the types of
vessels being utilized as research platforms has been handled on a
case-by-case basis by the Regional Administrator or Director. In some
cases, state agencies and scientific institutions conducting research
on board commercial fishing vessels have been required to obtain an
EFP, while in other cases universities conducting similar research have
received a Letter of Acknowledgment. These types of situations have
been misconstrued to mean that commercial fishing vessels can not be
utilized as research platforms without obtaining an EFP, when in fact
that is not the case. Often the more important qualifier is the level
of accreditation and/or scientific standing of the scientific
institution. NMFS recognizes the importance of having the ability to
conduct scientific research on board commercial fishing vessels, both
for convenience as well as for necessity of the research. Commercial
fishing vessels have been, and may continue to be, utilized as
scientific research platforms. The decision to recognize this activity
under a Letter of Acknowledgment versus requiring that an EFP be
obtained should remain under the purview of the Regional Administrator
or Director, be determined on a case-by-case basis, and be based on the
merits of the individual proposal and the institution(s) involved,
i.e., whether the proposed activity meets the definition of scientific
research activity, and whether the vessel meets the definition of
scientific research vessel. Allowing the Regional Administrator or
Director to make this determination meets the ``regionally-based''
mandate in MSA section 318(d). Language to this effect has been added
to the definition of scientific research vessel that incorporates
``commercial fishing vessels'' and states that Letter of Acknowledgment
versus EFP determinations should be made by the Regional Administrator
or Director.
General Comments
Comment 17: Two commenters suggested the introduction of a new term
and concept, a NMFS-approved scientific research plan. Under this
concept, the scientific research plan would be the document that would
be used to determine whether the proposed activity: (1) should be
considered a scientific research activity and be recognized with a
Letter of Acknowledgment; or (2) should not be considered a scientific
research activity and therefore may require an EFP. Using this concept,
if NMFS approves the scientific research plan as part of a grant
proposal review or other approval process, then the proposal should be
deemed a scientific research project, and no further review, approval,
or permit should be required.
Response: The determination made by the Regional Administrator or
Director, as to whether a project is a scientific research activity, is
separate and distinct from the decisions made to fund a project. While
funding approval indicates that the project has merit, it does not
evaluate the project in the context of the relevant fishery
regulations. To create a system to do both would require a major
reworking of the existing programs and their processes, and the
involvement of all the affected programs. This is beyond the scope of
this rulemaking.
Comment 18: Five commenters raised concerns with the proposed
exemption of projects funded by quota set-asides from the requirement
to publish separate notices in the Federal Register, even though notice
has already been published in the Federal Register as part of the
annual specifications process for a program, such as the Mid-Atlantic
RSA program. The primary concerns were that this exemption would
effectively block a Council's ability to comment on these proposals,
and that it may hinder the ability of other concerned parties to
comment on the proposed activities.
Response: NMFS agrees that it is important to ensure that the
Councils and the public have the ability to comment on all EFP
proposals. Therefore, the exemption has been removed from the rule. In
addition to NMFS publishing a notice in the Federal Register for EFP
proposals, Councils may take public comments on EFP proposals at
Council meetings, providing additional opportunities for public
comment.
Comment 19: One commenter supported the proposed change to the
regulations requiring that the Regional Administrator or Director
withhold a Letter of Acknowledgment if they determined that the
proposed research activity may require a permit or consultation under
ESA, MMPA, or other applicable law, while another commenter was against
this approach, indicating that it restricts the Regional Administrator
or Director's ability to issue a Letter of Acknowledgment and that it
would likely cause delays.
Response: To address these concerns, an alternate approach has been
selected that allows the Regional Administrator or Director to provide
the applicant with a Letter of Acknowledgment in these cases, but
requires that they include text in the Letter of Acknowledgment
informing the applicant that they may require a permit or consultation
under other laws.
Comment 20: One commenter suggested that these regulations should
clarify which activities are commercial fishing, and which are not, for
purposes of the MMPA.
Response: Throughout the final rule, clarification has been
provided as to when the various activities are fishing under the MSA.
It is not appropriate for these regulations to address fishing as it
relates to the MMPA.
Comment 21: Three commenters raised concerns about the proposed
changes affecting the amount of additional information and the level of
analysis required to be submitted with an EFP application. In
particular, the level of NEPA analysis was felt to be excessive,
potentially requiring an environmental assessment (EA) level of
analysis for projects that would likely only require a CE. One
commenter supported the development of broad-based analyses under NEPA
and ESA that can apply to multiple projects.
Response: The proposed changes were intended to broaden the list of
items that need to be considered when reviewing an application, to
include items, such as EFH, that have been added to the MSA since the
original regulations were published in 1996. The proposed changes were
not intended to require EA-level analysis for every proposal prior to
application. The agency supports proactive, up-front discussions to
alleviate problems during the application and review process. EFP
applicants are encouraged to contact the applicable NMFS regional
office to discuss the proposed activity prior to submitting an
application. Having this initial discussion benefits both parties. The
agency becomes aware of the proposed activity and can provide the
applicant with information about the relevant regulations and other
information pertinent to its application, such as: if the proposed
activity is likely
[[Page 42790]]
to meet the definition of scientific research activity and be eligible
to receive a Letter of Acknowledgment, or if it requires an exemption
from a fishery regulation, thus requiring an EFP; and any additional
information that is needed for a complete application. This initial
discussion also gives the applicant the chance to find out if any other
laws may apply (e.g., ESA, MMPA, NEPA, etc.) and what level of NEPA
analysis might be required. The agency also supports the combination of
groups of associated projects, and their associated applications,
analyses, etc., such as the projects funded through the Mid-Atlantic
RSA program and the Northeast Cooperative Research Partners Program.
The agency has streamlined the process for reviewing applications and
combining analyses for these grouped projects. For example, the NEPA
analysis for the Mid-Atlantic RSA projects is included as part of the
EA for the annual specifications process for the respective FMP(s),
thus alleviating the need for each project to do its own analysis. The
agency is also open to considering the development of broad-based
(umbrella) EFPs for groups of associated projects. This approach is
currently being considered for the Cooperative Research Study Fleet in
the Northeast region.
Comment 22: Two additional comments also focused on environmental
analyses. One recommended that environmental analyses should be
completed and made available to the public before the public comment
period on an EFP application. The other suggested that collective and
cumulative impacts of multiple concurrent EFPs must be evaluated.
Response: The Federal Register notice that is published for EFP
applications provides a brief description of the proposed activities,
and provides contact information for the NMFS staff involved in
reviewing such proposals. The public may contact NMFS staff to request
a copy of the environmental analyses submitted for the proposed
project. Some regions also make their NEPA analyses available through
their regional website. NMFS is concerned with the cumulative impacts
of multiple concurrent EFP projects. There are NEPA staff located in
each NMFS regional office and at NMFS Headquarters. They monitor and
track NEPA-related activities under their purview, and perform
appropriate analyses, such as cumulative impact analyses, in accordance
with national and regional policies and procedures.
Comment 23: Several commenters raised concerns that the proposed
rule did not meet Congress' intent in MSA section 318(d) to
``promulgate regulations that create an expedited, uniform, and
regionally-based process to promote issuance, where practicable, of
experimental fishing permits.'' Some comments asserted that there was
little if any streamlining of the process. Other comments focused on a
need for flexibility to address issues on a regional basis, while
recognizing that the proposed rule did provide remedies to some
existing regional problems. Most of the comments related to MSA
language raised concerns that the proposed changes would actually make
the EFP process more complex and burdensome.
Response: NMFS believes that the proposed rule does meet
Congressional intent. Congress did not provide a definition of
``experimental fishing'' in the reauthorized MSA and NMFS regulations
at Sec. 600.10 have long interpreted ``experimental fishing'' and
``exempted fishing'' as synonymous. Therefore, the mandate in section
318(d) was viewed as direction to amend the existing regulations. The
existing regulations, in conjunction with the revisions made herein,
allow for regional flexibility while also maintaining national
consistency. The regulations allow the Regional Administrator or
Director to make determinations on a case-by-case basis when this is
the best solution to address region and fishery specific issues. This
meets the congressional mandate to have a ``uniform, and regionally-
based process.'' Part of the concern raised about the additional
complexity introduced in the proposed rule directly relates to the
proposed definition of ``gear testing.'' The removal of the definition
of gear testing, and the further clarification of conservation
engineering, scientific research activity, scientific research vessel,
and exempted fishing, provides additional clarification to address
these concerns. Some conservation engineering projects will now be
considered scientific research and will qualify for a Letter of
Acknowledgment, thus simplifying and streamlining the review and
issuance process for these projects. The process for obtaining EFPs is
complex due to the need to comply with other applicable laws (e.g.,
ESA, MMPA, NEPA, etc.). Where the process becomes the most efficient is
in the programs, like the Mid-Atlantic RSA and Northeast Cooperative
Research Study Fleet, where the analyses can be performed for all the
participating projects at the same time. NMFS encourages the Councils
to work with the cooperative research community and NMFS to increase
the use of these types of programs.
Comment 24: One commenter stated that the Councils were not
adequately engaged in the preparation of the proposed rule.
Response: NMFS engaged the Councils as allowed under current
authorities. NMFS conducted several conference calls with regional
office and Council staff to discuss the draft proposed rule. NMFS also
briefed the Council Chairs and Executive Directors on the proposed rule
at the March 2008 Council Coordination Committee meeting.
Comment 25: One commenter was concerned that the time limit for
EFPs specified in the proposed rule in Sec. 600.745(b)(5) is limiting
and unnecessary. The commenter indicated that the duration of the
permit can be determined during the review of the proposal and can be
handled on a case-by-case basis.
Response: The 1-year limit specified in the proposed rule is in the
existing regulations, and was not revised in the proposed rule. The
only proposed change to this section was the removal of the phrase
``unless revoked, suspended, or modified.'' The relevant paragraph now
reads: ``Unless otherwise specified in the EFP or a superseding notice
or regulation, an EFP is valid for no longer than 1 year. EFPs may be
renewed following the application procedures in this section.''
Therefore, the Regional Administrator or Director continues to have the
discretion to issue an EFP for more than 1 year.
Comment 26: One commenter stated that inclusion of terms and
conditions in EFPs should not be discretionary.
Response: Section 600.745(b)(3)(v) allows the Regional
Administrator or Director the discretion to attach terms and conditions
to an EFP on a case-by-case basis, and does not mandate specific terms
and conditions, thus allowing for a regionally-based process.
Comment 27: One commenter raised a concern that Sec.
600.745(b)(3)(ii) could be interpreted to mean that NMFS may not have
to consult with the Council(s). The commenter felt strongly that all
EFP applications should be reviewed by the Council(s), and wanted to
ensure that Council review will not be circumvented by the new
regulations.
Response: Section 600.745(b)(3)(i) states, ``The Regional
Administrator or Director also will forward copies of the application
to the appropriate Council(s), the USCG, and the appropriate fishery
management agencies of affected states ...'' This is a mandatory
requirement to notify the appropriate Council(s) and other
[[Page 42791]]
agencies that an EFP application is under review and provides an
opportunity for the Council(s) and agencies to review and provide
comment on the application. Further, Sec. 600.745(b)(3)(ii) states,
``If the application is complete and warrants additional consultation,
the Regional Administrator or Director may consult with the appropriate
Council(s) concerning the permit application during the period in which
comments have been requested.'' This sentence was not revised in the
proposed rule. Retaining this wording allows the Councils the
flexibility to do their review during a Council meeting, and not
necessarily during the comment period.
Comment 28: Two commenters raised issue with the language in Sec.
600.745(b)(1) allowing the collection of a fee for issuance of an EFP.
Response: This language is in the existing regulations, and was not
revised in the proposed rule. The language does not mandate that a fee
will be charged, it simply allows a fee to be charged.
Comment 29: One commenter recommended that the proposed regulations
at Sec. 600.745(b)(1) be revised to clarify that EFPs will not be
issued to authorize fishing activities that are inconsistent with the
requirements of take reduction plans adopted under the MMPA. Another
commenter requested that the regulations clarify when ESA consultation
will be required.
Response: NMFS emphasizes that this rulemaking concerns regulations
of general applicability. In the course of reviewing each EFP
application, NMFS conducts the appropriate level of ESA and MMPA
consultation, which require a fact-specific inquiry. Concerns about
consistency with any relevant take reduction plans would be evaluated
at that time.
Comment 30: One commenter raised a concern with the potential
increased expense of particular terms and conditions that may be
applied to EFPs under the authority of revised Sec. 600.745(b)(3)(v).
They point out that requiring observers, vessel monitoring systems, or
other electronic devices as a condition of an EFP may add significant
costs to a project, and that such costs should be incorporated into the
grant or that compensation fishing should be authorized to help cover
the additional expense.
Response: This regulation, which is only slightly modified from the
existing requirements in Sec. 600.745(b)(3)(v), was written to provide
the Regional Administrator or Director with the flexibility to place
specific terms and conditions within each EFP authorization on a case-
by-case basis. NMFS realizes that these additional terms and conditions
may increase the cost of conducting the project. When the Regional
Administrator or Director requires additional terms and conditions they
have made an informed decision that they are necessary.
Comment 31: One commenter raised concerns about the modification of
projects issued EFPs. They recommended that any modifications should be
clearly documented, and the public should be notified of any such
changes.
Response: It is currently left up to the discretion of the Regional
Administrator or Director as to whether any proposed modifications will
be authorized, and to what extent a modification requires review and
consultation. Minor modifications, such as the replacement of one
vessel by another similar vessel, are handled as routine. In such
circumstances, the principal investigator submits to NMFS information
about the new vessel and any additional information required in the
applicable region, such as the owner's or operator's signature agreeing
to the conditions of the permit. NMFS then evaluates and documents the
replacement based on regional policies, which include consideration of
the vessel's history of prior fisheries violations, if any, and, in
some regions, issuance of a new EFP listing the new vessel. The new
vessel must carry the permit on board while conducting EFP activities.
Other minor modifications, such as a slight change to the start and end
date of a project, are typically handled by conducting an abbreviated
review and possibly a consultation process (time and area changes may
require ESA, MMPA and/or Habitat consultation), while significant
modifications, such as gear changes, requests to enter an adjacent
closed area, or substituting a vessel that is not equivalent to the
vessel it replaces, are typically handled as a new application, with
full review and consultation, as needed.
Comment 32: One commenter raised multiple concerns regarding the
level of involvement that NMFS should have with applicants, the amount
of assistance provided in the completion of EFP applications, and
whether or not resubmissions of previously denied projects should be
considered.
Response: NMFS will provide some level of assistance to EFP
applicants, as resources and priorities allow. It is at the agency's
discretion to decide how much assistance is appropriate given the
nature of the situation. These situations are best handled on a case-
by-case basis. All applications for EFPs should be considered, even
those that are being resubmitted after being previously denied.
Comment 33: Three commenters raised questions regarding the new
regulations added in Sec. 600.745(e) concerning observers. The
commenters inquired to whom the regulations applied, and what was meant
by ``other programs.''
Response: This section was added to specifically address an agency
need regarding its ability to place observers on fishing vessels to
collect fish and/or data. It applies specifically to the NMFS observer
programs, and to NMFS observers, staff, and contractors conducting
activities in accordance with approved NMFS observer program sampling
protocols. The reference to ``other programs'' in the preamble of the
proposed rule means any other NMFS program besides the NMFS observer
program (e.g., the NMFS study fleet program in the Northeast). This
section of the regulations is not intended to apply to any other
observer programs, such as those associated with any state agency,
university, research institution, or industry group. Determining
whether another institution requires an EFP shall be based upon the
proposed activities and the regulations pertaining to scientific
research and exempted fishing.
Changes from Proposed Rule
In Sec. 600.10, the definition of ``Compensation fishing'' is
revised to clarify when an EFP is required.
In Sec. 600.10, the definition of ``Conservation engineering'' is
revised to further describe the types and nature of the activities
included, that the assessment of novel uses of existing devices is
acceptable, and to clarify when this activity is, and is not, fishing,
i.e., when an EFP or a Letter of Acknowledgment is appropriate.
In Sec. 600.10, the definition of ``Gear testing'' is removed.
In Sec. 600.10, the definition of ``Scientific research activity''
is revised. The phrase ``collateral fishing effects'' has been changed
to read ``collateral effects of fishing.'' In addition, the description
of when gear testing may or may not be considered scientific research
is removed. In the proposed rule the phrase ``unless it meets the
definition of conservation engineering'' was added following the phrase
``or the testing of fishing gear.'' Since conservation engineering was
also added to the list of scientific research activity topics, this
phrase is redundant and has been removed.
[[Page 42792]]
In Sec. 600.10, the definition of ``Scientific research vessel''
is revised to clarify that a commercial fishing vessel can be utilized
as a scientific research vessel.
In addition, the definitions for compensation fishing, conservation
engineering, and scientific research activity in Sec. 600.10 have been
streamlined by moving text into the operative regulatory sections. For
example, the regulatory language that relates to foreign fishing has
been deleted from the definitions and placed in Sec. 600.512(a) for
scientific research, and the regulatory language that applies to
domestic fishing has been deleted from the definitions and placed in
Sec. 600.745(a) for scientific research and Sec. 600.745(b)(1) for
exempted fishing.
In Sec. Sec. 600.512(a) and 600.745(a), the factors that the
Regional Administrator or Director should consider when making the
determination of whether an activity constitutes scientific research or
fishing have been outlined.
In Sec. Sec. 600.512(a) and 600.745(a), text is added to instruct
the Regional Administrator or Director to include text in the Letter of
Acknowledgment informing the applicant that the proposed research
activity may require a permit or consultation under other applicable
laws. The proposed rule had instructed the Regional Administrator or
Director not to issue the LOA until these other permits had been
obtained. The new approach responds to the proposal as it pertains to
fishing under the MSA while informing the applicant of potential issues
under other applicable laws. In the same sections, the word ``cruise''
is replaced with the word ``activity.''
In addition, in Sec. Sec. 600.512(a) and 600.745(a), language has
been added to recommend that a copy of the Letter of Acknowledgment
accompany any fish, or parts thereof, during any ex-vessel activities,
such as transporting the fish or fish parts from the vessel to a
laboratory. In Sec. Sec. 600.745(b)(7) and 600.745(d)(7), language has
been added to require that a copy of the EFP or exempted educational
activities authorization accompany any fish, or parts thereof, during
such activities.
In Sec. 600.745(b)(3)(i), the text that was inserted to exempt
research projects funded by quota set-asides from the requirement to
publish a separate notice in the Federal Register is removed. This
alleviates the concerns that were raised about the council review and
public comment process for EFP proposals for these types of projects.
In the new Sec. 600.745(b)(4), the requirement to sign the permit
is retained, but the requirement to return a copy of the signed permit
is removed. This requirement did not address a current problem, nor did
it meet the intent of MSA section 318(d) to expedite the process.
In Sec. 600.745(c)(1), ``and the appropriate Regional
Administrator or Director'' is added so that the NMFS Science Center
(fisheries scientists) and the NMFS Regional Office or Office of
Sustainable Fisheries (fisheries managers) may receive a copy of a
report derived from the research activity.
In Sec. 600.745(c)(2), the requirement to submit a report is
revised to set 6 months as the deadline for submission.
In Sec. 600.745(e), the phrase NMFS-approved observer protocols is
revised to read ``NMFS-approved sea sampling and/or observer
protocols.''
The Paperwork Reduction Act public reporting burden-hour estimates
have been revised based on updated estimates from the NMFS regional
offices.
Classification
The NMFS Assistant Administrator has determined that this rule is
consistent with the provisions of sections 318(d), 402(e), and 305(d)
of the MSA, other provisions of the MSA, and other applicable law.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this rule would not have a significant economic
impact on a substantial number of small entities.
This rule provides clarifications of current regulations and
information requirements, as well as other administrative
requirements regarding scientific research, exempted fishing, and
exempted educational activities. The rule serves only to define
terms, clarify distinctions among scientific research activity,
exempted fishing, and exempted educational activities, and
standardize procedures for applying for and issuing EFPs and
authorizations for exempted educational activities as allowed under
EFPs.
As a result, a final regulatory flexibility analysis is not
required and none has been prepared.
This rule contains a collection-of-information requirement subject
to review and approval by OMB under the Paperwork Reduction Act (PRA),
which has been approved by OMB under Control Number 0648-0309. The
public reporting burden for this collection of information is
estimated: (1) To average 113 hours per response to send NMFS a copy of
a scientific research plan and to average 3 hours per response to
provide a copy of the cruise report or research publication; (2) to
average 95 hours per response to complete an application for an EFP and
to average 3 hours per response or authorization for an exempted
educational activity; and (3) to average 47 hours per response to
provide a report at the conclusion of exempted fishing and to average 2
hours per response to provide a report at the conclusion of exempted
educational activities, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection information. Send
comments regarding this burden estimate, or any other aspect of this
data collection, including suggestions for reducing the burden, to the
Office of Sustainable Fisheries at the ADDRESSES above, and email to
David_Rostker@omb.eop.gov, or fax to (202) 395-7285. Notwithstanding
any other provision of the law, no person is required to respond to,
and no person shall be subject to 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 in 50 CFR Part 600
Fisheries, Fishing.
Dated: August 19, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons stated in the preamble, NMFS amends 50 CFR part 600 as
follows:
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
0
1. The authority citation for part 600 continues to read as follows:
Authority: 16 U.S.C. 971 et seq. and 1801 et seq.
0
2. In Sec. 600.10, definitions for ``Exempted educational activity'',
``Exempted or experimental fishing'', ``Region'', ``Regional
Administrator'', ``Science and Research Director'', ``Scientific
research activity'', and ``Scientific research vessel'' are revised,
and definitions for ``Compensation fishing'' and ``Conservation
engineering'' are added, in alphabetical order, to read as follows:
Sec. 600.10 Definitions.
* * * * *
Compensation fishing means fishing conducted for the purpose of
recovering costs associated with resource surveys and scientific
studies that support the
[[Page 42793]]
management of a fishery, or to provide incentive for participation in
such studies. Compensation fishing may include fishing during or
subsequent to such surveys or studies.
* * * * *
Conservation engineering means the development and assessment of
fishing technologies and fishing techniques designed to conserve target
and non-target species, and may include the study of fish behavior and
the development and testing of new gear technologies and fishing
techniques to minimize bycatch and any adverse effects on essential
fish habitat and promote efficient harvest of target species.
Conservation engineering may include the assessment of existing fishing
technologies applied in novel ways. An example would be assessing the
ability of a bycatch reduction device (BRD), designed and proven in one
fishery, to reduce bycatch in another fishery. Conservation engineering
meeting the definition of scientific research activity is not fishing.
* * * * *
Exempted educational activity means an activity that would
otherwise be considered fishing, conducted by an educational
institution accredited by a recognized national or international
accreditation body, of limited scope and duration, that is otherwise
prohibited by this chapter VI, but that is authorized by the
appropriate Regional Administrator or Director for educational
purposes, i.e., the instruction of an individual or group, and
authorized capture of only the amount of fish necessary to demonstrate
the lesson.
Exempted or experimental fishing means fishing from a vessel of the
United States that involves activities otherwise prohibited by this
chapter VI, but that are authorized under an exempted fishing permit
(EFP). The regulations in Sec. 600.745 refer exclusively to exempted
fishing. References elsewhere in this chapter to experimental fishing
mean exempted fishing under this part.
* * * * *
Region means one of six NMFS Regional Offices responsible for
administering the management and development of marine resources in the
United States in their respective geographical areas of responsibility.
Regional Administrator means the Administrator of one of the six
NMFS Regions.
* * * * *
Science and Research Director means the Director of one of the six
NMFS Fisheries Science Centers described in Table 1 of Sec. 600.502,
or a designee, also known as a Center Director.
* * * * *
Scientific research activity is, for the purposes of this part, an
activity in furtherance of a scientific fishery investigation or study
that would meet the definition of fishing under the Magnuson-Stevens
Act, but for the exemption applicable to scientific research activity
conducted from a scientific research vessel. Scientific research
activity includes, but is not limited to, sampling, collecting,
observing, or surveying the fish or fishery resources within the EEZ,
at sea, on board scientific research vessels, to increase scientific
knowledge of the fishery resources or their environment, and to test a
hypothesis as part of a planned, directed investigation or study
conducted according to methodologies generally accepted as appropriate
for scientific research. At-sea scientific fishery investigations
address one or more topics involving taxonomy, biology, physiology,
behavior, disease, aging, growth, mortality, migration, recruitment,
distribution, abundance, ecology, stock structure, bycatch or other
collateral effects of fishing, conservation engineering, and catch
estimation of fish species considered to be a component of the fishery
resources within the EEZ. Scientific research activity does not include
the collection and retention of fish outside the scope of the
applicable research plan, or the testing of fishing gear. Data
collection designed to capture and land quantities of fish for product
development, market research, and/or public display are not scientific
research activities. For foreign vessels, such data collection
activities are considered scientific research if they are carried out
in full cooperation with the United States.
* * * * *
Scientific research vessel means a vessel owned or chartered by,
and controlled by, a foreign government agency, U.S. Government agency
(including NOAA or institutions designated as federally funded research
and development centers), U.S. state or territorial agency, university
(or other educational institution accredited by a recognized national
or international accreditation body), international treaty
organization, or scientific institution. In order for a domestic
commercial fishing vessel to meet this definition, it must be under the
control of a qualifying agency or institution, and operate in
accordance with a scientific research plan, for the duration of the
scientific research activity. In order for a vessel that is owned or
chartered and controlled by a foreign government to meet this
definition, the vessel must have scientific research as its exclusive
mission during the scientific activity in question, and the vessel
operations must be conducted in accordance with a scientific research
plan.
* * * * *
0
3. In Sec. 600.512, paragraph (a) is revised to read as follows:
Sec. 600.512 Scientific research.
(a) Scientific research activity. Persons planning to conduct
scientific research activities on board a scientific research vessel in
the EEZ that may be confused with fishing are encouraged to submit to
the appropriate Regional Administrator or Director, 60 days or as soon
as practicable prior to its start, a scientific research plan for each
scientific activity. The Regional Administrator or Director will
acknowledge notification of scientific research activity by issuing to
the operator or master of that vessel, or to the sponsoring
institution, a Letter of Acknowledgment. This Letter of Acknowledgment
is separate and distinct from any permit or consultation required under
the MMPA, the ESA, or any other applicable law. The Regional
Administrator or Director will include text in the Letter of
Acknowledgment informing the applicant that such permits may be
required and should be obtained from the agency prior to embarking on
the activity. If the Regional Administrator or Director, after review
of a research plan, determines that it does not constitute scientific
research activity but rather fishing, the Regional Administrator or
Director will inform the applicant as soon as practicable and in
writing. In making this determination, the Regional Administrator,
Director, or designee shall consider: the merits of the individual
proposal and the institution(s) involved; whether the proposed activity
meets the definition of scientific research activity; and whether the
vessel meets all the requirements for a scientific research vessel.
Foreign vessels that qualify as scientific research vessels and which
are engaged in a scientific research activity may only engage in
compensation fishing during the scientific research cruise and in
accordance with the applicable scientific research plan. The Regional
Administrator or Director may also make recommendations to revise the
research plan to ensure the activity will be considered to be a
scientific research activity. The Regional Administrator or Director
may designate a Science and Research Director, or the Assistant
[[Page 42794]]
Regional Administrator for Sustainable Fisheries, to receive scientific
research plans and issue Letters of Acknowledgment. In order to
facilitate identification of the activity as scientific research,
persons conducting scientific research activities are advised to carry
a copy of the scientific research plan and the Letter of Acknowledgment
on board the scientific research vessel and to make it available for
inspection upon the request of any authorized officer. It is
recommended that for any scientific research activity, any fish, or
parts thereof, retained pursuant to such activity be accompanied,
during any ex-vessel activities, by a copy of the Letter of
Acknowledgment. Activities conducted in accordance with a scientific
research plan acknowledged by such a Letter of Acknowledgment are
presumed to be scientific research activities. An authorized officer
may overcome this presumption by showing that an activity does not fit
the definition of scientific research activity or is outside the scope
of the scientific research plan.
* * * * *
0
4. In Sec. 600.745:
A. Redesignate paragraphs (b)(3)(v)(C) through (H) as paragraphs
(b)(3)(v)(D) through (I), respectively.
B. Redesignate paragraphs (b)(4) through (8) as paragraphs (b)(5)
through (9), respectively.
C. Redesignate paragraphs (d)(3)(ii)(B) through (F) as paragraphs
(d)(3)(ii)(C) through (G), respectively.
D. Add paragraphs (b)(3)(v)(C), (b)(4), (d)(3)(ii)(B), and (e).
E. Revise paragraphs (a), (b)(1), (b)(2)(v), (b)(3)(i) introductory
text, (b)(3)(i)(C), (b)(3)(ii), (b)(3)(iii) introductory text,
(b)(3)(iii)(B), (b)(3)(iii)(C), (b)(3)(v) introductory text,
(b)(3)(v)(F), (b)(3)(v)(G), (b)(5), (b)(7), (c), (d)(1), (d)(2)(vii),
(d)(3)(ii) introductory text, (d)(3)(ii)(E), (d)(3)(iii), and (d)(7).
The revisions and additions read as follows:
Sec. 600.745 Scientific research activity, exempted fishing, and
exempted educational activity.
(a) Scientific research activity. Nothing in this part is intended
to inhibit or prevent any scientific research activity conducted by a
scientific research vessel. Persons planning to conduct scientific
research activities on board a scientific research vessel in the EEZ
are encouraged to submit to the appropriate Regional Administrator or
Director, 60 days or as soon as practicable prior to its start, a
scientific research plan for each scientific activity. The Regional
Administrator or Director will acknowledge notification of scientific
research activity by issuing to the operator or master of that vessel,
or to the sponsoring institution, a Letter of Acknowledgment. This
Letter of Acknowledgment is separate and distinct from any permit or
consultation required by the MMPA, the ESA, or any other applicable
law. The Regional Administrator or Director will include text in the
Letter of Acknowledgment informing the applicant that such a permit may
be required and should be obtained from the agency prior to embarking
on the activity. If the Regional Administrator or Director, after
review of a research plan, determines that it does not constitute
scientific research but rather fishing, the Regional Administrator or
Director will inform the applicant as soon as practicable and in
writing. In making this determination, the Regional Administrator,
Director, or designee shall consider: the merits of the individual
proposal and the institution(s) involved; whether the proposed activity
meets the definition of scientific research activity; and whether the
vessel meets all the requirements for a scientific research vessel. The
Regional Administrator or Director may also make recommendations to
revise the research plan to ensure the activity will be considered to
be scientific research activity or recommend the applicant request an
EFP. The Regional Administrator or Director may designate a Science and
Research Director, or the Assistant Regional Administrator for
Sustainable Fisheries, to receive scientific research plans and issue
Letters of Acknowledgment. In order to facilitate identification of the
activity as scientific research, persons conducting scientific research
activities are advised to carry a copy of the scientific research plan
and the Letter of Acknowledgment on board the scientific research
vessel and to make it available for inspection upon the request of any
authorized officer. It is recommended that for any scientific research
activity, any fish, or parts thereof, retained pursuant to such
activity be accompanied, during any ex-vessel activities, by a copy of
the Letter of Acknowledgment. Activity conducted in accordance with a
scientific research plan acknowledged by such a Letter of
Acknowledgment is presumed to be scientific research activity. An
authorized officer may overcome this presumption by showing that an
activity does not fit the definition of scientific research activity or
is outside the scope of the scientific research plan.
(b) * * *
(1) General. A NMFS Regional Administrator or Director may
authorize, for limited testing, public display, data collection,
exploratory fishing, compensation fishing, conservation engineering,
health and safety surveys, environmental cleanup, and/or hazard removal
purposes, the target or incidental harvest of species managed under an
FMP or fishery regulations that would otherwise be prohibited. Exempted
fishing may not be conducted unless authorized by an EFP issued by a
Regional Administrator or Director in accordance with the criteria and
procedures specified in this section. Compensation fishing must be
conducted under an EFP if the activity would otherwise be prohibited by
applicable regulations unless the activity is specifically authorized
under an FMP or a scientific research permit. Conservation engineering
that does not meet the definition of scientific research activity, but
does meet the definition of fishing must be conducted under an EFP if
the activity would otherwise be prohibited by applicable regulations.
Data collection designed to capture and land quantities of fish for
product development, market research, and/or public display must be
permitted under exempted fishing procedures. An EFP exempts a vessel
only from those regulations specified in the EFP. All other applicable
regulations remain in effect. The Regional Administrator or Director
may charge a fee to recover the administrative expenses of issuing an
EFP. The amount of the fee will be calculated, at least annually, in
accordance with procedures of the NOAA Handbook for determining
administrative costs of each special product or service; the fee may
not exceed such costs. Persons may contact the appropriate Regional
Administrator or Director to determine the applicable fee.
(2) * * *
(v) The species (target and incidental) expected to be harvested
under the EFP, the amount(s) of such harvest necessary to conduct the
exempted fishing, the arrangements for disposition of all regulated
species harvested under the EFP, and any anticipated impacts on the
environment, including impacts on fisheries, marine mammals, threatened
or endangered species, and EFH.
* * * * *
(3) * * *
(i) The Regional Administrator or Director, as appropriate, will
review each application and will make a preliminary determination
whether the application contains all of the required information and
constitutes an activity appropriate for further consideration. If the
Regional Administrator or Director finds that any application does not
[[Page 42795]]
warrant further consideration, both the applicant and the affected
Council(s) will be notified in writing of the reasons for the decision.
If the Regional Administrator or Director determines that any
application warrants further consideration, notification of receipt of
the application will be published in the Federal Register with a brief
description of the proposal. Interested persons will be given a 15- to
45-day opportunity to comment on the notice of receipt of the EFP
application. In addition, comments may be requested during public
testimony at a Council meeting. If the Council intends to take comments
on EFP applications at a Council meeting, it must include a statement
to this effect in the Council meeting notice and meeting agenda.
Multiple applications for EFPs may be published in the same Federal
Register document and may be discussed under a single Council agenda
item. The notification may establish a cut-off date for receipt of
additional applications to participate in the same, or a similar,
exempted fishing activity. The Regional Administrator or Director will
also forward copies of the application to the Council(s), the U.S.
Coast Guard, and the appropriate fishery management agencies of
affected states, accompanied by the following information:
* * * * *
(C) Biological information relevant to the proposal, including
appropriate statements of environmental impacts, including impacts on
fisheries, marine mammals, threatened or endangered species, and EFH.
(ii) If the application is complete and warrants additional
consultation, the Regional Administrator or Director may consult with
the appropriate Council(s) concerning the permit application during the
period in which comments have been requested. The Council(s) or the
Regional Administrator or Director shall notify the applicant in
advance of any public meeting at which the application will be
considered, and offer the applicant the opportunity to appear in
support of the application.
(iii) As soon as practicable after receiving a complete
application, including all required analyses and consultations (e.g.,
NEPA, EFH, ESA and MMPA), and having received responses from the
public, the agencies identified in paragraph (b)(3)(i) of this section,
and/or after the consultation, if any, described in paragraph
(b)(3)(ii) of this section, the Regional Administrator or Director
shall issue the EFP or notify the applicant in writing of the decision
to deny the EFP and the reasons for the denial. Grounds for denial of
an EFP include, but are not limited to, the following:
* * * * *
(B) According to the best scientific information available, the
harvest to be conducted under the permit would detrimentally affect the
well-being of the stock of any regulated species of fish, marine
mammal, threatened or endangered species, or EFH; or
(C) Issuance of the EFP would have economic allocation as its sole
purpose (other than compensation fishing); or
* * * * *
(v) The Regional Administrator or Director should attach, as
applicable, terms and conditions to the EFP, consistent with the
purpose of the exempted fishing and as otherwise necessary for the
conservation and management of the fishery resources and the marine
environment, including, but not limited to:
* * * * *
(C) A citation of the regulations from which the vessel is
exempted.
* * * * *
(F) Whether observers, a vessel monitoring system, or other
electronic equipment must be carried on board vessels operating under
the EFP, and any necessary conditions, such as predeployment
notification requirements.
(G) Data reporting requirements necessary to document the
activities, including catches and incidental catches, and to determine
compliance with the terms and conditions of the EFP and established
time frames and formats for submission of the data to NMFS.
* * * * *
(4) Acknowledging permit conditions. Upon receipt of an EFP, the
permit holder must date and sign the permit, and retain the permit on
board the vessel(s). The permit is not valid until signed by the permit
holder. In signing the permit, the permit holder:
(i) Agrees to abide by all terms and conditions set forth in the
permit, and all restrictions and relevant regulations; and
(ii) Acknowledges that the authority to conduct certain activities
specified in the permit is conditional and subject to authorization and
revocation by the Regional Administrator or Director.
(5) Duration. Unless otherwise specified in the EFP or a
superseding notice or regulation, an EFP is valid for no longer than 1
year. EFPs may be renewed following the application procedures in this
section.
* * * * *
(7) Inspection. Any EFP issued under this section must be carried
on board the vessel(s) for which it was issued. The EFP must be
presented for inspection upon request of any authorized officer. Any
fish, or parts thereof, retained pursuant to an EFP issued under this
paragraph must be accompanied, during any ex-vessel activities, by a
copy of the EFP.
* * * * *
(c) Reports. (1) NMFS requests that persons conducting scientific
research activities from scientific research vessels submit a copy of
any report or other publication created as a result of the activity,
including the amount, composition, and disposition of their catch, to
the appropriate Science and Research Director and Regional
Administrator or Director.
(2) Upon completion of the activities of the EFP, or periodically
as required by the terms and conditions of the EFP, persons fishing
under an EFP must submit a report of their catches and any other
information required, to the appropriate Regional Administrator or
Director, in the manner and within the time frame specified in the EFP,
but no later than 6 months after concluding the exempted fishing
activity. Persons conducting EFP activities are also requested to
submit a copy of any publication prepared as a result of the EFP
activity.
(d) * * *
(1) General. A NMFS Regional Administrator or Director may
authorize, for educational purposes, the target or incidental harvest
of species managed under an FMP or fishery regulations that would
otherwise be prohibited. The trade, barter or sale of fish taken under
this authorization is prohibited. The decision of a Regional
Administrator or Director to grant or deny an exempted educational
activity authorization is the final action of NMFS. Exempted
educational activities may not be conducted unless authorized in
writing by a Regional Administrator or Director in accordance with the
criteria and procedures specified in this section. Such authorization
will be issued without charge.
(2) * * *
(vii) The species and amounts expected to be caught during the
exempted educational activity, and any anticipated impacts on the
environment, including impacts on fisheries, marine mammals, threatened
or endangered species, and EFH.
* * * * *
(3) * * *
(ii) The Regional Administrator or Director should attach, as
applicable, terms and conditions to the authorization, consistent with
the
[[Page 42796]]
purpose of the exempted educational activity and as otherwise necessary
for the conservation and management of the fishery resources and the
marine environment, including, but not limited to:
* * * * *
(B) A citation of the regulations from which the vessel is being
exempted.
* * * * *
(E) Data reporting requirements necessary to document the
activities and to determine compliance with the terms and conditions of
the exempted educational activity.
* * * * *
(iii) The authorization will specify the scope of the authorized
activity and will include, at a minimum, the duration, vessel(s),
persons, species, and gear involved in the activity, as well as any
additional terms and conditions specified under paragraph (d)(3)(ii) of
this section.
* * * * *
(7) Inspection. Any authorization issued under this paragraph (d)
must be carried on board the vessel(s) for which it was issued, or be
in the possession of at least one of the persons identified in the
authorization, who must be present while the exempted educational
activity is being conducted. The authorization must be presented for
inspection upon request of any authorized officer. Activities that meet
the definition of ``fishing,'' despite an educational purpose, are
fishing. An authorization may allow covered fishing activities;
however, fishing activities conducted outside the scope of an
authorization for exempted educational activities are illegal. Any
fish, or parts thereof, retained pursuant to an authorization issued
under this paragraph must be accompanied, during any ex-vessel
activities, by a copy of the authorization.
(e) Observers. NMFS-sanctioned observers or biological technicians
conducting activities within NMFS-approved sea sampling and/or observer
protocols are exempt from the requirement to obtain an EFP. For
purposes of this section, NMFS-sanctioned observers or biological
technicians include NMFS employees, NMFS observers, observers who are
employees of NMFS-contracted observer providers, and observers who are
employees of NMFS-permitted observer providers.
[FR Doc. E9-20489 Filed 8-24-09; 8:45 am]
BILLING CODE 3510-22-S