(b) Submission to the Secretary of Commerce. Once a plan has been prepared and approved by a Council, it shall be submitted, along with any dissenting opinions, and with appropriate copies, directly to the Director, National Marine Fisheries Service, Department of Commerce, Washington, D.C. 20235, by the most expeditious means available that are commensurate with safeguards against loss enroute. (c) Council action on plans prepared by the Secretary-(1) General. The Secretary may prepare a fishery management plan with respect to any fishery, or any amendment to any such plan, if: (i) A Council fails to develop and submit to the Secretary, after a reasonable period of time, a plan for such fishery, or any necessary amendment to such a plan, if the fishery requires conservation and management; or (ii) The Secretary disapproves or partially disapproves any such plan or amendment submitted by a Council and the Council fails to make the necessary changes within 45 days after the date on which the Council receives notification by the Secretary. (2) Comments of Council. Whenever the Secretary prepares a fishery management plan or amendment, the Secretary shall promptly transmit such plan or amendment to the appropriate Council for consideration and comment. Within 45 days after the date of receipt of such plan or amendment, the Council may recommend to the Secretary changes in such plan or amendments consistent with the National Standards, the other provisions of the Act and any other applicable law. A Council may conduct public hearings to allow interested persons to comment on such a plan, and should incorporate such public comment, if any, in the Council recommendations to the Secretary for changes in the plan or amendment. (3) Failure of Council to comment. If the Council does not propose changes within 45 days after it receives the submission from the Secretary, the Secretary may proceed to adopt and implement the plan or amendment. (d) Amendments to fishery management plans-(1) Council review. The Act directs each Council to review on a continuing basis, and revise as appropriate, the assessments and specifications made regarding the optimum yield from, the capacity and extent to which U.S. fish processors will process U.S. harvested fish from, and the total allowable level of foreign fishing in, each fishery within its geographical area of authority. (2) Scope of review. This review of each plan should also include reexamination of the management objec'tives and the effectiveness of conservation and management measures and implementing regulations. At least once each year, and more often where appropriate, each Council must assess the accuracy of the estimates of MSY and optimum yield, the capacity and extent to which U.S. fish processors will process U.S. harvested fish, and the total allowable level of foreign fishing for each plan implemented regardless of whether the plan is prepared by a Council or by the Secretary. (3) Amending the plan. Based on this review, or for other reasons, a Council may amend the plan. The procedures for Council preparation and approval of an amendment (e.g., hearings, majority vote, and transmittal to the Secretary) are the same as those that apply to a management plan. The same procedures as for a plan also apply when an amendment is disapproved or partially disapproved by the Secretary and returned to the Council for modification. (e) Proposed regulations. A Council may recommend to the Secretary any proposed regulations which it deems necessary and appropriate to carry out any plan, or any amendment to any plan. Proposed regulations shall be submitted as a separate document, together with such plan or amendment, to the Secretary. The Secretary has the final responsibility to determine whether to adopt any proposed regulations recommended by a Council. (16 U.S.C. 1801 et seq.) [42 FR 34458, July 5, 1977, as amended at 44 FR 7710, Feb. 7, 1979] The terms used in this part shall have the same meaning as ascribed to them in section 3 of the Fishery Conservation and Management Act of 1976, as amended (16 U.S.C. 1801 et seq.) and part 601 of this chapter. Aggregate or summary form, with respect to data, means data or information submitted by three or more persons that have been summed or assembled in such a manner so as not to reveal, directly or indirectly, the identity or business of any such person. Assistant Administrator means the Assistant Administrator for Fisheries or his designee. "Data", "statistics", and "information" are used interchangeably. § 603.3 Types of statistics covered. This part applies to all information required to be submitted by any PMP or FMP or any regulation promulgated to implement a PMP or FMP, including, but not limited to: Information regarding the type and quantity of fishing gear used; catch by species in numbers of fish or weight thereof; areas in which fishing was engaged; time of fishing; number of hauls; and the estimated processing capacity of, and the actual processing capacity utilized by, United States fish processors. § 603.4 Collection and maintenance of statistics. (a) General. (1) All statistics required to be submitted to the Secretary under a PMP or FMP shall be provided to the Assistant Administrator. (2) After receipt of the statistics submitted to the Assistant Administrator, the appropriate NMFS official shall delete all identifying particulars from the statistics at the first practicable opportunity consistent with the needs of the NMFS and good scientific practice. (3) Appropriate safeguards as specified by NOAA Directives, or other NOAA or NMFS internal procedures, shall apply to the collection and maintenance of all statistics, whether separated from identifying particulars or not, so as to ensure their confidentiality. (b) Collection Agreements with States. (1) The Assistant Administrator may enter into an agreement with a State authorizing the State to collect statistics on behalf of the Secretary. (2) It is the policy of NMFS that NMFS will not enter into a cooperative collection agreement with a State unless the State has authority to protect the statistics from disclosure to the public in a manner similar to that of the Federal government, and in a manner consistent with these regulations. § 603.5 Access to statistics. (a) NOAA and NMFS personnel. Statistics submitted as a requirement of a PMP or FMP and which will reveal the business or identity of the submitter shall only be accessible to: (1) Personnel within NMFS responsible for the collection, processing, and storage of the statistics; (2) Personnel within NMFS performing research that requires routine access; 80-182 0-82-29 (3) Other NOAA and NMFS personnel on a demonstrable need-to-know basis; and (4) NMFS contractors that require access in order to perform functions authorized by the Federal contract. (b) State personnel. (1) State access to, and use of, those statistics collected will depend upon the State's authority to require collection of the statistics on its own behalf. (2) If the State has authority to collect the statistics in question but has no agreement with the Assistant Administrator, the State shall not have access to statistcs covered by this part which are submitted to the Assistant Administrator. (c) Prohibtions. Persons having access to these data are prohibited from unauthorized use or disclosure, and are subject to the provisions of 18 U.S.C. 1905 and NOAA/NMFS internal procedures. § 603.6 Controls system. (a) The Assistant Administrator shall institute a control system to protect the confidentiality of statistics submitted in compliance with a PMP or FMP. The control system will: (1) Identify those persons who have routine access to the statistics; (2) Contain procedures to identify non-routine users and their use of the data; and (3) Provide for safeguarding the data. (b) This system will require that all persons who have access to the data be informed of the confidentiality of the data. These persons shall be required to sign a statement that they: (1) Have been informed that the data are confidential, and (2) Have reviewed and are familiar with the procedures to protect data confidentiality. (b) All requests for statistics submitted in response to a requirement of a PMP or FMP shall be processed consistent with NOAA Freedom of Information Act (FOIA) regulations (15 CFR Part 903), NOAA Directives Manual 21-25, Department of Commerce Administrative Orders 205-12 and 205-14, and 15 CFR Part 4. (1) The Assistant Administrator shall have the authority to issue initial denials of requests subject to the FOIA for statistics submitted in response to a PMP or FMP. Initial denials shall indicate that exemption 3 of FOIA (5 U.S.C. 552(b)(3)) is the basis for denial, making specific reference to section 303(d) of the Act and reciting in its entirety the first sentence of that section. Furthermore, citing this regulation, the denial shall indicate that the application of section 303(d) is nondiscretionary and shall refer specifically to the appropriate portion of the applicable PMP, FMP, or implementing regulation that required the submission of the requested statisites. Exemption (b)(4) (5 U.S.C. 552(b)(4)), as well as other applicable FOIA exemptions, may be cited in addition, where appropriate. (2) Appeals from initial denials should be addressed to the Administrator of NOAA, Department of Commerce, Washington, D.C. 20230. The Administrator shall not make a discretionary relase of statistics unless, upon review, it is determined that the Assistant Administrator improperly applied exemption (b)(3) to the requested statistics. In such cases the Administrator will instruct the Assistant Administrator to release the statistics to the requestor. In addition to the definitions contained in the Act, and unless the context requires otherwise, in this Part 611 the terms used shall have the following meaning (some definitions in the Act have been repeated here to aid fishermen in understanding the regulations): (a) "Act" means the Fishery Conservation and Management Act of 1976, Pub. L. 94-265 (16 U.S.C. 1801 et seq.), as amended. (b) "Agent" means the person appointed and maintained within the United States who is authorized to receive and respond to any legal process issued in the United States with respect to an owner or operator in accordance with section 201(c)(2)(F) of the Act. (c) "Anadromous species" means species of fish which spawn in fresh or estuarine waters of the United States and which migrate to ocean waters, including but not limited to: King salmon (Oncorhynchus tshawytscha) (d) "Assistant Administrator" means the Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration (National Marine Fisheries Service) or a designee. (e) "Authorized officer" means: (1) Any commissioned, warrant or petty officer of the U.S. Coast Guard; (2) Any certified enforcement or special agent of the National Marine Fisheries Service; (3) Any officer designated by the head of any Federal or State agency which has entered into an agreement with the Secretary of Commerce or Transportation to enforce the Act; and (4) Any Coast Guard personnel accompanying and acting under the di rection of any person described in paragraph (1) of this definition. (f) "Billfish" means all species of marlin, spearfish, sailfish and swordfish. (g) "Continental Shelf" means the seabed and subsoil of the submarine areas which appertain to the United States beyond the territorial sea, at any place where the depth of the superjacent waters allows exploitation of the natural resources of such areas. (h) "Continental Shelf fishery resources" means the following: COLENTERATA Bamboo coral (Acanella spp.) CRUSTACEA Tanner crab (Chionoecetes tanneri) California king crab (Paralithodes rathbuni) MOLLUSKS Red abalone (Haliotis rufescens) Pink abalone (Haliotis corrugata) Japanese abalone (Haliotis kamtschatkana) Queen conch (Strombus gigas) Surf clam (Spisula solidissima) Ocean quahog (Artica islandica) SPONGES Glove sponge (Hippiospongia canaliculata) (i) "Designated representative" means the person appointed by a nation and maintained within the United States who is responsible for receiving and submitting reports and other information concerning fishing by vessels from that nation. (j) "Directed fishery" with respect to any species, means a fishery conducted for the purpose of catching that species. (k) "Discard" or "discarded" means to release or return to the sea fish whether or not such fish are brought fully aboard a fishing vessel. (1) "Existing International Fishery Agreement" means any treaty, convention or agreement, to which the United States is a party, which relates to fishing and which was in effect on April 13, 1976, namely: (1) The International Convention for the High Seas Fisheries of the North Pacific Ocean, with Annex and Protocol of May 9, 1952, as amended; and (2) The Convention for the Preservation of the Halibut Fishery of the North Pacific Ocean and the Bering Sea of March 2, 1953 (termination scheduled on March 31, 1979). (m) "Fish" means finfish, mollusks, crustaceans, and all other forms of marine animal or plant life other than marine mammals, birds and highly migratory species. (n) "Fish over which the United States exercises exclusive fishery management authority" means: (1) All fish within the fishery conservation zone; (2) All anadromous species beyond the fishery conservation zone, except when they are within any foreign nation's territorial sea or fishery conservation zone (or equivalent), to the extent that such sea or zone is recognized by the United States; and (3) All Continental Shelf fishery resources beyond the fishery conservation zone. (0) "Fishery" means: (1) One or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; or (2) Any fishing for such stocks. (For related definitions, see: Directed fishery, paragraph (j) of this section; Incidental catch, paragraph (y) of this section; and Prohibited species, paragraph (bb) of this section.) (p) "Fishery conservation zone" (FCZ) means the area adjacent to the United States which, except where |