Magnuson-Stevens Act Provisions; Experimental Permitting Process, Exempted Fishing Permits, and Scientific Research Activity, 72657-72664 [E7-24866]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 245 (Friday, December 21, 2007)]
[Proposed Rules]
[Pages 72657-72664]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-24866]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 071121736-7619-01]
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: Proposed rule; request for comments.

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SUMMARY: NMFS proposes 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. 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: Comments must be received by March 20, 2008.

ADDRESSES: You may submit comments, identified by RIN 0648-AR78, by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal https://www.regulations.gov
     Fax: 301-713-1193, Attn: Jason Blackburn
     Mail: Alan Risenhoover, Director, Office of Sustainable 
Fisheries, 1315 East-West Highway, SSMC3, Silver Spring, MD 20910, 
Attn: EFP Comments
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    Send comments on collection-of-information requirements to the same 
address 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 May 28, 1996, NMFS established procedures pertaining to 
scientific research, exempted fishing, and exempted educational 
activities (61 FR 26435). These procedures were established to provide 
minimum standards for dealing with scientific research, exempted 
fishing and exempted educational activities under the Magnuson-Stevens 
Act. These standards clarified the requirements for those managing and 
enforcing the fishery regulations, and for the public. These 
regulations were subsequently codified in 50 CFR part 600 (61 FR 32538, 
June 24, 1996). Shortly thereafter, the Magnuson-Stevens Act was 
amended by the Sustainable Fisheries Act, which included important 
provisions dealing with essential fish habitat (EFH), rebuilding of 
overfished fisheries, and the requirement to minimize bycatch and 
bycatch mortality to the extent practicable. These new requirements 
resulted in an increased interest in fisheries research.
    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.''
    A major reason for the expansion in fisheries research has been the 
need to minimize bycatch and the mortality of bycatch as required under 
National Standard 9 of the Magnuson-Stevens Act. Much of this effort 
has been concentrated on studies investigating fish behavior and the 
development and testing of new gear technology and fishing techniques 
to minimize bycatch and promote the efficient harvest of target 
species.
    Over the years, many questions have arisen regarding the 
differences between a scientific research activity and fishing and how 
NMFS interprets each type of activity under the implementing 
regulations. The existing regulations

[[Page 72658]]

contain three authorizations for catching fish outside prescribed 
fishing regulations: Scientific research from a scientific research 
vessel, exempted fishing under NMFS-issued exempted fishing permits 
(EFPs), and exempted educational activities. As these types of 
activities have increased in both volume and variety, NMFS and the 
affected public have identified several aspects of the regulations that 
could be improved in order to streamline the permitting of exempted 
fishing and exempted educational activities, and the acknowledgment of 
scientific research.

Proposed Changes from the Current Regulations

    NMFS is proposing substantive and administrative changes to the 
current regulations, including revising and adding definitions; 
clarifying the differences among scientific research, exempted fishing, 
and exempted educational activities; clarifying the difference between 
conservation engineering and gear testing; clarifying the need for and 
extent of data required to be collected in conjunction with exempted 
fishing and exempted educational activities; clarifying the application 
process for obtaining an EFP; exempting research projects funded by 
quota set-asides from the requirement to publish separate notices; and 
defining whether and to what extent the NMFS Observer Program requires 
EFPs. These topics are discussed in more detail below.

Changes to Existing Definitions

    In Sec.  600.10 Definitions, three definitions would be added and 
several others revised. As part of the Sustainable Fisheries Act, 
Congress authorized the Secretary of Commerce (Secretary) to use 
private sector vessels, equipment, and services to conduct fisheries 
resource surveys. The Secretary is authorized to structure competitive 
solicitations to compensate a contractor for a fishery resources survey 
(i.e., ``compensation fishing'') by allowing the contractor to retain 
for sale fish harvested during the survey. If, however, the contractor 
is not expected to harvest during the survey the quantity or quality of 
fish that would allow for adequate compensation for the survey, the 
Secretary is authorized to structure the solicitation so as to provide 
that compensation by allowing the contractor to harvest on a subsequent 
voyage, and retain for sale, a portion of the allowable catch of the 
fishery as specified in a contract or EFP. Foreign vessels would not be 
allowed to engage in compensation fishing outside the scope of the 
applicable scientific research plan, or outside the time frame in which 
the actual scientific research activity is being conducted.
    This proposed rule would define ``compensation fishing'' and 
authorize, as appropriate, this activity as a reason for issuing an 
EFP. Compensation fishing as described under section 402(e)(2)(B) of 
the Magnuson-Stevens Act would be authorized through an EFP. It is 
proposed that in cases where exemptions are not needed, compensation 
fishing could be conducted without an EFP. An example of this is the 
Mid-Atlantic Research Set-aside (RSA) program, where research projects 
are funded through compensation fishing. In the RSA program, vessels 
are either issued a Letter of Acknowledgment (LOA) or an EFP. Vessels 
receive an LOA if they will be conducting research. Vessels receive an 
EFP if they will be compensation fishing and need an exemption from the 
regulations. For example, an EFP would be needed for a participating 
vessel to harvest and land their quota during a fishery closure. The 
compensation fishing provisions within the NMFS general regulations 
dealing with scientific research and exempted fishing (Sec.  600.745), 
would apply unless fishery-specific compensation fishing regulations 
are in place, such as those in the West Coast Groundfish regulations 
(Sec.  660.350).
    A new definition would also be added for ``conservation 
engineering.'' Section 404(c)(2) of the Magnuson-Stevens Act describes 
conservation engineering as an area of research that includes the study 
of fish behavior and the development and testing of new gear technology 
and fishing techniques to minimize bycatch, promote efficient harvest 
of target species, and minimize adverse effects on EFH. Because a 
significant number of fishery stocks are either overfished or 
experiencing overfishing, NMFS is concerned that bycatch of these 
species will make it more difficult to control mortality. Conservation 
engineering has become an important field of research and has led to 
cooperative research ventures involving NMFS, researchers, and 
fishermen.
    For the same reasons that conservation engineering has become 
important, NMFS is concerned about its potential impacts on fishery 
resources. Conservation engineering activities often take commercial 
quantities of fish. In the past, these projects have been considered 
fishing and not scientific research because the Magnuson-Stevens Act 
definition of scientific research, as interpreted at Sec.  600.10, 
excludes ``the testing of fishing gear.'' NMFS believes the mortality 
associated with conservation engineering work needs to be properly 
accounted for. In addition, NMFS wants to ensure that conservation 
engineering activities do not adversely affect fisheries resources. To 
best protect fisheries resources while allowing conservation 
engineering activities, NMFS proposes to define conservation 
engineering based on section 404(c)(2) of the Magnuson-Stevens Act in a 
manner that best protects fisheries resources while allowing 
conservation engineering activities. NMFS also proposes to define 
``gear testing'' to differentiate it from conservation engineering. 
Gear testing would be defined as an at-sea activity with its sole 
purpose being the testing of the functionality of fishing gear. When a 
vessel is performing gear testing, it may not retain fish, and it must 
meet the specific requirements of any regulation that pertains to 
fishing and/or gear testing in the applicable fishery. For example, the 
Alaska management measures require that trawl gear testing must be 
performed within specified trawl gear test areas.
    Some conservation engineering activities would not qualify as a 
scientific research activity, and would more appropriately require an 
EFP. To be classified as scientific research:
     At-sea research must meet the criteria for scientific 
research activity laid out in the regulations, and occur aboard a 
scientific research vessel;
     A research activity must address a testable hypothesis;
     A research activity must follow a scientific plan that 
includes sufficient observations and appropriate experimental design to 
test the hypothesis;
     A research activity must address a fishery management 
problem or issue;
     All fish captured for research must be necessary to meet 
the objectives of the experimental design, i.e. the sample size needed 
to prove or disprove the hypothesis. (This does not include fish 
captured for compensation fishing).
    For example, in the development of a bycatch reduction device, 
research could be conducted to assess the behavior of target and 
bycatch species to detect exploitable differences, to determine whether 
prototype gear modifications achieve the desired stimuli and escape 
opportunities, to test whether fish respond to those stimuli as 
expected, or to examine whether a prototype device achieves the 
expected species separation. If these activities are conducted on a 
scientific research vessel then an LOA would be sufficient, whereas if 
these activities are conducted on a vessel not meeting the definition 
of

[[Page 72659]]

a scientific research vessel, then an EFP would be required. However, 
an opportunity for vessels to conduct sea trials of the resulting 
devices as proof of concept to determine their practicality and 
effectiveness with their gear and procedures in actual fishing 
conditions might qualify for an EFP, but would not be scientific 
research.

Technical Revisions to Definitions

    Several technical revisions are proposed to be made to the 
Definitions section. In the definitions for ``exempted educational 
activity'' and ``exempted or experimental fishing,'' the words ``part 
635 or'' would be removed as redundant, since part 635 is a part of 
chapter VI of title 50. In the definitions for ``region,'' ``Regional 
Administrator,'' and ``Science and Research Director,'' the word 
``five'' would be changed to ``six'' to reflect the creation of the new 
NMFS Pacific Islands Region and NMFS Pacific Islands Fisheries Science 
Center. In the definition of ``scientific research activity,'' in the 
second sentence, the words ``or to test a hypothesis'' would be revised 
to read ``and to test a hypothesis,'' making this definition consistent 
with the new definition of conservation engineering. In the third 
sentence, the word ``issues'' would be revised to read ``topics'' to 
better describe the object of the research, and the words ``or other 
collateral fishing effects'' would be added following the word 
``bycatch'' to encompass the range of potential impacts of fishing on 
the environment. In the fourth sentence, the words ``unless it meets 
the definition of conservation engineering'' would be added following 
``or the testing of fishing gear'' to clarify that conservation 
engineering may be permissible. In addition, an example is provided to 
clarify what is meant by ``the testing of fishing gear.''
    In Sec.  600.512(a), for foreign fishing, and Sec.  600.745(a), for 
domestic fishing, the procedures for acknowledging scientific research 
activity would be revised by adding ``aboard scientific research 
vessels'' to clarify that these sections apply only to scientific 
research activities aboard scientific research vessels in the Exclusive 
Economic Zone (EEZ).
    To clarify who the designee could be for the Regional Administrator 
or Director, Sec. Sec.  600.512(a) and 600.745(a) would be revised so 
that the Regional Administrator having responsibility for the fishery 
or the Director of the Office of Sustainable Fisheries (for Atlantic 
highly migratory species) would be primarily responsible for the 
issuance of LOAs, but that this responsibility may be delegated to an 
appropriate NMFS Science and Research Director, or the Assistant 
Regional Administrator for Sustainable Fisheries.
    The current regulations note that the LOA ``is separate and 
distinct from any permit required under any other applicable law.'' For 
laws administered by NMFS, this reference applies to incidental take 
permits under the Marine Mammal Protection Act (MMPA) or section 10 
permits or consultations under the Endangered Species Act (ESA). There 
may be additional permits required (e.g., from the Corps of Engineers) 
that are not under the jurisdiction of NMFS. Since the MMPA and ESA are 
administered by NMFS by the same officials who issue LOAs, it is 
appropriate for NMFS to consider the effect of the research under the 
provisions of these laws when the request for the LOA is being 
reviewed. Therefore, Sec. Sec.  600.512(a) and 600.745(a) would be 
modified to indicate that the MMPA and ESA are two laws that may 
require an additional permit or consultation. NMFS would undertake an 
initial review of a request for an LOA to determine if any additional 
permit or consultation is needed. If, after an initial review, the 
Regional Administrator or Director believes that such a permit or 
consultation is required and none has been completed, the Regional 
Administrator or Director would not issue an LOA until required permits 
are issued and consultations completed. A research vessel that conducts 
operations without these authorizations may potentially be found in 
violation of the applicable law.
    In addition to the foregoing changes, Sec. Sec.  600.512(a) and 
600.745(a) are proposed to have additional clarifying language added 
regarding revisions to the scientific research plan and to the 
rebuttable presumption that a vessel is a scientific research vessel 
conducting scientific research.
    In Sec.  600.745(b)(1), as previously discussed, compensation 
fishing is proposed to be added as a reason for an EFP. Similarly, 
although conservation engineering potentially could be described under 
several other reasons for requesting an EFP, it is proposed to be added 
as a specific reason for an EFP because of its increasing use in 
determining ways of avoiding bycatch and the extent of conservation 
engineering activities.
    It has not always been clear to authorized officers or the exempted 
fishing permittee which regulations they have been exempted from. To 
provide a clear record of what regulatory exemptions apply to a 
particular EFP, Sec.  600.745(b)(1) is also proposed to be revised to 
clearly indicate that a vessel with an EFP is only exempt from those 
regulations specified in the EFP.

Changes to Application and Permit Process

    In Sec.  600.745(b)(2)(v), NMFS proposes that an applicant for an 
EFP provide any anticipated impacts of the proposed activity on the 
environment, including impacts on fisheries, marine mammals, threatened 
or endangered species, and EFH, as part of an EFP application. Under 
the National Environmental Policy Act (NEPA), NMFS must make a 
determination regarding the environmental impact of any permitted 
activity. This NEPA determination is usually in the form of a CE (i.e., 
a category of actions which do not individually or cumulatively have a 
significant effect on the environment and which have been found to have 
no such effect and for which neither an environmental assessment (EA) 
or environmental impact statement (EIS) is required), which includes 
reference to any relevant previous NEPA analysis. Under some 
circumstances, an activity might require an EA or what may be even more 
rare, an EIS. Similarly, under Sec.  600.920, NMFS must make a 
determination of the impact on EFH of any permitted activity and, 
therefore, needs to be provided with any available information on the 
activity that has a potential effect on EFH. NMFS recognizes that 
applicants have routinely provided this type of information as part of 
their application. This proposed change would document the current 
practice and clarify the reasons for collecting the information.
    A series of changes are proposed in the application process to 
speed public notification and allow for timely review of an 
application.
    The current regulations state, ''... notification of receipt of the 
application will be published in the Federal Register with a brief 
description of the proposal, and the intent of NMFS to issue an EFP. 
Interested persons will be given a 15- to 45-day opportunity to comment 
and/or comments will be requested during public testimony at a Council 
meeting.'' NMFS proposes to revise this language to remove ``and the 
intent of NMFS to issue an EFP.'' The decision to issue an EFP should 
come after the public notice and comment process. NMFS also proposes to 
revise the language allowing public discussion of EFP applications at 
Council meetings, to clarify that Council meeting notices are not a 
substitute for publishing Federal Register notices for EFP 
applications, but are instead supplemental to that process. If the 
Council intends to take comments on

[[Page 72660]]

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.
    MSA section 318(f) specifically exempts research projects funded by 
quota set-asides from any new procedures established under section 318. 
There are existing procedures in place for processing EFP applications 
associated with these projects, which are necessary for NMFS to 
properly evaluate and analyze each project's compliance with NEPA, ESA, 
and MMPA requirements. NMFS believes the current procedures are 
beneficial to our process and help streamline the review and issuance 
of EFPs for quota set-aside programs. Therefore, these procedures will 
be retained. To further expedite the review of EFP applications for 
such projects, research projects funded through quota set-asides, such 
as those that participate in the Mid-Atlantic RSA program, will be 
exempted from the requirement to publish a separate Federal Register 
notice for each EFP application. Notice of selected Mid-Atlantic RSA 
projects is provided in the RSA section of the annual specifications 
notice that is published for each fishery management plan with an RSA 
program. An EA is normally prepared and analyzes the potential impacts 
of the selected RSA projects as part of each annual specifications 
process. The majority of the current quota set-aside funded projects 
are conducted in Northeast fisheries that are managed by the Mid-
Atlantic Council. Examples of Mid-Atlantic RSA programs include: summer 
flounder, scup, black sea bass, squid, and monkfish. In addition, the 
New England Council has an RSA program for Atlantic sea scallops. RSA 
projects go through two concurrent processes before they receive their 
EFPs. There is a grant process, and an EFP process. Since 2003, the 
NMFS Northeast regional office has streamlined the RSA processes, 
particularly the EFP application and issuance process. The existing 
process accommodates variability, as not all fisheries or projects 
operate in the same manner.
    NMFS proposes that Sec.  600.745(b)(3)(i)(C) be revised to include 
impacts on fisheries and EFH.
    In Sec.  600.745(b)(3)(ii), current language states, ``The 
Council(s) or the Administrator or the Regional Administrator shall 
notify the applicant in advance of any meeting at which the application 
will be considered, and offer the applicant the opportunity to appear 
in support of the application.'' The language is proposed to be revised 
to clarify that the applicant has a right to be present and make 
comments only at public meetings.
    In Sec.  600.745(b)(3)(iii), new language is proposed to be 
inserted that would clarify that NMFS would issue EFPs only after all 
required analyses and consultations (e.g., NEPA, EFH, ESA and MMPA) 
have been completed. This is in effect what currently occurs. In Sec.  
600.745(b)(3)(iii)(B), confusing language is proposed to be removed and 
in Sec.  600.745(b)(3)(iii)(C) the language is clarified to indicate 
that while purely economic allocations could be grounds for a denial, 
compensation fishing should not be a reason to deny an EFP.
    NMFS is proposing language to clarify what terms and conditions 
should be included in an EFP. As previously discussed, a new paragraph 
(C) would be added to Sec.  600.745(b)(3)(v) to require that the EFP 
cite the specific regulations exempted. The subsequent paragraphs would 
be renumbered accordingly, and the renumbered paragraph (F) would be 
revised to indicate that observers and electronic monitoring devices 
may be required. Renumbered paragraph (G) would be revised to specify 
acceptable records for data reporting and to indicate that incidental 
catch and bycatch must be reported in all EFPs.
    A new paragraph (4) would be added to Sec.  600.745(b) to require 
that EFP holders must date and sign the permit, and return a copy of 
the original to the NMFS Regional Administrator or Director, to 
acknowledge the terms and conditions of the permit. The permit is not 
valid until signed by the holder. The subsequent paragraphs would be 
renumbered accordingly.
    In Sec.  600.745(b)(5), language relating to revocation, suspension 
or modification of permits would be removed, as these activities are 
described in Sec.  600.745(b)(9).
    In Sec.  600.745(c)(1), clarifying language is proposed to indicate 
that NMFS is requesting the research information, and to clarify that 
the request is made for research exempted from the Magnuson-Stevens Act 
(research activity conducted from a scientific research vessel).
    Section 600.745(c)(2) would be revised to specify that persons 
operating under EFPs must report their catch at the end of the EFP 
activity, or at specified intervals during the course of the exempted 
fishing activity, as determined by the Regional Administrator or 
Director. This supports the previous discussion and proposed changes 
concerning the importance of documenting all catch and bycatch related 
to EFPs.
    Exempted educational activities are a subset of EFPs issued 
exclusively for educational purposes, i.e., the instruction of an 
individual or group, and allowing the capture of enough fish to 
demonstrate the lesson. Section 600.725(n) specifies that the trade, 
barter, or sale of any fish taken under an exempted educational 
activity is prohibited. This language is proposed to be repeated in 
Sec.  600.745(d)(1) for clarity and ease of reference.
    Consistent with the discussion regarding EFP applications in Sec.  
600.745(b)(2)(v), it is proposed that an applicant for an exempted 
educational activity provide any anticipated impacts of the proposed 
activity on the environment; including the fishery, marine mammals, 
threatened or endangered species, and EFH; as part of an exempted 
educational activity application.
    Section 600.745(d)(3)(ii) would be revised to indicate that terms 
and conditions are mandatory for exempted educational activities in 
order to regulate and track catches, consistent with the proposed 
requirements of Sec.  600.745(b)(3)(v).
    As with EFPs, several clarifications are proposed to specify what 
may be included in the terms and conditions for exempted educational 
activities. In Sec.  600.745(d)(3)(ii), a new paragraph (B) would be 
added to require that the exempted educational activity authorization 
cite the specific regulations exempted. The subsequent paragraphs would 
be renumbered accordingly, and renumbered paragraph (E) would be 
revised to specify acceptable records for data reporting.
    In Sec.  600.745(d)(3)(iii) and Sec.  600.745(d)(7), NMFS proposes 
adding language that would require the exempted educational activity 
authorization specify the person(s) who will be in charge and present 
for the exempted educational activity to proceed. This would emphasize 
the educational nature of the activity and provide more assurance that 
the activity would be carried out as specified in the exempted 
educational activity authorization.

EFP Requirements for NMFS Observer Program

    There have been questions regarding when, or if, observer programs 
are required to obtain EFPs in order for those observers to conduct 
catch sampling, biological studies, and retain fish for further 
analysis when doing so would be in violation of the applicable fishing 
regulations. In addition, the

[[Page 72661]]

fisheries use several types of NMFS-sanctioned observers, including 
NMFS employees, NMFS contracted observers, and third party contractors 
who are permitted by NMFS to provide observers in the fishery. There 
are also various other programs that provide ``sea samplers'' on 
fishing vessels: Universities, states, and industry groups. In Sec.  
600.745, a new paragraph (e) would exempt observers in the NMFS-
sanctioned observer programs described above from the requirement to 
obtain an EFP. Other programs could continue to provide sea samplers, 
but would need an EFP to retain prohibited species or otherwise act in 
contravention of the published regulations.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the provisions of section 318(d) and 305(d) of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    This proposed 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 proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    This proposed rule would provide clarifications of current 
regulations and information requirements, as well as other 
administrative requirements regarding scientific research, exempted 
fishing, and exempted educational activities. The proposed rule 
would serve 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, an initial regulatory flexibility analysis is not 
required and none has been prepared.
    This proposed rule contains a collection-of-information requirement 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). This requirement has been approved by OMB. The public reporting 
burden for this collection of information is estimated: (1) To average 
6 hours per response to send NMFS a copy of a scientific research plan 
and average 1 hour per response to provide a copy of the cruise report 
or research publication; (2) to average 1 hour per response to complete 
an application for an EFP and average 0.5 hours per response or 
authorization for an exempted educational activity; and (3) to average 
2 hours per response to provide a report at the conclusion of exempted 
fishing and average 0.5 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.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information 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: December 18, 2007.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons stated in the preamble, NMFS proposes to amend 50 
CFR part 600 as follows:

PART 600 MAGNUSON--STEVENS ACT PROVISIONS

    1. The authority citation for part 600 continues to read as 
follows:

    Authority: 16 U.S.C. 971 et seq. & 1801 et seq.
    2. In Sec.  600.10, definitions for ``Exempted educational 
activity'', ``Exempted or experimental fishing'', ``Region'', 
``Regional Administrator'', ``Science and Research Director'', and 
``Scientific research activity'' are revised, and definitions for 
``Compensation fishing'', ``Conservation engineering'', and ``Gear 
testing'' 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 management of a fishery, or to provide 
incentive for participation in such studies. Compensation fishing may 
include fishing prior to, during, or following such surveys or studies. 
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. Compensation 
fishing must be conducted under an EFP if the activity would otherwise 
be prohibited by regulations under this part.
* * * * *
    Conservation engineering means the study of fish behavior and the 
development and testing of new gear technology and fishing techniques 
that reduce collateral effects, such as minimizing bycatch and any 
adverse effects on EFH, and promote efficient harvest of target 
species. Conservation engineering is considered to be scientific 
research if it would otherwise meet the definition of a scientific 
research activity and is conducted by a scientific research vessel. 
Otherwise, conservation engineering is considered to be fishing, and 
must be conducted under an EFP if the activity would otherwise be 
prohibited by regulations under this part.
* * * * *
    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 this chapter VI, but that is authorized by 
the appropriate Regional Administrator or Director for educational 
purposes.
    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 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.
* * * * *
    Gear testing means at-sea activity for the purpose of testing the 
functionality

[[Page 72662]]

of fishing gear. During this type of activity, no fish may be retained 
aboard the vessel. Regional fishery regulations may specify additional 
requirements that would apply to this activity, such as using 
designated gear testing areas, testing trawl nets with the codend(s) 
open, or testing during closed seasons.
* * * * *
    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 Director 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 of 
this part, 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 fishing effects, conservation engineering, and catch 
estimation of finfish and shellfish (invertebrate) species considered 
to be a component of the fishery resources within the EEZ. Scientific 
research activity does not include the collection and retention of fish 
outside the scope of the applicable research plan or the testing of 
fishing gear, unless it meets the definition of conservation 
engineering. For example, the testing of fishing gear to examine fish 
behavior in response to a bycatch reduction device would be 
conservation engineering and a scientific research activity, and would 
therefore not require an EFP. On the other hand, the testing of fishing 
gear to examine the gear's ability to catch more fish would not be 
conservation engineering or a scientific research activity, and would 
therefore be fishing and might require an EFP. Data collection designed 
to capture and land quantities of fish for product development, market 
research, and/or public display are not scientific research activities 
and must be permitted under exempted fishing procedures. For foreign 
vessels, such data collection activities are considered scientific 
research if they are carried out in full cooperation with the United 
States.
* * * * *
    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 aboard 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 cruise. 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 (LOA). This LOA is separate and 
distinct from any permit or consultation required under the Marine 
Mammal Protection Act, the Endangered Species Act, or any other 
applicable law. If the Regional Administrator or Director believes that 
such a permit or consultation is required, the Regional Administrator 
or Director will not issue the LOA until the vessel obtains such a 
permit or the consultation is completed. 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. 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 LOAs. The Regional Administrator, Director, or designee 
may also make recommendations to revise the research plan to ensure the 
cruise will be considered to be a scientific research activity. 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 LOA on board 
the scientific research vessel. Activities conducted in accordance with 
a scientific research plan acknowledged by such a letter are presumed 
to be scientific research activities. 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.
* * * * *
    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), (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 aboard 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 cruise. 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 (LOA). 
This LOA is separate and distinct from any permit or consultation 
required by the Marine Mammal Protection Act, the Endangered Species 
Act, or any other applicable law. If the Regional Administrator or 
Director believes that such a permit or consultation is required, the 
Regional Administrator or Director will not issue the LOA until the 
vessel obtains such a permit or the consultation is completed. If the 
Regional Administrator or

[[Page 72663]]

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. 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 LOAs. The Regional Administrator, Director, or designee 
may also make recommendations to revise the research plan to ensure the 
cruise will be considered to be scientific research activity or 
recommend the applicant request an EFP. 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 LOA on board the scientific 
research vessel. Activities conducted in accordance with a scientific 
research plan acknowledged by such a letter are presumed to be 
scientific research activity. 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. 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 essential fish habitat.
* * * * *
    (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 
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. Research projects funded by quota set-
asides, such as those that participate in the Mid-Atlantic RSA program, 
are exempt from the requirement to publish such a notice. 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 also will forward copies of the application to the Council(s), 
the U.S. Coast Guard, and the appropriate fishery management agencies 
of affected states, accompanied by the following information:
* * * * *
    (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, if denied, 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 essential fish habitat; 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 may attach 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 operated under 
the EFP, and any necessary conditions, such as predeployment 
notification requirements.
    (G) Data reporting requirements necessary to document the 
activities 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.
* * * * *

[[Page 72664]]

    (4) Acknowledging permit conditions. Upon receipt of an EFP, the 
holder must date and sign the permit, and return a copy of the original 
to the NMFS Regional Administrator or Director. The permit is not valid 
until signed by the holder. In signing the permit, the holder:
    (i) Agrees to abide by all terms and conditions set forth in the 
permit, and all restrictions and relevant regulations under this 
subpart; 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.
* * * * *
    (c) Reports. (1) NMFS requests persons conducting scientific 
research activities from scientific research vessels submit a copy of 
any cruise report or other publication created as a result of the 
cruise, including the amount, composition, and disposition of their 
catch, to the appropriate Science and Research Director.
    (2) 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. 
The report must be submitted to the Regional Administrator or Director 
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 may attach terms and 
conditions to the authorization, consistent with the 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.
    (e) Observers. NMFS-sanctioned observers or biological technicians 
conducting activities within NMFS-approved 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. E7-24866 Filed 12-20-07; 8:45 am]
BILLING CODE 3510-22-S