Magnuson-Stevens Act Provisions; Experimental Permitting Process, Exempted Fishing Permits, and Scientific Research Activity, 42786-42796 [E9-20489]

Download as PDF 42786 Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations Background and Need for Action 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. 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. Effective September 24, 2009. ADDRESSES: Written comments regarding burden-hour estimates or other aspects of the collection-ofinformation 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 DavidlRostker@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: srobinson on DSKHWCL6B1PROD with RULES DATES: VerDate Nov<24>2008 19:42 Aug 24, 2009 Jkt 217001 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 nongovernmental institutions where additional fish, outside of the scope of the scientific research plan, are needed to fund the research. The amount of fish PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 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. E:\FR\FM\25AUR1.SGM 25AUR1 srobinson on DSKHWCL6B1PROD with RULES Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 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-bycase 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, VerDate Nov<24>2008 19:42 Aug 24, 2009 Jkt 217001 ‘‘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 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 42787 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 E:\FR\FM\25AUR1.SGM 25AUR1 srobinson on DSKHWCL6B1PROD with RULES 42788 Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 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 VerDate Nov<24>2008 19:42 Aug 24, 2009 Jkt 217001 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 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 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 E:\FR\FM\25AUR1.SGM 25AUR1 srobinson on DSKHWCL6B1PROD with RULES Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 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 caseby-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 ‘‘regionallybased’’ 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. VerDate Nov<24>2008 19:42 Aug 24, 2009 Jkt 217001 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 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 42789 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 broadbased 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 E:\FR\FM\25AUR1.SGM 25AUR1 srobinson on DSKHWCL6B1PROD with RULES 42790 Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 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 MidAtlantic 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 broadbased (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 VerDate Nov<24>2008 19:42 Aug 24, 2009 Jkt 217001 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 § 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 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 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 § 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 caseby-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-bycase basis, and does not mandate specific terms and conditions, thus allowing for a regionally-based process. Comment 27: One commenter raised a concern that § 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 E:\FR\FM\25AUR1.SGM 25AUR1 srobinson on DSKHWCL6B1PROD with RULES Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 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, § 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 § 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 § 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 § 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 § 600.745(b)(3)(v), was written to provide the Regional Administrator or Director with the flexibility to place specific terms and VerDate Nov<24>2008 19:42 Aug 24, 2009 Jkt 217001 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 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 42791 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 § 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 § 600.10, the definition of ‘‘Compensation fishing’’ is revised to clarify when an EFP is required. In § 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 § 600.10, the definition of ‘‘Gear testing’’ is removed. In § 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. E:\FR\FM\25AUR1.SGM 25AUR1 srobinson on DSKHWCL6B1PROD with RULES 42792 Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations In § 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 § 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 § 600.512(a) for scientific research, and the regulatory language that applies to domestic fishing has been deleted from the definitions and placed in § 600.745(a) for scientific research and § 600.745(b)(1) for exempted fishing. In §§ 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 §§ 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 §§ 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 §§ 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 § 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 § 600.745(b)(4), the requirement to sign the permit is retained, but the requirement to return VerDate Nov<24>2008 19:42 Aug 24, 2009 Jkt 217001 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 § 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 § 600.745(c)(2), the requirement to submit a report is revised to set 6 months as the deadline for submission. In § 600.745(e), the phrase NMFSapproved 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-ofinformation 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 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 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 DavidlRostker@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. For the reasons stated in the preamble, NMFS amends 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. and 1801 et seq. 2. In § 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: ■ § 600.10 Definitions. * * * * * Compensation fishing means fishing conducted for the purpose of recovering costs associated with resource surveys and scientific studies that support the E:\FR\FM\25AUR1.SGM 25AUR1 srobinson on DSKHWCL6B1PROD with RULES Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 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 nontarget 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 § 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 VerDate Nov<24>2008 19:42 Aug 24, 2009 Jkt 217001 Table 1 of § 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 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 42793 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. * * * * * ■ 3. In § 600.512, paragraph (a) is revised to read as follows: § 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 E:\FR\FM\25AUR1.SGM 25AUR1 42794 Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 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 exvessel 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. * * * * * ■ 4. In § 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: srobinson on DSKHWCL6B1PROD with RULES § 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 VerDate Nov<24>2008 19:42 Aug 24, 2009 Jkt 217001 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 exvessel 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 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 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 E:\FR\FM\25AUR1.SGM 25AUR1 srobinson on DSKHWCL6B1PROD with RULES Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 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 VerDate Nov<24>2008 19:42 Aug 24, 2009 Jkt 217001 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 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 42795 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 E:\FR\FM\25AUR1.SGM 25AUR1 srobinson on DSKHWCL6B1PROD with RULES 42796 Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 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 NMFSapproved sea sampling and/or observer protocols are exempt from the requirement to obtain an EFP. For purposes of this section, NMFSsanctioned 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 VerDate Nov<24>2008 19:42 Aug 24, 2009 Jkt 217001 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 090324366–9371–01] RIN 0648–XQ50 Fisheries Off West Coast States; Modifications of the West Coast Commercial and Recreational Salmon Fisheries; Inseason Actions #1, #2, and #3 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Modification of fishing seasons, gear restrictions, and landing and possession limits; request for comments. SUMMARY: NOAA Fisheries announces three inseason actions in the ocean salmon fisheries. Inseason action #1 modified the commercial fishery in the area from Cape Falcon, Oregon to Humbug Mountain, Oregon, and from Humbug Mountain, Oregon to the Oregon/California Border. Inseason action #2 modified the recreational fishery in the area from Cape Falcon, Oregon to Humbug Mountain, Oregon. Inseason action #3 modified the commercial fishery in the area from U.S./Canada Border to Cape Falcon, Oregon. DATES: Inseason actions #1 and #2 were effective on March 15, 2009, until replaced by the 2009 management measures, May 1, 2009. Inseason action #3 was effective on July 18, 2009 and remains in effect until the closing date or attainment of the subarea quotas, whichever was first, as announced in the 2009 annual management measures or through additional inseason action. Comments will be accepted through September 9, 2009. ADDRESSES: You may submit comments, identified by 0648–XQ50, by any one of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http:// www.regulations.gov • Fax: 206–526–6736, Attn: Peggy Busby • Mail: 7600 Sand Point Way NE, Building 1, Seattle, WA, 98115 Instructions: All comments received are a part of the public record and will generally be posted to http:// www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Peggy Busby, by phone at 206–526– 4323. SUPPLEMENTARY INFORMATION: In the 2008 annual management measures for ocean salmon fisheries (73 FR 23971, May 1, 2008), NMFS announced the commercial and recreational fisheries in the area from the U.S./Canada Border to the U.S./Mexico Border. On March 10, 2009, the Regional Administrator (RA) consulted with representatives of the Pacific Fishery Management Council (Council), Washington Department of Fish and Wildlife, Oregon Department of Fish and Wildlife, and California Department of Fish and Game. Information related to catch to date, Chinook and coho catch rates, and possible impacts to Sacramento Fall Chinook were discussed. These inseason actions were taken because these fisheries were to occur in the impact area for Sacramento Fall Chinook. Preliminary projections suggested this stock was at risk of not meeting its escapement goal in 2009 and therefore consistent with the MagnusonStevens Act, all fisheries that impact the stock were potentially to remain closed until the 2009 management measures became effective on May 1, 2009. By moving the opening dates of these fisheries NMFS and the Council would have more time to evaluate the impacts of these fisheries on the Sacramento River fall Chinook stock. As a result, on March 10, 2009, the states recommended, and the RA concurred that inseason actions #1 and #2 would cancel the previously scheduled March 15, 2009, fishery opening date for the (a) commercial fishery in the area from Cape Falcon, Oregon to Humbug Mountain, Oregon, and from Humbug Mountain, Oregon to the Oregon/California Border and (b) the recreational fishery in the area from Cape Falcon, Oregon, to Humbug Mountain, Oregon. Modification in quota and/or fishing seasons is authorized by regulations at 50 CFR 660.409(b)(1)(I). In the 2009 annual management measures for ocean salmon fisheries (74 FR 20610, May 5, 2009), NMFS announced the commercial and E:\FR\FM\25AUR1.SGM 25AUR1

Agencies

[Federal Register Volume 74, Number 163 (Tuesday, August 25, 2009)]
[Rules and Regulations]
[Pages 42786-42796]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-20489]



[[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.

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

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, a