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For sale by U.S. Government Printing Office Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402–9328
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Page Explanation ...... v
Title 50:
Chapter II—National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce ..... 3
Chapter III—International Fishing and Related Activities ...... 275
Chapter IV—Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fish- eries Service, National Oceanic and Atmospheric Administra- tion, Department of Commerce); Endangered Species Com- mittee Regulations ...... 331
Chapter V—Marine Mammal Commission ...... 373
Finding Aids:
Material Approved for Incorporation by Reference ...... 399
Table of CFR Titles and Chapters ...... 401
Alphabetical List of Agencies Appearing in the CFR ...... 419
List of CFR Sections Affected ...... 429
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To cite the regulations in this volume use title, part and section num- ber. Thus, 50 CFR 216.1 refers to title 50, part 216, section 1.
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The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agen- cies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further sub- divided into parts covering specific regulatory areas. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: Title 1 through Title 16...... as of January 1 Title 17 through Title 27 ...... as of April 1 Title 28 through Title 41 ...... as of July 1 Title 42 through Title 50...... as of October 1 The appropriate revision date is printed on the cover of each volume. LEGAL STATUS The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). HOW TO USE THE CODE OF FEDERAL REGULATIONS The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to deter- mine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, October 1, 1999), consult the ‘‘List of CFR Sections Affected (LSA),’’ which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule. EFFECTIVE AND EXPIRATION DATES Each volume of the Code contains amendments published in the Federal Reg- ister since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usu- ally not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut- off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. OMB CONTROL NUMBERS The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies to display an OMB control number with their information collection request.
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RAYMOND A. MOSLEY, Director, Office of the Federal Register. October 1, 1999.
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Title 50—FISH AND WILDLIFE is composed of three volumes. The parts in these volumes are arranged in the following order: Parts 1–199, parts 200–599 and part 600 to end. The first volume (parts 1–199) contains the current regulations issued under chapter I—United States Fish and Wildlife Service, Department of the Inte- rior. The second volume (parts 200–599) contains the current regulations issued under chapter II—National Marine Fisheries Service, National Oceanic and At- mospheric Administration, Department of Commerce; chapter III—International Fishing and Related Activities, chapter IV—Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fish- eries Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee regulations; and chapter V—Marine Mammal Commission. The third volume (part 600 to end) contains the current regulations issued under chapter VI—Fishery Conservation and Management, Na- tional Oceanic and Atmospheric Administration, Department of Commerce. The contents of these volumes represent all current regulations codified under this title of the CFR as of October 1, 1999.
Alphabetical listings of endangered and threatened wildlife and plants appear in part 17.
The OMB control numbers for the National Oceanic and Atmospheric Adminis- tration appear in 15 CFR 902.1.
For this volume, Melanie L. Marcec was Chief Editor. The Code of Federal Regulations publication program is under the direction of Frances D. McDonald, assisted by Alomha S. Morris.
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(This book contains parts 200 to 599)
Part
CHAPTER II—National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce ...... 216
CHAPTER III—International Fishing and Related Activities .. 300
CHAPTER IV—Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries Service, National Oceanic and Atmos- pheric Administration, Department of Commerce); En- dangered Species Committee Regulations ...... 401
CHAPTER V—Marine Mammal Commission ...... 501
CROSS REFERENCES: Commercial fishing on Red Lake Indian Reservation, Bureau of Indian Affairs, Interior: 25 CFR part 242. Disposal of certain wild animals in national parks, National Park Service, Interior: 36 CFR part 10. Exchanges of land for migratory bird or other wildlife refuges, Bureau of Land Manage- ment, Interior: 43 CFR 2200.0–1—2272.1. Fishing, hunting, trapping, and protection of wildlife in national forests and wildlife ref- uges, Forest Service, USDA: 36 CFR part 241, §§ 261.8, 261.9. Fishing, hunting, trapping, and protection of wildlife in national parks, memorials, recre- ation areas, etc., National Park Service, Interior: 36 CFR parts 2, 7, 20. Fishing and hunting in reservoir areas, Corps of Engineers, Army, DoD: 36 CFR 327.8. Free entry of animals, birds and products of American fisheries under specified conditions, Customs Service, Treasury: 19 CFR 10.70—10.83. Grazing areas for wildlife maintenance, Bureau of Land Management, Interior: 43 CFR part 4110. Making pictures, television production, or sound tracks on areas administered by the United States Fish and Wildlife Service or the National Park Service, Interior: 43 CFR 5.1.
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SUBCHAPTER A—GENERAL PROVISIONS [RESERVED]
SUBCHAPTER B—NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]
SUBCHAPTER C—MARINE MAMMALS
Part Page 216 Regulations governing the taking and importing of marine mammals ...... 5 217–221 [Reserved] 222 General endangered and threatened marine species 80 223 Threatened marine and anadromous species ...... 101 224 Endangered marine and anadromous species ...... 162 225 [Reserved] 226 Designated critical habitat ...... 164 229 Authorization for commercial fisheries under the Marine Mammal Protection Act of 1972 ...... 184
SUBCHAPTER D—WHALING 230 Whaling provisions ...... 212
SUBCHAPTER E—TRANSPORTATION AND LABELING OF FISH OR WILDLIFE [RESERVED]
SUBCHAPTER F—AID TO FISHERIES 253 Fisheries assistance programs ...... 215 259 Capital construction fund ...... 224
SUBCHAPTER G—PROCESSED FISHERY PRODUCTS, PROCESSED PROD- UCTS THEREOF, AND CERTAIN OTHER PROCESSED FOOD PRODUCTS 260 Inspection and certification ...... 236
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Part Page 261 United States Standards for Grades ...... 266
SUBCHAPTERS H–J [RESERVED]
SUBCHAPTER K—CONTINENTAL SHELF 296 Fishermen’s Contingency Fund ...... 268
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PART 216—REGULATIONS GOV- 216.38 Reporting. 216.39 Permit amendments. ERNING THE TAKING AND IM- 216.40 Penalties and permit sanctions. PORTING OF MARINE MAMMALS 216.41 Permits for scientific research and enhancement. Subpart A—Introduction 216.42 Photography. [Reserved] 216.43 Public display. [Reserved] Sec. 216.44 Applicability/transition. 216.1 Purpose of regulations. 216.45 General Authorization for Level B 216.2 Scope of regulations. harassment for scientific research. 216.3 Definitions. 216.46–216.49 [Reserved] 216.4 Other laws and regulations. 216.5 Payment of penalty. Subpart E—Designated Ports 216.6 Forfeiture and return of seized prop- erty. 216.50 Importation at designated ports. 216.7 Holding and bonding. 216.8 Enforcement officers. Subpart F—Pribilof Islands, Taking for Subsistence Purposes Subpart B—Prohibitions 216.71 Allowable take of fur seals. 216.11 Prohibited taking. 216.72 Restrictions on taking. 216.12 Prohibited importation. 216.73 Disposition of fur seal parts. 216.13 Prohibited uses, possession, transpor- 216.74 Cooperation with Federal officials. tation, sales, and permits. 216.14 Marine mammals taken before the Subpart G—Pribilof Islands Administration MMPA. 216.15 Depleted species. 216.81 Visits to fur seal rookeries. 216.16 Prohibitions under the General Au- 216.82 Dogs prohibited. thorization for Level B harassment for 216.83 Importation of birds or mammals. scientific research. 216.84 [Reserved] 216.85 Walrus and Otter Islands. Subpart C—General Exceptions 216.86 Local regulations. 216.87 Wildlife research. 216.21 Actions permitted by international treaty, convention, or agreement. Subpart H—Dolphin Safe Tuna Labeling 216.22 Taking by State or local government officials. 216.90 Purpose. 216.23 Native exceptions. 216.91 Labeling requirements. 216.24 Taking and related acts incidental to 216.92 Purse seine vessels greater than 400 commercial fishing operations. short tons (362.8 metric tons). 216.25 Exempted marine mammals and ma- 216.93 Submission of documentation. rine mammal products. 216.94 Requests to review documents. 216.26 Collection of certain marine mam- 216.95 False statements or endorsements. mals parts without prior authorization. 216.27 Release, non-releasability, and dis- Subpart I—General Regulations Governing position under special exception permits Small Takes of Marine Mammals Inci- for rehabilitated marine mammals. dental to Specified Activities Subpart D—Special Exceptions 216.101 Purpose. 216.102 Scope. 216.30 [Reserved] 216.103 Definitions. 216.31 Definitions. 216.104 Submission of requests. 216.32 Scope. 216.105 Specific regulations. 216.33 Permit application submission, re- 216.106 Letter of Authorization. view, and decision procedures. 216.107 Incidental harassment authorization 216.34 Issuance criteria. for Arctic waters. 216.35 Permit restrictions. 216.108 Requirements for monitoring and re- 216.36 Permit conditions. porting under incidental harassment au- 216.37 Marine mammal parts. thorizations for Arctic waters.
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Subpart J—Taking of Ringed Seals 216.148 Modifications to Letters of Author- Incidental to On-Ice Seismic Activities ization. 216.111 Specified activity and specified geo- Subpart N—Taking of Marine Mammals In- graphical region. cidental to Underwater Detonation of 216.112 Effective dates. Conventional Explosives by the De- 216.113 Permissible methods. partment of Defense 216.114 Mitigation. 216.115 Requirements for monitoring and re- 216.151 Specified activity, geographical re- porting. gion, and incidental take levels. 216.116 Applications for Letters of Author- 216.152 Effective dates. ization. 216.153 Permissible methods of taking; miti- 216.117 Renewal of Letters of Authorization. gation. 216.118 Modifications to Letters of Author- 216.154 Prohibitions. ization. 216.155 Requirements for monitoring and re- 216.119 [Reserved] porting. 216.156 Renewal of Letter of Authorization. Subpart K—Taking of Marine Mammals In- 216.157 Modifications to Letter of Author- cidental to Space Vehicle and Test ization. Flight Activities Subpart O—Taking of Marine Mammals In- 216.120 Specified activity and specified geo- graphical region. cidental to Shock Testing the USS 216.121 Effective dates. SEAWOLF by Detonation of Conven- 216.122 Permissible methods of taking. tional Explosives in the Offshore Waters 216.123 Prohibitions. of the U.S. Atlantic Coast 216.124 Mitigation. 216.125 Requirements for monitoring and re- 216.161 Specified activity, geographical re- porting. gion and incidental take levels. 216.126 Applications for Letters of Author- 216.162 Effective dates. ization. 216.163 Permissible methods of taking; miti- 216.127 Renewal of Letters of Authorization. gation. 216.128 Modifications of Letters of Author- 216.164 Prohibitions. ization. 216.165 Requirements for monitoring and re- porting. Subpart L—Taking of Marine Mammals 216.166 Modifications to the Letter of Au- Incidental to Power Plant Operations thorization. 216.167–216.169 [Reserved] 216.130 Specified activity, specified geo- graphical region, and incidental take lev- Subparts P–Q [Reserved] els. 216.131 Effective dates. NOTE TO PART 216: See also 50 CFR parts 228 216.132 Permissible methods of taking. and 229 for regulations governing certain in- 216.133 Prohibitions. cidental takings of marine mammals. 216.134 Mitigation requirements. AUTHORITY: 16 U.S.C. 1361 et seq., unless 216.135 Monitoring and reporting. otherwise noted. 216.136 Renewal of the Letter of Authoriza- tion. SOURCE: 39 FR 1852, Jan. 15, 1974, unless 216.137 Modifications to the Letter of Au- otherwise noted. thorization. EDITORIAL NOTE: At 56 FR 21096, May 7, 216.138–216.140 [Reserved] 1991, 56 FR 41308, Aug. 20, 1991, and 56 FR 48115, Sept. 24, 1991, findings of nonconform- Subpart M—Taking of Bottlenose Dolphins ance, embargo and revocation were published and Spotted Dolphins Incidental to Oil in the FEDERAL REGISTER. and Gas Structure Removal Activities 216.141 Specified activity and specified geo- Subpart A—Introduction graphical region. 216.142 Effective dates. § 216.1 Purpose of regulations. 216.143 Permissible methods of taking; miti- The regulations in this part imple- gation. ment the Marine Mammal Protection 216.144 Prohibitions. 216.145 Requirements for monitoring and re- Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361– porting. 1407, Pub. L. 92–522, which, among other 216.146 Letters of Authorization. things, restricts the taking, possession, 216.147 Renewal of Letters of Authorization. transportation, selling, offering for
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sale, and importing of marine mam- adoptive parents are not Natives. It mals. also includes, in the absence of proof of a minimum blood quantum, any citizen § 216.2 Scope of regulations. of the United States who is regarded as This part 216 applies solely to marine an Alaska Native by the Native village mammals and marine mammal prod- or group, of which he claims to be a ucts as defined in § 216.3. For regula- member and whose father or mother is tions under the MMPA, with respect to (or, if deceased, was) regarded as Na- other marine mammals and marine tive by any Native village or Native mammal products, see 50 CFR part 18. group. Any such citizen enrolled by the [39 FR 1852, Jan. 15, 1974, as amended at 59 Secretary of the Interior pursuant to FR 50375, Oct. 3, 1994] section 5 of the Alaska Native Claims Settlement Act shall be conclusively § 216.3 Definitions. presumed to be an Alaskan Native for In addition to definitions contained purposes of this part. in the MMPA, and unless the context Article of handicraft means items otherwise requires, in this part 216: made by an Indian, Aleut or Eskimo ABI means Automated Broker Inter- from the nonedible byproducts of fur face, the electronic product-entry fil- seals taken for personal or family con- ing system under the control of the sumption which— U.S. Customs Service, Department of (1) Were commonly produced by Alas- the Treasury. kan Natives on or before October 14, Acts means, collectively, the Marine 1983; Mammal Protection Act of 1972, as (2) Are composed wholly or in some amended, 16 U.S.C. 1361 et seq., the En- significant respect of natural mate- dangered Species Act of 1973, as amend- rials, and; ed, 16 U.S.C. 1531 et seq., and the Fur (3) Are significantly altered from Seal Act of 1966, as amended, 16 U.S.C. their natural form and which are pro- 1151 et seq. duced, decorated, or fashioned in the Active sportfishing means paying pas- exercise of traditional native handi- sengers have their terminal fishing crafts without the use of pantographs, gear (lures, hooks, etc.) in the water in multiple carvers, or similar mass copy- an attempt to catch fish or, in the case ing devices. Improved methods of pro- of fishing involving chumming, fishing is considered to be in progress from the duction utilizing modern implements instant fish have been sighted taking such as sewing machines or modern bait (boiling) during that chumming tanning techniques at a tannery reg- process. istered pursuant to § 216.23(c) may be Administrator, Southeast Region means used so long as no large scale mass pro- Administrator, Southeast Region, Na- duction industry results. Traditional tional Marine Fisheries Service, 9721 native handicrafts include, but are not Executive Center Drive, St. Peters- limited to, weaving, carving, stitching, burg, FL 33702–2432. sewing, lacing, beading, drawing, and Administrator, Northeast Region means painting. The formation of traditional Administrator, Northeast Region, Na- native groups, such as a cooperative, is tional Marine Fisheries Service, One permitted so long as no large scale Blackburn Drive, Gloucester, MA 01930– mass production results. 2298. Assistant Administrator means the As- Alaskan Native means a person de- sistant Administrator for Fisheries, fined in the Alaska Native Claims Set- National Marine Fisheries Service, Na- tlement Act (43 U.S.C. 1602(b)) (85 Stat. tional Oceanic and Atmospheric Ad- 588) as a citizen of the United States ministration, Silver Spring, MD 20910, who is of one-fourth degree or more or his/her designee. Alaska Indian (including Tsimishian Authentic native articles of handicrafts Indians enrolled or not enrolled in the and clothing means items made by an Metlaktla Indian Community), Es- Indian, Aleut or Eskimo which (a) were kimo, or Aleut blood or combination commonly produced on or before De- thereof. The term includes any Native, cember 21, 1972, and (b) are composed as so defined, either or both of whose wholly or in some significant respect of
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natural materials, and (c) are signifi- Commercial fishing operation means cantly altered from their natural form the lawful harvesting of fish from the and which are produced, decorated, or marine environment for profit as part fashioned in the exercise of traditional of an ongoing business enterprise. Such native handicrafts without the use of terms may include licensed com- pantographs, multiple carvers, or simi- mercial passenger fishing vessel (as lar mass copying devices. Improved defined) activities, but no other sport- methods of production utilizing mod- fishing activities, whether or not the ern implements such as sewing ma- fish so caught are subsequently sold. chines or modern tanning techniques Commercial passenger fishing vessel at a tannery registered pursuant to means any vessel licensed for commer- § 216.23(c) may be used so long as no cial passenger fishing purposes within large scale mass production industry the State out of which it is operating results. Traditional native handicrafts and from which, while under charter or include, but are not limited to, weav- hire, persons are legally permitted to ing, carving, stitching, sewing, lacing, conduct sportfishing activities. beading, drawing, and painting. The Custody means holding a live marine formation of traditional native groups, mammal pursuant to the conditional such as a cooperative, is permitted so authority granted under the MMPA, long as no large scale mass production and the responsibility therein for cap- results. tive maintenance of the marine mam- Bona fide scientific research: (1) Means mal. scientific research on marine mammals Director, Office of Protected Resources conducted by qualified personnel, the means Director, Office of Protected Re- results of which: sources, National Marine Fisheries (i) Likely would be accepted for pub- Service, 1315 East-West Highway, Sil- lication in a refereed scientific journal; ver Spring, MD 20910. (ii) Are likely to contribute to the Director, Southwest Region means the basic knowledge of marine mammal bi- Director, Southwest Region, NMFS, 501 ology or ecology. (Note: This includes, W. Ocean Blvd., Long Beach, CA 90802, for example, marine mammal parts in or his/her designee. a properly curated, professionally ac- Dolphin Mortality Limit (DML) means credited scientific collection); or the maximum allowable number of in- (iii) Are likely to identify, evaluate, cidental dolphin mortalities per cal- or resolve conservation problems. endar year assigned to a vessel, unless (2) Research that is not on marine a shorter time period is specified. mammals, but that may incidentally Endangered Species means a species or take marine mammals, is not included subspecies of marine mammal listed as in this definition (see sections ‘‘endangered’’ pursuant to the Endan- 101(a)(3)(A), 101(a)(5)(A), and gered Species Act of 1973, 87 Stat. 884, 101(a)(5)(D) of the MMPA, and sections Pub. L. 93–205 (see part 17 of this title). 7(b)(4) and 10(a)(1)(B) of the ESA). ESA means the Endangered Species Carrying capacity means the Regional Act of 1973, as amended, 16 U.S.C. 1531 Director’s determination of the max- et seq. imum amount of fish that a vessel can ETP means the eastern tropical Pa- carry in short tons based on the great- cific Ocean which includes the Pacific er of the amount indicated by the Ocean area bounded by 40° N. latitude, builder of the vessel, a marine sur- 40° S. latitude, 160° W. longitude and veyor’s report, or the highest amount the coastlines of North, Central and reported landed from any one trip. South America. Certified charter vessel means a fishing ETP Fishing Area 1 means the north- vessel of a non-U.S. flag nation, which ern coastal portion of the ETP east of is operating under the jurisdiction of 117° W. longitude, north of 5° N. lati- the marine mammal laws and regula- tude, and west of 86° W. longitude. tions of another, harvesting, nation by ETP Fishing Area 2 means the off- a formal declaration entered into by shore area south of 14° N. latitude, mutual agreement of the nations. north of 6° N. latitude, east of 150° W. Co-investigator means the on-site rep- longitude, and west of 123° W. lon- resentative of a principal investigator. gitude.
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ETP Fishing Area 3 means all other marine mammal that is relatively solid areas within the ETP not included in or durable. Fishing Areas 1 and 2. Harvesting nation means the country Facility means, in the context specific under whose flag one or more fishing to captive marine mammals,: (1) One or vessels are documented, or which has more permanent primary enclosures by formal declaration agreed to assert used to hold marine mammals captive jurisdiction over one or more certified (i.e., pools, lagoons) and associated in- charter vessels, from which vessel(s) frastructure (i.e., equipment and sup- fish are caught that are a part of any plies necessary for the care and main- cargo or shipment of fish to be im- tenance of marine mammals) where ported into the United States, regard- these enclosures are either located less of any intervening transshipments. within the boundaries of a single con- Humane means the method of taking, tiguous parcel of land and water, or are import, export, or other activity which grouped together within the same gen- involves the least possible degree of eral area within which enclosure-to-en- pain and suffering practicable to the closure transport is expected to be animal involved. completed in less than one hour; or Import means to land on, bring into, (2) A traveling display/exhibit, where or introduce into, or attempt to land the enclosure(s) and associated infra- on, bring into, or introduce into, any structure is transported together with place subject to the jurisdiction of the the marine mammals. United States, whether or not such landing, bringing, or introduction con- Feeding is offering, giving, or stitutes an importation within the Cus- attempting to give food or non-food toms laws of the United States; except items to marine mammals in the wild. that, for the purpose of any ban issued It includes operating a vessel or pro- under 16 U.S.C. 1371(a)(2) on the impor- viding other platforms from which tation of fish or fish products, the defi- feeding is conducted or supported. It nition of ‘‘import’’ in § 216.24(e)(1)(ii) does not include the routine discard of shall apply. bycatch during fishing operations or Incidental catch means the taking of a the routine discharge of waste or fish marine mammal (1) because it is di- byproducts from fish processing plants rectly interfering with commercial or other platforms if the discharge is fishing operations, or (2) as a con- otherwise legal and is incidental to op- sequence of the steps used to secure the eration of the activity. fish in connection with commercial First exporter means the person or fishing operations: Provided, That a company that first exports the fish or marine mammal so taken must imme- fish product, or, in the case of ship- diately be returned to the sea with a ments that are subject to the labeling minimum of injury and further, that requirements of 50 CFR part 247 and the taking of a marine mammal, which that only contain fish harvested by otherwise meets the requirements of vessels of the United States, the first this definition shall not be considered seller of the fish or fish product. an incidental catch of that mammal if Fisheries Certificate of Origin means it is used subsequently to assist in NOAA Form 370, as described in 50 CFR commercial fishing operations. 216.24(e)(3)(iii). Intentional purse seine set means that Fishing season means, for the pur- a tuna purse seine vessel or associated poses of § 216.24(e), those sets made on vessels chase marine mammals and trips that are completed between Octo- subsequently make a purse seine set. ber 1 and September 30 of the following Intrusive research means a procedure calendar year. conducted for bona fide scientific re- FSA means the Fur Seal Act of 1966, search involving: A break in or cutting as amended, 16 U.S.C. 1151 et seq. of the skin or equivalent, insertion of Fur seal means North Pacific fur seal, an instrument or material into an ori- scientifically known as Callorhinus fice, introduction of a substance or ob- ursinus. ject into the animal’s immediate envi- Hard part means any bone, tooth, ronment that is likely either to be in- baleen, treated pelt, or other part of a gested or to contact and directly affect
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animal tissues (i.e., chemical sub- Level B Harassment means any act of stances), or a stimulus directed at ani- pursuit, torment, or annoyance which mals that may involve a risk to health has the potential to disturb a marine or welfare or that may have an impact mammal or marine mammal stock in on normal function or behavior (i.e., the wild by causing disruption of be- audio broadcasts directed at animals havioral patterns, including, but not that may affect behavior). For captive limited to, migration, breathing, nurs- animals, this definition does not in- ing, breeding, feeding, or sheltering but clude: which does not have the potential to (1) A procedure conducted by the pro- injure a marine mammal or marine fessional staff of the holding facility or mammal stock in the wild. an attending veterinarian for purposes Marine environment means the oceans of animal husbandry, care, mainte- and the seas, including estuarine and nance, or treatment, or a routine med- brackish waters. ical procedure that, in the reasonable Marine mammal means those speci- judgment of the attending veteri- mens of the following orders, which are narian, would not constitute a risk to morphologically adapted to the marine the health or welfare of the captive environment, whether alive or dead, animal; or and any part thereof, including but not (2) A procedure involving either the limited to, any raw, dressed or dyed fur introduction of a substance or object or skin: Cetacea (whales and por- (i.e., as described in this definition) or poises), Pinnipedia, other than walrus a stimulus directed at animals that, in (seals and sea lions). the reasonable judgment of the attend- MMPA means the Marine Mammal ing veterinarian, would not involve a Protection Act of 1972, as amended, 16 risk to the health or welfare of the cap- U.S.C. 1361 et seq. tive animal. Native village or town means any com- Kill-per-set means the number of munity, association, tribe, band, clan small, toothed cetaceans (marine mam- or group. mals) killed per purse seine set made Optimum sustainable population is a involving marine mammals. population size which falls within a Kill-per-ton means the number of range from the population level of a small toothed cetacean marine mam- given species or stock which is the mals killed per ton of yellowfin tuna largest supportable within the eco- caught in sets made on marine mam- system to the population level that re- mals. sults in maximum net productivity. Label means a display of written, Maximum net productivity is the printed, or graphic matter on or affixed greatest net annual increment in popu- to the immediate container of any arti- lation numbers or biomass resulting cle. from additions to the population due to Land or landing means to begin off- reproduction and/or growth less losses loading any fish, to arrive in port with due to natural mortality. the intention of offloading fish, or to Pregnant means pregnant near term. cause any fish to be offloaded. Pribilovians means Indians, Aleuts, Large-scale driftnet means a gillnet and Eskimos who live on the Pribilof that is composed of a panel or panels of Islands. webbing, or a series of such gillnets, Principal investigator means the indi- with a total length of 2.5 kilometers or vidual primarily responsible for the more that is used on the high seas and taking, importation, export, and any allowed to drift with the currents and related activities conducted under a winds for the purpose of harvesting fish permit issued for scientific research or by entangling the fish in the webbing enhancement purposes. of the net. Public display means an activity that Level A Harassment means any act of provides opportunities for the public to pursuit, torment, or annoyance which view living marine mammals at a facil- has the potential to injure a marine ity holding marine mammals captive. mammal or marine mammal stock in Purse seine set on common dolphins the wild. means a purse seine set in which more
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than 50 percent of the marine mam- by Pribilovians for direct personal or mals killed are common dolphins or, in family consumption as food, shelter, sets with no dolphins killed, more than fuel, clothing, tools or transportation; 50 percent of the dolphins captured are for the making and selling of handi- common dolphins. craft articles out of nonedible byprod- Regional Director means the Director, ucts of fur seals taken for personal or Southwest Region, NMFS, 501 W. Ocean family consumption; and for barter, or Blvd., Long Beach, CA 90802, or his/her sharing for personal or family con- designee. sumption. As used in this definition— Rehabilitation means treatment of (1) Family means all persons related beached and stranded marine mammals by blood, marriage, or adoption, or any taken under section 109(h)(1) of the person living within a household on a MMPA or imported under section permanent basis. 109(h)(2) of the MMPA, with the intent (2) Barter means the exchange of fur of restoring the marine mammal’s seals or their parts, taken for subsist- health and, if necessary, behavioral ence uses— patterns. (i) For other wildlife or fish or their Secretary shall mean the Secretary of parts, or Commerce or his authorized represent- (ii) For other food or for nonedible ative. items other than money if the ex- Sexual harassment means any unwel- change is of a limited and noncommer- come sexual advance, request for sex- cial nature. ual favors, or other verbal and physical Take means to harass, hunt, capture, conduct of a sexual nature which has collect, or kill, or attempt to harass, the purpose or effect of substantially hunt, capture, collect, or kill any ma- interfering with an individual’s work rine mammal. This includes, without performance or creating an intimi- limitation, any of the following: The dating, hostile, or offensive working collection of dead animals, or parts environment. thereof; the restraint or detention of a Soft part means any marine mammal marine mammal, no matter how tem- part that is not a hard part. Soft parts porary; tagging a marine mammal; the do not include urine or fecal material. negligent or intentional operation of South Pacific Ocean means any waters an aircraft or vessel, or the doing of of the Pacific Ocean that lie south of any other negligent or intentional act the equator. which results in disturbing or molest- Stranded or stranded marine mammal ing a marine mammal; and feeding or means a marine mammal specimen attempting to feed a marine mammal under the jurisdiction of the Secretary: in the wild. (1) If the specimen is dead, and is on Threatened species means a species of a beach or shore, or is in the water marine mammal listed as ‘‘threatened’’ within the Exclusive Economic Zone of pursuant to the Endangered Species the United States; or Act of 1973, 87 Stat. 884, Pub. L. 93–205. (2) If the specimen is alive, and is on Trip means a voyage starting when a a beach or shore and is unable to re- vessel leaves port with all fish wells turn to the water, or is in the water empty of fish and ending when a vessel within the Exclusive Economic Zone of unloads all of its fish. the United States where the water is so Tuna product means any food product shallow that the specimen is unable to processed for retail sale and intended return to its natural habitat under its for human or animal consumption that own power. contains an item listed in Subsistence means the use of marine § 216.24(e)(2)(i) or (ii), but does not in- mammals taken by Alaskan Natives clude perishable items with a shelf life for food, clothing, shelter, heating, of less than 3 days. transportation, and other uses nec- Wasteful manner means any taking or essary to maintain the life of the taker method of taking which is likely to re- or those who depend upon the taker to sult in the killing of marine mammals provide them with such subsistence. beyond those needed for subsistence, Subsistence uses means the customary subsistence uses, or for the making of and traditional uses of fur seals taken authentic native articles of handicrafts
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and clothing, or which results in the (b) Whenever a civil penalty has been waste of a substantial portion of the assessed by the Secretary under these marine mammal and includes, without regulations, any cargo, marine mam- limitation, the employment of a meth- mal, or marine mammal product seized od of taking which is not likely to as- pursuant to section 107 of the MMPA sure the capture or killing of a marine shall be subject to forfeiture. If re- mammal, or which is not immediately spondent voluntarily forfeits any such followed by a reasonable effort to re- seized property or the monetary value trieve the marine mammal. thereof without court proceedings, the Secretary may apply the value thereof, EDITORIAL NOTE: For FEDERAL REGISTER ci- tations affecting § 216.3, see the List of Sec- if any, as determined by the Secretary, tions Affected in the Finding Aids section of toward payment of the civil penalty. this volume. (c) Whenever a civil penalty has been assessed under these regulations, and EFFECTIVE DATE NOTES: 1. At 63 FR 66076, whether or not such penalty has been Dec. 1, 1998, in § 216.3, the definition Adminis- trator, Southeast Region was added, effective paid, the Secretary may request the Jan. 1, 1999 through Sept. 30, 2004. Attorney General to institute a civil 2. At 64 FR 28120, May 25, 1999, in § 216.3, the action in an appropriate United States definition Administrator, Northeast Region was District Court to compel forfeiture of added, effective July 1, 1999 through June 30, such seized property or the monetary 2004. value thereof to the Secretary for dis- position by him in such manner as he § 216.4 Other laws and regulations. deems appropriate. If no judicial action (a) Federal. Nothing in this part, nor to compel forfeiture is commenced any permit issued under authority of within 30 days after final decision- this part, shall be construed to relieve making assessment of a civil penalty, a person from any other requirements pursuant to § 216.60, such seized prop- imposed by a statute or regulation of erty shall immediately be returned to the United States, including any appli- the respondent. cable statutes or regulations relating (d) If the final decision of the Sec- to wildlife and fisheries, health, quar- retary under these regulations is that antine, agriculture, or customs. respondent has committed no violation (b) State laws or regulations. See part of the MMPA or of any permit or regu- 403 of this chapter. lations issued thereunder, any marine mammal, marine mammal product, or [39 FR 1852, Jan. 15, 1974, as amended at 41 other cargo seized from respondent in FR 36662, Aug. 31, 1976; 58 FR 65134, Dec. 13, 1993] connection with the proceedings under these regulations, or the bond or other § 216.5 Payment of penalty. monetary value substituted therefor, shall immediately be returned to the The respondent shall have 30 days respondent. from receipt of the final assessment de- (e) If the Attorney General com- cision within which to pay the penalty mences criminal proceedings pursuant assessed. Upon a failure to pay the pen- to section 105(b) of the MMPA, and alty, the Secretary may request the such proceedings result in a finding Attorney General to institute a civil that the person accused is not guilty of action in the appropriate United States a criminal violation of the MMPA, the District Court to collect the penalty. Secretary may institute proceedings [39 FR 1852, Jan. 15, 1974. Redesignated at 46 for the assessment of a civil penalty FR 61652, Dec. 18, 1981] under this part: Provided, That if no such civil penalty proceedings have § 216.6 Forfeiture and return of seized been commenced by the Secretary property. within 30 days following the final dis- (a) Whenever any cargo or marine position of the criminal case, any prop- mammal or marine mammal product erty seized pursuant to section 107 of has been seized pursuant to section 107 the MMPA shall be returned to the re- of the MMPA, the Secretary shall expe- spondent. dite any proceedings commenced under (f) If any seized property is to be re- these regulations. turned to the respondent, the Regional
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Director shall issue a letter author- MMPA. Pursuant to the terms of sec- izing such return. This letter shall be tion 107(b) of the MMPA, the Secretary dispatched to the respondent by reg- may also designate officers and em- istered mail, return receipt requested, ployees of any State or of any posses- and shall identify the respondent, the sion of the United States to enforce the seized property, and, if appropriate, the provisions of this MMPA. bailee of the seized property. It shall also provide that upon presentation of [39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 59 FR the letter and proper identification, 50375, Oct. 3, 1994] the seized property is authorized to be released. All charges for storage, care, or handling of the seized property ac- Subpart B—Prohibitions cruing 5 days or more after the date of the return receipt shall be for the ac- § 216.11 Prohibited taking. count of the respondent: Provided, That Except as otherwise provided in sub- if it is the final decision of the Sec- parts C, D, and I of this part 216 or in retary under these regulations that the part 228 or 229, it is unlawful for: respondent has committed the alleged (a) Any person, vessel, or conveyance violation, all charges which have ac- subject to the jurisdiction of the crued for the storage, care, or handling United States to take any marine of the seized property shall be for the mammal on the high seas, or account of the respondent. (b) Any person, vessel, or conveyance [39 FR 1852, Jan. 15, 1974. Redesignated at 46 to take any marine mammal in waters FR 61652, Dec. 18, 1981, and amended at 59 FR or on lands under the jurisdiction of 50375, Oct. 3, 1994] the United States, or (c) Any person subject to the juris- § 216.7 Holding and bonding. diction of the United States to take (a) Any marine mammal, marine any marine mammal during the mora- mammal product, or other cargo seized torium. pursuant to section 107 of the MMPA shall be delivered to the appropriate [39 FR 1852, Jan. 15, 1974, as amended at 47 FR 21254, May 18, 1982; 54 FR 21921, May 19, Regional Director of the National Ma- 1989] rine Fisheries Service (see § 201.2 of this title) or his designee, who shall either § 216.12 Prohibited importation. hold such seized property or arrange for the proper handling and care of (a) Except as otherwise provided in such seized property. subparts C and D of this part 216, it is (b) Any arrangement for the handling unlawful for any person to import any and care of seized property shall be in marine mammal or marine mammal writing and shall state the compensa- product into the United States. tion to be paid. Subpart F of 15 CFR (b) Regardless of whether an importa- part 904 contains additional procedures tion is otherwise authorized pursuant that govern seized property that is sub- to subparts C and D of this part 216, it ject to forfeiture or has been forfeited is unlawful for any person to import under the MMPA. into the United States any: (1) Marine mammal: [39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 50 FR (i) Taken in violation of the MMPA, 12785, Apr. 1, 1985; 59 FR 50375, Oct. 3, 1994] or (ii) Taken in another country in vio- § 216.8 Enforcement officers. lation to the laws of that country; Enforcement Agents of the National (2) Any marine mammal product if Marine Fisheries Service shall enforce (i) The importation into the United the provisions of the MMPA and may States of the marine mammal from take any actions authorized by the which such product is made would be MMPA with respect to enforcement. In unlawful under paragraph (b)(1) of this addition, the Secretary may utilize, by section, or agreement, the personnel, services, and (ii) The sale in commerce of such facilities of any other Federal Agency product in the country of origin if the for the purposes of enforcing this product is illegal.
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(c) Except in accordance with an ex- (d) Any person to violate any term, ception referred to in subpart C and condition, or restriction of any permit §§ 216.31 (regarding scientific research issued by the Secretary. permits only) and 216.32 of this part 216, [39 FR 1852, Jan. 15, 1974, as amended at 59 it is unlawful to import into the United FR 50375, 50376, Oct. 3, 1994; 61 FR 21933, May States any: 10, 1996] (1) Marine mammal which was preg- nant at the time of taking. § 216.14 Marine mammals taken before the MMPA. (2) Marine mammal which was nurs- ing at the time of taking, or less than (a) Section 102(e) of the MMPA pro- 8 months old, whichever occurs later. vides, in effect, that the MMPA shall (3) Specimen of an endangered or not apply to any marine mammal threatened species of marine mammal. taken prior to December 21, 1972, or to any marine mammal product, con- (4) Specimen taken from a depleted sisting of or composed in whole or in species or stock of marine mammals, part of, any marine mammal taken be- or fore that date. This prior status of any (5) Marine mammal taken in an inhu- marine mammal or marine mammal mane manner. product may be established by submit- (d) It is unlawful to import into the ting to the Director, National Marine United States any fish, whether fresh, Fisheries Service prior to, or at the frozen, or otherwise prepared, if such time of importation, an affidavit con- fish was caught in a manner proscribed taining the following: by the Secretary of Commerce for per- (1) The Affiant’s name and address; sons subject to the jurisdiction of the (2) Identification of the Affiant; United States, whether or not any ma- (3) A description of the marine mam- rine mammals were in fact taken inci- mals or marine mammal products dent to the catching of the fish. which the Affiant desires to import; (4) A statement by the Affiant that, [39 FR 1852, Jan. 15, 1974, as amended at 59 to the best of his knowledge and belief, FR 50375, Oct. 3, 1994] the marine mammals involved in the § 216.13 Prohibited uses, possession, application were taken prior to Decem- transportation, sales, and permits. ber 21, 1972; (5) A statement by the Affiant in the It is unlawful for: following language: (a) Any person to use any port, har- bor or other place under the jurisdic- The foregoing is principally based on the tion of the United States for any pur- attached exhibits which, to the best of my knowledge and belief, are complete, true and pose in any way connected with a pro- correct. I understand that this affidavit is hibited taking or an unlawful importa- being submitted for the purpose of inducing tion of any marine mammal or marine the Federal Government to permit the im- mammal product; or portation of—under the Marine Mammal (b) Any person subject to the juris- Protection Act of 1972 (16 U.S.C. 1361 through 1407) and regulations promulgated there- diction of the United States to possess under, and that any false statements may any marine mammal taken in violation subject me to the criminal penalties of 13 of the MMPA or these regulations, or U.S.C. 1001, or to penalties under the Marine to transport, sell, or offer for sale any Mammal Protection Act of 1972. such marine mammal or any marine (b) Either one of two exhibits shall be mammal product made from any such attached to such affidavit, and will mammal. contain either: (c) Any person subject to the juris- (1) Records or other available evi- diction of the United States to use in a dence showing that the product con- commercial fishery, any means or sists of or is composed in whole or in method of fishing in contravention of part of marine mammals taken prior to regulations and limitations issued by the effective date of the MMPA. Such the Secretary of Commerce for that records or other evidentiary material fishery to achieve the purposes of this must include information on how, MMPA. when, where, and by whom the animals
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were taken, what processing has taken Subpart C—General Exceptions place since taking, and the date and lo- cation of such processing; or § 216.21 Actions permitted by inter- (2) A statement from a government national treaty, convention, or agency of the country of origin exer- agreement. cising jurisdiction over marine mam- The MMPA and these regulations mals that any and all such mammals shall not apply to the extent that they from which the products sought to be are inconsistent with the provisions of imported were derived were taken prior any international treaty, convention to December 21, 1972. or agreement, or any statute imple- menting the same relating to the tak- (c) No pre-Act marine mammal or ing or importation of marine mammals pre-Act marine mammal product may or marine mammal products, which be imported unless the requirements of was existing and in force prior to De- this section have been fulfilled. cember 21, 1972, and to which the (d) This section has no application to United States was a party. Specifi- any marine mammal or marine mam- cally, the regulations in subpart B of mal product intended to be imported this part and the provisions of the pursuant to §§ 216.21, 216.31 or § 216.32. MMPA shall not apply to activities carried out pursuant to the Interim [39 FR 1852, Jan. 15, 1974, as amended at 59 Convention on the Conservation of FR 50375, 50376, Oct. 3, 1994] North Pacific Fur Seals signed at § 216.15 Depleted species. Washington on February 9, 1957, and the Fur Seal Act of 1966, 16 U.S.C. 1151 The following species or population through 1187, as in each case, from stocks have been designated by the As- time to time amended. sistant Administrator as depleted [39 FR 1852, Jan. 15, 1974, as amended at 59 under the provisions of the MMPA. FR 50376, Oct. 3, 1994] (a) Hawaiian monk seal (Monachus schauinslandi). § 216.22 Taking by State or local gov- (b) Bowhead whale (Balaena mystice- ernment officials. tus). (a) A State or local government offi- (c) North Pacific fur seal (Callorhinus cial or employee may take a marine ursinus). Pribilof Island population. mammal in the normal course of his (d) Bottlenose dolphin (Tursiops duties as an official or employee, and truncatus), coastal-migratory stock no permit shall be required, if such along the U.S. mid-Atlantic coast. taking: (e) Eastern spinner dolphin (Stenella (1) Is accomplished in a humane manner; longirostris orientalis). (2) Is for the protection or welfare of (f) Northeastern offshore spotted dol- such mammal or for the protection of phin (Stenella attenuata). the public health or welfare; and [53 FR 17899, May 18, 1988, as amended at 58 (3) Includes steps designed to insure FR 17791, Apr. 6, 1993; 58 FR 45074, Aug. 26, return of such mammal, if not killed in 1993; 58 FR 58297, Nov. 1, 1993; 59 FR 50376, the course of such taking, to its nat- Oct. 3, 1994] ural habitat. In addition, any such offi- cial or employee may, incidental to § 216.16 Prohibitions under the Gen- such taking, possess and transport, but eral Authorization for Level B har- not sell or offer for sale, such mammal assment for scientific research. and use any port, harbor, or other place It shall be unlawful for any person under the jurisdiction of the United to: States. All steps reasonably prac- (a) Provide false information in a let- ticable under the circumstances shall ter of intent submitted pursuant to be taken by any such employee or offi- § 216.45(b); cial to prevent injury or death to the (b) Violate any term or condition im- marine mammal as the result of such taking. Where the marine mammal in posed pursuant to § 216.45(d). question is injured or sick, it shall be [59 FR 50376, Oct. 3, 1994] permissible to place it in temporary
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captivity until such time as it is able (i) The name, address, and any offi- to be returned to its natural habitat. It cial position of the individual engaged shall be permissible to dispose of a car- in the taking and salvage; cass of a marine mammal taken in ac- (ii) A description of the marine mam- cordance with this subsection whether mal specimen salvaged including the the animal is dead at the time of tak- scientific and common names of the ing or dies subsequent thereto. species; (b) Each taking permitted under this (iii) A description of the parts section shall be included in a written salvaged; report to be submitted to the Secretary (iv) The date and the location of the every six months beginning December taking; 31, 1973. Unless otherwise permitted by the Secretary, the report shall contain (v) Such other information as deemed a description of: necessary by the Assistant Adminis- (1) The animal involved; trator. (2) The circumstances requiring the (3) Identification and curation. The Re- taking; gional Director will assign a single (3) The method of taking; unique number to each carcass, and the (4) The name and official position of parts thereof, that are salvaged under the State official or employee involved; the provisions of this section. The per- (5) The disposition of the animal, in- son who salvaged the specimen may cluding in cases where the animal has designate the number to be assigned. been retained in captivity, a descrip- After this number is assigned, the per- tion of the place and means of confine- son who salvaged the specimen must ment and the measures taken for its permanently mark that number on maintenance and care; and each separate hard part of that speci- (6) Such other information as the men and must affix that number with Secretary may require. tags or labels to each soft part of that (c) Salvage of dead stranded marine specimen or the containers in which mammals or parts therefrom and sub- that soft part is kept. Each specimen sequent transfer. salvaged under this section must be (1) Salvage. In the performance of of- curated in accordance with profes- ficial duties, a state or local govern- sional standards. ment employee; an employee of the Na- (4) No sale or commercial trade. No per- tional Marine Fisheries Service, the son may sell or trade for commercial U.S. Fish and Wildlife Service, or any purposes any marine mammal speci- other Federal agency with jurisdiction men salvaged under this section. and conservation responsibilities in (5) Transfer without prior authoriza- marine shoreline areas; or a person au- tion. A person who salvages a marine thorized under 16 U.S.C. 1382(c) may mammal specimen under this section take and salvage a marine mammal may transfer that specimen to another specimen if it is stranded and dead or it person if: was stranded or rescued and died dur- (i) The person transferring the ma- ing treatment, transport, captivity or rine mammal specimen does not re- other rehabilitation subsequent to that stranding or distress if salvage is for ceive remuneration for the specimen; the purpose of utilization in scientific (ii) The person receiving the marine research or for the purpose of mainte- mammal specimen is an employee of nance in a properly curated, profes- the National Marine Fisheries Service, sionally accredited scientific collec- the U.S. Fish and Wildlife Service, or tion. any other Federal agency with jurisdic- (2) Registration. A person salvaging a tion and conservation responsibilities dead marine mammal specimen under in marine shoreline areas; is a person this section must register the salvage authorized under 16 U.S.C. 1382(c); or is of the specimen with the appropriate a person who has received prior author- Regional Office of the National Marine ization under paragraph (c)(6) of this Fisheries Service within 30 days after section; the taking or death occurs. The reg- (iii) The marine mammal specimen is istration must include: transferred for the purpose of scientific
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research, for the purpose of mainte- prior authorization required in para- nance in a properly curated, profes- graph (c)(6) of this section if: sionally accredited scientific collec- (i) The transfer is a temporary trans- tion, or for educational purposes; fer to a laboratory or research facility (iv) The unique number assigned by within the United States so that anal- the National Marine Fisheries Service yses can be performed for the person is on, marked on, or affixed to the ma- salvaging the specimen; or rine mammal specimen or container; (ii) The transfer is a loan of not more and than 1 year to another professionally (v) Except as provided under para- accredited scientific collection within graph (c)(8) of this section, the person the United States. transferring the marine mammal speci- [39 FR 1852, Jan. 15, 1974, as amended at 56 men notifies the appropriate Regional FR 41307, Aug. 20, 1991] Office of the National Marine Fisheries Service of the transfer, including noti- § 216.23 Native exceptions. fication of the number of the specimen (a) Taking. Notwithstanding the pro- transferred and the person to whom the hibitions of subpart B of this part 216, specimen was transferred, within 30 but subject to the restrictions con- days after the transfer occurs. tained in this section, any Indian, (6) Other transfers within the United Aleut, or Eskimo who resides on the States. Except as provided under para- coast of the North Pacific Ocean or the graphs (c)(5) and (c)(8) of this section, a Arctic Ocean may take any marine person who salvages a marine mammal mammal without a permit, if such tak- specimen, or who has received a marine ing is: mammal specimen under the provi- (1) By Alaskan Natives who reside in sions of this section, may not transfer Alaska for subsistence, or that specimen to another person within (2) For purposes of creating and sell- the United States unless the Regional ing authentic native articles of handi- Director of the appropriate Regional craft and clothing, and Office of the National Marine Fisheries (3) In each case, not accomplished in Service grants prior written authoriza- a wasteful manner. tion for the transfer. The Regional Di- (b) Restrictions. (1) No marine mam- rector may grant authorization for the mal taken for subsistence may be sold transfer if there is evidence that the or otherwise transferred to any person conditions listed under paragraphs other than an Alaskan Native or deliv- (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this ered, carried, transported, or shipped in section are met. interstate or foreign commerce, unless: (7) Tranfers outside of the United (i) It is being sent by an Alaskan Na- States. A person who salvages a marine tive directly or through a registered mammal specimen, or a person who has agent to a tannery registered under received a marine mammal specimen paragraph (c) of this section for the under the provisions of this section, purpose of processing, and will be re- may not transfer that specimen to a turned directly or through a registered person outside of the United States un- agent to the Alaskan Native; or less the Assistant Administrator (ii) It is sold or transferred to a reg- grants prior written authorization for istered agent in Alaska for resale or the transfer. The Assistant Adminis- transfer to an Alaskan Native; or trator may grant authorization for the (iii) It is an edible portion and it is transfer if there is evidence that the sold in an Alaskan Native village or conditions listed under paragraphs town. (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this (2) No marine mammal taken for pur- section are met. poses of creating and selling authentic (8) Exceptions to requirements for notifi- native articles of handicraft and cloth- cation or prior authorization. A person ing may be sold or otherwise trans- may transfer a marine mammal speci- ferred to any person other than an In- men salvaged under this section with- dian, Aleut or Eskimo, or delivered, out the notification required in para- carried, transported or shipped in graph (c)(5)(v) of this section or the interstate or foreign commerce, unless:
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(i) It is being sent by an Indian, that connection, he may waive any re- Aleut or Eskimo directly or through a quirement for information, or require registered agent to a tannery reg- any elaboration or further information istered under paragraph (c) of this sec- deemed necessary. The registration of tion for the purpose of processing, and a tannery or other agent shall be sub- will be returned directly or through a ject to such conditions as the Sec- registered agent to the Indian, Aleut or retary prescribes, which may include, Eskimo; or but are not limited to, provisions re- (ii) It is sold or transferred to a reg- garding records, inventory segregation, istered agent for resale or transfer to reports, and inspection. The Secretary an Indian, Aleut, or Eskimo; or may charge a reasonable fee for proc- (iii) It has first been transformed essing such applications, including an into an authentic native article of appropriate apportionment of overhead handicraft or clothing; or and administrative expenses of the De- (iv) It is an edible portion and sold partment of Commerce. (A) in an Alaskan Native village or (d) Notwithstanding the preceding town, or (B) to an Alaskan Native for provisions of this section, whenever, his consumption. under the MMPA, the Secretary deter- (c) Any tannery, or person who wish- mines any species of stock of marine es to act as an agent, within the juris- mammals to be depleted, he may pre- diction of the United States may apply scribe regulations pursuant to section to the Director, National Marine Fish- 103 of the MMPA upon the taking of eries Service, U.S. Department of Com- such marine animals by any Indian, merce, Washington, DC 20235, for reg- Aleut, or Eskimo and, after promulga- istration as a tannery or an agent tion of such regulations, all takings of which may possess and process marine such marine mammals shall conform mammal products for Indians, Aleuts, to such regulations. or Eskimos. The application shall in- (e) Marking and reporting of Cook Inlet clude the following information: Beluga Whales. (1) Definitions. In addi- (i) The name and address of the appli- tion to definitions contained in the cant; MMPA and the regulations in this part: (ii) A description of the applicant’s (i) Reporting means the collection and procedures for receiving, storing, proc- delivery of biological data, harvest essing, and shipping materials; data, and other information regarding (iii) A proposal for a system of book- the effect of taking a beluga whale keeping and/or inventory segregation (Delphinapterus leucas) from Cook Inlet, by which the applicant could maintain as required by NMFS. accurate records of marine mammals (ii) Whaling captain or vessel operator received from Indians, Aleuts, or Eski- means the individual who is identified mos pursuant to this section; by Alaskan Natives as the leader of (iv) Such other information as the each hunting team (usually the other Secretary may request; crew on the boat) and who is the whal- (v) A certification in the following ing captain; or the individual operating language: the boat at the time the whale is har- vested or transported to the place of I hereby certify that the foregoing infor- processing. mation is complete, true and correct to the best of my knowledge and belief. I under- (iii) Cook Inlet means all waters of stand that this information is submitted for Cook Inlet north of 59° North latitude, the purpose of obtaining the benefit of an ex- including, but not limited to, waters of ception under the Marine Mammal Protec- Kachemak Bay, Kamishak Bay, tion Act of 1972 (16 U.S.C. 1361 through 1407) Chinitna Bay, and Tuxedni Bay. and regulations promulgated thereunder, and (2) Marking. Each whaling captain or that any false statement may subject me to vessel operator, upon killing and land- the criminal penalties of 18 U.S.C. 1001, or to ing a beluga whale (Delphinapterus penalties under the Marine Mammal Protec- tion Act of 1972. leucas) from Cook Inlet, Alaska, must remove the lower left jawbone, leaving (vi) The signature of the applicant. the teeth intact and in place. When The sufficiency of the application shall multiple whales are harvested during be determined by the Secretary, and in one hunting trip, the jawbones will be
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marked for identification in the field of the Magnuson Fishery Conservation and to ensure correct reporting of harvest Management Act (16 U.S.C. 1824(b)). Other information by placing a label marked commercial fisheries remain subject to regu- with the date, time, and location of lations under § 216.24. harvest within the container in which (a)(1) No marine mammals may be the jawbone is placed. The jawbone(s) taken in the course of a commercial must be retained by the whaling cap- fishing operation unless: The taking tain or vessel operator and delivered to constitutes an incidental catch as de- NMFS at the Anchorage Field Office, fined in § 216.3, a general permit and 222 West 7th Avenue, Anchorage, Alaska certificate(s) of inclusion have been ob- 99513 within 72 hours of returning from tained in accordance with these regula- the hunt. tions and such taking is not in viola- (3) Reporting. Upon delivery to NMFS tion of such permit, certificate(s), and of a jawbone, the whaling captain or regulations. vessel operator must complete and (2)(i) It is unlawful for any person mail a reporting form, available from using a Class I (400 short tons (362.8 NMFS, to the NMFS Anchorage Field metric tons) carrying capacity or less) Office within 30 days. A separate form or Class II (greater than 400 short tons is required for each whale harvested. (362.8 metric tons) carrying capacity, (i) To be complete, the form must built before 1961) U.S. purse seine fish- contain the following information: the ing vessel on a fishing involving the date and location of kill, the method of utilization of purse seines to capture harvest, and the coloration of the yellowfin tuna, that is not operating whale. The respondent will also be in- under a Category 2 general permit and vited to report on any other observa- certificate(s) of inclusion, to carry tions concerning the animal or cir- more than two speedboats if any part cumstance of the harvest. of its fishing trip is in the Pacific (ii) Data collected pursuant to para- Ocean area described in the General graph (e) of this section will be re- Permit for gear Category 2 operations. ported on forms obtained from the An- (ii) It is unlawful for any person chorage Field Office. These data will be using a Class III (greater than 400 short maintained in the NMFS Alaska Re- tons (362.8 metric tons) carrying capac- gional Office in Juneau, Alaska, where ity, built after 1960) U.S. purse seine such data will be available for public fishing vessel that does not have and review. operate under a valid operator and ves- (4) No person may falsify any infor- sel certificate of inclusion, to catch, mation required to be set forth on the possess, or land tuna from a fishing reporting form as required by para- trip that includes the Pacific Ocean graph (e) of this section. area described in the General Permit (5) The Anchorage Field Office of for gear Category 2 operations. NMFS is located in room 517 of the (iii) It is unlawful for any person sub- Federal Office Building, 222 West 7th Av- ject to the jurisdiction of the United enue; its mailing address is: NMFS, States to receive, purchase, or possess Box 43, Anchorage, AK. 99513. tuna caught, possessed, or landed in [39 FR 1852, Jan. 15, 1974, as amended at 59 violation of paragraph (a)(2)(ii) of this FR 50376, Oct. 3, 1994; 64 FR 27927, May 24, section. 1999] (iv) It is unlawful for a person subject to the jurisdiction of the United States § 216.24 Taking and related acts inci- dental to commercial fishing oper- intentionally to deploy a purse seine ations. net on, or to encircle, dolphins from a vessel operating in the ETP when the NOTE TO § 216.24: The provisions of 50 CFR DML assigned to that vessel has been part 229, rather than § 216.24, will govern the reached, or when there is not a DML incidental taking of marine mammals in the assigned to that vessel. course of commercial fishing operations by (3) Upon written request in advance persons using vessels of the United States, other than vessels used in the eastern trop- of entering the General Permit area, ical Pacific yellowfin tuna purse seine fish- the limitation in (a)(2) may be waived ery, and vessels which have valid fishing per- by the Director, Southwest Region for mits issued in accordance with section 204(b) the purpose of allowing transit through
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the General Permit area. The waiver appropriate, when the vessel next re- will provide in writing the terms and turns to port. conditions under which the vessel must (4) Applications. Owners or managing operate, including a requirement to re- owners of purse seine vessels should port by radio to the Director, South- make application for vessel certificates west Region the vessel’s date of exit of inclusion to the Director, Southwest from or subsequent entry to the permit Region. Applications for vessel certifi- area, in order to transit the area with cates of inclusion must contain: more than two speedboats. (i) The name of the vessel that is to (b) [Reserved] appear on the certificate(s) of inclu- (c) Certificates of inclusion—(1) Vessel sion; certificates of inclusion. The owner or (ii) The category of the general per- managing owner of a vessel that par- mit under which the applicant wishes ticipates in commercial fishing oper- to be included; ations under the ATA permit must (iii) The species of fish sought and hold a valid vessel certificate of inclu- general area of operations; sion. Such certificates are not transfer- (iv) The identity of state and local able and must be renewed annually. If commercial fishing licenses, if applica- a vessel certificate holder surrenders ble, under which vessel operations are his/her certificate to the Director, conducted, and dates of expiration; Southwest Region, the certificate shall not be returned nor shall a new certifi- (v) The name of the operator and cate be issued before the end of the cal- date of training, if applicable; and endar year. This provision does not (vi) The name and signature of the apply when a change of vessel owner- applicant, whether owner or managing ship occurs. owner, address, and if applicable, the (2) Operator’s certificate of inclusion. organization acting on behalf of the The person in charge of and actually vessel. controlling fishing operations (herein- (5) Fees. (i) Applications for certifi- after referred to as the operator) on a cates of inclusion under paragraph vessel engaged in commercial fishing (c)(1) of this section must include a fee operations under the ATA permit, of $200.00 for each vessel named in the must hold a valid operator’s certificate application, unless the applicant’s in- of inclusion. Such certificates are not come is below Federal poverty guide- transferable, and must be renewed an- lines and the applicant shows in the ap- nually. In order to receive a certifi- plication that his/her income is below cation of inclusion, the operator must such guidelines, in which case a fee of have satisfactorily completed all re- $20.00 must be included. quired training. (ii) The Assistant Administrator may (3) A vessel certificate issued pursu- change the amount of the fee required ant to paragraph (c)(1) of this section at any time a different fee is deter- must be on board the vessel while it is mined to be reasonable, and notifica- engaged in fishing operations and the tion of such change shall be published operator’s certificate issued pursuant in the FEDERAL REGISTER. to paragraph (c)(2) of this section must (6) The Director, Southwest Region be in the possession of the operator to shall determine the adequacy and com- whom it was issued. Certificates must pleteness of applications, and upon said be shown upon request to an enforce- determination that such applications ment agent or other National Marine are adequate and complete, shall ap- Fisheries Service (NMFS) designated prove such applications and issue the agent. Vessels and operators at sea on certificate(s). a fishing trip on the expiration date of (7) Failure to comply with provisions their certificate of inclusion, to whom of the ATA permit, certificates of in- or to which a certificate of inclusion clusion, or these regulations may lead for the next year has been issued, may to suspension, revocation, modifica- take marine mammals under the terms tion, or denial of a certificate of inclu- of the new certificate. A vessel owner sion. It may also subject the certificate or operator is obligated to obtain or holder, vessel, vessel owner, operator, place the new certificate on board, as or master to the penalties provided
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under the MMPA. Procedures gov- shall determine on the basis of the evi- erning permit sanctions and denials are dence available to him the date upon found at subpart D of 15 CFR part 904. which the allowable quotas will be (8) By using an operator or vessel cer- reached or exceeded. Notice of the As- tificate of inclusion under the ATA sistant Administrator’s determination permit, the certificate holder author- shall be published in the FEDERAL REG- izes the release to NMFS of all data ISTER not less than seven days prior to collected by observers aboard purse the effective date. seine vessels during fishing trips under (C) Except for the coastal spotted the Inter-American Tropical Tuna dolphin stock and the eastern spinner Commission observer program or any dolphin stock, if at the time the net other international observer program skiff attached to the net is released in which the United States may par- from the vessel at the start of a set, ticipate. The certificate holder must and species or stocks that are prohib- furnish the international observer pro- ited from being taken are not reason- gram all release forms required to pro- ably observable, the fact that individ- vide the observer data to NMFS. Data uals of that species or stock are subse- obtained under such releases will be quently taken will not be cause for used for the same purposes as data col- issuance of a notice of violation pro- lected directly by observers placed by vided that all procedures required by the NMFS and will be subject to the the applicable regulations have been same standards of confidentiality. followed. (d) Terms and conditions of certifi- (D) The general permit is valid until cates under general permits shall in- surrendered by the permit holder or clude, but are not limited to the fol- suspended or terminated by the Assist- lowing: ant Administrator provided the per- (1) [Reserved] mittee and certificate holders under (2) Encircling gear, purse seining in- this part continue to use the best ma- volving the intentional taking of marine rine mammal safety techniques and mammals—(i) Quotas: equipment that are economically and (A) A certificated vessel may take technologically practicable. The As- marine mammals only if the taking is sistant Administrator may, upon re- an incidental occurrence in the course ceipt of new information which in his of normal commercial tuna purse seine opinion is sufficient to require modi- fishing operations, and the fishing op- fication of the general permit or regu- erations are under the immediate di- lations, propose to modify such after rection of a person who is the holder of consultation with the Marine Mammal a valid operator’s certificate of inclu- Commission. These modifications must sion, subject to the following condi- be consistent with and necessary to tions: carry out the purposes of the MMPA. (1)–(2) [Reserved] Any modifications proposed by the As- (3) No purse seine net may be de- sistant Administrator involving ployed on or used to encircle any changes in the quotas will include the school of dolphins in which any eastern statements required by section 103(d) of spinner dolphin (Stenella longirostris), the MMPA. Modifications will be pro- coastal spotted dolphin (Stenella posed in the FEDERAL REGISTER and a attenuata), or, in the area from 40° N. public comment period will be allowed. lat. to 5° N. lat. and from 120° W. long. At the request of any interested person to the coastline of Central and South within 15 days after publication of the America, any offshore spotted dolphin proposed modification in the FEDERAL (Stenella attenuata), are observed in the REGISTER, the Assistant Administrator school prior to the release of the net may hold a public hearing to receive skiff. and evaluate evidence in those cir- (B) The incidental mortality of ma- cumstances where he has determined it rine mammals permitted under the to be consistent with and necessary to general permit for each category will carry out the purposes of the MMPA. be monitored according to the method- Such request may be for a formal hear- ology published in the FEDERAL REG- ing on the record before an Administra- ISTER. The Assistant Administrator tive Law Judge. Within 10 days after
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receipt of the request for a public hear- (1) Unloads more than 400 tons of any ing, the Assistant Administrator will species of tuna; or provide the requesting party or parties (2) Unloads any amount of any spe- with his decision. If a request is denied, cies of tuna equivalent to one half of the Assistant Administrator will state the vessel’s carrying capacity; or the reasons for the denial. Within 10 (3) Unloads its tuna catch after 40 days after receipt of a decision denying days or more at sea from the date of a request for a formal hearing, the re- departure. questing person may file a written no- Further, the Director, Southwest Re- tice of appeal with the Administrator. gion, may consider special cir- Based upon the evidence presented in cumstances for exemptions to this defi- the notice, the Administrator will nition, provided written requests clear- render a decision within 20 days from ly describing the circumstances are re- receipt of the notice. ceived prior to the termination or the (ii) General conditions: (A) Marine initiation of a fishing voyage. A re- mammals incidentally taken must be sponse to the written request will be immediately returned to the environ- made by the Director, Southwest Re- ment where captured without further gion within five (5) days after receipt of injury. The operators of purse seine the request. A vessel whose vessel cer- vessels must take every precaution to tificate holder has failed to comply refrain from causing or permitting in- with the provisions of this section may cidental mortality or serious injury of not engage in fishing operations for marine mammals. Live marine mam- which a general permit is required. mals must not be brailed or hoisted (B) [Reserved] onto the deck during ortza retrieval. (C) The Director, Southwest Region, (B) Operators may take such steps as will provide to the public, periodic are necessary to protect their gear or quota status reports summarizing the person from damage or threat of per- estimated incidental porpoise mor- sonal injury. However, all marine tality by U.S. vessels of individual spe- mammals taken in the course of com- cies and stock. (iv) A vessel having a vessel certifi- mercial fishing operations shall be sub- cate issued under paragraph (c)(1) may ject to the definition of ‘‘incidental not engage in fishing operations for catch’’ in § 216.3 of this part and may which a general permit is required un- not be retained except where a specific less it is equipped with a porpoise safe- permit has been obtained authorizing ty panel in its purse seine, and has and the retention. uses the other required gear, equip- (C) The vessel certificate holder shall ment, and procedures. notify the Director, Southwest Region (A) Class I and II Vessels: For Class I of any change of vessel operator within purse seiners (400 short tons carrying at least 48 hours prior to departing on capacity or less) and for Class II purse the next scheduled trip. seiners (greater than 400 short tons car- (iii) Reporting requirements: In accord- rying capacity, built before 1961), the ance with § 216.24(f) of these regula- porpoise safety panel must be a min- tions, the following specific reporting imum of 100 fathoms in length (as procedures shall be required: measured before installation), except (A) The vessel certificate holder of that the minimum length of the panel each certificated vessel, who has been in nets deeper than 10 strips must be notified via certified letter from NMFS determined at a ratio of 10 fathoms in that his/her vessel is required to carry length for each strip that the net is an observer, shall notify the Director, deep. It must be installed so as to pro- Southwest Region at least 5 days in ad- tect the perimeter of the backdown vance of the vessel’s departure on a area. The perimeter of the backdown fishing voyage to allow for observer area is the length of the corkline which placement. After a fishing voyage is begins at the outboard end of the last initiated, the vessel is obligated to bow bunch pulled and continues to at carry an observer until the vessel re- least two-thirds the distance from the turns to port and one of the following backdown channel apex to the stern conditions is met: tiedown point. The porpoise safety
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panel must consist of small mesh web- between the cork and corkline hang- bing not to exceed 11⁄4″ stretch mesh, ings, must be tightened so that a cylin- extending from the corkline downward drical object with a 13⁄8″ diameter can- to a minimum depth equivalent to one not be inserted. strip of 100 meshes of 41⁄4″ stretch mesh (F) Speedboats: Certificated vessels webbing. In addition, at least a 20-fath- engaged in fishing operations involving om length of corkline must be free setting on marine mammals shall carry from bunchlines at the apex of the a minimum of two speedboats in oper- backdown channel. ating condition. All speedboats carried (B) Class III Vessels: For Class III aboard purse seine vessels and in oper- purse seiners (greater than 400 short ating condition shall be rigged with tons carrying capacity, built after towing bridles and towlines. Speedboat 1960), the porpoise safety panel must be hoisting bridles shall not be sub- a minimum of 180 fathoms in length (as stituted for towing bridles. measured before installation), except that the minimum length of the panel (G) Raft: A raft suitable to be used as in nets deeper than 18 strips must be a porpoise observation-and-rescue plat- determined in a ratio of 10 fathoms in form shall be carried on all certificated length for each strip of net depth. It vessels. must be installed so as to protect the (H) Facemask and snorkel, or viewbox: perimeter of the backdown area. The At least two facemasks and snorkels, perimeter of the backdown area is the or viewboxes, must be carried on all length of corkline which begins at the certificated vessels. outboard end of the last bowbunch (I) Lights: All certificated vessels pulled and continues to at least two- shall be equipped by July 1, 1986, with thirds the distance from the backdown lights capable of producing a minimum channel apex to the stern tiedown of 140,000 lumens of output for use in point. The porpoise safety panel must darkness to ensure sufficient light to consist of small mesh webbing not to observe that procedures for porpoise re- exceed 11⁄4″ stretch mesh extending lease are carried out and to monitor in- downward from the corkline and, if cidental porpoise mortality. present, the base of the porpoise apron (v) Vessel inspection: (A) Annual: At to a minimum depth equivalent to two least once during each calendar year, 1 ″ strips of 100 meshes of 4 ⁄4 stretch purse seine nets and other gear and mesh webbing. In addition, at least a equipment required by these regula- 20-fathom length of corkline must be tions shall be made available for in- free from bunchlines at the apex of the spection by an authorized National Ma- backdown channel. rine Fisheries Service Inspector as (C) Each Porpoise safety panel markers: specified by the Director, Southwest end of the porpoise safety panel and Region. porpoise apron shall be identified with an easily distinguishable marker. (B) Reinspection: Purse seine nets and (D) Porpoise safety panel hand holds: other gear and equipment required by Throughout the length of the corkline these regulations shall be made avail- under which the porpoise safety panel able for reinspection by an authorized and porpoise apron are located, hand National Marine Fisheries Service In- hold openings are to be secured so that spector as specified by the Director, Southwest Region. The vessel certifi- the insertion of a 13⁄8″ diameter cylin- drical-shaped object meets resistance. cate holder shall notify the Director, (E) Porpoise safety panel corkline hang- Southwest Region of any net modifica- ings: Throughout the length of the tion at least 5 days prior to departure corkline under which the porpoise safe- of the vessel in order to determine ty panel and porpoise apron are lo- whether a reinspection or trial set is cated, corkline hangings shall be in- required. spected by the vessel operator fol- (C) Upon failure to pass an inspection lowing each trip. Hangings found to or reinspection, a vessel having a ves- have loosened to the extent that a cy- sel certificate of inclusion issued under lindrical object with a 13⁄8″ diameter paragraph (c)(1) may not engage in will not meet resistance when inserted fishing operations for which a general
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permit is required until the defi- procedure must be completed and roll- ciencies in gear or equipment are cor- ing of the net to sack-up must be begun rected as required by an authorized Na- before one-half hour after sundown, ex- tional Marine Fisheries Service inspec- cept as provided below. For the purpose tor. of this section, sundown is defined as (vi) Operator training requirements. All the time at which the upper edge of the operators shall maintain proficiency sun disappears below the horizon or, if sufficient to perform the procedures re- view of the sun is obscured, the local quired herein, and must attend and sat- time of sunset calculated from tables isfactorily complete a formal training developed by the U.S. Naval Observ- session conducted under the auspices of atory. A sundown set is a set in which the National Marine Fisheries Service the backdown procedure has not been in order to obtain their certificate of completed and rolling the net to sack- inclusion. At the training session an attendee shall be instructed concerning up has not begun within one-half hour the provisions of the Marine Mammal after sundown. Should a set extend be- Protection Act of 1972, the regulations yond one-half hour after sundown, the promulgated pursuant to the MMPA, operator must use the required marine and the fishing gear and techniques mammal release procedures including which are required or will contribute the use of the high intensity lighting to reducing serious injury and mor- system. tality of porpoise incidental to purse (1) A certificated operator may ob- seining for tuna. Operators who have tain an initial waiver from this prohi- received a written certificate of satis- bition, for trips with an observer, by factory completion of training and who establishing to the satisfaction of the possess a current or previous calendar Director, Southwest Region, NMFS, year certificate of inclusion will not be based upon NMFS and Inter-American required to attend additional formal Tropical Tuna Commission (IATTC) ob- training sessions unless there are sub- server records, that the operator’s av- stantial changes in the MMPA, the reg- erage kill of marine mammals per set ulations, or the required fishing gear in sundown sets involving marine and techniques. Additional training mammals was 3.01 marine mammals or may be required for any operator who fewer. is found by the Director, Southwest (i) The application must include the Region, to lack proficiency in the pro- following: cedures required. (vii) Marine mammal release require- (A) Name of the operator as it ap- ments: All operators shall use the fol- pears on the certificate of inclusion; lowing procedures during all sets in- (B) The dates of all observed trips volving the incidental taking of marine any part of which occurred since July mammals in association with the cap- 1, 1986 and observed trips before that ture and landing of tuna. date, if necessary to include a min- (A) Backdown procedure: Backdown imum of three observed sundown sets; shall be performed following a purse (C) Names of the vessels operated seine set in which marine mammals are during those trips; captured in the course of catching and (D) The number of marine mammals landing tuna, and shall be continued killed in sundown sets and the number until it is no longer possible to remove of sundown sets involving marine live marine mammals from the net by mammals; this procedure. Thereafter, other re- (E) Detailed description of the cir- lease procedures required shall be con- cumstances that support any request tinued until all live animals have been that the mortality associated with a released from the net. particular sundown set be excluded (B) Prohibited use of sharp or pointed instrument: The use of a sharp or point- from consideration; and ed instrument to remove any marine (F) The operator’s signature or the mammal from the net is prohibited. signature of an individual authorized (C) Sundown sets prohibited. On every by the operator to make the applica- set encircling porpoise, the backdown tion in the operator’s absence.
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(ii) All sundown sets since July 1, 1986 could not have been avoided by reason- will be considered for this determina- able diligence in operating or main- tion, except that the Director, South- taining the vessel. The Director, west Region will exclude one sundown Southwest Region will reinstate the set from each twelve month period exemption if the evidence supports ex- from the calculations of average kill if cluding the set and if the resulting re- the operator establishes to the satis- calculation of the operator’s perform- faction of the Director, Southwest Re- ance meets the standard required by gion that the kill in that sundown set these regulations. was due to an unforeseeable equipment (D) Porpoise Safety Panel: During malfunction that could not have been backdown, the porpoise safety panel avoided by reasonable diligence in op- must be positioned so that it protects erating or maintaining the vessel. the perimeter of the backdown area. (iii) An operator must have a min- The perimeter of the backdown area is imum of five observed sundown sets for the length of corkline which begins at the Director, Southwest Region to con- the outboard end of the last bow bunch sider in determining whether or not pulled and continues to at least two- the operator qualifies for an exemp- thirds the distance from the backdown tion. If an operator does not have five channel apex to the stern tiedown observed sundown sets since July 1, point. Any super apron must be posi- 1986, the Director, Southwest Region tioned at the apex of the backdown will consider records from observed channel. trips before that date, starting with (E) Use of explosive devices: The use of the most recent observed trip during explosive devices is prohibited in all which a sundown set was made and re- tuna purse seine operations that in- viewing as many trips as necessary to volve marine mammals. obtain at least five sundown sets for (viii) Experimental fishing operations: consideration. The Assistant Administrator may au- (2) An operator fishing under an ex- thorize experimental fishing operations emption from the sundown set prohibi- tion must follow the marine mammal and may waive, as appropriate, any re- release requirements, including the use quirements within § 216.24(d)(2), except of high intensity lights for sets that quotas on the incidental kill of marine continue one-half hour past sundown. mammals and the prohibition on set- ting nets on pure schools of certain (3) An operator exemption is valid for one calendar year only on trips car- porpoise species. rying a NMFS or IATTC observer and (A) A vessel certificate holder may expires on December 31, unless renewed apply for an experimental fishing oper- by the Director, Southwest Region. ation waiver by submitting the fol- (4) An exemption will be reviewed an- lowing information to the Assistant nually between November 1 and Decem- Administrator no less than 90 days be- ber 15 and the exemption will not be re- fore the intended date the proposed op- newed if the operator’s average mor- eration is intended to begin: tality in sundown sets during trips (1) Name(s) of the vessel(s) and the completed in the previous twelve vessel certificate holder(s) to partici- month period ending November 1 ex- pate; ceeds the United States fleet’s average (2) A statement of the specific vessel mortality rate in daylight sets for all gear and equipment or procedural re- of the observed trips completed in the quirement to be exempted and why same period. such an exemption is necessary to con- (5) An operator who is notified that duct the experiment; his or her exemption will not be re- (3) A description of how the proposed newed, or who anticipates not getting modification to the gear or procedures renewed, may petition the Director, is expected to reduce incidental mor- Southwest Region in writing to rein- talities or serious injury of marine state the exemption based on excluding mammals; from the calculations one set where an (4) A description of the applicability unforeseeable equipment malfunction of this modification to other purse caused mortality in a sundown set that seine vessels;
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(5) Planned design, time, duration, is suspended. Such suspension shall be and general area of the experimental effective upon notification by the Di- operation; rector, Southwest Region and shall be (6) Name(s) of the certificated op- for a period of one year. If the opera- erator(s) of the vessel(s) during the tor’s average mortality rate exceeds experiment; 26.30 marine mammals kill-per-set on a (7) A statement of the qualifications subsequent trip within five years of the of the individual or company doing the second reinstatement, the certificate is analysis of the research. revoked. The revocation shall be effec- (B) The Assistant Administrator will tive upon notification by the Director, acknowledge receipt of the application Southwest Region and shall be perma- and, upon determining that it is com- nent. An operator who is subject to a plete, publish notice in the FEDERAL suspension or revocation under this REGISTER summarizing the application, paragraph may petition the Director, making the full application available Southwest Region to review the opera- for inspection and inviting comments tor’s marine mammal mortality his- for a minimum period of thirty days tory. The Director, Southwest Region from the date of publication. may reinstate the operator’s certifi- (C) The Assistant Administrator, cate if the operator demonstrates that after considering the information iden- the operator has not exceeded a kill- tified in paragraph (d)(2)(viii)(A) of this per-set of 3.89 marine mammals during section and the comments received, any of the eight consecutive observed will deny the application giving the trips immediately preceding the trip reasons for denial or issue a permit to which caused the suspension. However, conduct the experiment including re- that trip will be considered as a single strictions and conditions as deemed ap- trip exceeding a kill-per-set of 3.89 ma- propriate. rine mammals and subject to the con- (D) The permit for an experimental ditions described in paragraph fishing operation will be valid only for (d)(2)(ix)(F) of this section. The Direc- the vessels and operators named in the tor, Southwest Region may exclude permit, for the time period and areas from the mortality calculation for a specified, for trips carrying an observer trip, those purse seine sets in which assigned by the NMFS, and when all marine mammal mortality resulted the terms and conditions of the permit from an unavoidable and unforeseeable are met. equipment breakdown. The mortality (E) The Assistant Administrator may rate calculated after exclusion of a set suspend or revoke an experimental or sets under this paragraph will deter- fishing permit by written notice to the mine the action taken under this per- permit holder if the terms and condi- formance evaluation system. tions of the permit or the provisions of (B) Fishing trips with five or fewer the regulations are not followed, after sets on marine mammals and an aver- providing an opportunity for the per- age kill-per-set less than or equal to mit holder to discuss the proposed sus- 26.30 marine mammals are not subject pension or revocation. to further action under the operator (ix) Operator Certificate of Inclusion performance system. Such trips neither Holder Performance Requirements. (A) count as trips meeting the performance The certificate of inclusion of any op- standard nor count as trips failing to erator who makes one or more purse meet the performance standard for the seine sets on marine mammals result- purpose of determining actions based ing in an average kill-per-set for a fish- on performance in consecutive fishing ing trip which exceeds 26.30 marine trips. mammals is suspended. Such suspen- (C) Fishing trips with more than five sion shall be effective upon notifica- sets on marine mammals resulting in tion from the Director, Southwest Re- an average kill-per-set of not greater gion and shall be for a period of one than 26.30 marine mammals are subject year. If the operator exceeds the 26.30 to review under the operator perform- marine mammals killed per set average ance system as follows: for a subsequent trip within three (1) The operator’s kill of marine years of reinstatement, the certificate mammals in purse seine sets on marine
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mammals will be determined from ob- Director, Southwest Region. The oper- server records. ator must carry an observer on the (2) The kill-per-set will be deter- next trip for which he serves as the cer- mined by dividing the total kill of ma- tificated operator. If the Director, rine mammals by the number of sets Southwest Region determines that the involving marine mammals during the required training or other ordered ac- fishing trip. tion has not been completed satisfac- (3) If the calculated kill-per-set for torily or is refused, the Director, the trip is equal to or less than 3.89 ma- Southwest Region will suspend the op- rine mammals, the operator has met erator’s certificate of inclusion for one the performance standard and is not year. subject to further action under the per- (G) An operator whose average ma- formance system based on the current rine mammal mortality rate exceeds trip. 3.89 marine mammals killed per set on (4) If the calculated kill-per-set for two consecutive trips or on three trips the trip exceeds 3.89 marine mammals, ending within a period of twenty-four the operator failed to meet the mor- months or on three trips within eight tality performance standard and is sub- consecutive trips must have observer ject to further action under the per- data and other pertinent records re- formance system. viewed by the Director, Southwest Re- (D) The Director, Southwest Region gion and the Porpoise Rescue Founda- may exclude from the mortality cal- tion for the purpose of determining the culation for a trip, those purse seine causes of higher than acceptable mor- sets in which marine mammal mor- tality, must participate in supple- tality resulted from an unavoidable mental marine mammal safety train- and unforeseeable equipment break- ing as ordered by the Director, South- down. Should exclusion of a set or sets west Region and must comply with ac- cause the operator’s performance to tions for reducing marine mammal fall within the standard performance, mortality which may be ordered by the that trip will not be counted as a trip Director, Southwest Region. The oper- for the purposes of the performance ator must carry an expert fisherman evaluation system. (i.e., an experienced vessel operator (E) An operator shall not serve as a with a history of low dolphin mor- certificated operator until the Direc- tality), if required to do so by the Di- tor, Southwest Region has determined rector, Southwest Region, to assist in under this subpart and notified the op- perfecting marine mammal safety erator that the operator’s marine techniques, and must also carry an ob- mammal mortality rate performance server on the next trip for which he met or failed to meet the applicable serves as the certificated operator. The performance standard on the previous selection of the expert fisherman will observed trip. The Director, Southwest be provided by the General Permit Region will make the determination holder or the Porpoise Rescue Founda- within five days (excluding Saturdays, tion and subject to the approval of the Sundays and Federal holidays) after re- Director, Southwest Region. If the Di- ceiving the observer data from the trip. rector, Southwest Region determines (F) An operator whose average ma- that the required training or other or- rine mammal mortality rate exceeds dered action has not been completed 3.89 kill-per-set for a trip must have ob- satisfactorily or is refused, the Direc- server data and other pertinent records tor, Southwest Region will suspend the reviewed by the Director, Southwest operator’s certificate of inclusion for Region and the Porpoise Rescue Foun- one year. dation for the purpose of determining (H) The operator certificate of inclu- the causes of higher than acceptable sion or an operator whose average ma- mortality, must participate in supple- rine mammal mortality rate exceeds mental marine mammal safety train- 3.89 kill-per-set on three consecutive ing as ordered by the Director, South- trips, or on any four trips (of which no west Region and must comply with ac- more than two are consecutives) com- tions for reducing marine mammal pleted within a period of twenty-four mortality which may be ordered by the months or on four trips (of which no
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more than two are consecutive) within mammal mortality as ordered by the eight consecutively observed trips, is Director, Southwest Region before suspended upon notification to the op- making another trip as a certified op- erator from the Director, Southwest erator. Region. (L) A person obtaining an operator (I) Following a suspension and a rein- certificate of inclusion for the first statement of a certification of inclu- time must carry an observer on the op- sion, the operator certificate of inclu- erator’s first trip. sion is suspended for any operator (x) Vessel Certificate of Inclusion Hold- whose average marine mammal mor- er Performance Requirements—(A) vessel tality rate exceeds 3.89 marine mam- certificate of inclusion holder desiring mals killed per set on any subsequent a DML for the following year must pro- trip as required under the criteria for a vide to the Director, Southwest Re- suspension established in paragraph gion, NMFS, 501 W. Ocean Blvd., Suite (d)(2)(ix)(H) of this section. Under this 4200, Long Beach, CA 90802–4213, by Sep- paragraph, trips completed by the oper- tember 1, the name of the purse seine ator prior to suspension will be carried vessel(s) of carrying capacity greater over and counted along with trips com- than 400 short tons (362.8 mt) that the pleted subsequent to the suspension. owner thinks will intentionally deploy Such suspension shall be effective upon purse seine fishing nets in the ETP to notification from the Director, South- encircle dolphins in an effort to cap- west Region and shall be for a period of ture tuna during that year. NMFS will one year. For purposes of this para- forward the list of purse seine vessels graph only, each suspension under to the Director of the IATTC on or be- paragraph (d)(2)(ix)(A) of this section fore October 1, or as required by the will be considered equivalent to and IATTC, for assignment of a DML for counted as three consecutive trips ex- the following year. ceeding the trip kill rate of 3.89 marine (B) Each vessel certificate of inclu- mammals killed per set. sion holder that desires a DML for the (J) An operator may appeal suspen- period July 1 to December 31, for a ves- sion of revocation of a certificate of in- sel that has not previously had a DML clusion under paragraphs (d)(2)(ix)(A), assigned for the year, must provide to (d)(2)(ix)(H), or (d)(2)(ix)(I) of this sec- the Director, Southwest Region, tion to the Assistant Administrator. NMFS, 501 W. Ocean Blvd., Suite 4200, Appeals must be filed in writing within Long Beach, CA 90802–4213, by March 30 days of suspension or revocation and 15, the name of the purse seine vessel(s) must contain a statement setting forth of carrying capacity greater than 400 the basis for the appeal. Appeals must short tons (362.8 mt) that the owner be filed with the Director, Southwest thinks will intentionally deploy purse Region. The appeal may be presented seine fishing nets in the ETP to encir- at the option of the operator at a hear- cle dolphins in an effort to capture ing before a person appointed by the tuna during the period. NMFS will for- Assistant Administrator to hear the ward the list of purse seine vessels to appeal. The Assistant Administrator the Director of the IATTC on or before will determine, based upon the record, April 1, or as required by the IATTC, including any record developed at a for assignment of a DML for the 6- hearing, if the suspension or revocation month period July 1 to December 31. is supported under the criteria set Under the Agreement adopted at the forth in these regulations. The decision Annual Meeting of the IATTC June 16– of the Assistant Administrator will be 18, 1992, the DML shall be assigned the final decision of the Department of from the unutilized pool of DMLs de- Commerce. scribed under paragraph (d)(2)(x)(D) of (K) An operator must carry an ob- this section, divided among the appli- server on the operator’s first trip after cants for the 6-month period, and shall a suspension under this performance not exceed 50 percent of the DML as- system has expired. An operator must signed to a vessel in the fishery with a also participate in supplemental ma- DML for the entire year. rine mammal safety training and com- (C)(1) NMFS will notify vessel owners ply with actions for reducing marine of the DML assigned for each vessel for
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the following year as determined by (3) Any unused DML for a vessel that the IATTC. has been determined to have left the (2) NMFS may adjust the DMLs, ei- fishery will be returned to the IATTC, ther upward or downward with 15 per- to be added to the pool of unutilized cent of the original DML, except that DMLs. the adjusted DMLs for the U.S. fleet (E) Any vessel that exceeds its will not exceed the original total of the assigned DML, after any applicable DMLs for the U.S. fleet as assigned by adjustment under paragraph the IATTC. All adjustments shall be (d)(2)(x)(C)(2) of this section, shall have made prior to December 1, and NMFS its DML for the subsequent year re- shall notify the IATTC prior to Decem- duced by the amount of overage. ber 15. DMLs as assigned on December (F)(1) The vessel operator and owner 1 will be applicable to the following are responsible for ensuring that the year. DML for that vessel is not exceeded. (3) NMFS may make an adjustment (2) Observers, either from the IATTC of a vessel’s DMLs if it will further sci- observer program or the NMFS ob- entific or technological advancement server program, will make their in the protection of marine mammals records available to the vessel opera- in the fishery, or if the past perform- tors at any time, including after each ance of the vessel indicates that the set, so that the operator can monitor protection or use of the yellowfin tuna the balance of the DML remaining for stocks or marine mammals is best use during the trip. (3) Vessel captains must cease de- served by the adjustment, within the ploying purse seine sets to encircle mandates of the MMPA. Experimental dolphins intentionally when the ves- fishing operation waivers or scientific sel’s DML, as adjusted under paragraph research permits shall be considered a (d)(2)(x)(C)(2) of this section, is basis for adjustments. reached. (D)(1) Any vessel assigned a DML, (G)(1) Sanctions recommended by the that does not participate, by June 1, in Review Panel for any violation of these this fishery by operating under valid rules shall be considered by NMFS in certificates of inclusion, or that leaves its enforcement of these regulations. the fishery, shall lose its right to uti- (2) Intentionally deploying a purse lize its DML for the remainder of the seine net on or to encircle dolphins year. after the vessel’s DML is reached will (2) NMFS will determine, based on disqualify the vessel from consider- the available information, whether a ation for a DML for the following year. vessel has left the fishery. A vessel lost If already assigned, the DMLs for the at sea, undergoing extensive repairs, following year will be withdrawn, and operating in an ocean area other than the IATTC notified by NMFS that the the ETP, or for which other informa- DML assigned to that vessel will be un- tion indicates will no longer be con- utilized. The vessel owner will be pro- ducting purse seine operations in the vided an opportunity to provide infor- ETP for the remainder of the period, mation and comments on this issue be- shall be determined to have left the fore a final determination is made by fishery. NMFS will make all reason- NMFS. able efforts to determine the intentions (3) Encircling gear, purse seining not of the vessel owner, and the owner of involving the intentional taking of marine any vessel that has been preliminarily mammals. (i) A certificate holder may determined to have left the fishery will take marine mammals so long as such be provided notice of such preliminary taking is an incidental occurrence in determination and the opportunity to the course of normal commercial fish- provide information on whether the ing operations. Marine mammals taken vessel has left the fishery before NMFS incidental to commercial fishing oper- makes a final determination and noti- ations shall be immediately returned fies the IATTC of this determination. to the environment where captured The vessel owner will receive written without further injury. notification of NMFS’ final determina- (ii) A certificate holder may take tion. such steps as are necessary to protect
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his catch, gear, or person from depreda- ported within forty-eight hours after tion, damage or personal injury with- arrival in port. Reports must include: out inflicting death or injury to any (A) The location, time, and date of marine mammal. the death or injury; (iii) Only after all means permitted (B) The identity and number of ma- by paragraph (d)(3)(ii) of this section rine mammals killed or injured; and have been taken to deter a marine (C) A description of the circum- mammal from depredating the catch, stances which led up to and caused the damaging the gear, or causing personal death or injury. injury, may the certificate holder in- (4) Stationary gear. (i) A certificate jure or kill the animal causing the dep- holder may take marine mammals so redation or immediate damage, or long as such taking is an incidental oc- about to cause immediate personal in- currence in the course of normal com- jury; however, in no event shall a cer- mercial fishing operations. Marine tificate holder kill or injure an Atlan- mammals taken incidental to commer- tic bottlenosed dolphin, Tursiops cial fishing operations shall be imme- truncatus, under the provisions of this diately returned to the environment paragraph. A certificate holder shall where captured without further injury. not injure or kill any animal permitted to be killed or injured under this para- (ii) A certificate holder may take graph unless the infliction of such such steps as are necessary to protect damage is substantial and immediate his catch, gear, or person from depreda- and is actually being caused at the tion, damage or personal injury with- time such steps are taken. In all cases, out inflicting death or injury to any the burden is on the certificate holder marine mammal. to report fully and demonstrate that (iii) Only after all means permitted the animal was causing substantial and by paragraph (d)(4)(ii) of this section immediate damage or about to cause have been taken to deter a marine personal injury and that all possible mammal from depredating the catch, steps to protect against such damage damaging the gear, or causing personal or injury as permitted by paragraph injury, may the certificate holder in- (d)(3)(ii) of this section were taken and jure or kill the animal causing the dep- that such attempts failed. redation or immediate damage, or (iv) Marine mammals taken in the about to cause immediate personal in- course of commercial fishing oper- jury; however, in no event shall a cer- ations shall be subject to the provi- tificate holder kill or injure an Atlan- sions of § 216.3 with respect to ‘‘Inci- tic bottlenosed dolphin, Tursiops dental catch,’’ and may be retained ex- truncatus, under the provisions of this cept where a specific permit has been paragraph. A certificate holder shall obtained authorizing the retention. not injure or kill any animal permitted (v) All certificate holders shall main- to be killed or injured under this para- tain logs of incidental take of marine graph unless the infliction of such mammals in such form as prescribed by damage is substantial and immediate the Assistant Administrator. All and is actually being caused at the deaths or injuries to marine mammals time such steps are taken. In all cases, occurring in the course of commercial the burden is on the certificate holder fishing operations under the conditions to report fully and demonstrate that of a general permit shall be imme- the animal was causing substantial and diately recorded in the log and re- immediate damage or about to cause ported in writing to the Director, personal injury and that all possible Southwest Region, where a certificate steps to protect against such damage application was made, or to an enforce- or injury as permitted by paragraph (ii) ment agent or other designated agent were taken and that such attempts of the National Marine Fisheries Serv- failed. ice, at the earliest opportunity but no (iv) Marine mammals taken in the later than five days after such occur- course of commercial fishing oper- rence, except that if a vessel at sea re- ations shall be subject to the provi- turns to port later than five days after sions of § 216.3 with respect to ‘‘Inci- such occurrence, then it shall be re- dental catch,’’ and may not be retained
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except where a specific permit has been not injure or kill any animal permitted obtained authorizing the retention. to be killed or injured under this para- (v) All certificate holders shall main- graph unless the infliction of such tain logs of incidental take of marine damage is substantial and immediate mammals in such form as prescribed by and is actually being caused at the the Assistant Administrator. All time such steps are taken. In all cases, deaths or injuries to marine mammals the burden is on the certificate holder occurring in the course of commercial to report fully and demonstrate that fishing operations under the conditions the animal was causing substantial and of a general permit shall be imme- immediate damage or about to cause diately recorded in the log and re- personal injury and that all possible ported in writing to the Director, steps to protect against such damage Southwest Region, where a certificate or injury as permitted by paragraph application was made, or to an enforce- (d)(5)(ii) of this section were taken and ment agent or other designated agent that such attempts failed. of the National Marine Fisheries Serv- (iv) Marine mammals taken in the ice, at the earliest opportunity but no course of commercial fishing oper- later than five days after such occur- ations shall be subject to the provi- rence, except that if a vessel at sea re- sions of § 216.3 with respect to ‘‘Inci- turns to port later than five days after dental catch,’’ and may not be retained such occurrence, then it shall be re- except where a specific permit has been ported within forty-eight hours after obtained authorizing the retention. arrival in port. Reports must include: (v) All certificate holders shall main- (A) The location time, and date of tain logs of incidental take of marine the death or injury; mammals in such form as prescribed by (B) The identity and number of ma- the Assistant Administrator. All rine mammals killed or injured; and deaths or injuries to marine mammals (C) A description of the cir- occurring in the course of commercial cumstances which led up to and caused fishing operations under the conditions the death or injury. of a general permit shall be imme- (5) Other gear. (i) A certificate holder diately recorded in the log and re- may take marine mammals so long as ported in writing to the Director, such taking is an incidental occurrence Southwest Region, where a certificate in the course of normal commercial application was made, or to an enforce- fishing operations. Marine mammals ment agent, or other designated agent taken incidental to commercial fishing of the National Marine Fisheries Serv- operations shall be immediately re- ice, at the earliest opportunity but no turned to the environment where cap- later than five days after such occur- tured without further injury. rence, except that if a vessel at sea re- (ii) A certificate holder may take turns to port later than five days after such steps as are necessary to protect such occurrence, then it shall be re- his catch, gear, or person from depreda- ported within forty-eight hours after tion, damage or personal injury with- arrival in port. Reports must include: out inflicting death or injury to any (A) The location, time, and date of marine mammal. the death or injury; (iii) Only after all means permitted (B) The identity and number of ma- by paragraph (d)(5)(ii) of this section rine mammals killed or injured; and have been taken to deter a marine (C) A description of the cir- mammal from depredating the catch, cumstances which led up to and caused damaging the gear, or causing personal the death or injury. injury, may the certificate holder in- (vi) [Reserved] jure or kill the animal causing the dep- (vii) The number of Dall’s porpoise redation or immediate damage, or (Phocoenoides dalli) killed or injured by about to cause immediate personal in- Japanese vessels operating in the U.S. jury; however, in no event shall a cer- EEZ is limited to an aggregate of 789 in tificate holder kill or injure an Atlan- the Bering Sea and 5250 in the North tic bottlenosed dolphin, Tursiops Pacific Ocean over the period 1987 to truncatus, under the provisions of this 1989, of which no more than 448 may be paragraph. A certificate holder shall taken from the Bering Sea and no more
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than 2494 may be taken from the North harassment of marine mammals must Pacific Ocean in any single calendar be immediately recorded and reported year. The incidental take levels au- in writing to the Director, Southwest thorized by this subpart are reduced Region to whom the certificate appli- proportionately in the event that the cation was made, or to an enforcement Soviet Union reduces salmon quotas agent or other designated agent of the for 1988 or 1989 by more than 10 percent National Marine Fisheries Service, at from the 1987 quota. Any permit issued the earliest opportunity, but no later under this part must indicate the than five days after such occurrence. measures by which the permit holder At a minimum, reports must include: must comply with the conditions at- (A) The time, date, and location of tached to the permit, and the reporting the taking; requirements of paragraph (d)(5)(v) of (B) The type of harassment device this section. Any permit issued under used, and the number used at each oc- this part may allow retention of ma- currence; rine mammals for scientific purposes (C) The number and species of af- and will not require a separate permit fected marine mammals; and under paragraph (d)(5)(iv) of this sec- (D) A description of any behavioral tion. changes noted that may be due to (6) Commercial passenger fishing vessels using the harassment device. (CPFV). (i) A certificate holder aboard (e) Importation, purchase, shipment, the vessel may take marine mammals sale and transport. (1)(i) It is illegal to so long as the taking is limited to har- import into the United States any fish, assment and is an incidental occur- whether fresh, frozen, or otherwise pre- rence in the course of the active pared, if the fish have been caught with sportfishing subject to the following commercial fishing technology that re- restrictions (paragraphs (d)(6) (ii) sults in the incidental kill or inci- through (vi) of this section). dental serious injury of marine mam- (ii) Takings are prohibited within 500 mals in excess of that allowed under yards of a pinniped rookery or haul-out this part for U.S. fishermen or in ex- site. cess of what is specified in subsection (iii) A certificate holder aboard the (e)(5) in the case of fishing for yel- CPFV must use only those non-lethal, lowfin tuna. non-injurious methods not including (ii) For purposes of this paragraph capture as approved in advance by the (e), and in applying the definition of an Assistant Administrator for Fisheries ‘‘intermediary nation’’, an import oc- through publication in the FEDERAL curs when the fish or fish product is re- REGISTER and stipulated in the General leased from a nation’s Customs’ cus- Permit for taking marine mammals. tody and enters into the territory of (iv) Takings are allowed only while the nation. For other purposes, ‘‘im- engaged in active sportfishing to pre- port’’ is defined in § 216.3. vent imminent marine mammal ap- (2) The following fish and categories proaches to the vessel or to protect a of fish, which the Assistant Adminis- passenger’s catch or gear from depreda- trator has determined may be involved tion or damage, without inflicting with commercial fishing operations death or injury to any marine mam- which cause the death or injury of ma- mal. rine mammals, are subject to the re- (v) All operators must ensure the safe quirements of this section: use of the approved methods for pre- (i) Tuna: yellowfin. The following U.S. venting marine mammal sportfishing Harmonized Tariff Schedule Item Num- interaction and must satisfactorily bers identify the categories of yel- complete such training as may be re- lowfin tuna and yellowfin tuna prod- quired by the Assistant Administrator ucts that are harvested in the ETP for Fisheries. purse seine fisher (some of which are (vi) All certificate holders must also harvested with large-scale maintain records of incidental take of driftnet), are imported into the United marine mammals in such form as pre- States, and are subject to the restric- scribed by the Assistant Administrator tions of paragraphs (e)(3) and (e)(5) of for Fisheries. All incidents involving this section:
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(A) Tuna, frozen whole or in the 0303.29.00.00.1 Salmonidae, non-specific, fro- round: zen. 0304.20.60.07.9 Salmonidae, salmon fillet, 0303.42.00.20.0 Tuna, yellowfin, whole frozen. frozen. 0303.42.00.40.6 Tuna, yellowfin, eviscerated 0305.69.40.00.2 Salmon, non-specific, salted. head-on, frozen. 0303.42.00.60.1 Tuna, yellowfin, eviscerated (2) Salmon, canned: head-off, frozen. 1604.11.20.20.7 Salmon, pink, canned in oil. 0303.49.00.40.9 Tuna, non-specific, frozen. 1604.11.20.30.5 Salmon, sockeye, canned in (B) Tuna, canned: oil. 1604.11.20.90.2 Salmon, non-specific, canned 1604.14.10.00.0 Tuna, non-specific, canned in in oil. oil. 1604.11.40.10.5 Salmon, chum, canned, not in 1604.14.20.40.0 Tuna, non-specific, canned, oil. not in oil, not over 7kg in quota. 1604.14.30.40.8 Tuna, non-specific, canned, 1604.11.40.20.3 Salmon, pink, canned, not in not in oil, not over 7kg over quota. oil. 1604.11.40.30.1 Salmon, sockeye, canned, not (C) Tuna, loins: in oil. 1604.14.40.00.4 Tuna, non-specific, not in air- 1604.11.40.40.9 Salmon, non-specific, canned, tight container, not in oil, over 6.8kg. not in oil. 1604.14.50.00.1 Tuna, non-specific, not in air- 1604.11.40.50.6 Salmon, non-specific, other. tight container, not in oil, not over (B) Squid: 6.8kg. 0307.49.00.10.1 Squid, non-specific, fillet, fro- (ii) Tuna: non-yellowfin. The fol- zen. lowing U.S. Harmonized Tariff Sched- 0307.49.00.50.2 Squid, non-specific, frozen/ ule Item Numbers identify the cat- dried/salted/brine. egories of tuna and tuna products that 0307.49.00.60.0 Squid, non-specific, & cuttle- are harvested with large-scale driftnet fish frozen/dried/salted/brine. and imported into the United States 1605.90.60.55.9 Squid, non-specific, prepared/ and are subject to the restrictions of preserved. paragraph (e)(3) of this section: (C) Shark: (A) Tuna, frozen whole or in the 0303.75.00.00.4 Shark, dogfish and other round: sharks, frozen. 0303.41.00.00.5 Tuna, albacore, frozen. 0305.59.20.00.8 Shark fins. 0303.43.00.00.3 Tuna, skipjack, frozen. (D) Swordfish: 0303.49.00.20.3 Tuna, bluefin, frozen. 0303.79.20.40.8 Swordfish, frozen. (B) Tuna, canned: (E) Species not specifically identi- 1604.14.20.20.4 Tuna, albacore, canned, not in fied: oil, not over 7kg in quota. 1604.14.30.20.2 Tuna, albacore, canned, not in 0303.79.40.90.3 Marine fish, non-specific, fro- oil, not over 7kg over quota. zen. 0304.20.20.66.6 Marine fish, non-specific, fil- (iii) Fish, other than tuna. The fol- let blocks frozen over 4.5kg. lowing U.S. Harmonized Tariff Sched- 0304.20.60.85.4 Marine fish, non-specific, fil- ule Item Numbers identify the cat- let, frozen. egories of fish and fish products that 0305.30.60.80.6 Fish, non-specific, fillet dried/ are imported into the United States salted/brine over 6.8kg. and are subject to the restrictions of 0305.49.40.40.9 Fish, non-specific, smoked. paragraph (e)(3) of this section: 0305.59.40.00.4 Fish, non-specific, dried. (A) Salmon: 0305.69.50.00.9 Fish, non-specific, salted, not (1) Salmon, frozen whole or in the over 6.8kg. round: 0305.69.60.00.7 Fish, non-specific, salted, over 6.8kg. 0303.10.00.12.8 Salmon, chinook, frozen. 1604.19.20.00.3 Fish, non-specific, in airtight 0303.10.00.22.6 Salmon, chum, frozen. containers, not in oil. 0303.10.00.32.4 Salmon, pink, frozen. 1604.19.30.00.1 Fish, non-specific, in airtight 0303.10.00.42.2 Salmon, sockeye, frozen. containers, in oil. 0303.10.00.52.9 Salmon, coho, frozen. 0303.10.00.62.7 Salmon, Pacific, non-specific, (3)(i) Tuna—(A) All nations. No ship- frozen. ment containing an item listed in para- 0303.21.00.00.9 Trout, frozen. graph (e)(2)(i) or (e)(2)(ii) of this sec- 0303.22.00.00.8 Salmon, Atlantic, Danube, tion, from any nation, may be im- frozen. ported into the United States unless:
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(1) Accompanied by a completed paragraphs (e)(2)(iii)(B) through (E) of Fisheries Certificate of Origin de- this section, and, after July 1, 1992, no scribed in paragraph (e)(3)(iii) of this shipment containing an item in the section, or, for points of entry where whole of paragraph (e)(2)(iii) of this the ABI system is available, the infor- section, that was harvested by any na- mation required for the Certificate tion determined by the Assistant Ad- may be filed electronically by the ABI ministrator to be engaged in large- system in lieu of the paper form, pro- scale driftnet fishing, or exported from vided that the electronic filing is made any such nation, either directly or no later than at the time of entry and through an intermediary nation, may all documentation in support of the be imported into the United States un- ABI entry is maintained by the im- less: porter or broker for not less than 5 (A) Accompanied by a complete Fish- years and is kept available for inspec- eries Certificate of Origin, as described tion by NMFS personnel upon request; in paragraph (e)(3)(iii) of this section; (2) The tuna or tuna product was not (B) The fish or fish product was not harvested with a large-scale driftnet harvested with a large-scale driftnet, if after July 1, 1991; and the area of harvest, as described on the (3) An original invoice accompanies Fisheries Certificate of Origin was: the shipment at the time of importa- (1) The South Pacific Ocean, for har- tion, or is made available within 30 vests after July 1, 1991; or days of a request by the Secretary to (2) Anywhere on the high seas, for produce the invoice. harvests after July 1, 1992; and (B) Harvesting nations. No shipment (C) An original invoice accompanies containing an item listed in paragraph the shipment at the time of importa- (e)(2)(i) of this section may be imported tion, or is made available within 30 into the United States from a har- days of a request by the Secretary to vesting nation subject to paragraph produce the invoice. (e)(5)(i) of this section unless a finding (iii) Certificates of Origin. A Fisheries required for importation has been Certificate of Origin (NOAA Form made. 370), 1 certified to be accurate by the (C) Intermediary nations. No shipment first exporter of the accompanying containing an item listed in paragraph shipment, must include the following (e)(2)(i) of this section may be imported information: into the United States from an inter- (A) Country under whose laws the mediary nation subject to paragraph harvesting vessel operated; (e)(5)(xiv) of this section if a ban is cur- (B) Exporter (name and address); rently in force prohibiting the importa- (C) Consignee (name and address); tion. (D) Type and quantity of the fish or (D) Harvesting and intermediary na- fish products to be imported, listed by tions. No shipment containing an item in paragraph (e)(2)(i) of this section U.S. Harmonized Tariff Schedule Num- may be imported into the United ber; States from a nation that is both a (E) Ocean area where the fish was harvesting nation subject to paragraph harvested (ETP, Western Pacific (e)(5)(i) of this section and an inter- Ocean, South Pacific Ocean, Atlantic mediary nation subject to paragraph Ocean, Caribbean Sea, Indian Ocean, or (e)(5)(xiv) of this section unless the other); necessary findings have been made (F) Type of fishing gear used to har- under both provisions and a ban is not vest the fish (purse seine, longline, bait currently in force. boat, large-scale driftnet, other type of (E) Tuna or tuna products sold in or gillnet, trawl, pole and line, other); exported from the United States that (G) Dates on which the fishing trip suggest the tuna was harvested in a began and ended; manner not injurious to dolphins are (H) If shipment is tuna or products subject to the requirements of subpart from tuna that were harvested in the H. (ii) Other fish. After July 1, 1991, no 1 Copies of the form are available from the shipment containing an item listed in Director, Southwest Region (see § 216.3).
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ETP with a purse seine net, the name gram governing the incidental taking of the harvesting vessel; and of marine mammals in the course of (I) For shipments harvested by ves- such harvesting that is comparable to sels of a nation known to use large- the regulatory program of the United scale driftnets, as determined by the States; and Secretary pursuant to paragraph (e)(4) (B) The average rate of incidental of this section, a statement must be in- mortality by the vessels of the har- cluded on the Fisheries Certificate of vesting nation is comparable to the Origin, or by separate attachment, average rate of incidental mortality of that is dated and signed by a respon- marine mammals by U.S. vessels in the sible government official of the har- course of such harvesting as specified vesting nation, certifying that the fish in paragraphs (e)(5)(v)(E) and or fish product was harvested by a (e)(5)(v)(F) of this section. method other than large-scale driftnet, (ii) A harvesting nation which desires if the shipment includes: an initial finding under these regula- (1) Tuna or tuna products described tions that will allow it to import into in paragraph (e)(2) (i) or (ii) of this sec- the United States those products listed tion that were harvested on the high in paragraph (e)(2)(i) of this section seas after July 1, 1991; or must provide the Assistant Adminis- (2) Fish or fish products other than trator with the following information: tuna described in paragraph (e)(2)(iii) (A) A detailed description of the na- of this section that were harvested in tion’s regulatory and enforcement pro- the South Pacific Ocean after July 1, gram governing incidental taking of 1991, or that were harvested anywhere marine mammals in the purse seine on the high seas after July 1, 1992. fishery for yellowfin tuna, including: (4) Large-scale driftnet nations. Based (1) A description, with copies of rel- upon the best information available, evant laws, implementing regulations the Assistant Administrator will deter- and guidelines, of the gear and proce- mine which nations have registered dures required in the fishery to protect vessels that engage in fishing with marine mammals, including but not large-scale driftnets. Such determina- limited to the following: tions shall be published in the FEDERAL (i) A description of the methods used REGISTER. A responsible government to identify problems and to take cor- official of any such nation may certify rective actions to improve the perform- to the Assistant Administrator that ance of individual fishermen in reduc- none of the nation’s vessels use large- ing incidental mortality and serious in- scale driftnets. Upon receipt of the cer- jury. By 1990 the methods must iden- tification, the Assistant Administrator tify individual operators with marine may find, and publish such finding in mammal mortality rates which are the FEDERAL REGISTER, that none of consistently and substantially higher the nation’s vessels engage in fishing than the majority of the nation’s fleet, with large-scale driftnets. and provide for corrective training and, (5) Yellowfin tuna. (i) Any tuna or ultimately, suspension and removal tuna products in the classifications from the fishery if the operator’s per- listed in paragraph (e)(2)(i) of this sec- formance does not improve to at least tion, from harvesting nations whose the performance of the majority of the vessels of greater than 400 short tons fleet in a reasonable time period; (362.8 mt) carrying capacity operate in (ii) By 1990, a description of a regu- the ETP tuna purse seine fishery as de- latory system in operation which en- termined by the Assistant Adminis- sures that all marine mammal sets are trator, may not be imported into the completed through backdown to rolling United States unless the Assistant Ad- the net to sack-up no later than one- ministrator makes an affirmative find- half hour after sundown, except that ing under either paragraph (e)(5)(v), individual operators may be exempted, (e)(5)(viii) or (e)(5)(x) of this section if they have maintained consistently a and publishes the finding in the FED- rate of kill during their observed sun- ERAL REGISTER that: down sets which is not higher than (A) The government of the harvesting that of the nation’s fleet average dur- nation has adopted a regulatory pro- ing daylight sets made during the time
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period used for their comparability (5) The total number of observed finding; and purse seine sets in each fishing area in (iii) By 1990, a description of its re- which more than 15 marine mammals strictions on the use of explosive de- were killed. vices in the purse seine fishery which (D) Data required by paragraph are comparable to those of the United (e)(5)(ii)(C)(2) presented individually States. for the following marine mammal spe- (2) A detailed description of the cies/stocks: offshore spotted dolphin, method (e.g., Inter-American Tropical coastal spotted dolphin, eastern spin- Tuna Commission (IATTC) or other ner dolphin, whitebelly spinner dol- international program observer phin, common dolphin, striped dolphin, records) and level of observer coverage and ‘‘other marine mammals’’. by which the incidental mortality and (E) A description of the source of the serious injury of marine mammals will data provided in accordance with para- be monitored. graph (e)(5)(ii)(C) of this section. The (B) A list of its vessels and any cer- observer program from which these tified charter vessels of greater than data are provided must be operated by 400 short tons carrying capacity which the IATTC or another international purse seined for yellowfin tuna at any program in which the United States time during the preceding year in the participates and must sample at least ETP, indicating the status of each such the same percentage of the fishing vessel during that period (i.e., actively trips as the United States achieves fishing in ETP, fishing in other waters; over the same time period, unless the in port for repairs; inactive) and the Assistant Administrator determines status of each vessel expected to oper- that an alternative observer program, ate in the ETP in the year in which the including a lesser level of observer cov- submission is made. erage, will provide a sufficiently reli- (C) A compilation of the best avail- able average rate of incidental taking able data for each calendar year on the of marine mammals for the nation. performance of any of its purse seine (iii) A nation applying for its initial vessels (including certified charter ves- finding of comparability should apply sels) fishing at any time for tuna asso- at least 120 days before the desired ef- ciated with marine mammals within fective date. The Assistant Administra- the ETP including the following: tor’s determination on a nation’s appli- cation for its initial finding will be an- (1) Total number of tons of yellowfin nounced and published in the FEDERAL tuna observed caught in each fishing REGISTER within 120 days of receipt of area by purse seine sets on: the information required in paragraph (i) Common dolphin and (e)(5)(ii) of this section. (ii) All other marine mammal spe- (iv) A harvesting nation that has in cies; effect a positive finding under this (2) Total number of marine mammals section may request renewal of its find- observed killed and the total number of ing for the following calendar year by marine mammals observed seriously providing the Assistant Administrator, injured in each fishing area by species/ by December 1 of the current calendar stock by purse seine sets on: year, an update of the information list- (i) Common dolphin and ed in § 216.24(e)(5)(ii) summarizing all (ii) All other marine mammal spe- fishing trips completed during the 12- cies; month period from October 1 of the (3) Total number of observed trips previous calendar year through Sep- and total number of observed purse tember 30 of the current year. seine sets on marine mammals in each (v) The Assistant Administrator’s de- fishing area by the nation’s purse seine termination of a nation’s timely sub- fleet during the year; mitted request for renewal of an af- (4) Total number of vessel trips and firmative finding will be announced by total number of purse seine sets on ma- December 31. A finding will be valid for rine mammals in each fishing area by the calendar year following the fishing the nation’s purse seine fleet during season for which observer data was the year; and submitted for obtaining a finding. The
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Assistant Administrator will make an (Stenella attenuata) is no greater than affirmative finding or renew an affirm- 15 percent and 2 percent, respectively, ative finding if: of the nation’s total annual observed (A) The harvesting nation has pro- dolphin mortality; and vided all information required by para- (H) The nation has complied with all graphs (e)(5)(ii) and (e)(5)(iv) of this reasonable requests by the Assistant section; Administrator for cooperation in car- (B) The nation’s regulatory program rying out dolphin population assess- is comparable to the regulatory pro- ments in the ETP. gram of the United States as described (vi) Period of validity. A finding is in paragraphs (a), (c), (d)(2), and (f) of valid only for the period for which it this section and the nation has incor- was issued and may be terminated be- porated into its regulatory program fore the end of the year if the Assistant such additional prohibitions as the Administrator finds that the nation no United States may apply to its own longer has a comparable regulatory vessels within 180 days after the prohi- program or kill rate. bition applies to U.S. vessels; (vii) Reconsideration of finding. The (C) The data on marine mammal Assistant Administrator may recon- mortality and serious injury submitted sider a finding upon a request from and by the harvesting nation are deter- the submission of additional informa- mined to be accurate; tion by the harvesting nation, if the in- (D) The observer coverage of fishing formation indicates that the nation trips was equal to that achieved by the has met the requirements under para- United States during the same time pe- graph (e)(5)(v) of this section. For a riod or, if less, was determined by the harvesting nation whose marine mam- Assistant Administrator to provide a mal mortality rate was found to exceed sufficiently accurate sample of the na- the acceptable levels prescribed in tion’s fleet mortality rate; paragraphs (e)(5)(v)(E), (e)(5)(v)(F), or (E) For findings using data collected (e)(5)(v)(G) of this section, the addi- after 1988, the average kill-per-set rate for the longest period of time for which tional information must include data data are available, up to 5 consecutive collected by an acceptable observer years, or for the most recent year, program, which must demonstrate that whichever is lower, is no more than 25 the nation’s fleet marine mammal percent greater than the U.S. average mortality rate improved to the accept- for the same time period, after the U.S. able level during the period submitted mortality rate is weighted to account for comparison, which must include, at for dissimilar amounts of fishing effort a minimum, the most recent: between the two nations in the three (A) Twelve months of observer data if ETP fishing areas and for common dol- the species composition rate prescribed phin and other marine mammal spe- by paragraph (e)(5)(v)(G) of this section cies, except as provided in paragraph was not acceptable; or (e)(5)(v)(F) of this section for findings (B) Six months of observer data if the made in 1990; average kill-per-set rate prescribed by (F) For determining comparability paragraph (e)(5)(v)(E) of this section where there are fewer than five sets was not acceptable. (including no effort) on dolphin by the (viii) Application for finding for non- U.S. fleet in a fishing area on a species marine-mammal intentional sets. The As- grouping that has fishing effort by the sistant Administrator’s determination foreign nation requesting a com- on a nation’s application for a finding parability test, the mortality rates will be announced and published in the used for comparability will be the FEDERAL REGISTER. A harvesting na- overall (i.e., unweighted) kill-per-set tion which has implemented a regu- rate of the U.S. fleet and of the foreign latory program that prohibits the in- nation’s fleet. tentional setting of any purse seine net (G) For the 1989 fishing year and sub- to encircle marine mammals and de- sequent years, the nation’s observed sires an initial finding under these reg- kill of eastern spinner dolphin (Stenella ulations that will allow it to import longirostris) and coastal spotted dolphin into the United States those products
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listed in paragraph (e)(2)(i) of this sec- mt) carrying capacity which purse tion must provide the Assistant Ad- seine for yellowfin tuna in the ETP, in- ministrator with the following: dicating the status of each vessels as of (A) Documentary evidence estab- October 1; lishing that its regulatory program in- (B) A summary, which copies of rel- cludes: evant laws, of any changes in the na- (1) A law prohibiting the intentional tion’s laws or regulatory program re- setting of purse seine nets on marine garding marine mammals for the purse mammals (a copy of the law must be seine fishery in the ETP; and submitted); (C) A summary of any enforcement (2) A requirement that a certificate actions taken to ensure compliance from an observer be obtained within 30 with the nation’s marine mammal pro- days of the completion of each and tection laws. every trip of the nation’s purse seine (x) Review of finding for non-marine- vessels greater than 400 short tons mammal intentional sets. The Assistant (362.8 mt) carrying capacity, stating Administrator will renew an affirma- that the observer was aboard the vessel tive finding obtained under paragraph during the entire trip and that there (e)(5)(ix) of this section if: were no intentional purse seine sets on (A) The harvesting nation has pro- marine mammals; and vided all of the information required by (B) A complete list of the nation’s paragraph (e)(5)(ix) of this section and vessels and any certified charter ves- the conditions under which the original sels of greater than 400 short tons (362.8 mt) carrying capacity which purse finding was made under paragraph seine for yellowfin tuna in the ETP, in- (e)(5)(viii) of this section continue to dicating the status of each vessel (i.e., exist; and actively fishing in the ETP, in port for (B) Either 100-percent observer cov- repairs, etc.), and a list of changes to erage is provided for all purse seine this fleet within 30 days when changes vessels as required by paragraph occur. (e)(5)(viii)(A)(2) of this section; or the (ix) Application for renewal of finding harvesting nation is in a probationary for non-marine-mammal intentional sets. status in accordance with paragraph A harvesting nation, which has in ef- (e)(5)(xi)(B)(1) of this section; and fect an affirmative finding under this (C) The harvesting nation meets the section, may request a renewal of its criteria of paragraphs (e)(5)(v)(E), and finding for the subsequent calendar (e)(5)(v)(G) of this section; and year by providing the Assistant Admin- (D) Certificates have been provided istrator an annual report by November to the Assistant Administrator within 1, covering the previous October 1 to 30 days of the completion of each and September 30 period, which includes every trip of the nation’s purse seine the following: vessels greater than 400 short tons (A) Vessel summary data, to include: (362.8 mt) carrying capacity from an (1) The total number of observed observer approved by the Assistant Ad- trips; ministrator or under the direction of (2) The percentage of all purse seine the Inter-American Tropical Tuna fishing trips that carried observers Commission, and verified by the Inter- under a program approved by the As- American Tropical Tuna Commission, sistant Administrator; stating that the observer was aboard (3) The total number, if any, of ob- the vessel during the entire trip and served purse seine sets on marine mam- that there were no intentional purse mals; seine sets on marine mammals or the (4) A summary of the number and nation received a positive reconsider- species, if any, of all marine mammals ation for an affirmative finding under killed or seriously injured in inten- paragraph (e)(5)(xii)(A) of this section. tional purse seine sets on marine mam- (xi) Probation and revocation. (A)(1) If mals; it is determined that, during any trip, (5) A complete list of the nation’s a purse seine was intentionally set on vessels and any certified charter ves- marine mammals, the nation will enter sels of greater than 400 short tons (362.8 into a probationary status for 180 days,
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effective upon the date the vessel re- in the classifications listed in para- turns to port to unload. graph (e)(2)(i) of this section, from any (2) If, during the probationary period intermediary nation, as that term is of 180 days, there are any additional in- defined in section 3 of the MMPA, may tentional purse seine sets made on ma- not be imported into the United States rine mammals, the Assistant Adminis- unless the Assistant Administrator de- trator will immediately revoke the af- termines and publishes in the FEDERAL firmative finding. REGISTER that the intermediary nation (B)(1) If it is determined that, during has provided reasonable proof and has any trip, an observer is not aboard a certified to the United States that it nation’s purse seine vessel greater than has not imported, in the preceding 6 400 short tons (362.8 mt) carrying ca- months, yellowfin tuna or yellowfin pacity fishing in the ETP, that nation tuna products that are subject to a ban will enter into a probationary status on direct importation into the United for 1 year, effective upon the date the States under section 101(a)(2)(B) of the vessel returns to port to unload. MMPA. A prohibition on imports under (2) If, during the 1-year probationary this paragraph may be lifted by the As- period, a nation’s purse seine vessel re- sistant Administrator upon a deter- turns to port to unload, and it is deter- mination announced in the FEDERAL mined that an observer was not aboard REGISTER, based upon new information the vessel during a trip in the ETP, the supplied by the government of the Assistant Administrator will imme- intermediary nation, that the nation diately revoke an affirmative finding has not imported, in the preceding 6 made under paragraphs (e)(5)(viii) or months, yellowfin tuna or yellowfin (e)(5)(x) of this section. tuna products subject to a ban on di- (xii) Reconsideration. (A) The Assist- rect imports under section 101(a)(2)(B) ant Administrator will reconsider a of the MMPA. Shipments of yellowfin revocation of an affirmative finding tuna or yellowfin tuna products upon request from a harvesting nation through a nation on a through bill of which had its affirmative finding re- lading or in another manner that does voked under paragraph (e)(5)(xi)(A) of not enter the shipments into that na- this section if: tion as an importation do not make (1) The number of marine mammals taken in purse seine nets that were in- that nation an intermediary nation. tentionally set on marine mammals The Assistant Administrator shall act does not exceed the comparability on any request to review decisions standards established in paragraphs under this paragraph (e)(5)(xiv) that (e)(5)(v)(E) and (e)(5)(v)(G) of this sec- are accompanied by specific and de- tion; and tailed supporting information or docu- (2) That nation provides documen- mentation, within 30 days of receipt of tary evidence that no additional purse such request. For purposes of this para- seines were intentionally set on marine graph (e)(5)(xiv), certification and rea- mammals during the 90-day period im- sonable proof means the submission by mediately preceding the request for re- a responsible government official from consideration. the nation of a document reflecting the (B) A harvesting nation which has its nation’s customs records for the pre- affirmative finding revoked under ceding 6 months, together with a cer- paragraph (e)(5)(xi)(B) of this section tificate attesting that the document is or its reconsideration under paragraph accurate. (e)(5)(xii)(A) of this section denied, (xv) Pelly certification. After 6 months may request reconsideration for an af- on an embargo being in place against a firmative finding under paragraph nation under this section, that fact (e)(5)(vii) of this section. shall be certified to the President for (xiii) Verification. The Assistant Ad- purposes of certification under section ministrator may require verification of 8(a) of the Fishermen’s Protective Act statements made in connection with of 1967 (22 U.S.C. 1978(a)) for as long as requests to allow importations. the embargo is in effect. (xiv) Intermediary nation. Any yel- (xvi) Coordination. The Assistant Ad- lowfin tuna or yellowfin tuna products ministrator will promptly advise the
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Department of State of embargo deci- or the Secretary, was on board the ves- sions, actions and finding determina- sel during the entire trip and that the tions. vessel did not intentionally deploy a (6) Fish refused entry. If fish is denied purse seine net on, or to encircle, dol- entry under the provisions of phin at any time during the trip; and § 216.24(e)(3), the District Director of (3) An endorsement on the Fisheries Customs shall refuse to release the fish Certificate of Origin by each exporter, for entry into the United States and importer, and processor certifying shall issue a notice of such refusal to that, to the best of his or her knowl- the importer or consignee. edge and belief, the Fisheries Certifi- (7) [Reserved] cate of Origin and attached documents, (8) Disposition of fish refused entry into and the statements required by this the United States; redelivered fish. Fish paragraph (e)(9)(ii) accurately describe which is denied entry under the tuna products; § 216.24(e)(3) or which is delivered in ac- (C) In the case of tuna or a tuna prod- cordance with § 216.24(e)(7) and which is uct containing tuna harvested outside not exported under Customs super- the eastern tropical Pacific Ocean by a vision within 90 days from the date of purse seine vessel, it is accompanied by notice of refusal of admission or date of a written statement, executed by the redelivery shall be disposed of under captain of the vessel, certifying that no Customs laws and regulations. Provided purse seine net was intentionally de- however, That any disposition shall not ployed on, or to encircle, dolphins dur- result in an introduction into the ing the particular voyage on which the United States of fish caught in viola- tuna was harvested; and tion of the Marine Mammal Protection (D) In the case of tuna or a tuna Act of 1972. product containing tuna harvested out- (9) Dolphin safe requirements. (i) It is side the ETP by a purse seine vessel in unlawful for any person to sell, pur- a fishery in which the Secretary has chase, offer for sale, transport, or ship determined that a regular and signifi- in the United States, any tuna or tuna cant association occurs between ma- product that is not dolphin safe. rine mammals and tuna, and in which (ii) For purposes of this section, tuna tuna is harvested through the use of or a tuna product is dolphin safe if: purse seine nets deployed on, or to en- (A) It does not contain tuna that was circle, marine mammals, it is accom- harvested on the high seas by a vessel panied by a written statement, exe- engaged in large-scale driftnet fishing; cuted by the captain of the vessel and (B) In the case of tuna or tuna prod- by an observer, certifying that no uct that contains tuna harvested in the purse seine net was intentionally de- ETP by a purse seine vessel, either the ployed on, or to encircle, marine mam- purse seine vessel is of less than 400 mals during the particular voyage on short tons (362.8 metric tons (mt)) car- which the tuna was harvested. rying capacity or, if the purse seine (iii) Submission of documentation—(A) vessel is of 400 short tons (362.8 mt) car- Imported tuna or tuna product. The doc- rying capacity or greater, the tuna or uments required by paragraph (e)(9)(ii) tuna product is accompanied by: of this section must accompany the im- (1) A completed Fisheries Certificate ported tuna or tuna product until no of Origin; further endorsements are required on (2) A written statement by the cap- the documentation and the documents tain of each vessel that harvested the have been submitted to officials of the tuna, certifying that the vessel did not U.S. Customs Service at the time of intentionally deploy a purse seine net importation. on, or to encircle, dolphins at any time (B) U.S. domestic shipments. The docu- during the trip; a written statement, ments required by paragraph (e)(9)(ii) signed by either the Secretary or a rep- of this section must accompany tuna resentative of the Inter-American or tuna product, other than imported, Tropical Tuna Commission, certifying until no further endorsements are re- that an observer employed by or work- quired on the documentation and the ing under contract with the Inter- documents have been submitted to the American Tropical Tuna Commission Director, Southwest Region, National
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Marine Fisheries Service, 501 W. Ocean in fishing operations for which a gen- Boulevard, Suite 4200, Long Beach, CA eral permit is required. 90802. (5) It is unlawful for any person to (f) Observers. (1) The vessel certificate forcibly assault, impede, intimidate, holder of any certificated vessel shall, interfere with, or to influence or at- upon the proper notification by the Na- tempt to influence an observer, or to tional Marine Fisheries Service, allow harass (including sexual harassment) an observer duly authorized by the Sec- an observer by conduct which has the retary to accompany the vessel on any purpose or effect of unreasonably inter- or all regular fishing trips for the pur- fering with the observer’s work per- pose of conducting research and observ- formance, or which creates an intimi- ing operations, including collecting in- dating, hostile, or offensive environ- formation which may be used in civil ment. In determining whether conduct or criminal penalty proceedings, for- constitutes harassment, the totality of feiture actions, or permit or certificate the circumstances, including the na- sanctions. ture of the conduct and the context in (2) Research and observation duties which it occurred, will be considered. shall be carried out in such a manner The determination of the legality of a as to minimize interference with com- particular action will be made from the mercial fishing operations. The navi- facts on a case-by-case basis. gator shall provide true vessel loca- (6)(i) All observers must be provided tions by latitude and longitude, accu- sleeping, toilet and eating accommoda- tions at least equal to that provided to rate to the nearest minute, upon re- a full crew member. A mattress or quest by the observer. No owner, mas- futon on the floor or a cot is not ac- ter, operator, or crew member of a cer- ceptable in place of a regular bunk. tificated vessel shall impair or in any Meal and other galley privileges must way interfere with the research or ob- be the same for the observer as for servations being carried out. other crew members. (3) Marine mammals killed during (ii) Female observers on a vessel with fishing operations which are accessible an all-male crew must be accommo- to crewmen and requested from the dated either in a single-person cabin certificate holder or master by the ob- or, if reasonable privacy can be ensured server shall be brought aboard the ves- by installing a curtain or other tem- sel and retained for biological proc- porary divider, in a two-person cabin essing, until released by the observer shared with a licensed officer of the for return to the ocean. Whole marine vessel. If the cabin assigned to a female mammals designated as biological observer does not have its own toilet specimens by the observer shall be re- and shower facilities that can be pro- tained in cold storage aboard the vessel vided for the exclusive use of the ob- until retrieved by authorized personnel server, then a schedule for time-shar- of the National Marine Fisheries Serv- ing common facilities must be estab- ice when the vessel returns to port for lished before the placement meeting unloading. and approved by NMFS and must be (4) The Secretary shall provide for followed during the entire trip. the payment of all reasonable costs di- (iii) In the event there are one or rectly related to the quartering and more female crew members, the female maintaining of such observers on board observer may be provided a bunk in a such vessels. A vessel certificate holder cabin shared solely with female crew who has been notified that the vessel is members, and provided toilet and required to carry an observer, via cer- shower facilities shared solely with tified letter from the National Marine these female crew members. Fisheries Service, shall notify the of- (7)(i) A vessel certificate of inclusion fice from which the letter was received holder (or vessel owner in the case of a at least five days in advance of the new application) may seek an exemp- fishing voyage to facilitate observer tion from carrying a female observer placement. A vessel certificate holder on a vessel by applying to the Director, who has failed to comply with the pro- Southwest Region when applying for visions of this section may not engage the vessel certificate of inclusion until
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July 10, 1989 and establishing the fol- formance of his official duties shall not lowing: be eligible for payment under this sec- (A) The vessel will have an all-male tion. crew; [45 FR 72187, Oct. 31, 1980] (B) The vessel has fewer than two pri- vate (one-person) and semi-private EDITORIAL NOTE: For FEDERAL REGISTER ci- (two-person) cabins in total (excluding tations affecting § 216.24, see the List of CFR Sections Affected in the Finding Aids sec- the captain’s cabin); tion of this volume. (C) A temporary divider like a cur- tain cannot be installed in the private § 216.25 Exempted marine mammals or semi-private cabin (excluding the and marine mammal products. captain’s cabin) to provide reasonable (a) The provisions of the MMPA and privacy; and these regulations shall not apply: (D) There are no other areas (exclud- (1) To any marine mammal taken be- ing the captain’s cabin) that can be fore December 21, 1972 1, or converted to a sleeping room without (2) To any marine mammal product if either significant expense or signifi- the marine mammal portion of such cant sacrifice to the crew’s quarters. product consists solely of a marine (ii) The exclusion criteria in para- mammal taken before such date. graph (f)(7)(i) of this section can be met (b) The prohibitions contained in without having to provide the captain’s § 216.12(c) (3) and (4) shall not apply to cabin for the observer. The application marine mammals or marine mammal for an exemption must also include an products imported into the United accurate diagram of the vessel’s living States before the date on which a no- areas, and other areas possibly suitable tice is published in the FEDERAL REG- for sleeping. Additional documentation ISTER with respect to the designation to support the application may also be of the species or stock concerned as de- required, as may an inspection of the pleted or endangered. vessel. The exemption, once granted, is (c) Section 216.12(b) shall not apply to valid for the same calendar year as the articles imported into the United vessel certificate of inclusion, and the States before the effective date of the exemption must be renewed annually foreign law making the taking or sale, to remain valid. The vessel certificate as the case may be, of such marine of inclusion holder is responsible for mammals or marine mammal products reporting to the Director, Southwest unlawful. Region any changes aboard the vessel within 15 days of the change which [39 FR 1852, Jan. 15, 1974, as amended at 56 might affect the continued eligibility FR 43888, Sept. 5, 1991; 59 FR 50376, Oct. 3, 1994] for an exemption. The Director, South- west Region will revoke an exemption § 216.26 Collection of certain marine if the criteria for an exemption are no mammal parts without prior au- longer met. thorization. (g) Penalties and rewards: Any person Notwithstanding any other provision or vessel subject to the jurisdiction of of this subpart: the United States shall be subject to (a) Any bones, teeth or ivory of any the penalties provided for under the dead marine mammal may be collected MMPA for the conduct of fishing oper- from a beach or from land within 1⁄4 of ations in violation of these regulations. a mile of the ocean. The term ocean in- The Secretary shall recommend to the cludes bays and estuaries. Secretary of the Treasury that an (b) Notwithstanding the provisions of amount equal to one-half of the fine in- subpart D, soft parts that are sloughed, curred but not to exceed $2,500 be paid excreted, or discharged naturally by a to any person who furnishes informa- living marine mammal in the wild may tion which leads to a conviction for a violation of these regulations. Any offi- 1 In the context of captive maintenance of cer, employee, or designated agent of marine mammals, the only marine mammals the United States or of any State or exempted under this section are those that local government who furnishes in- were actually captured or otherwise in cap- formation or renders service in the per- tivity before December 21, 1972.
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be collected or imported for bona fide (2) The custodian of the rehabilitated scientific research and enhancement, marine mammal shall provide written provided that collection does not in- notification prior to any release into volve the taking of a living marine the wild. mammal in the wild. (i) Notification shall be provided to: (c) Any marine mammal part col- (A) The NMFS Regional Director at lected under paragraph (a) of this sec- least 15 days in advance of releasing tion or any marine mammal part col- any beached or stranded marine mam- lected and imported under paragraph mal, unless advance notice is waived in (b) of this section must be registered writing by the Regional Director; or and identified, and may be transferred (B) The Office Director at least 30 or otherwise possessed, in accordance days in advance of releasing any im- with § 216.22(c). In registering a marine ported marine mammal. mammal part collected or imported (ii) Notification shall include the fol- under paragraph (b) of this section, the lowing: person who collected or imported the (A) A description of the marine mam- part must also state the scientific re- mal, including its physical condition search or enhancement purpose for and estimated age; which the part was collected or im- (B) The date and location of release; ported. and (d) No person may purchase, sell or (C) The method and duration of trade for commercial purposes any ma- transport prior to release. rine mammal part collected or im- (3) The Regional Director, or the Of- ported under this section. fice Director as appropriate, may: (i) Require additional information (e) The export of parts collected prior to any release; without prior authorization under (ii) Change the date or location of re- paragraph (b) of this section may occur lease, or the method or duration of if consistent with the provisions at transport prior to release; § 216.37(d) under subpart D. (iii) Impose additional conditions to [39 FR 1852, Jan. 15, 1974, as amended at 59 improve the likelihood of success or to FR 50376, Oct. 3, 1994; 61 FR 21933, May 10, monitor the success of the release; or 1996] (iv) Require other disposition of the marine mammal. § 216.27 Release, non-releasability, and (4) All marine mammals must be re- disposition under special exception leased near wild populations of the permits for rehabilitated marine mammals. same species, and stock if known, un- less a waiver is granted by the Re- (a) Release requirements. (1) Any ma- gional Director or the Office Director. rine mammal held for rehabilitation (5) All marine mammals released must be released within six months of must be tagged or marked in a manner capture or import unless the attending acceptable to the Regional Director or veterinarian determines that: the Office Director. The tag number or (i) The marine mammal might ad- description of the marking must be re- versely affect marine mammals in the ported to the Regional Director or Of- wild; fice Director following release. (ii) Release of the marine mammal to (b) Non-releasability and postponed de- the wild will not likely be successful terminations. (1) The attending veteri- given the physical condition and be- narian shall provide the Regional Di- havior of the marine mammal; or rector or Office Director with a written (iii) More time is needed to deter- report setting forth the basis of any de- mine whether the release of the marine termination under paragraphs (a)(1)(i) mammal to the wild will likely be suc- through (iii) of this section. cessful. Releasability must be reevalu- (2) Upon receipt of a report under ated at intervals of no less than six paragraph (b)(1) of this section, the Re- months until 24 months from capture gional Director or Office Director, in or import, at which time there will be their sole discretion, may: a rebuttable presumption that release (i) Order the release of the marine into the wild is not feasible. mammal;
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(ii) Order continued rehabilitation (i) Documentation has been sub- for an additional 6 months; or mitted to the Office Director that the (iii) Order other disposition as au- person retaining the subject animal or thorized. the person receiving custody of the (3) No later than 30 days after a ma- subject animal by transfer, hereinafter rine mammal is determined referred to as the recipient, complies unreleasable in accordance with para- with public display requirements of 16 graphs (a)(1)(i) through (iii) of this sec- U.S.C. 1374(c)(2)(A) or, for purposes of tion, the person with authorized cus- scientific research and enhancement, tody must: holds an applicable permit, or an appli- (i) Request authorization to retain or cation for such a special exception per- transfer custody of the marine mam- mit under § 216.33 or a request for a mal in accordance with paragraph (c) major amendment under § 216.39 has of this section, or; been submitted to the Office Director (ii) Humanely euthanize the marine and has been found complete; mammal or arrange any other disposi- (ii) The recipient agrees to hold the tion of the marine mammal authorized marine mammal in conformance with by the Regional Director or Office Di- all applicable requirements and stand- rector. ards; and (4) Notwithstanding any of the provi- (iii) The recipient acknowledges that sions of this section, the Office Direc- the marine mammal is subject to sei- tor may require use of a rehabilitated zure by the Office Director: marine mammal for any activity au- (A) If, at any time pending issuance thorized under subpart D in lieu of ani- of the major amendment or permit, the mals taken from the wild. Office Director determines that seizure (5) Any rehabilitated beached or is necessary in the interest of the stranded marine mammal placed on health or welfare of the marine mam- public display following a non-releas- mal; ability determination under paragraph (B) If the major amendment or per- (a)(1) of this section and pending dis- mit is denied; or position under paragraph (c) of this (C) If the recipient is issued a notice section, or any marine mammal im- of violation and assessment, or is sub- ported for medical treatment otherwise ject to permit sanctions, in accordance unavailable and placed on public dis- with 15 CFR part 904. play pending disposition after such (4) There shall be no remuneration medical treatment is concluded, must associated with any transfer, provided be held in captive maintenance con- that, the transferee may reimburse the sistent with all requirements for public transferor for any and all costs associ- display. ated with the rehabilitation and trans- (c) Disposition for a special exception port of the marine mammal. purpose. (1) Upon receipt of an author- (5) Marine mammals undergoing re- ization request made under paragraph habilitation or pending disposition (b)(3)(i) of this section, or release noti- under this section shall not be subject fication under (a)(2), the Office Direc- to public display, unless such activities tor may authorize the retention or are specifically authorized by the Re- transfer of custody of the marine mam- gional Director or the Office Director, mal for a special exception purpose au- and conducted consistent with the re- thorized under subpart D. quirements applicable to public dis- (2) The Office Director will first con- play. Such marine mammals shall not sider requests from a person authorized be trained for performance or be in- to hold the marine mammal for reha- cluded in any aspect of a program in- bilitation. The Office Director may au- volving interaction with the public; thorize such person to retain or trans- and fer custody of the marine mammal for (6) Marine mammals undergoing re- scientific research, enhancement, or habilitation shall not be subject to in- public display purposes. trusive research, unless such activities (3) The Office Director may authorize are specifically authorized by the Of- retention or transfer of custody of the fice Director in consultation with the marine mammal only if: Marine Mammal Commission and its
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Committee of Scientific Advisors on cial exception permit to export living Marine Mammals, and are conducted marine mammals, the application pursuant to a scientific research per- must: mit. (1) Be submitted through the Conven- (d) Reporting. In addition to the re- tion on International Trade in Endan- port required under § 216.22(b), the per- gered Fauna and Flora management son authorized to hold marine mam- authority of the foreign government mals for rehabilitation must submit re- or, if different, the appropriate agency ports to the Regional Director or Office or agencies of the foreign government Director regarding release or other dis- that exercises oversight over marine position. These reports must be pro- mammals. vided in the form and frequency speci- (2) Include a certification from the fied by the Regional Director or Office foreign government that: Director. (i) The information set forth in the [61 FR 21933, May 10, 1996] application is accurate; (ii) The laws and regulations of the Subpart D—Special Exceptions foreign governmentinvolved allow en- forcement of the terms and conditions § 216.30 [Reserved] of the permit, and that the foreign gov- § 216.31 Definitions. ernment will enforce all terms and con- ditions; and For the purpose of this subpart, the (iii) The foreign government involved definitions set forth in 50 CFR part 217 will afford comity to any permit shall apply to all threatened and en- amendment, modification, suspension dangered marine mammals, unless a or revocation decision. more restrictive definition exists under the MMPA or part 216. (c) Initial review. (1) NMFS will notify the applicant of receipt of the applica- [61 FR 21935, May 10, 1996] tion. (2) During the initial review, the Of- § 216.32 Scope. fice Director will determine: The regulations of this subpart apply (i) Whether the application is com- to: plete. (a) All marine mammals and marine (ii) Whether the proposed activity is mammal parts taken or born in cap- for purposes authorized under this sub- tivity after December 20, 1972; and (b) All marine mammals and marine part. mammal parts that are listed as (iii) If the proposed activity is for en- threatened or endangered under the hancement purposes, whether the spe- ESA. cies or stock identified in the applica- tion is in need of enhancement for its [61 FR 21935, May 10, 1996] survival or recovery and whether the § 216.33 Permit application submis- proposed activity will likely succeed in sion, review, and decision proce- its objectives. dures. (iv) Whether the activities proposed (a) Application submission. Persons are to be conducted consistent with the seeking a special exemption permit permit restrictions and permit specific under this subpart must submit an ap- conditions as described in § 216.35 and plication to the Office Director. The § 216.36(a). application must be signed by the ap- (v) Whether sufficient information is plicant, and provide in a properly for- included regarding the environmental matted manner all information nec- impact of the proposed activity to en- essary to process the application. Writ- able the Office Director: ten instructions addressing informa- (A) To make an initial determination tion requirements and formatting may under the National Environmental Pol- be obtained from the Office Director icy Act (NEPA) as to whether the pro- upon request. posed activity is categorically excluded (b) Applications to export living marine from preparation of further environ- mammals. For applicants seeking a spe- mental documentation, or whether the
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preparation of an environmental as- significant impact, or that a final EIS sessment (EA) or environmental im- has been prepared and is available for pact statement (EIS) is appropriate or review. necessary; and (2) The Office Director will forward a (B) To prepare an EA or EIS if an ini- copy of the complete application to the tial determination is made by the Of- Commission for comment. If no com- fice Director that the activity proposed ments are received within 45 days (or is not categorically excluded from such such longer time as the Office Director requirements. may establish) the Office Director will (3) The Office Director may consult consider the Commission to have no with the Marine Mammal Commission objection to issuing a permit. (Commission) and its Committee of (3) The Office Director may consult Scientific Advisors on Marine Mam- with any other person, institution, or mals (Committee) in making these ini- agency concerning the application. tial, and any subsequent, determina- tions. (4) Within 30 days of publication of (4) Incomplete applications will be the notice of receipt in the FEDERAL returned with explanation. If the appli- REGISTER, any interested party may cant fails to resubmit a complete appli- submit written comments or may re- cation or correct the identified defi- quest a public hearing on the applica- ciencies within 60 days, the application tion. will be deemed withdrawn. Applica- (5) If the Office Director deems it ad- tions that propose activities incon- visable, the Office Director may hold a sistent with this subpart will be re- public hearing within 60 days of publi- turned with explanation, and will not cation of the notice of receipt in the be considered further. FEDERAL REGISTER. Notice of the date, (d) Notice of receipt and application re- time, and place of the public hearing view. (1) Upon receipt of a valid, com- will be published in the FEDERAL REG- plete application, and the preparation ISTER not less than 15 days in advance of any NEPA documentation that has of the public hearing. Any interested been determined initially to be re- person may appear in person or quired, the Office Director will publish through representatives and may sub- a notice of receipt in the FEDERAL REG- mit any relevant material, data, views, ISTER. The notice will: or comments. A summary record of the (i) Summarize the application, in- hearing will be kept. cluding: (6) The Office Director may extend (A) The purpose of the request; the period during which any interested (B) The species and number of marine party may submit written comments. mammals; Notice of the extension must be pub- (C) The type and manner of special lished in the FEDERAL REGISTER within exception activity proposed; 60 days of publication of the notice of (D) The location(s) in which the ma- receipt in the FEDERAL REGISTER. rine mammals will be taken, from which they will be imported, or to (7) If, after publishing a notice of re- which they will be exported; and ceipt, the Office Director determines (E) The requested period of the per- on the basis of new information that an mit. EA or EIS must be prepared, the Office (ii) List where the application is Director must deny the permit unless available for review. an EA is prepared with a finding of no (iii) Invite interested parties to sub- significant impact. If a permit is de- mit written comments concerning the nied under these circumstances the ap- application within 30 days of the date plication may be resubmitted with in- of the notice. formation sufficient to prepare an EA (iv) Include a NEPA statement that or EIS, and will be processed as a new an initial determination has been made application. that the activity proposed is categori- (e) Issuance or denial procedures. (1) cally excluded from the requirement to Within 30 days of the close of the pub- prepare an EA or EIS, that an EA was lic hearing or, if no public hearing is prepared resulting in a finding of no held, within 30 days of the close of the
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public comment period, the Office Di- fice Director also may waive the 30-day rector will issue or deny a special ex- comment period required under the ception permit. ESA in an emergency situation where (2) The decision to issue or deny a the health or life of an endangered or permit will be based upon: threatened marine mammal is threat- (i) All relevant issuance criteria set ened and no reasonable alternative is forth at § 216.34; available. If a permit is issued under (ii) All purpose-specific issuance cri- these circumstances, notice of such teria as appropriate set forth at § 216.41, issuance before the end of the comment § 216.42, and § 216.43; period shall be published in the FED- (iii) All comments received or views ERAL REGISTER within 10 days of solicited on the permit application; issuance. and (7) The applicant or any party op- (iv) Any other information or data posed to a permit may seek judicial re- that the Office Director deems rel- view of the terms and conditions of evant. such permit or of a decision to deny (3) If the permit is issued, upon re- such permit. Review may be obtained ceipt, the holder must date and sign by filing a petition for review with the the permit, and return a copy of the appropriate U.S. District Court as pro- original to the Office Director. The vided for by law. permit shall be effective upon the per- mit holder’s signing of the permit. In [61 FR 21935, May 10, 1996] signing the permit, the holder: § 216.34 Issuance criteria. (i) Agrees to abide by all terms and conditions set forth in the permit, and (a) For the Office Director to issue all restrictions and relevant regula- any permit under this subpart, the ap- tions under this subpart; and plicant must demonstrate that: (ii) Acknowledges that the authority (1) The proposed activity is humane to conduct certain activities specified and does not present any unnecessary in the permit is conditional and subject risks to the health and welfare of ma- to authorization by the Office Director. rine mammals; (4) Notice of the decision of the Office (2) The proposed activity is con- Director shall be published in the FED- sistent with all restrictions set forth at ERAL REGISTER within 10 days after the § 216.35 and any purpose-specific restric- date of permit issuance or denial and tions as appropriate set forth at shall indicate where copies of the per- § 216.41, § 216.42, and § 216.43; mit, if issued, may be reviewed or ob- (3) The proposed activity, if it in- tained. If the permit issued involves volves endangered or threatened ma- marine mammals listed as endangered rine mammals, will be conducted con- or threatened under the ESA, the no- sistent with the purposes and policies tice shall include a finding by the Of- set forth in section 2 of the ESA; fice Director that the permit: (4) The proposed activity by itself or (i) Was applied for in good faith; in combination with other activities, (ii) If exercised, will not operate to will not likely have a significant ad- the disadvantage of such endangered or verse impact on the species or stock; threatened species; and (5) Whether the applicant’s expertise, (iii) Is consistent with the purposes facilities, and resources are adequate and policy set forth in section 2 of the to accomplish successfully the objec- ESA. tives and activities stated in the appli- (5) If the permit is denied, the Office cation; Director shall provide the applicant (6) If a live animal will be held cap- with an explanation for the denial. tive or transported, the applicant’s (6) Under the MMPA, the Office Di- qualifications, facilities, and resources rector may issue a permit for scientific are adequate for the proper care and research before the end of the public maintenance of the marine mammal; comment period if delaying issuance and could result in injury to a species, (7) Any requested import or export stock, or individual, or in loss of will not likely result in the taking of unique research opportunities. The Of- marine mammals or marine mammal
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parts beyond those authorized by the (f) The permit holder is responsible permit. for all activities of any individual who (b) The opinions or views of scientists is operating under the authority of the or other persons or organizations permit; knowledgeable of the marine mammals (g) Individuals conducting activities that are the subject of the application authorized under the permit must pos- or of other matters germane to the ap- sess qualifications commensurate with plication will be considered. their duties and responsibilities, or must be under the direct supervision of [61 FR 21936, May 10, 1996] a person with such qualifications; § 216.35 Permit restrictions. (h) Persons who require state or Fed- eral licenses to conduct activities au- The following restrictions shall apply thorized under the permit must be duly to all permits issued under this sub- licensed when undertaking such activi- part: ties; (a) The taking, importation, export, (i) Special exception permits are not or other permitted activity involving transferable or assignable to any other marine mammals and marine mammal person, and a permit holder may not parts shall comply with the regulations require any direct or indirect com- of this subpart. pensation from another person in re- (b) The maximum period of any spe- turn for requesting authorization for cial exception permit issued, or any such person to conduct the taking, im- major amendment granted, is five port, or export activities authorized years from the effective date of the under the subject permit; permit or major amendment. In ac- (j) The permit holder or designated cordance with the provisions of § 216.39, agent shall possess a copy of the per- the period of a permit may be extended mit when engaged in a permitted activ- by a minor amendment up to 12 months ity, when the marine mammal is in beyond that established in the original transit incidental to such activity, and permit. whenever marine mammals or marine (c) Except as provided for in mammal parts are in the possession of § 216.41(c)(1)(v), marine mammals or the permit holder or agent. A copy of marine mammal parts imported under the permit shall be affixed to any con- the authority of a permit must be tainer, package, enclosure, or other taken or imported in a humane man- means of containment, in which the ner, and in compliance with the Acts marine mammals or marine mammal and any applicable foreign law. Impor- parts are placed for purposes of transit, tation of marine mammals and marine supervision, or care. For marine mam- mammal parts is subject to the provi- mals held captive and marine mammal sions of 50 CFR part 14. parts in storage, a copy of the permit (d) The permit holder shall not take shall be kept on file in the holding or from the wild any marine mammal storage facility. which at the time of taking is either unweaned or less than eight months [61 FR 21936, May 10, 1996] old, or is a part of a mother-calf/pup pair, unless such take is specifically § 216.36 Permit conditions. authorized in the conditions of the spe- (a) Specific conditions. (1) Permits cial exception permit. Additionally, issued under this subpart shall contain the permit holder shall not import any specific terms and conditions deemed marine mammal that is pregnant or appropriate by the Office Director, in- lactating at the time of taking or im- cluding, but not limited to: port, or is unweaned or less than eight (i) The number and species of marine months old unless such import is spe- mammals that are authorized to be cifically authorized in the conditions taken, imported, exported, or other- of the special exception permit. wise affected; (e) Captive marine mammals shall (ii) The manner in which marine not be released into the wild unless mammals may be taken according to specifically authorized by the Office type of take; Director under a scientific research or (iii) The location(s) in which the ma- enhancement permit. rine mammals may be taken, from
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which they may be imported, or to equivalent that will ensure that the which they may be exported, as appli- part is available to the public as part cable, and, for endangered or threat- of an educational program; ened marine mammal species to be im- (4) A unique number assigned by the ported or exported, the port of entry or permit holder is marked on or affixed export; to the marine mammal part or con- (iv) The period during which the per- tainer; mit is valid. (5) The person receiving the marine (2) [Reserved] mammal part agrees that, as a condi- (b) Other conditions. In addition to the specific conditions imposed pursu- tion of receipt, subsequent transfers ant to paragraph (a) of this section, the may only occur subject to the provi- Office Director shall specify any other sions of paragraph (a) of this section; permit conditions deemed appropriate. and (6) Within 30 days after the transfer, [61 FR 21937, May 10, 1996] the person transferring the marine § 216.37 Marine mammal parts. mammal part notifies the Regional Di- rector of the transfer, including a de- With respect to marine mammal scription of the part, the person to parts acquired by take or import au- whom the part was transferred, the thorized under a permit issued under purpose of the transfer, certification this subpart: that the recipient has agreed to comply (a) Marine mammal parts are with the requirements of paragraph (a) transferrable if: of this section for subsequent transfers, (1) The person transferring the part receives no remuneration of any kind and, if applicable, the recipient’s per- for the marine mammal part; mit number. (2) The person receiving the marine (b) Marine mammal parts may be mammal part is: loaned to another person for a purpose (i) An employee of NMFS, the U.S. described in paragraph (a)(3) of this Fish and Wildlife Service, or any other section and without the agreement and governmental agency with conserva- notification required under paragraphs tion and management responsibilities, (a)(5) and (6) of this section, if: who receives the part in the course of (1) A record of the loan is main- their official duties; tained; and (ii) A holder of a special exception (2) The loan is for not more than one permit which authorizes the take, im- year. Loans for a period greater than 12 port, or other activity involving the months, including loan extensions or possession of a marine mammal part of renewals, require notification of the the same species as the subject part; or Regional Director under paragraph (iii) In the case of marine mammal (a)(6). parts from a species that is not de- (c) Unless other disposition is speci- pleted, endangered or threatened, a fied in the permit, a holder of a special person who is authorized under section exception permit may retain marine 112(c) of the MMPA and subpart C of mammal parts not destroyed or other- this part to take or import marine wise disposed of during or after a sci- mammals or marine mammal parts; entific research or enhancement activ- (iv) Any other person specifically au- ity, if such marine mammal parts are: thorized by the Regional Director, con- sistent with the requirements of para- (1) Maintained as part of a properly graphs (a)(1) and (a)(3) through (6) of curated, professionally accredited col- this section. lection; or (3) The marine mammal part is trans- (2) Made available for purposes of sci- ferred for the purpose of scientific re- entific research or enhancement at the search, maintenance in a properly request of the Office Director. curated, professionally accredited sci- (d) Marine mammal parts may be ex- entific collection, or education, pro- ported and subsequently reimported by vided that, for transfers for edu- a permit holder or subsequent author- cational purposes, the recipient is a ized recipient, for the purpose of sci- museum, educational institution or entific research, maintenance in a
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properly curated, professionally ac- (iii) The location(s) in which the ma- credited scientific collection, or edu- rine mammals may be taken, from cation, provided that: which they may be imported, and to (1) The permit holder or other person which they may be exported, as appli- receives no remuneration for the ma- cable; and rine mammal part; (iv) The duration of the permit, if the (2) A unique number assigned by the proposed extension would extend the permit holder is marked on or affixed duration of the permit more than 12 to the marine mammal specimen or months beyond that established in the container; original permit. (3) The marine mammal part is ex- (2) A minor amendment means any ported or reimported in compliance amendment that does not constitute a with all applicable domestic and for- major amendment. eign laws; (b) Amendment requests and proposals. (4) If exported or reimported for edu- (1) Requests by a permit holder for an cational purposes, the recipient is a amendment must be submitted in writ- museum, educational institution, or ing and include the following: equivalent that will ensure that the (i) The purpose and nature of the part is available to the public as part amendment; of an educational program; and (ii) Information, not previously sub- (5) Special reports are submitted mitted as part of the permit applica- within 30 days after both export and re- tion or subsequent reports, necessary import as required by the Office Direc- to determine whether the amendment tor under § 216.38. satisfies all issuance criteria set forth [61 FR 21937, May 10, 1996] at § 216.34, and, as appropriate, § 216.41, § 216.42, and § 216.43. § 216.38 Reporting. (iii) Any additional information re- All permit holders must submit an- quired by the Office Director for pur- nual, final, and special reports in ac- poses of reviewing the proposed amend- cordance with the requirements estab- ment. lished in the permit, and any reporting (2) If an amendment is proposed by format established by the Office Direc- the Office Director, the permit holder tor. will be notified of the proposed amend- ment, together with an explanation. [61 FR 21937, May 10, 1996] (c) Review of proposed amendments. (1) § 216.39 Permit amendments. Major amendments. The provisions of § 216.33(d) and (e) governing notice of (a) General. Special exception permits receipt, review and decision shall apply may be amended by the Office Direc- to all proposed major amendments. tor. Major and minor amendments may (2) Minor amendments. (i) After re- be made to permits in response to, or viewing all appropriate information, independent of, a request from the per- the Office Director will provide the mit holder. Amendments must be con- permit holder with written notice of sistent with the Acts and comply with the decision on a proposed or requested the applicable provisions of this sub- amendment, together with an expla- part. nation for the decision. (1) A major amendment means any (ii) If the minor amendment extends change to the permit specific condi- the duration of the permit 12 months tions under § 216.36(a) regarding: or less from that established in the (i) The number and species of marine original permit, notice of the minor mammals that are authorized to be amendment will be published in the taken, imported, exported, or other- FEDERAL REGISTER within 10 days from wise affected; the date of the Office Director’s deci- (ii) The manner in which these ma- sion. rine mammals may be taken, imported, (iii) A minor amendment will be ef- exported, or otherwise affected, if the fective upon a final decision by the Of- proposed change may result in an in- fice Director. creased level of take or risk of adverse impact; [61 FR 21937, May 10, 1996]
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§ 216.40 Penalties and permit sanc- sistent with any applicable quota es- tions. tablished by the Office Director. (a) Any person who violates any pro- (4) The proposed research will not vision of this subpart or permit issued likely have significant adverse effects thereunder is subject to civil and on any other component of the marine criminal penalties, permit sanctions ecosystem of which the affected species and forfeiture as authorized under the or stock is a part. Acts, and 15 CFR part 904. (5) For species or stocks designated (b) All special exception permits are or proposed to be designated as de- subject to suspension, revocation, pleted, or listed or proposed to be listed modification and denial in accordance as endangered or threatened: with the provisions of subpart D of 15 (i) The proposed research cannot be CFR part 904. accomplished using a species or stock that is not designated or proposed to be [61 FR 21938, May 10, 1996] designated as depleted, or listed or pro- § 216.41 Permits for scientific research posed to be listed as threatened or en- and enhancement. dangered; (ii) The proposed research, by itself In addition to the requirements or in combination with other activities under §§ 216.33 through 216.38, permits will not likely have a long-term direct for scientific research and enhance- or indirect adverse impact on the spe- ment are governed by the following re- cies or stock; quirements: (iii) The proposed research will ei- (a) Applicant. (1) For each application ther: submitted under this section, the appli- (A) Contribute to fulfilling a research cant shall be the principal investigator need or objective identified in a species responsible for the overall research or enhancement activity. If the research recovery or conservation plan, or if or enhancement activity will involve a there is no conservation or recovery periodic change in the principal inves- plan in place, a research need or objec- tigator or is otherwise controlled by tive identified by the Office Director in and dependent upon another entity, the stock assessments established under applicant may be the institution, gov- section 117 of the MMPA; ernmental entity, or corporation re- (B) Contribute significantly to under- sponsible for supervision of the prin- standing the basic biology or ecology cipal investigator. of the species or stock, or to identi- (2) For any scientific research involv- fying, evaluating, or resolving con- ing captive maintenance, the applica- servation problems for the species or tion must include supporting docu- stock; or mentation from the person responsible (C) Contribute significantly to ful- for the facility or other temporary en- filling a critically important research closure. need. (b) Issuance Criteria. For the Office (6) For proposed enhancement activi- Director to issue any scientific re- ties: search or enhancement permit, the ap- (i) Only living marine mammals and plicant must demonstrate that: marine mammal parts necessary for (1) The proposed activity furthers a enhancement of the survival, recovery, bona fide scientific or enhancement or propagation of the affected species purpose; or stock may be taken, imported, ex- (2) If the lethal taking of marine ported, or otherwise affected under the mammals is proposed: authority of an enhancement permit. (i) Non-lethal methods for conducting Marine mammal parts would include in the research are not feasible; and this regard clinical specimens or other (ii) For depleted, endangered, or biological samples required for the con- threatened species, the results will di- duct of breeding programs or the diag- rectly benefit that species or stock, or nosis or treatment of disease. will fulfill a critically important re- (ii) The activity will likely con- search need. tribute significantly to maintaining or (3) Any permanent removal of a ma- increasing distribution or abundance, rine mammal from the wild is con- enhancing the health or welfare of the
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species or stock, or ensuring the sur- (vi) The Office Director may author- vival or recovery of the affected species ize non-intrusive scientific research to or stock in the wild. be conducted while a marine mammal (iii) The activity is consistent with: is held under the authority of an en- (A) An approved conservation plan hancement permit, only if such sci- developed under section 115(b) of the entific research: MMPA or recovery plan developed (A) Is incidental to the permitted en- under section 4(f) of the ESA for the hancement activities; and species or stock; or (B) Will not interfere with the attain- (B) If there is no conservation or re- ment of the survival or recovery objec- covery plan, with the Office Director’s tives. evaluation of the actions required to (c) Restrictions. (1) The following re- enhance the survival or recovery of the strictions apply to all scientific re- species or stock in light of the factors search permits issued under this sub- that would be addressed in a conserva- part: tion or recovery plan. (i) Research activities must be con- (iv) An enhancement permit may au- ducted in the manner authorized in the thorize the captive maintenance of a permit. marine mammal from a threatened, en- (ii) Research results shall be pub- dangered, or depleted species or stock lished or otherwise made available to only if the Office Director determines the scientific community in a reason- that: able period of time. (A) The proposed captive mainte- (iii) Research activities must be con- nance will likely contribute directly to ducted under the direct supervision of the survival or recovery of the species the principal investigator or a co-in- or stock by maintaining a viable gene vestigator identified in the permit. pool, increasing productivity, pro- (iv) Personnel involved in research viding necessary biological informa- activities shall be reasonable in num- tion, or establishing animal reserves ber and limited to: required to support directly these ob- (A) Individuals who perform a func- jectives; and tion directly supportive of and nec- (B) The expected benefit to the spe- essary to the permitted research activ- cies or stock outweighs the expected ity; and benefits of alternatives that do not re- (B) Support personnel included for quire removal of marine mammals the purpose of training or as backup from the wild. personnel for persons described in para- (v) The Office Director may authorize graph (c)(1)(iv)(A). the public display of marine mammals (v) Any marine mammal part im- held under the authority of an en- ported under the authority of a sci- hancement permit only if: entific research permit must not have (A) The public display is incidental been obtained as the result of a lethal to the authorized captive maintenance; taking that would be inconsistent with (B) The public display will not inter- the Acts, unless authorized by the Of- fere with the attainment of the sur- fice Director. vival or recovery objectives; (vi) Marine mammals held under a (C) The marine mammals will be held permit for scientific research shall not consistent with all requirements and be placed on public display, included in standards that are applicable to marine an interactive program or activity, or mammals held under the authority of trained for performance unless such ac- the Acts and the Animal Welfare Act, tivities: unless the Office Director determines (A) Are necessary to address sci- that an exception is necessary to im- entific research objectives and have plement an essential enhancement ac- been specifically authorized by the Of- tivity; and fice Director under the scientific re- (D) The marine mammals will be ex- search permit; and cluded from any interactive program (B) Are conducted incidental to and and will not be trained for perform- do not in any way interfere with the ance. permitted scientific research; and
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(C) Are conducted in a manner con- § 216.45 General Authorization for sistent with provisions applicable to Level B harassment for scientific public display, unless exceptions are research. specifically authorized by the Office (a) General Authorization. (1) Persons Director. are authorized under section (vii) Any activity conducted inci- 104(c)(3)(C) of the MMPA to take ma- dental to the authorized scientific re- rine mammals in the wild by Level B search activity must not involve any harassment, as defined in § 216.3, for taking of marine mammals beyond purposes of bona fide scientific re- what is necessary to conduct the re- search Provided, That: search (i.e., educational and commer- (i) They submit a letter of intent in cial photography). accordance with the requirements of paragraph (b) of this section, receive (2) Any marine mammal or progeny confirmation that the General Author- held in captive maintenance under an ization applies in accordance with enhancement permit shall be returned paragraph (c) of this section, and com- to its natural habitat as soon as fea- ply with the terms and conditions of sible, consistent with the terms of the paragraph (d) of this section; or enhancement permit and the objectives (ii) If such marine mammals are list- of an approved conservation or recov- ed as endangered or threatened under ery plan. In accordance with section the ESA, they have been issued a per- 10(j) of the ESA, the Office Director mit under Section 10(a)(1)(A) of the may authorize the release of any popu- ESA and implementing regulations at lation of an endangered or threatened 50 CFR parts 217–227, particularly at species outside the current range of § 222.23 through § 222.28, to take marine such species if the Office Director de- mammals in the wild for the purpose of termines that such release will further scientific research, the taking author- the conservation of such species. ized under the permit involves such Level B harassment of marine mam- [61 FR 21938, May 10, 1996] mals or marine mammal stocks, and they comply with the terms and condi- § 216.42 Photography. [Reserved] tions of that permit. (2) Except as provided under para- § 216.43 Public display. [Reserved] graph (a)(1)(ii) of this section, no tak- § 216.44 Applicability/transition. ing, including harassment, of marine mammals listed as threatened or en- (a) General. The regulations of this dangered under the ESA is authorized subpart are applicable to all persons, under the General Authorization. Ma- including persons holding permits or rine mammals listed as endangered or other authorizing documents issued be- threatened under the ESA may be fore June 10, 1996, by NMFS for the taken for purposes of scientific re- take, import, export, or conduct of any search only after issuance of a permit otherwise prohibited activity involving for such activities pursuant to the a marine mammal or marine mammal ESA. part for special exception purposes. (3) The following types of research (b) Scientific research. Any intrusive activities will likely qualify for inclu- research as defined in § 216.3, initiated sion under the General Authorization: after June 10, 1996, must be authorized Photo-identification studies, behav- under a scientific research permit. In- ioral observations, and vessel and aer- trusive research authorized by the Of- ial population surveys (except aerial fice Director to be conducted on cap- surveys over pinniped rookeries at alti- tudes of less than 1,000 ft). tive marine mammals held for public (b) Letter of intent. Except as provided display purposes prior to June 10, 1996, under paragraph (a)(1)(ii) of this sec- must be authorized under a scientific tion, any person intending to take ma- research permit one year after June 10, rine mammals in the wild by Level B 1996. harassment for purposes of bona fide [61 FR 21939, May 10, 1996] scientific research under the General Authorization must submit, at least 60
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days before commencement of such re- Level B Harassment for Scientific Research search, a letter of intent by certified applies to the proposed research as described return/receipt mail to the Chief, Per- herein. I certify that the information in this mits Division, F/PR1, Office of Pro- letter of intent is complete, true, and correct tected Resources, NMFS, 1335 East- to the best of my knowledge and belief, and I understand that any false statement may West Highway, Silver Spring, MD subject me to the criminal penalties of 18 20910–3226. U.S.C. 1001, or penalties under the MMPA (1) The letter of intent must be sub- and implementing regulations. I acknowl- mitted by the principal investigator edge and accept that authority to conduct (who shall be deemed the applicant). scientific research on marine mammals in For purposes of this section, the prin- the wild under the General Authorization is cipal investigator is the individual who a limited conditional authority restricted to is responsible for the overall research Level B harassment only, and that any other project, or the institution, govern- take of marine mammals, including the con- mental entity, or corporation respon- duct of any activity that has the potential to sible for supervision of the principal in- injure marine mammals (i.e., Level A harass- vestigator. ment), may subject me to penalties under the MMPA and implementing regulations. (2) The letter of intent must include the following information: (c) Confirmation that the General Au- (i) The name, address, telephone thorization applies or notification of per- number, qualifications and experience mit requirement. of the applicant and any co-investi- (1) Not later than 30 days after re- gator(s) to be conducting the proposed ceipt of a letter of intent as described research, and a curriculum vitae for in paragraph (b) of this section, the each, including a list of publications by Chief, Permits Division, NMFS will each such investigator relevant to the issue a letter to the applicant either: objectives, methodology, or other as- (i) Confirming that the General Au- pects of the proposed research; thorization applies to the proposed sci- (ii) The species or stocks of marine entific research as described in the let- mammals (common and scientific names) that are the subject of the sci- ter of intent; entific research and any other species (ii) Notifying the applicant that all or stock of marine mammals that may or part of the research described in the be harassed during the conduct of the letter of intent is likely to result in a research; taking of a marine mammal in the wild (iii) The geographic location(s) in involving other than Level B harass- which the research is to be conducted, ment and, as a result, cannot be con- e.g., geographic name or lat./long.; ducted under the General Authoriza- (iv) The period(s) of time over which tion, and that a scientific research per- the research will be conducted (up to mit is required to conduct all or part of five years), including the field sea- the subject research; or son(s) for the research, if applicable; (iii) Notifying the applicant that the (v) The purpose of the research, in- letter of intent fails to provide suffi- cluding a description of how the pro- cient information and providing a de- posed research qualifies as bona fide re- scription of the deficiencies, or noti- search as defined in § 216.3; and fying the applicant that the proposed (vi) The methods to be used to con- research as described in the letter of duct the research. intent is not bona fide research as de- (3) The letter of intent must be fined in § 216.3. signed, dated, and certified by the ap- (2) A copy of each letter of intent and plicant as follows: letter confirming that the General Au- In accordance with section 104(c)(3)(C) of thorization applies or notifying the ap- the Marine Mammal Protection Act of 1972, plicant that it does not apply will be as amended (16 U.S.C. 1361 et seq.) and imple- forwarded to the Marine Mammal Com- menting regulations (50 CFR part 216), I mission. hereby notify the National Marine Fisheries Service of my intent to conduct research in- (3) Periodically, NMFS will publish a volving only Level B harassment on marine summary document in the FEDERAL mammals in the wild, and request confirma- REGISTER notifying the public of let- tion that the General Authorization for ters of confirmation issued.
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(d) Terms and conditions. Persons directly supportive of and necessary for issued letters of confirmation in ac- the research being conducted, or be one cordance with paragraph (c) of this sec- of a reasonable number of support per- tion are responsible for complying with sonnel included for the purpose of the following terms and conditions: training or as back-up personnel; (1) Activities are limited to those (5) The principal investigator must conducted for the purposes, by the notify the appropriate Regional Direc- means, in the locations, and during the tor, NMFS, (Regional Director) in writ- periods of time described in the letter ing at least 2 weeks before initiation of of intent and acknowledged as author- on-site activities. The Regional Direc- ized under the General Authorization tor shall consider this information in in the confirmation letter sent pursu- efforts to coordinate field research ac- ant to paragraph (c) of this section; tivities to minimize adverse impacts (2) Annual reports of activities con- on marine mammals in the wild. The ducted under the General Authoriza- principal investigator must cooperate tion must be submitted to the Chief, with coordination efforts by the Re- Permits Division (address listed in gional Director in this regard; paragraph (b) of this section) within 90 (6) If research activities result in a days of completion of the last field sea- taking which exceeds Level B harass- son(s) during the calendar year or, if ment, the applicant shall: the research is not conducted during a (i) Report the taking within 12 hours defined field season, no later than 90 to the Director, Office of Protected Re- days after the anniversary date of the sources, or his designee as set forth in letter of confirmation issued under the letter authorizing research; and paragraph (c) of this section. Annual (ii) Temporarily discontinue for 72 reports must include: hours all field research activities that (i) A summary of research activities resulted in the taking. During this conducted; time period, the applicant shall consult (ii) Identification of the species and with NMFS as to the circumstances number of each species taken by Level surrounding the taking and any pre- B harassment; cautions necessary to prevent future (iii) An evaluation of the progress taking, and may agree to amend the re- made in meeting the objectives of the search protocol, as deemed necessary research as described in the letter of by NMFS. intent; and (7) NMFS may review scientific re- (iv) Any incidental scientific, edu- search conducted pursuant to the Gen- cational, or commercial uses of photo- eral Authorization. If requested by graphs, videotape, and film obtained as NMFS, the applicant must cooperate a result of or incidental to the research with any such review and shall: and if so, names of all photographers. (i) Allow any employee of NOAA or (3) Authorization to conduct research any other person designated by the Di- under the General Authorization is for rector, Office of Protected Resources to the period(s) of time identified in the observe research activities; and letter of intent or for a period of 5 (ii) Provide any documents or other years from the date of the letter of information relating to the scientific confirmation issued under paragraph research; (c) of this section, whichever is less, (8) Any photographs, videotape, or unless extended by the Director or film obtained during the conduct of re- modified, suspended, or revoked in ac- search under the General Authoriza- cordance with paragraph (e) of this sec- tion must be identified by a statement tion; that refers to the General Authoriza- (4) Activities conducted under the tion or ESA permit number, and in- General Authorization may only be cludes the file number provided by conducted under the on-site super- NMFS in the confirmation letter, the vision of the principal investigator or name of the photographer, and the date co-investigator(s) named in the letter the image was taken. This statement of intent. All personnel involved in the must accompany the image(s) in all conduct of activities under the General subsequent uses or sales. The annual Authorization must perform a function report must note incidental scientific,
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educational, or commercial uses of the (c) Additionally, marine mammals or images, and if there are any such uses, marine mammal products which are the names of all photographers; and entered into Alaska, Hawaii, Puerto (9) Persons conducting scientific re- Rico, Guam, American Samoa or the search under authority of the General Virgin Islands and which are not to be Authorization may not transfer or as- forwarded or transhipped within the sign any authority granted thereunder United States may be imported to any other person. through the following ports: (e) Suspension, revocation, or modifica- Alaska—Juneau, Anchorage, Fairbanks tion. (1) NMFS may suspend, revoke, or Hawaii—Honolulu modify the authority to conduct sci- Puerto Rico—San Juan entific research under the General Au- Guam—Honolulu, Hi. thorization if: American Samoa—Honolulu, Hi. (i) The letter of intent included false Virgin Islands—San Juan, P.R. information or statements of a mate- (d) Importers are advised to see 50 rial nature; CFR part 14 for importation require- (ii) The research does not constitute ments and information. bona fide scientific research; [39 FR 1852, Jan. 15, 1974. Redesignated at 59 (iii) Research activities result in FR 50376, Oct. 3, 1994] takings of marine mammals other than by Level B harassment; Subpart F—Pribilof Islands, Taking (iv) Research activities differ from for Subsistence Purposes those described in the letter of intent submitted by the applicant and letter § 216.71 Allowable take of fur seals. of confirmation issued by NMFS; or Pribilovians may take fur seals on (v) The applicant violates any term the Pribilof Islands if such taking is or condition set forth in this section. (a) For subsistence uses, and (2) Any suspension, revocation, or (b) Not accomplished in a wasteful modification is subject to the require- manner. ments of 15 CFR part 904. [51 FR 24840, July 9, 1986. Redesignated at 61 [59 FR 50376, Oct. 3, 1994] FR 11750, Mar. 22, 1996]
§§ 216.46–216.49 [Reserved] § 216.72 Restrictions on taking. (a) The harvests of seals on St. Paul Subpart E—Designated Ports and St. George Islands shall be treated independently for the purposes of this § 216.50 Importation at designated section. Any suspension, termination, ports. or extension of the harvest is applica- (a) Any marine mammal or marine ble only to the island for which it is mammal product which is subject to issued. the jurisdiction of the National Marine (b) By April 1 of every third year, be- Fisheries Service, National Oceanic ginning April 1994, the Assistant Ad- and Atmospheric Administration, De- ministrator will publish in the FED- partment of Commerce and is intended ERAL REGISTER a summary of the pre- for importation into the United States ceding 3 years of harvesting and a dis- shall be subject to the provisions of 50 cussion of the number of seals expected CFR part 14. to be taken annually over the next 3 (b) For the information of importers, years to satisfy the subsistence re- designated ports of entry for the quirements of each island. This discus- United States are: sion will include an assessment of fac- tors and conditions on St. Paul and St. New York, N.Y. George Islands that influence the need Miami, Fla. Chicago, Ill. by Pribilof Aleuts to take seals for sub- San Francisco, Calif. sistence uses and an assessment of any Los Angeles, Calif. changes to those conditions indicating New Orleans, La. that the number of seals that may be Seattle, Wash. taken for subsistence each year should Honolulu, Hi. be made higher or lower. Following a
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30-day public comment period, a final or notification of the expected annual (ii) He determines that the harvest is harvest levels for the next 3 years will otherwise being conducted in a waste- be published. ful manner; or (c)(1) No fur seal may be taken on the (iii) The lower end of the range of the Pribilof Islands before June 23 of each estimated subsistence level provided in year. the notice issued under paragraph (b) (2) No fur seal may be taken except of this section is reached. by experienced sealers using the tradi- (2) A suspension based on a deter- tional harvesting methods, including mination under paragraph (e)(1)(ii) of stunning followed immediately by this section may be lifted by the As- exsanguination. The harvesting meth- sistant Administrator if he finds that od shall include organized drives of the conditions which led to the deter- subadult males to killing fields unless mination that the harvest was being it is determined by the NMFS rep- conducted in a wasteful manner have resentatives, in consultation with the been remedied. Pribilovians conducting the harvest, (3) A suspension issued in accordance that alternative methods will not re- with paragraph (e)(1)(iii) of this section sult in increased disturbance to the may not exceed 48 hours in duration rookery or the increased accidental and shall be followed immediately by a take of female seals. review of the harvest data to determine (3) Any taking of adult fur seals or if a finding under paragraph (e)(1)(i) of pups, or the intentional taking of this section is warranted. If a the har- subadult female fur seals is prohibited. vest is not suspended under paragraph (4) Only subadult male fur seals 124.5 (e)(1)(i) of this section, the Assistant centimeters or less in length may be Administrator must provide a revised taken. estimate of the number of seals re- (5) Seals with tags and/or entangling quired to satisfy the Pribilovians’ sub- debris may only be taken if so directed sistence needs. by NMFS scientists. (f) The Assistant Administrator shall (d) The scheduling of the harvest is terminate the take provided for in at the discretion of the Pribilovians, § 215.31 on August 8 of each year or but must be such as to minimize stress when it is determined under paragraph to the harvested seals. The (e)(1)(i) of this section that the subsist- Pribilovians must give adequate ad- ence needs of the Pribilovians on the vance notice of their harvest schedules island have been satisfied, whichever to the NMFS representatives to allow occurs first. for necessary monitoring activities. [51 FR 24840, July 9, 1986, as amended at 57 Scheduling must be consistent with the FR 33902, July 31, 1992; 59 FR 35474, July 12, following restrictions: 1994. Redesignated at 61 FR 11750, Mar. 22, (1) St. Paul Island—Seals may only be 1996] harvested from the following haulout areas: Zapadni, English Bay, Northeast § 216.73 Disposition of fur seal parts. Point, Polovina, Lukanin, Kitovi, and Except for transfers to other Alaskan Reef. No haulout area may be har- Natives for barter or sharing for per- vested more than once per week. sonal or family consumption, no part (2) St. George Island—Seals may only of a fur seal taken for subsistence uses be harvested from the following may be sold or otherwise transferred to haulout areas: Northeast and Zapadni. any person unless it is a nonedible by- Neither haulout area may be harvested product which: more than twice per week. (a) Has been transformed into an ar- (e)(1) The Assistant Administrator is ticle of handicraft, or required to suspend the take provided (b) Is being sent by an Alaskan Na- for in § 215.31 when: tive directly, or through a registered (i) He determines, after reasonable agent, to a tannery registered under 50 notice by NMFS representatives to the CFR 216.23(c) for the purpose of proc- Pribilovians on the island, that the essing, and will be returned directly to subsistence needs of the Pribilovians the Alaskan Native for conversion into on the island have been satisfied; an article of handicraft, or
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(c) Is being sold or transferred to an § 216.82 Dogs prohibited. Alaskan Native, or to an agent reg- In order to prevent molestation of fur istered under 50 CFR 216.23(c) for resale seal herds, the landing of any dogs at or transfer to an Alaskan Native, who Pribilof Islands is prohibited. will convert the seal part into a handi- craft. [41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996] [51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996] § 216.83 Importation of birds or mam- mals. § 216.74 Cooperation with Federal offi- cials. No mammals or birds, except house- hold cats, canaries and parakeets, shall Pribilovians who engage in the har- be imported to the Pribilof Islands vest of seals are required to cooperate without the permission of an author- with scientists engaged in fur seal re- ized representative of the National Ma- search on the Pribilof Islands who may rine Fisheries Service. need assistance in recording tag or [41 FR 49488, Nov. 9, 1976. Redesignated at 61 other data and collecting tissue or FR 11750, Mar. 22, 1996] other fur seal samples for research pur- poses. In addition, Pribilovians who § 216.84 [Reserved] take fur seals for subsistence uses must, consistent with 5 CFR § 216.85 Walrus and Otter Islands. 1320.7(k)(3), cooperate with the NMFS By Executive Order 1044, dated Feb- representatives on the Pribilof Islands ruary 27, 1909, Walrus and Otter Islands who are responsible for compiling the were set aside as bird reservations. All following information on a daily basis: persons are prohibited to land on these (a) The number of seals taken each islands except those authorized by the day in the subsistence harvest, appropriate representative of the Na- (b) The extent of the utilization of tional Marine Fisheries Service. fur seals taken, and [41 FR 49488, Nov. 9, 1976. Redesignated at 61 (c) Other information determined by FR 11750, Mar. 22, 1996] the Assistant Administrator to be nec- essary for determining the subsistence § 216.86 Local regulations. needs of the Pribilovians or for making Local regulations will be published determinations under § 215.32(e). from time to time and will be brought [51 FR 24840, July 9, 1986. Redesignated at 61 to the attention of local residents and FR 11750, Mar. 22, 1996] persons assigned to duty on the Islands by posting in public places and brought to the attention of tourists by personal Subpart G—Pribilof Islands notice. Administration [41 FR 49488, Nov. 9, 1976. Redesignated at 61 § 216.81 Visits to fur seal rookeries. FR 11750, Mar. 22, 1996] From June 1 to October 15 of each § 216.87 Wildlife research. year, no person, except those author- ized by a representative of the National (a) Wildlife research, other than re- Marine Fisheries Service, or accom- search on North Pacific fur seals, in- panied by an authorized employee of cluding specimen collection, may be permitted on the Pribilof Islands sub- the National Marine Fisheries Service, ject to the following conditions: shall approach any fur seal rookery or (1) Any person or agency, seeking to hauling grounds nor pass beyond any conduct such research shall first obtain posted sign forbidding passage. any Federal or State of Alaska permit [41 FR 49488, Nov. 9, 1976. Redesignated at 61 required for the type of research in- FR 11750, Mar. 22, 1996] volved.
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(2) Any person seeking to conduct sale in the United States to include on such research shall obtain prior ap- the label of that product the term ‘‘dol- proval of the Director, Pribilof Islands phin safe’’ or any other term, phrase, Program, National Marine Fisheries or symbol that claims or suggests that Service, National Oceanic and Atmos- the tuna contained in the product was pheric Administration, 1700 Westlake harvested using a fishing method that Avenue North, Seattle, WA 98109, by is not harmful to dolphins, if the prod- filing with the Director an application uct: which shall include: (a) Contains tuna harvested with a (i) Copies of the required Federal and large-scale driftnet; or State of Alaska permits; and (b) Contains tuna harvested in the (ii) A resume of the intended research ETP by a purse seine vessel 400 short program. (3) All approved research shall be tons (362.8 metric tons) carrying capac- subject to all regulations and adminis- ity or greater and is labeled in a man- trative procedures in effect on the ner that violates the standards set Pribilof Islands, and such research forth in § 216.92 or § 216.93. shall not commence until approval from the Director is received. § 216.92 Purse seine vessels greater (4) Any approved research program than 400 short tons (362.8 metric tons). shall be subject to such terms and con- ditions as the Director, Pribilof Islands For purposes of § 216.91(b), any tuna Program deems appropriate. product containing tuna that were har- (5) Permission to utilize the Pribilof vested in the ETP by a purse seine ves- Islands to conduct an approved re- sel 400 short tons (362.8 metric tons) search program may be revoked by the carrying capacity or greater, must be Director, Pribilof Islands Program at accompanied by: any time for noncompliance with any (a) A completed Fisheries Certificate terms and conditions, or for violations of Origin; of any regulation or administrative (b) A written statement by the cap- procedure in effect on the Pribilof Is- tain of each vessel that harvested the lands. tuna, certifying that the vessel did not [43 FR 5521, Feb. 9, 1978. Redesignated at 61 intentionally deploy a purse seine net FR 11750, Mar. 22, 1996] on or to encircle dolphins at any time during the trip; Subpart H—Dolphin Safe Tuna (c) A written statement certifying Labeling that an observer, employed by or work- ing under contract with the Inter- AUTHORITY: 16 U.S.C. 1385. American Tropical Tuna Commission SOURCE: 61 FR 27794, June 3, 1996, unless or the Secretary, was on board the ves- otherwise noted. sel during the entire trip and that the vessel did not intentionally deploy a § 216.90 Purpose. purse seine net on or to encircle dol- This subpart governs the require- phin at any time during the trip. The ments for labeling of tuna or tuna statement must be signed by either: products sold in or exported from the (1) The Secretary; or United States that suggest the tuna (2) A representative of the Inter- was harvested in a manner not inju- American Tropical Tuna Commission; rious to dolphins. and § 216.91 Labeling requirements. (d) An endorsement on the Fisheries Certificate of Origin by each exporter, It is a violation of section 5 of the importer, and processor certifying Federal Trade Commission Act (15 that, to the best of his or her knowl- U.S.C. 45) for any person subject to U.S. jurisdiction, including any pro- edge and belief, the Fisheries Certifi- ducer, exporter, importer, distributor, cate of Origin and attached documenta- or seller of any tuna product exported tion, accurately describe the tuna from the United States or offered for products.
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§ 216.93 Submission of documentation. dental, but not intentional, taking of The documents required by § 216.92 small numbers of marine mammals by U.S. citizens who engage in a specified must accompany the tuna product activity (other than commercial fish- whenever it is offered for sale or ex- ing) within a specified geographic re- port, except that these documents need gion. not accompany the product when of- fered for sale if: § 216.102 Scope. (a) The documents do not require fur- ther endorsement by any importer or The taking of small numbers of ma- processor, and are submitted to offi- rine mammals under section 101(a)(5) cials of the U.S. Customs Service at (A) through (D) of the Marine Mammal the time of import; or Protection Act may be allowed only if (b) The documents are endorsed as re- the National Marine Fisheries Service: quired by § 216.92(d) and delivered to (a) Finds, based on the best scientific the Director, Southwest Region, or to evidence available, that the total tak- the U.S. Customs Service at the time ing by the specified activity during the of exportation. specified time period will have a neg- ligible impact on species or stock of § 216.94 Requests to review docu- marine mammal(s) and will not have ments. an unmitigable adverse impact on the At any time, the Assistant Adminis- availability of those species or stocks trator may request, in writing, any ex- of marine mammals intended for sub- porter, importer, processor, dis- sistence uses; tributor, or seller of any tuna or tuna (b) Prescribes either regulations product labeled in a manner subject to under § 216.106, or requirements and the requirements of § 216.91, to produce, conditions contained within an inci- within a specified time period, all doc- dental harassment authorization issued umentary evidence concerning the ori- under § 216.107, setting forth permis- gin of any product that is offered for sible methods of taking and other sale as ‘‘dolphin safe,’’ including the means of effecting the least practicable original invoice. adverse impact on the species or stock of marine mammal and its habitat and § 216.95 False statements or endorse- on the availability of the species or ments. stock of marine mammal for subsist- Any person who knowingly and will- ence uses, paying particular attention fully makes a false statement or false to rookeries, mating grounds, and endorsement required by § 216.92 is lia- areas of similar significance; and ble for a civil penalty not to exceed (c) Prescribes either regulations or $100,000, that may be assessed in an ac- requirements and conditions contained tion brought in any appropriate Dis- within an incidental harassment au- trict Court of the United States on be- thorization, as appropriate, pertaining half of the Secretary. to the monitoring and reporting of such taking. The specific regulations governing certain specified activities Subpart I—General Regulations are contained in subsequent subparts of Governing Small Takes of Ma- this part. rine Mammals Incidental to Specified Activities § 216.103 Definitions. In addition to definitions contained SOURCE: 61 FR 15887, Apr. 10, 1996, unless in the MMPA, and in § 216.3, and unless otherwise noted. the context otherwise requires, in sub- sequent subparts to this part: § 216.101 Purpose. Arctic waters means the marine and The regulations in this subpart im- estuarine waters north of 60° N. lat. plement section 101(a)(5) (A) through Citizens of the United States and U.S. (D) of the Marine Mammal Protection citizens mean individual U.S. citizens or Act of 1972, as amended, 16 U.S.C. any corporation or similar entity if it 1371(a)(5), which provides a mechanism is organized under the laws of the for allowing, upon request, the inci- United States or any governmental
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unit defined in 16 U.S.C. 1362(13). U.S. cidental to a specified activity (other Federal, state and local government than commercial fishing), or to make a agencies shall also constitute citizens finding that an incidental take is un- of the United States for purposes of likely to occur, a written request must this part. be submitted to the Assistant Adminis- Incidental harassment, incidental tak- trator. All requests must include the ing and incidental, but not intentional, following information for their activ- taking all mean an accidental taking. ity: This does not mean that the taking is (1) A detailed description of the spe- unexpected, but rather it includes cific activity or class of activities that those takings that are infrequent, un- can be expected to result in incidental avoidable or accidental. (A complete taking of marine mammals; definition of ‘‘take’’ is contained in (2) The date(s) and duration of such § 216.3). activity and the specific geographical Negligible impact is an impact result- region where it will occur; ing from the specified activity that (3) The species and numbers of ma- cannot be reasonably expected to, and rine mammals likely to be found with- is not reasonably likely to, adversely in the activity area; affect the species or stock through ef- (4) A description of the status, dis- fects on annual rates of recruitment or tribution, and seasonal distribution survival. (when applicable) of the affected spe- Small numbers means a portion of a cies or stocks of marine mammals like- marine mammal species or stock whose ly to be affected by such activities; taking would have a negligible impact (5) The type of incidental taking au- on that species or stock. thorization that is being requested Specified activity means any activity, (i.e., takes by harassment only; takes other than commercial fishing, that by harassment, injury and/or death) takes place in a specified geographical and the method of incidental taking; region and potentially involves the taking of small numbers of marine (6) By age, sex, and reproductive con- mammals. dition (if possible), the number of ma- Specified geographical region means an rine mammals (by species) that may be area within which a specified activity taken by each type of taking identified is conducted and that has certain bio- in paragraph (a)(5) of this section, and geographic characteristics. the number of times such takings by Unmitigable adverse impact means an each type of taking are likely to occur; impact resulting from the specified ac- (7) The anticipated impact of the ac- tivity: tivity upon the species or stock of ma- (1) That is likely to reduce the avail- rine mammal; ability of the species to a level insuffi- (8) The anticipated impact of the ac- cient for a harvest to meet subsistence tivity on the availability of the species needs by: or stocks of marine mammals for sub- (i) Causing the marine mammals to sistence uses; abandon or avoid hunting areas; (9) The anticipated impact of the ac- (ii) Directly displacing subsistence tivity upon the habitat of the marine users; or mammal populations, and the likeli- (iii) Placing physical barriers be- hood of restoration of the affected tween the marine mammals and the habitat; subsistence hunters; and (10) The anticipated impact of the (2) That cannot be sufficiently miti- loss or modification of the habitat on gated by other measures to increase the marine mammal populations in- the availability of marine mammals to volved; allow subsistence needs to be met. (11) The availability and feasibility (economic and technological) of equip- § 216.104 Submission of requests. ment, methods, and manner of con- (a) In order for the National Marine ducting such activity or other means of Fisheries Service to consider author- effecting the least practicable adverse izing the taking by U.S. citizens of impact upon the affected species or small numbers of marine mammals in- stocks, their habitat, and on their
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availability for subsistence uses, pay- ing to the Director, Office of Protected ing particular attention to rookeries, Resources; and mating grounds, and areas of similar (14) Suggested means of learning of, significance; encouraging, and coordinating research (12) Where the proposed activity opportunities, plans, and activities re- would take place in or near a tradi- lating to reducing such incidental tak- tional Arctic subsistence hunting area ing and evaluating its effects. and/or may affect the availability of a (b)(1) The Assistant Administrator species or stock of marine mammal for shall determine the adequacy and com- Arctic subsistence uses, the applicant pleteness of a request and, if deter- must submit either a plan of coopera- mined to be adequate and complete, tion or information that identifies will begin the public review process by what measures have been taken and/or publishing in the FEDERAL REGISTER ei- will be taken to minimize any adverse ther: effects on the availability of marine (i) A proposed incidental harassment mammals for subsistence uses. A plan authorization; or must include the following: (ii) A notice of receipt of a request (i) A statement that the applicant for the implementation or re- has notified and provided the affected implementation of regulations gov- subsistence community with a draft erning the incidental taking. plan of cooperation; (2) Through notice in the FEDERAL (ii) A schedule for meeting with the REGISTER, newspapers of general cir- affected subsistence communities to culation, and appropriate electronic discuss proposed activities and to re- media in the coastal areas that may be solve potential conflicts regarding any aspects of either the operation or the affected by such activity, NMFS will plan of cooperation; invite information, suggestions, and comments for a period not to exceed 30 (iii) A description of what measures days from the date of publication in the applicant has taken and/or will take to ensure that proposed activities the FEDERAL REGISTER. All informa- will not interfere with subsistence tion and suggestions will be considered whaling or sealing; and by the National Marine Fisheries Serv- (iv) What plans the applicant has to ice in developing, if appropriate, the continue to meet with the affected most effective regulations governing communities, both prior to and while the issuance of letters of authorization conducting the activity, to resolve con- or conditions governing the issuance of flicts and to notify the communities of an incidental harassment authoriza- any changes in the operation; tion. (13) The suggested means of accom- (3) Applications that are determined plishing the necessary monitoring and to be incomplete or inappropriate for reporting that will result in increased the type of taking requested, will be re- knowledge of the species, the level of turned to the applicant with an expla- taking or impacts on populations of nation of why the application is being marine mammals that are expected to returned. be present while conducting activities (c) The Assistant Administrator shall and suggested means of minimizing evaluate each request to determine, burdens by coordinating such reporting based upon the best available scientific requirements with other schemes al- evidence, whether the taking by the ready applicable to persons conducting specified activity within the specified such activity. Monitoring plans should geographic region will have a neg- include a description of the survey ligible impact on the species or stock techniques that would be used to deter- and, where appropriate, will not have mine the movement and activity of an unmitigable adverse impact on the marine mammals near the activity availability of such species or stock for site(s) including migration and other subsistence uses. If the Assistant Ad- habitat uses, such as feeding. Guide- ministrator finds that the mitigating lines for developing a site-specific mon- measures would render the impact of itoring plan may be obtained by writ- the specified activity negligible when
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it would not otherwise satisfy that re- fied, in whole or in part, after notice quirement, the Assistant Adminis- and opportunity for public review. trator may make a finding of neg- ligible impact subject to such miti- § 216.106 Letter of Authorization. gating measures being successfully im- (a) A Letter of Authorization, which plemented. Any preliminary findings of may be issued only to U.S. citizens, is ‘‘negligible impact’’ and ‘‘no required to conduct activities pursuant unmitigable adverse impact’’ shall be to any regulations established under proposed for public comment along § 216.105. Requests for Letters of Au- with either the proposed incidental thorization shall be submitted to the harassment authorization or the pro- posed regulations for the specific activ- Director, Office of Protected Re- ity. sources. The information to be sub- (d) If, subsequent to the public review mitted in a request for an authoriza- period, the Assistant Administrator tion will be specified in the appropriate finds that the taking by the specified subpart to this part or may be obtained activity would have more than a neg- by writing to the above named person. ligible impact on the species or stock (b) Issuance of a Letter of Authoriza- of marine mammal or would have an tion will be based on a determination unmitigable adverse impact on the that the level of taking will be con- availability of such species or stock for sistent with the findings made for the subsistence uses, the Assistant Admin- total taking allowable under the spe- istrator shall publish in the FEDERAL cific regulations. REGISTER the negative finding along (c) Letters of Authorization will with the basis for denying the request. specify the period of validity and any additional terms and conditions appro- § 216.105 Specific regulations. priate for the specific request. (a) For all petitions for regulations (d) Notice of issuance of all Letters of under this paragraph, applicants must Authorization will be published in the provide the information requested in FEDERAL REGISTER within 30 days of § 216.104(a) on their activity as a whole, issuance. which includes, but is not necessarily limited to, an assessment of total im- (e) Letters of Authorization shall be pacts by all persons conducting the ac- withdrawn or suspended, either on an tivity. individual or class basis, as appro- (b) For allowed activities that may priate, if, after notice and opportunity result in incidental takings of small for public comment, the Assistant Ad- numbers of marine mammals by har- ministrator determines that: assment, serious injury, death or a (1) The regulations prescribed are not combination thereof, specific regula- being substantially complied with; or tions shall be established for each al- (2) The taking allowed is having, or lowed activity that set forth: may have, more than a negligible im- (1) Permissible methods of taking; pact on the species or stock or, where (2) Means of effecting the least prac- relevant, an unmitigable adverse im- ticable adverse impact on the species pact on the availability of the species and its habitat and on the availability or stock for subsistence uses. of the species for subsistence uses; and (f) The requirement for notice and (3) Requirements for monitoring and opportunity for public review in reporting, including requirements for § 216.106(e) shall not apply if the Assist- the independent peer-review of pro- ant Administrator determines that an posed monitoring plans where the pro- posed activity may affect the avail- emergency exists that poses a signifi- ability of a species or stock for taking cant risk to the wellbeing of the spe- for subsistence uses. cies or stocks of marine mammals con- (c) Regulations will be established cerned. based on the best available informa- (g) A violation of any of the terms tion. As new information is developed, and conditions of a Letter of Author- through monitoring, reporting, or re- ization or of the specific regulations search, the regulations may be modi-
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shall subject the Holder and/or any in- (f) An incidental harassment author- dividual who is operating under the au- ization shall be modified, withdrawn, thority of the Holder’s Letter of Au- or suspended if, after notice and oppor- thorization to penalties provided in the tunity for public comment, the Assist- MMPA. ant Administrator determines that: (1) The conditions and requirements § 216.107 Incidental harassment au- prescribed in the authorization are not thorization for Arctic waters. being substantially complied with; or (a) Except for activities that have (2) The authorized taking, either in- the potential to result in serious injury dividually or in combination with or mortality, which must be authorized other authorizations, is having, or may under § 216.105, incidental harassment have, more than a negligible impact on authorizations may be issued, fol- the species or stock or, where relevant, lowing a 30-day public review period, to an unmitigable adverse impact on the allowed activities that may result in availability of the species or stock for only the incidental harassment of a subsistence uses. small number of marine mammals. (g) The requirement for notice and Each such incidental harassment au- thorization shall set forth: opportunity for public review in para- graph (f) of this section shall not apply (1) Permissible methods of taking by harassment; if the Assistant Administrator deter- mines that an emergency exists that (2) Means of effecting the least prac- ticable adverse impact on the species, poses a significant risk to the well- its habitat, and on the availability of being of the species or stocks of marine the species for subsistence uses; and mammals concerned. (3) Requirements for monitoring and (h) A violation of any of the terms reporting, including requirements for and conditions of an incidental harass- the independent peer-review of pro- ment authorization shall subject the posed monitoring plans where the pro- holder and/or any individual who is op- posed activity may affect the avail- erating under the authority of the ability of a species or stock for taking holder’s incidental harassment author- for subsistence uses. ization to penalties provided in the (b) Issuance of an incidental harass- MMPA. ment authorization will be based on a determination that the number of ma- § 216.108 Requirements for monitoring rine mammals taken by harassment and reporting under incidental har- assment authorizations for Arctic will be small, will have a negligible im- waters. pact on the species or stock of marine mammal(s), and will not have an (a) Holders of an incidental harass- unmitigable adverse impact on the ment authorization in Arctic waters availability of species or stocks for and their employees, agents, and des- taking for subsistence uses. ignees must cooperate with the Na- (c) An incidental harassment author- tional Marine Fisheries Service and ization will be either issued or denied other designated Federal, state, or within 45 days after the close of the local agencies to monitor the impacts public review period. of their activity on marine mammals. (d) Notice of issuance or denial of an Unless stated otherwise within an inci- incidental harassment authorization dental harassment authorization, the will be published in the FEDERAL REG- holder of an incidental harassment au- ISTER within 30 days of issuance of a thorization effective in Arctic waters determination. must notify the Alaska Regional Direc- (e) Incidental harassment authoriza- tor, National Marine Fisheries Service, tions will be valid for a period of time of any activities that may involve a not to exceed 1 year but may be re- take by incidental harassment in Arc- newed for additional periods of time tic waters at least 14 calendar days not to exceed 1 year for each reauthor- prior to commencement of the activ- ization. ity.
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(b) Holders of incidental harassment (f)(1) As specified in the incidental authorizations effective in Arctic wa- harassment authorization, the holder ters may be required by their author- of an incidental harassment authoriza- ization to designate at least one quali- tion for Arctic waters must submit re- fied biological observer or another ap- ports to the Assistant Administrator propriately experienced individual to within 90 days of completion of any in- observe and record the effects of activi- dividual components of the activity (if ties on marine mammals. The number any), within 90 days of completion of of observers required for monitoring the activity, but no later than 120 days the impact of the activity on marine prior to expiration of the incidental mammals will be specified in the inci- harassment authorization, whichever is dental harassment authorization. If ob- earlier. This report must include the servers are required as a condition of following information: the authorization, the observer(s) must be approved in advance by the National (i) Dates and type(s) of activity; Marine Fisheries Service. (ii) Dates and location(s) of any ac- (c) The monitoring program must, if tivities related to monitoring the ef- appropriate, document the effects (in- fects on marine mammals; and cluding acoustical) on marine mam- (iii) Results of the monitoring activi- mals and document or estimate the ac- ties, including an estimate of the ac- tual level of take. The requirements tual level and type of take, species for monitoring plans, as specified in name and numbers of each species ob- the incidental harassment authoriza- served, direction of movement of spe- tion, may vary depending on the activ- cies, and any observed changes or ity, the location, and the time. modifications in behavior. (d) Where the proposed activity may (2) Monitoring reports will be re- affect the availability of a species or viewed by the Assistant Administrator stock of marine mammal for taking for and, if determined to be incomplete or subsistence purposes, proposed moni- inaccurate, will be returned to the toring plans or other research pro- holder of the authorization with an ex- posals must be independently peer-re- planation of why the report is being re- viewed prior to issuance of an inci- turned. If the authorization holder dis- dental harassment authorization under agrees with the findings of the Assist- this subpart. In order to complete the ant Administrator, the holder may re- peer-review process within the time quest an independent peer review of the frames mandated by the MMPA for an report. Failure to submit a complete incidental harassment authorization, a and accurate report may result in a proposed monitoring plan submitted delay in processing future authoriza- under this paragraph must be sub- mitted to the Assistant Administrator tion requests. no later than the date of submission of (g) Results of any behavioral, feed- the application for an incidental har- ing, or population studies, that are assment authorization. Upon receipt of conducted supplemental to the moni- a complete monitoring plan, and at its toring program, should be made avail- discretion, the National Marine Fish- able to the National Marine Fisheries eries Service will either submit the Service before applying for an inci- plan to members of a peer review panel dental harassment authorization for for review or within 60 days of receipt the following year. of the proposed monitoring plan, sched- ule a workshop to review the plan. The Subpart J—Taking of Ringed Seals applicant must submit a final moni- Incidental to On-Ice Seismic toring plan to the Assistant Adminis- trator prior to the issuance of an inci- Activities dental harassment authorization. (e) At its discretion, the National SOURCE: 63 FR 5283, Feb. 2, 1998, unless oth- Marine Fisheries Service may place an erwise noted. observer aboard vessels, platforms, air- EFFECTIVE DATE NOTE: At 63 FR 5283, Feb. craft, etc., to monitor the impact of ac- 2, 1998, subpart J was revised, effective Feb. tivities on marine mammals. 2, 1998, to Dec. 31, 2002.
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§ 216.111 Specified activity and speci- (b) Holders of Letters of Authoriza- fied geographical region. tion must designate qualified on-site Regulations in this subpart apply individuals, as specified in the Letter only to the incidental taking of ringed of Authorization, to observe and record seals (Phoca hispida) and bearded seals the presence of ringed or bearded seals (Erignathus barbatus) by U.S. citizens and ringed seal lairs along shot lines engaged in on-ice seismic exploratory and around camps, and the information and associated activities over the required in paragraph (d) of this sec- Outer Continental Shelf of the Beau- tion. fort Sea of Alaska, from the shore out- (c) Holders of Letters of Authoriza- ward to 45 mi (72 km) and from Point tion must conduct additional moni- Barrow east to Demarcation Point, toring as required under an annual Let- from January 1 through May 31 of any ter of Authorization. calendar year. (d) An annual report must be sub- mitted to the Assistant Administrator § 216.112 Effective dates. for Fisheries within 90 days after com- Regulations in this subpart are effec- pleting each year’s activities and must tive from February 2, 1998 through De- include the following information: cember 31, 2002. (1) Location(s) of survey activities. (2) Level of effort (e.g., duration, area § 216.113 Permissible methods. surveyed, number of surveys), methods The incidental, but not intentional, used, and a description of habitat (e.g., taking of ringed and bearded seals from ice thickness, surface topography) for January 1 through May 31 by U.S. citi- each location. zens holding a Letter of Authorization, (3) Numbers of ringed seals, bearded issued under § 216.106, is permitted dur- seals, or other marine mammals ob- ing the course of the following activi- served, proximity to seismic or associ- ties: ated activities, and any seal reactions (a) On-ice geophysical seismic activi- observed for each location. ties involving vibrator-type, airgun, or (4) Numbers of ringed seal lairs ob- other energy source equipment shown served and proximity to seismic or as- to have similar or lesser effects. sociated activities for each location. (b) Operation of transportation and (5) Other information as required in a camp facilities associated with seismic Letter of Authorization. activities. § 216.116 Applications for Letters of § 216.114 Mitigation. Authorization. (a) All activities identified in § 216.113 (a) To incidentally take ringed and must be conducted in a manner that bearded seals pursuant to these regula- minimizes to the greatest extent prac- tions, each company conducting seis- ticable adverse effects on ringed and mic operations between January 1 and bearded seals and their habitat. May 31 in the geographical area de- (b) All activities identified in § 216.113 scribed in § 216.111, must apply for and must be conducted as far as practicable from any observed ringed or bearded obtain a Letter of Authorization in ac- seal or ringed seal lair. No energy cordance with § 216.106. source must be placed over an observed (b) The application must be sub- ringed seal lair, whether or not any mitted to the National Marine Fish- seal is present. eries Service at least 90 days before the activity is scheduled to begin. § 216.115 Requirements for monitoring (c) Applications for Letters of Au- and reporting. thorization and for renewals of Letters (a) Holders of Letters of Authoriza- of Authorization must include the fol- tion are required to cooperate with the lowing: National Marine Fisheries Service and (1) Name of company requesting the any other Federal, state, or local agen- authorization; cy monitoring the impacts on ringed or (2) A description of the activity in- bearded seals. cluding method to be used (vibroseis,
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airgun, watergun), the dates and dura- ization under § 216.117, without modi- tion of the activity, the specific loca- fication, is not considered a sub- tion of the activity and the estimated stantive modification. area that will actually be affected by (b) If the Assistant Administrator de- the exploratory activity; termines that an emergency exists that (3) Any plans to monitor the behavior poses a significant risk to the well- and effects of the activity on marine being of the species or stocks of marine mammals; mammals specified in § 216.111, the Let- (4) A description of what measures ter of Authorization issued pursuant to the applicant has taken and/or will § 216.106, or renewed pursuant to this take to ensure that proposed activities section may be substantively modified will not interfere with subsistence seal- without prior notice and an oppor- ing; and tunity for public comment. A notice (5) What plans the applicant has to will be published in the FEDERAL REG- continue to meet with the affected ISTER subsequent to the action. communities, both prior to and while conducting the activity, to resolve con- § 216.119 [Reserved] flicts and to notify the communities of any changes in the operation. Subpart K—Taking of Marine (d) A copy of the Letter of Authoriza- Mammals Incidental to Space tion must be in the possession of the Vehicle and Test Flight Activi- persons conducting activities that may ties involve incidental takings of ringed and bearded seals. SOURCE: 64 FR 9930, Mar. 1, 1999, unless oth- erwise noted. § 216.117 Renewal of Letters of Author- ization. EFFECTIVE DATE NOTE: At 64 FR 9930, Mar. 1, 1999, subpart K was added, effective Mar. 1, (a) A Letter of Authorization issued 1999, to Dec. 31, 2003. under § 216.106 for the activity identi- fied in § 216.111 will be renewed annu- § 216.120 Specified activity and speci- ally upon: fied geographical region. (1) Timely receipt of the reports re- (a) Regulations in this subpart apply quired under § 216.115(d), which have only to the incidental taking of those been reviewed by the Assistant Admin- marine mammals specified in para- istrator and determined to be accept- graph (b) of this section by U.S. citi- able; and zens engaged in: (2) A determination that the mitiga- (1) Launching up to 10 Minuteman tion measures required under and Peacekeeper missiles each year § 216.114(b) and the Letter of Authoriza- from Vandenberg Air Force Base, for a tion have been undertaken. total of up to 50 missiles over the 5- (b) A notice of issuance of a Letter of year authorization period, Authorization or of a renewal of a Let- (2) Launching up to 20 rockets each ter of Authorization will be published year from Vandenberg Air Force Base, in the FEDERAL REGISTER within 30 for a total of up to 100 rocket launches days of issuance. over the 5-year authorization period, (3) Aircraft flight test operations, § 216.118 Modifications to Letters of and Authorization. (4) Helicopter operations from Van- (a) In addition to complying with the denberg Air Force Base. provisions of § 216.106, except as pro- (b) The incidental take of marine vided in paragraph (b) of this section, mammals on Vandenberg Air Force no substantive modification, including Base and in waters off southern Cali- withdrawal or suspension, to a Letter fornia, under the activity identified in of Authorization issued pursuant to paragraph (a) of this section, is limited § 216.106 and subject to the provisions of to the following species: Harbor seals this subpart shall be made until after (Phoca vitulina), California sea lions notice and an opportunity for public (Zalophus californianus), northern ele- comment. For purposes of this para- phant seals (Mirounga angustirostris), graph, renewal of a Letter of Author- northern fur seals (Callorhinus ursinus),
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Guadalupe fur seals (Arctocephalus curity incidents (e.g., search-and-res- townsendi), and Steller sea lions cue, fire-fighting) which may require (Eumetopias jubatus). approaching pinniped rookeries closer than 1,000 ft (305 m). § 216.121 Effective dates. (2) For missile and rocket launches, Regulations in this subpart are effec- unless constrained by other factors in- tive from March 1, 1999, through De- cluding, but not limited to, human cember 31, 2003. safety, national security or launch tra- jectories, in order to ensure minimum § 216.122 Permissible methods of tak- negligible impacts of launches on har- ing. bor seals and other pinnipeds, holders (a) Under Letters of Authorization of Letters of Authorization must avoid, issued pursuant to § 216.106, the 30th whenever possible, launches during the Space Wing, U.S. Air Force, its con- harbor seal pupping season of February tractors, and clients, may incidentally, through May. but not intentionally, take marine (3) For Titan IV launches only, the mammals by harassment, within the holder of that Letter of Authorization area described in § 216.120, provided all must avoid launches, whenever pos- terms, conditions, and requirements of sible, which predict a sonic boom on these regulations and such Letter(s) of the Northern Channel Islands during Authorization are complied with. harbor seal, elephant seal, and Cali- (b) [Reserved] fornia sea lion pupping seasons. § 216.123 Prohibitions. (4) If post-launch surveys determine that an injurious or lethal take of a Notwithstanding takings authorized marine mammal has occurred, the by § 216.120 and by a Letter of Author- launch procedure and the monitoring ization issued under § 216.106, no person methods must be reviewed, in coopera- in connection with the activities de- tion with NMFS, and appropriate scribed in § 216.120 shall: changes must be made through modi- (a) Take any marine mammal not fication to a Letter of Authorization, specified in § 216.120(b); (b) Take any marine mammal speci- prior to conducting the next launch fied in § 216.120(b) other than by inci- under that Letter of Authorization. dental, unintentional harassment; (5) Additional mitigation measures as (c) Take a marine mammal specified contained in a Letter of Authorization. in § 216.120(b) if such take results in (b) [Reserved] more than a negligible impact on the species or stocks of such marine mam- § 216.125 Requirements for monitoring mal; or and reporting. (d) Violate, or fail to comply with, (a) Holders of Letters of Authoriza- the terms, conditions, and require- tion issued pursuant to § 216.106 for ac- ments of these regulations or a Letter tivities described in § 216.120(a) are re- of Authorization issued under § 216.106. quired to cooperate with the National Marine Fisheries Service, and any § 216.124 Mitigation. other Federal, state or local agency (a) The activity identified in monitoring the impacts of the activity § 216.120(a) must be conducted in a man- on marine mammals. Unless specified ner that minimizes, to the greatest ex- otherwise in the Letter of Authoriza- tent possible, adverse impacts on ma- tion, the Holder of the Letter of Au- rine mammals and their habitats. thorization must notify the Adminis- When conducting operations identified trator, Southwest Region, National in § 216.120, the following mitigation Marine Fisheries Service, by letter or measures must be utilized: telephone, at least 2 weeks prior to ac- (1) All aircraft and helicopter flight tivities possibly involving the taking paths must maintain a minimum dis- of marine mammals. tance of 1,000 ft (305 m) from recognized (b) Holders of Letters of Authoriza- seal haulouts and rookeries (e.g., Point tion must designate qualified on-site Sal, Purisima Point, Rocky Point), ex- individuals, as specified in the Letter cept in emergencies or for real-time se- of Authorization, to:
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(1) Conduct observations on harbor (iv) The numbers of pinniped adults seal, elephant seal, and sea lion activ- or pups that may have been injured or ity in the vicinity of the rookery near- killed as a result of the launch, and est the launch platform or, in the ab- (v) Behavioral modifications by sence of pinnipeds at that location, at pinnipeds noted that were likely the another nearby haulout, for at least 72 result of launch noise or the sonic hours prior to any planned launch and boom. continue for a period of time not less (e) An annual report must be sub- than 48 hours subsequent to launching, mitted that describes any incidental (2) Monitor haulout sites on the takings not reported under paragraph Northern Channel Islands if it is deter- (d) of this section. mined that a sonic boom could impact (f) A final report must be submitted those areas (this determination will be at least 180 days prior to expiration of made in consultation with the National these regulations. This report will: Marine Fisheries Service), (1) Summarize the activities under- (3) As required under a Letter of Au- taken and the results reported all pre- thorization, investigate the potential vious reports, for spontaneous abortion, disruption of (2) Assess the impacts at each of the effective female-neonate bonding, and major rookeries, other reproductive dysfunction, (3) Assess the cumulative impact on (4) Supplement observations on Van- pinnipeds and other marine mammals denberg and on the Northern Channel from Vandenberg activities, and Islands, if indicated, with video-record- (4) State the date(s) location(s) and ing of mother-pup seal responses for findings of any research activities re- daylight launches during the pupping lated to monitoring the effects on season, and launch noise and sonic booms on ma- (5) Conduct acoustic measurements rine mammal populations. of those launch vehicles not having § 216.126 Applications for Letters of sound pressure level measurements Authorization. made previously. (c) Holders of Letters of Authoriza- (a) To incidentally take harbor seals tion must conduct additional moni- and other marine mammals pursuant toring as required under an annual Let- to these regulations, either the U.S. citizen (see definition at § 216.103) con- ter of Authorization. ducting the activity or the 30th Space (d) The Holder of the Letter of Au- Wing on behalf of the U.S. citizen con- thorization must submit a report to ducting the activity, must apply for the Southwest Administrator, National and obtain a Letter of Authorization in Marine Fisheries Service within 90 accordance with § 216.106. days after each launch. This report (b) The application must be sub- must contain the following informa- mitted to the National Marine Fish- tion: eries Service at least 30 days before the (1) Date(s) and time(s) of the launch, activity is scheduled to begin. (2) Design of the monitoring pro- (c) Applications for Letters of Au- gram, and thorization and for renewals of Letters (3) Results of the monitoring pro- of Authorization must include the fol- grams, including, but not necessarily lowing: limited to: (1) Name of the U.S. citizen request- (i) Numbers of pinnipeds present on ing the authorization, the haulout prior to commencement of (2) A description of the activity, the the launch, dates of the activity, and the specific (ii) Numbers of pinnipeds that may location of the activity, and have been harassed as noted by the (3) Plans to monitor the behavior and number of pinnipeds estimated to have effects of the activity on marine mam- entered the water as a result of launch mals. noise, (d) A copy of the Letter of Authoriza- (iii) The length of time(s) pinnipeds tion must be in the possession of the remained off the haulout or rookery, persons conducting activities that may
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involve incidental takings of seals and § 216.130 Specified activity, specified sea lions. geographical region, and incidental take levels. § 216.127 Renewal of Letters of Author- (a) Regulations in this subpart apply ization. only to the incidental taking of harbor A Letter of Authorization issued seals (Phoca vitulina), gray seals under § 216.126 for the activity identi- (Halichoerus grypus), harp seals (Phoca fied in § 216.120(a) will be renewed annu- groenlandica), and hooded seals ally upon: (Cystophora cristata) by U.S. citizens (a) Timely receipt of the reports re- engaged in power plant operations at quired under § 216.125(d), which have the Seabrook Station nuclear power been reviewed by the Assistant Admin- plant, Seabrook, NH. istrator and determined to be accept- (b) The incidental take of harbor, able; gray, harp, and hooded seals under the (b) A determination that the mitiga- activity identified in this section is tion measures required under § 216.124 limited to 20 harbor seals and 4 of any and the Letter of Authorization have combination of gray, harp, and hooded been undertaken; and seals for each year of the authoriza- (c) A notice of issuance of a Letter of tion. Authorization or a renewal of a Letter of Authorization will be published in § 216.131 Effective dates. the FEDERAL REGISTER within 30 days Regulations in this subpart are effec- of issuance. tive from July 1, 1999 through June 30, 2004. § 216.128 Modifications of Letters of Authorization. § 216.132 Permissible methods of tak- (a) In addition to complying with the ing. provisions of § 216.106, except as pro- Under a Letter of Authorization vided in paragraph (b) of this section, issued to North Atlantic Energy Serv- no substantive modification, including ices Corporation for Seabrook Station, withdrawal or suspension, to the Let- the North Atlantic Energy Services ter of Authorization issued pursuant to Corporation may incidentally, but not § 216.106 and subject to the provisions of intentionally, take marine mammals this subpart shall be made until after specified in § 216.130 in the course of op- notice and an opportunity for public erating the station’s intake cooling comment. water system. (b) If the Assistant Administrator de- termines that an emergency exists that § 216.133 Prohibitions. poses a significant risk to the well- Notwithstanding takings authorized being of the species or stocks of marine by § 216.130(a) and by the Letter of Au- mammals specified in § 216.120(b) or thorization, issued under § 216.106, the that significantly and detrimentally following activities are prohibited: alters the scheduling of launches, a (a) The taking of harbor seals, gray Letter of Authorization issued pursu- seals, harp seals, and hooded seals that ant to § 216.106 may be substantively is other than incidental. modified without a prior notice and an (b) The taking of any marine mam- opportunity for public comment. A no- mal not authorized in this applicable tice will be published in the FEDERAL subpart or by any other law or regula- REGISTER subsequent to the action. tion. (c) The violation of, or failure to Subpart L—Taking of Marine comply with, the terms, conditions, Mammals Incidental to Power and requirements of this part or a Let- Plant Operations ter of Authorization issued under § 216.106. SOURCE: 64 FR 28120, May 25, 1999, unless otherwise noted. § 216.134 Mitigation requirements. EFFECTIVE DATE NOTE: At 64 FR 28120, May The holder of the Letter of Author- 25, 1999, subpart L was added, effective July ization is required to report, within 6 1, 1999 through June 30, 2004. months from the issuance of a final
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rule, to the Administrator, Northeast inspections of the intake transition Region, NMFS, on possible mitigation structure from April 1 through Decem- measures effecting the least prac- ber, unless weather conditions prevent ticable adverse impact on the seals safe access to the structure. specified in § 216.130. The report shall (e) The holder of the Letter of Au- also include a recommendation of thorization must conduct screen which measures, if any, the holder washings at least daily during the could feasibly implement. A descrip- months of higher incidents of observed tion of any mitigation measures that takes and this period will be specified Seabrook Station has considered, but in the Letter of Authorization. During determined would not be feasible, must the months not specified in the LOA, be included as well. After submission of screen washings will be conducted such report, NMFS shall determine whether the holder of the Letter of Au- twice a week. Examination of the de- thorization must implement measures bris must be conducted to determine if to effect the least practicable adverse any seal remains are present. impact on the seals. If NMFS deter- (f) The holder of the Letter of Au- mines that such measures must be im- thorization must report orally to the plemented then NMFS shall specify, Northeast Regional Administrator, after consultation with the holder of NMFS, by telephone or other accept- the Letter of Authorization, the sched- able means, any marine mammals or ule and other conditions for implemen- marine mammal parts found in the lo- tation of the measures. Implementa- cations specified in § 216.135(b) through tion of such measures must be com- (e). Such oral reports must be made by pleted no later than 42 months after the close of the next business day fol- the date of issuance of the final rule. lowing the finding of any marine mam- Failure of the holder of the Letter of mal or marine mammal parts. Authorization to implement such (g) The holder of the Letter of Au- measures in accordance with the NMFS thorization must arrange to have a ne- specifications may be grounds to inval- cropsy examination performed by idate the Letter of Authorization. qualified individuals on any marine mammal or marine mammal parts re- § 216.135 Monitoring and reporting. covered through monitoring as speci- (a) The holder of the Letter of Au- fied under § 216.135(b) through (e). thorization is required to cooperate (h) The holder of the Letter of Au- with NMFS and any other Federal, thorization must also provide written state, or local agency monitoring the notification to the Administrator, impacts of the activity on harbor, Northeast Region, NMFS, of such ma- gray, harp, or hooded seals. rine mammal or marine mammal parts (b) The holder of the Letter of Au- found within 30 days from the time of thorization must designate a qualified the discovery. This report must con- individual or individuals capable of tain the results of any examinations or identifying any seal or seal parts or necropsies of the marine mammals in marine mammal or marine mammal parts, that occur in the intake circu- addition to any other information re- lating system, including the intake lating to the circumstances of the transition structure, both forebays, take. and any marine mammal or marine (i) An annual report, identifying mammal parts observed as a result of mitigation measures implemented to screen washings conducted. effect the least practicable adverse im- (c) The holder of the Letter of Au- pact on the seals and/or are being con- thorization must conduct at least two sidered for implementation pursuant to daily visual inspections of the circu- the requirements specified at § 216.134, lating water and service water forebays must be submitted to the Adminis- during the period specified in the Let- trator, Northeast Region, NMFS, with- ter of Authorization. in 30 days prior to the expiration date (d) The holder of the Letter of Au- of the issuance of the Letter of Author- thorization must conduct at least daily ization.
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§ 216.136 Renewal of the Letter of Au- specified in § 216.130, the Letter of Au- thorization. thorization issued pursuant to this sec- (a) A Letter of Authorization issued tion may be substantively modified under § 216.106 for the activity identi- without prior notice and an oppor- fied in § 216.130(a) may be renewed an- tunity for public comment. Notifica- nually provided the following condi- tion will be published in the FEDERAL tions and requirements are satisfied: REGISTER subsequent to the action. (1) Timely receipt of the reports re- quired under § 216.135, which have been §§ 216.138–216.140 [Reserved] reviewed by the Administrator, North- east Region, NMFS, and determined to Subpart M—Taking of Bottlenose be acceptable; Dolphins and Spotted Dol- (2) A determination that the max- phins Incidental to Oil and imum incidental take authorizations in Gas Structure Removal Activi- § 216.130(b) will not be exceeded; and ties (3) A determination that research on mitigation measures required under § 216.134(a) and the Letter of Authoriza- SOURCE: 60 FR 53145, Oct. 12, 1995, unless tion have been undertaken. otherwise noted. Redesignated at 61 FR 15887, (b) If a species’ annual incidental Apr. 10, 1996. take authorization is exceeded, NMFS EFFECTIVE DATE NOTE: At 60 FR 53145, Oct. will review the documentation sub- 12, 1995, subpart E to part 228 was added, ef- mitted under § 216.135, to determine fective Nov. 13, 1995 through Nov. 13, 2000. At whether or not the taking is having 61 FR 15887, Apr. 10, 1996, subpart E to part more than a negligible impact on the 228 was redesignated as subpart M to part 216. species or stock involved. The Letter of Authorization may be renewed pro- § 216.141 Specified activity and speci- vided a negligible impact determina- fied geographical region. tion is made and other conditions and requirements specified in § 216.136(a) (a) Regulations in this subpart apply are satisfied, and provided that any only to the incidental taking of marine modifications of the Letter of Author- mammals by U.S. citizens engaged in ization that may be required are done removing oil and gas drilling and pro- pursuant to § 216.137. duction structures in state waters and (c) Notice of issuance of a renewal of on the Outer Continental Shelf in the the Letter of Authorization will be Gulf of Mexico adjacent to the coasts of Texas, Louisiana, Alabama, Mis- published in the FEDERAL REGISTER within 30 days of issuance. sissippi, and Florida. The incidental, but not intentional, taking of marine § 216.137 Modifications to the Letter of mammals by U.S. citizens holding a Authorization. Letter of Authorization is permitted (a) In addition to complying with the during the course of severing pilings, provisions of § 216.106, except as pro- well conductors, and related supporting vided in paragraph (b) of this section, structures, and other activities related no substantive modification, including to the removal of the oil well struc- withdrawal or suspension, to the Let- ture. ter of Authorization issued pursuant to (b) The incidental take of marine § 216.106 and subject to the provisions of mammals under the activity identified this subpart shall be made until after in paragraph (a) of this section is lim- notice and an opportunity for public ited annually to a combined total of no comment. For purposes of this para- more than 200 takings by harassment graph, renewal of a Letter of Author- of bottlenose dolphins (Tursiops ization under § 216.136, without modi- truncatus) and spotted dolphins fication, is not considered a sub- (Stenella frontalis and S. attenuata). stantive modification. (b) If NMFS determines that an § 216.142 Effective dates. emergency exists that poses a signifi- Regulations in this subpart are effec- cant risk to the well-being of the spe- tive from November 13, 1995 through cies or stocks of marine mammals November 13, 2000.
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§ 216.143 Permissible methods of tak- (a) The taking of a marine mammal ing; mitigation. that is other than unintentional, ex- cept that the intentional passive (a) The use of the following means in herding of dolphins from the vicinity of conducting the activities identified in the platform may be authorized under § 216.141 is permissible: Bulk explosives, section 109(h) of the Act as described in shaped explosive charges, mechanical a Letter of Authorization; or abrasive cutters, and underwater arc (b) The violation of, or failure to cutters. comply with, the terms, conditions, (b) All activities identified in § 216.141 and requirements of this part or a Let- must be conducted in a manner that ter of Authorization issued or renewed minimizes, to the greatest extent prac- under § 216.106 or § 216.146; ticable, adverse effects on bottlenose (c) The incidental taking of any ma- dolphins, spotted dolphins, and their rine mammal of a species either not habitat. When using explosives, the fol- specified in this subpart or whenever lowing mitigation measures must be the incidental taking authorization for utilized: authorized species has been reached; (1)(i) If bottlenose or spotted dolphins and are observed within 3,000 ft (910 m) of (d) The use of single explosive the platform prior to detonating charges having an impulse and pressure charges, detonation must be delayed greater than that generated by a 50–lb until either the marine mammal(s) are (22.7 kg) explosive charge detonated more than 3,000 ft (910 m) from the outside the rig piling. platform or actions (e.g., operating a [60 FR 53145, Oct. 12, 1995. Redesignated and vessel in the vicinity of the dolphins to amended at 61 FR 15887, 15890, Apr. 10, 1996] stimulate bow riding, then steering the vessel away from the structure to be § 216.145 Requirements for monitoring removed) are successful in removing and reporting. them at least 3,000 ft (910 m) from the (a) Observer(s) approved by the Na- detonation site; tional Marine Fisheries Service in ad- (ii) Whenever the conditions de- vance of the detonation must be used scribed in paragraph (b)(1)(i) of this to monitor the area around the site section occur, the aerial survey re- prior to, during, and after detonation quired under § 216.145(b)(1) must be re- of charges. peated prior to detonation of charges if (b)(1) Both before and after each det- the timing requirements of onation episode, an aerial survey by § 216.145(b)(1) cannot be met. NMFS-approved observers must be con- (2) Detonation of explosives must ducted for a period not less than 30 occur no earlier than 1 hour after sun- minutes within 1 hour of the detona- rise and no later than 1 hour before tion episode. To ensure that no marine sunset; mammals are within the designated (3) If weather and/or sea conditions 3,000 ft (1,000 yd, 941 m) safety zone nor preclude adequate aerial, shipboard or are likely to enter the designated safe- subsurface surveillance, detonations ty zone prior to or at the time of deto- must be delayed until conditions im- nation, the pre-detonation survey must prove sufficiently for surveillance to be encompass all waters within one nau- undertaken; and tical mile of the structure. (4) Detonations must be staggered by (2) A second post-detonation aerial or a minimum of 0.9 seconds for each vessel survey of the detonation site group of charges. must be conducted no earlier than 48 hours and no later than 1 week after [60 FR 53145, Oct. 12, 1995. Redesignated and the oil and gas structure is removed, amended at 61 FR 15887, 15890, Apr. 10, 1996] unless a systematic underwater survey, either by divers or remotely-operated § 216.144 Prohibitions. vehicles, dedicated to marine mammals Notwithstanding takings authorized and sea turtles, of the site has been by § 216.143 or by a Letter of Authoriza- successfully conducted within 24 hours tion issued under § 216.106, the fol- of the detonation event. The aerial or lowing activities are prohibited: vessel survey must be systematic and
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concentrate down-current from the § 216.147 Renewal of Letters of Author- structure. ization. (3) The NMFS observer may waive (a) A Letter of Authorization issued post-detonation monitoring described under § 216.106 for the activity identi- in paragraph (b)(2) of this section pro- fied in § 216.141 will be renewed annu- vided no marine mammals were sighted ally upon: by the observer during either the re- (1) Timely receipt of the reports re- quired 48 hour pre-detonation moni- quired under § 216.145(d), which have toring period or during the pre-detona- been reviewed by the Assistant Admin- tion aerial survey. istrator and determined to be accept- (c) During all diving operations able; (working dives as required in the (2) A determination that the max- course of the removals), divers must be imum incidental take authorizations in instructed to scan the subsurface areas § 216.141(b) will not be exceeded; and surrounding the platform (detonation) (3) A determination that the mitiga- sites for bottlenose or spotted dolphins tion measures required under and if marine mammals are sighted to § 216.143(b) and the Letter of Authoriza- inform either the U.S. government ob- tion have been undertaken. server or the agent of the holder of the (b) If a species’ annual authorization Letter of Authorization immediately is exceeded, the Assistant Adminis- upon surfacing. trator will review the documentation (d)(1) A report summarizing the re- submitted with the annual reports re- sults of structure removal activities, quired under § 216.145(d), to determine mitigation measures, monitoring ef- that the taking is not having more forts, and other information as re- than a negligible impact on the species quired by a Letter of Authorization, or stock involved. must be submitted to the Director, (c) Notice of issuance of a renewal of NMFS, Southeast Region, 9721 Execu- the Letter of Authorization will be tive Center Drive N, St. Petersburg, FL published in the FEDERAL REGISTER. 33702 within 30 calendar days of com- [60 FR 53145, Oct. 12, 1995. Redesignated and pletion of the removal of the rig. amended at 61 FR 15887, 15890, Apr. 10, 1996] (2) NMFS will accept the U.S. Gov- ernment observer report as the activity § 216.148 Modifications to Letters of report if all requirements for reporting Authorization. contained in the Letter of Authoriza- (a) In addition to complying with the tion are provided to that observer be- provisions of § 216.106, except as pro- fore the observer’s report is complete. vided in paragraph (b) of this section, no substantive modification, including § 216.146 Letters of Authorization. withdrawal or suspension, to the Let- (a) To incidentally take bottlenose ter of Authorization issued pursuant to and spotted dolphins pursuant to these § 216.106 and subject to the provisions of regulations, each company operating this subpart shall be made until after or which operated an oil or gas struc- notice and an opportunity for public ture in the geographical area described comment. For purposes of this para- in § 216.141, and which is responsible for graph, renewal of a Letter of Author- abandonment or removal of the plat- ization under § 216.147, without modi- form, must apply for and obtain a Let- fication, is not considered a sub- ter of Authorization in accordance stantive modification. with § 216.106. (b) If the Assistant Administrator de- (b) A copy of the Letter of Authoriza- termines that an emergency exists that poses a significant risk to the well- tion must be in the possession of the being of the species or stocks of marine persons conducting activities that may mammals specified in § 216.141(b), the involve incidental takings of Letter of Authorization issued pursu- bottlenose and spotted dolphins. ant to § 216.106, or renewed pursuant to [60 FR 53145, Oct. 12, 1995. Redesignated and this section may be substantively amended at 61 FR 15887, 15890, Apr. 10, 1996] modified without prior notice and an
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opportunity for public comment. A no- § 216.153 Permissible methods of tak- tice will be published in the FEDERAL ing; mitigation. REGISTER subsequent to the action. (a) U.S. citizens holding a Letter of [60 FR 53145, Oct. 12, 1995. Redesignated and Authorization issued pursuant to amended at 61 FR 15887, 15890, Apr. 10, 1996] § 216.106 may incidentally, but not in- tentionally, take marine mammals by Subpart N—Taking of Marine harassment, injury or killing in the Mammals Incidental to Un- course of the detonation of conven- derwater Detonation of Con- tional explosives up to the following maximum annual level within the area ventional Explosives by the described in § 216.151(a): Department of Defense (1) 12 detonations of 10,000 lbs (4,536 kg); SOURCE: 59 FR 5126, Feb. 3, 1994, unless oth- (2) 2 detonations of 1,200 lbs (544 kg); erwise noted. Redesignated at 61 FR 15887, (3) 10 detonations of 100 lbs (45 kg); Apr. 10, 1996. (4) 10 detonations of 10 lbs (4.5 kg); § 216.151 Specified activity, geo- and graphical region, and incidental (5) 20 detonations of 1 lb (0.45 kg), take levels. provided all terms, conditions, and re- (a) Regulations in this subpart apply quirements of these regulations and only to the incidental taking of marine such Letter of Authorization are com- mammals specified in paragraph (b) of plied with. this section by U.S. citizens engaged in (b) The activity identified in para- the detonation of conventional mili- graph (a) of this section must be con- tary explosives within the waters of ducted in a manner that minimizes, to the Outer Sea Test Range of the Naval the greatest extent possible, adverse Air Warfare Center, Pt. Mugu, Ventura impacts on marine mammals and their County, CA. habitat. When detonating explosives, (b) The incidental take of marine the following mitigation measures mammals under the activity identified must be utilized: in paragraph (a) of this section is lim- (1) If marine mammals are observed ited annually to the following species within the designated safety zone pre- and species groups: scribed in the Letter of Authorization, or on a course that will put them with- Har- in the safety zone prior to detonation, Le- In- ass- thal jury ment detonation must be delayed until the marine mammals are no longer within California Sea Lion ...... 2 38 173 the safety zone. Harbor Seal...... 2 16 68 Northern Elephant Seal ...... 9 158 724 (2) If weather and/or sea conditions Northern Fur Seal ...... 2 13 57 preclude adequate aerial surveillance, Common Dolphin ...... 1 16 67 detonation must be delayed until con- Striped Dolphin ...... 0 2 5 Risso's Dolphin ...... 0 1 2 ditions improve sufficiently for aerial Pacific White-Sided Dolphin ...... 3 52 236 surveillance to be undertaken. Northern Rt. Whale Dolphin ...... 2 24 108 (3) If post-test surveys determine Dall's Porpoise ...... 0 6 18 Bottlenose Dolphin ...... 0 4 15 that an injurious or lethal take of a Killer Whale ...... 0 0 1 marine mammal has occurred, the test Sperm Whale ...... 0 6 20 procedure and the monitoring methods Beaked Whales ...... 0 0 3 Minke Whale ...... 004must be reviewed and appropriate Blue Whale ...... 0 1 11 changes must be made prior to con- Fin Whale ...... 0 0 6 ducting the next project. Sei Whale ...... 0 0 1 Humpback Whale ...... 0 0 4 [59 FR 5126, Feb. 3, 1994. Redesignated and Gray Whale ...... 0 3 40 amended at 61 FR 15887, 15890, Apr. 10, 1996] Right Whale ...... 0 0 1 § 216.154 Prohibitions. § 216.152 Effective dates. Notwithstanding takings authorized Regulations in this subpart are effec- by § 216.153 or by a Letter of Authoriza- tive from March 3, 1994, through March tion issued under § 216.106, the fol- 3, 1999. lowing activities are prohibited:
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(a) The taking of a marine mammal conducted. Necropsies will be per- that is other than unintentional; formed and tissue samples taken from (b) The violation of, or failure to any dead animals. After completion of comply with, the terms, conditions, the necropsy, animals not retained for and requirements of this part or a Let- shoreside examination, will be tagged ter of Authorization issued or renewed and returned to the sea. The occur- under § 216.106 or § 216.156; and rence of live marine mammals will also (c) The incidental taking of any ma- be documented. rine mammal of a species either not (2) Activities related to the moni- specified in this subpart or whose tak- toring described in paragraph (d)(1) of ing authorization for the year has been this section or the Letter of Authoriza- reached. tion issued under this part may include [59 FR 5126, Feb. 3, 1994. Redesignated and the retention of marine mammals amended at 61 FR 15887, 15890, Apr. 10, 1996] without the need for a separate sci- entific research permit. The use of such § 216.155 Requirements for monitoring marine mammals in other scientific re- and reporting. search may be authorized pursuant to (a) The holder of the Letter of Au- 50 CFR parts 216 and 220. thorization is required to cooperate (e) At its discretion, the National with the National Marine Fisheries Marine Fisheries Service may place an Service and any other Federal, state or observer on either the towing vessel, local agency monitoring the impacts of target vessel, or both, and on any ship the activity on marine mammals. The or aircraft involved in marine mammal holder must notify the Director, reconnaissance, or monitoring either Southwest Region, National Marine prior to, during, or after explosives det- Fisheries Service, 501 West Ocean Bou- onation in order to monitor the impact levard, suite 4200, Long Beach, CA on marine mammals. (Telephone: (310) 980–4001), at least 2 (f) A summary report must be sub- weeks prior to activities involving the mitted to the Assistant Administrator detonation of explosives in order to for Fisheries, NOAA, within 90 days satisfy paragraph (f) of this section. after the conclusion of any explosives (b) The holder of the Letter of Au- detonation project. This report must thorization must designate a qualified include the following information: on-site individual(s) to record the ef- fects of explosives detonation on ma- (1) Date and time of the test(s); rine mammals that inhabit the Outer (2) A summary of the pre-test and Sea Test Range. post-test activities related to miti- (c) The primary test area, and if nec- gating and monitoring the effects of essary, secondary and tertiary test explosives detonation on marine mam- areas, in the Outer Sea Test Range, mal populations; and must be surveyed by marine mammal (3) Results of the monitoring pro- biologists and other trained individ- gram, including numbers by species/ uals, and the marine mammal popu- stock of any marine mammals noted lations monitored, approximately 48 injured or killed as a result of the deto- hours prior to a scheduled detonation, nation and numbers that may have on the day of detonation, and for a pe- been harassed due to presence within riod of time specified in the Letter of the safety zone. Authorization after each test or (g) An annual report must be sub- project. Monitoring shall include, but mitted to the Assistant Administrator not necessarily be limited to, aerial for Fisheries, NOAA, no later than 120 surveillance sufficient to ensure that days prior to the date of expiration of no marine mammals are within the the annual Letter of Authorization in designated safety zone nor are likely to order for issuance of a Letter of Au- enter the designated safety zone prior thorization for the following year. This to or at the time of detonation. annual report must contain the fol- (d)(1) Under the direction of a cer- lowing information: tified marine mammal veterinarian, (1) Date and time of all tests con- examination and recovery of any dead ducted under the expiring Letter of Au- or injured marine mammals will be thorization;
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(2) A description of all pre-test and § 216.157 Modifications to Letter of Au- post-test activities related to miti- thorization. gating and monitoring the effects of (a) In addition to complying with the explosives detonation on marine mam- provisions of § 216.106, except as pro- mal populations; vided in paragraph (b) of this section, (3) Results of the monitoring pro- no substantive modification, including gram, including numbers by species/ withdrawal or suspension, to the Let- stock of any marine mammals noted ter of Authorization issued pursuant to injured or killed as a result of the deto- § 216.106 and subject to the provisions of nation and numbers that may have this subpart shall be made until after been harassed due to presence within notice and an opportunity for public the designated safety zone; comment. For purposes of this para- (4) If one or more species’ take levels graph, renewal of a Letter of Author- have been reached or exceeded during ization under § 216.146, without modi- the previous year, additional docu- fication, is not considered a sub- mentation must be provided on the stantive modification. taking and a description of any meas- (b) If the National Marine Fisheries ures that will be taken in the following Service determines that an emergency year to prevent exceeding the author- exists that poses a significant risk to the well-being of the species or stocks ized incidental take level. of marine mammals specified in (5) Results of any population assess- § 216.151, or that significantly and det- ment studies made on marine mam- rimentally alters the scheduling of ex- mals in the Outer Sea Test Range dur- plosives detonation within the area ing the previous year. specified in § 216.151, the Letter of Au- thorization issued pursuant to § 216.106, § 216.156 Renewal of Letter of Author- or renewed pursuant to this section ization. may be substantively modified without (a) A Letter of Authorization issued prior notice and an opportunity for under § 216.106 for the activity identi- public comment. A notice will be pub- fied in § 216.151(a) will be renewed annu- lished in the FEDERAL REGISTER subse- ally upon: quent to the action. (1) Timely receipt of the reports re- [59 FR 5126, Feb. 3, 1994. Redesignated and quired under § 216.155(f) and (g), which amended at 61 FR 15887, 15891, Apr. 10, 1996] have been reviewed by the Assistant Administrator for Fisheries, NOAA, Subpart O—Taking of Marine and determined to be acceptable; Mammals Incidental to Shock (2) A determination that the max- Testing the USS SEAWOLF by imum incidental take authorizations in § 216.151(b) will not be exceeded; and Detonation of Conventional (3) A determination that the mitiga- Explosives in the Offshore Wa- tion measures required under ters of the U.S. Atlantic Coast § 216.153(b) and the Letter of Authoriza- tion have been undertaken. SOURCE: 63 FR 66076, Dec. 1, 1998, unless (b) If a species’ annual authorization otherwise noted. is exceeded, the National Marine Fish- EFFECTIVE DATE NOTE: At 63 FR 66076, Dec. eries Service will review the docu- 1, 1998, subpart O was added, effective Jan. 1, mentation submitted with the annual 1999 through Sept. 30, 2004. report required under § 216.155(g), to de- § 216.161 Specified activity, geo- termine that the taking is not having graphical region, and incidental more than a negligible impact on the take levels. species or stock involved. (a) Regulations in this subpart apply (c) Notice of issuance of a renewal of only to the incidental taking of marine the Letter of Authorization will be mammals specified in paragraph (b) of published in the FEDERAL REGISTER. this section by U.S. citizens engaged in [59 FR 5126, Feb. 3, 1994. Redesignated and the detonation of conventional mili- amended at 61 FR 15887, 15890–15891, Apr. 10, tary explosives within the waters of 1996] the U.S. Atlantic Coast offshore
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Mayport, FL for the purpose of shock § 216.163 Permissible methods of tak- testing the USS SEAWOLF. ing; mitigation. (b) The incidental take of marine (a) Under a Letter of Authorization mammals under the activity identified issued pursuant to § 216.106, the U.S. in paragraph (a) of this section is lim- Navy may incidentally, but not inten- ited to the following species: Blue tionally, take marine mammals by whale (Balaenoptera musculus); fin harassment, injury or mortality in the whale (B. physalus); sei whale (B. bore- course detonating five 4,536 kg (10,000 alis); Bryde’s whale (B. edeni); minke lb) conventional explosive charges whale (B. acutorostrata); humpback within the area described in § 216.161(a), whale (Megaptera novaeangliae); north- provided all terms, conditions, and re- ern right whale (Eubalaena glacialis); quirements of these regulations and sperm whale (Physeter macrocephalus); such Letter of Authorization are com- dwarf sperm whale (Kogia simus); plied with. pygmy sperm whale (K. breviceps); pilot (b) The activity identified in para- whales (Globicephala melas, G. graph (a) of this section must be con- macrorhynchus); Atlantic spotted dol- ducted in a manner that minimizes, to phin (Stenella frontalis); Pantropical the greatest extent possible, adverse spotted dolphin (S. attenuata); striped impacts on marine mammals and their dolphin (Stenella coeruleoalba); spinner habitat. When detonating explosives, dolphin (S. longirostris); Clymene dol- the following mitigation measures phin (S. clymene); bottlenose dolphin must be utilized: (Tursiops truncatus); Risso’s dolphin (1) If marine mammals are observed (Grampus griseus); rough-toothed dol- within the designated safety zone pre- phin (Steno bredanensis); killer whale scribed in the Letter of Authorization, (Orcinus orca); false killer whale or within the buffer zone prescribed in (Pseudorca crassidens); pygmy killer the Letter of Authorization and on a whale (Feresa attenuata); Fraser’s dol- course that will put them within the phin (Lagenodelphis hosei); harbor por- safety zone prior to detonation, deto- poise (Phocoena phocoena); melon-head- nation must be delayed until marine ed whale (Peponocephala electra); north- mammals are either no longer within ern bottlenose whale (Hyperoodon the safety zone or are on a course with- ampullatus); Cuvier’s beaked whale in the buffer zone that is taking them (Ziphius cavirostris), Blainville’s beaked away from the safety zone, except that whale (Mesoplodon densirostris); no detonation will occur if a marine Gervais’ beaked whale ( . ); M europaeus mammal listed as threatened or endan- Sowerby’s beaked whale (M. bidens); gered under § 17.11 of this title is de- True’s beaked whale (M. mirus); com- tected within the buffer zone and sub- mon dolphin (Delphinus delphis); and sequently cannot be detected until Atlantic white-sided dolphin such time as sighting and acoustic (Lagenorhynchus acutus). teams have searched the area for 2.5 (c) The incidental take of marine hours (approximately 3 times the typ- mammals identified in paragraph (b) of ical large whale dive duration). If a this section is limited to a total of 1 northern right whale is seen within the mortality, 5 injuries and 1,788 harass- safety or buffer zone, detonation must ment takes for detonations in the area not occur until the animal is positively described in paragraph (a) of this sec- reacquired outside the buffer zone and tion, except that the taking by serious at least one additional aerial moni- injury or mortality for species listed in toring of the safety range and buffer paragraph (b) of this section that are zone shows that no other right whales also listed as threatened or endangered are present. under § 17.11 of this title, is prohibited. (2) If weather and/or sea conditions as described in the Letter of Authoriza- § 216.162 Effective dates. tion preclude adequate aerial surveil- Regulations in this subpart are effec- lance, detonation must be delayed tive May 1 through September 30 of until conditions improve sufficiently any single year between the years 2000 for aerial surveillance to be under- and 2004, inclusive. taken.
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(3) If post-test surveys determine essarily be limited to, aerial, ship- that an injurious or lethal take of a board, and acoustic surveillance suffi- marine mammal has occurred, or if any cient to ensure that no marine mam- marine mammals are observed in the mals are within the designated safety safety range immediately after a deto- zone nor are likely to enter the des- nation, the test procedure and the ignated safety zone immediately prior monitoring methods must be reviewed to, or at the time of, detonation. by NMFS in consultation with the (d) Under the direction of a certified Navy and appropriate changes made marine mammal veterinarian, exam- prior to conducting the next detona- ination and recovery of any dead or in- tion. jured marine mammals will be con- ducted. Necropsies will be performed § 216.164 Prohibitions. and tissue samples taken from any Notwithstanding takings authorized dead animals. After completion of the by § 216.161(b) and by a Letter of Au- necropsy, animals not retained for thorization issued under § 216.106, the shoreside examination will be tagged following activities are prohibited: and returned to the sea. The occur- (a) The taking of a marine mammal rence of live marine mammals will also that is other than unintentional. be documented. (b) The violation of, or failure to (e) The holder of the Letter of Au- comply with, the terms, conditions, thorization is required to measure dur- and requirements of this part or a Let- ing the first detonation, and provide a ter of Authorization issued under report on, prior to the second detona- § 216.106. tion, the attenuation of the sound pres- (c) The incidental taking of any ma- sure levels of the HBX1 explosive rine mammal of a species not specified charge. Measurements must be made at in this subpart. a number of distances from the detona- § 216.165 Requirements for monitoring tion sufficient to verify the model pre- and reporting. dictions for the 3.7 km (2 nm) safety zone. Based upon the results of this (a) The holder of the Letter of Au- test, the monitoring and safety zones thorization is required to cooperate described in the Letter of Authoriza- with the National Marine Fisheries tion, may be modified accordingly. Service and any other Federal, state or local agency monitoring the impacts of (f) Activities related to the moni- the activity on marine mammals. The toring described in paragraphs (c) and holder must notify the Administrator, (d) of this section, or in the Letter of Southeast Region at least 2 weeks Authorization issued under § 216.106, in- prior to activities involving the deto- cluding the retention of marine mam- nation of explosives in order to satisfy mals, may be conducted without the paragraph (g) of this section. need for a separate scientific research (b) The holder of the Letter of Au- permit. The use of retained marine thorization must designate qualified mammals for scientific research other on-site individuals, as specified in the than shoreside examination must be Letter of Authorization, to record the authorized pursuant to subpart D of effects of explosives detonation on ma- this part. rine mammals that inhabit the Atlan- (g) In coordination and compliance tic Ocean test area. with appropriate Navy regulations, at (c) The Atlantic Ocean test area its discretion, the National Marine must be surveyed by marine mammal Fisheries Service may place observer(s) biologists and other trained individ- on any ship or aircraft involved in ma- uals, and the marine mammal popu- rine mammal reconnaissance, or moni- lations monitored, approximately 3 toring either prior to, during, or after weeks prior to detonation, 48–72 hours explosives detonation in order to mon- prior to a scheduled detonation, on the itor the impact on marine mammals. day of detonation, and for a period of (h) A final report must be submitted time specified in the Letter of Author- to the Administrator, Southeast Re- ization after each detonation. Moni- gion, no later than 120 days after com- toring shall include, but not nec- pletion of shock testing the USS
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SEAWOLF. This report must contain PARTS 217–221[RESERVED] the following information: (1) Date and time of all detonations PART 222—GENERAL ENDANGERED conducted under the Letter of Author- ization. AND THREATENED MARINE SPECIES (2) A description of all pre-detonation Subpart A—Introduction and General and post-detonation activities related Provisions to mitigating and monitoring the ef- fects of explosives detonation on ma- Sec. rine mammal populations. 222.101 Purpose and scope of regulations. (3) Results of the monitoring pro- 222.102 Definitions. gram, including numbers by species/ 222.103 Federal/state cooperation in the con- stock of any marine mammals noted servation of endangered and threatened species. injured or killed as a result of the deto- nation and numbers that may have Subpart B—Certificates of Exemption for been harassed due to presence within Pre-Act Endangered Species Parts the designated safety zone. (4) Results of coordination with 222.201 General requirements. coastal marine mammal/sea turtle 222.202 Certificate renewal. 222.203 Modification, amendment, suspen- stranding networks. sion, and revocation of certificates. (i) A final report on results of 222.204 Administration of certificates. necropsies of stranded marine mam- 222.205 Import and export requirements. mals funded by the U.S. Navy must be submitted to the Director, Office of Subpart C—General Permit Procedures Protected Resources, no later than 18 222.301 General requirements. months after completion of shock test- 222.302 Procedure for obtaining permits. ing the USS SEAWOLF. 222.303 Issuance of permits. 222.304 Renewal of permits. § 216.166 Modifications to the Letter of 222.305 Rights of succession and transfer of Authorization. permits. (a) In addition to complying with the 222.306 Modification, amendment, suspen- provisions of § 216.106, except as pro- sion, cancellation, and revocation of per- mits. vided in paragraph (b) of this section, 222.307 Permits for incidental taking of spe- no substantive modification, including cies. withdrawal or suspension, to the Let- 222.308 Permits for scientific purposes or for ter of Authorization issued pursuant to the enhancement of propagation or sur- § 216.106 and subject to the provisions of vival of species. this subpart shall be made until after 222.309 Permits for listed species of sea tur- notice and an opportunity for public tles involving the Fish and Wildlife Serv- ice. comment. (b) If the Assistant Administrator de- AUTHORITY: 16 U.S.C. 1531 et seq.; 16 U.S.C. termines that an emergency exists that 742a et seq.; 31 U.S.C. 9701. poses a significant risk to the well- Section 222.403 also issued under 16 U.S.C. 1361 et seq. being of the species or stocks of marine mammals specified in § 216.161(b), or SOURCE: 64 FR 14054, Mar. 23, 1999, unless that significantly and detrimentally otherwise noted. alters the scheduling of explosives det- onation within the area specified in Subpart A—Introduction and § 216.161(a), the Letter of Authorization General Provisions issued pursuant to § 216.106 may be sub- stantively modified without prior no- § 222.101 Purpose and scope of regula- tice and an opportunity for public com- tions. ment. A notice will be published in the (a) The regulations of parts 222, 223, FEDERAL REGISTER subsequent to the and 224 of this chapter implement the action. Endangered Species Act (Act), and gov- ern the taking, possession, transpor- §§ 216.167–216.169 [Reserved] tation, sale, purchase, barter, expor- tation, importation of, and other re- Subparts P–Q [Reserved] quirements pertaining to wildlife and 80
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plants under the jurisdiction of the other National Marine Fisheries Serv- Secretary of Commerce and determined ice enforced statutes or regulations. to be threatened or endangered pursu- ant to section 4(a) of the Act. These § 222.102 Definitions. regulations are implemented by the Accelerator funnel means a device National Marine Fisheries Service, Na- used to accelerate the flow of water tional Oceanic and Atmospheric Ad- through a shrimp trawl net. ministration, U.S. Department of Com- Act means the Endangered Species merce, This part pertains to general Act of 1973, as amended, 16 U.S.C. 1531 provisions and definitions. Specifically, et seq. parts 223 and 224 pertain to provisions Adequately covered means, with re- to threatened species and endangered spect to species listed pursuant to sec- species, respectively. Part 226 enumer- tion 4 of the Act, that a proposed con- ates designated critical habitat for en- servation plan has satisfied the permit dangered and threatened species. Cer- issuance criteria under section tain of the endangered and threatened 10(a)(2)(B) of the Act for the species marine species enumerated in §§ 224.102 covered by the plan and, with respect and 223.102 are included in Appendix I to unlisted species, that a proposed or II to the Convention on Inter- conservation plan has satisfied the per- national Trade of Endangered Species mit issuance criteria under section of Wild Fauna and Flora. The importa- 10(a)(2)(B) of the Act that would other- tion, exportation, and re-exportation of wise apply if the unlisted species cov- such species are subject to additional ered by the plan were actually listed. regulations set forth at 50 CFR part 23, For the Services to cover a species chapter I. under a conservation plan, it must be listed on the section 10(a)(1)(B) permit. (b) For rules and procedures relating Alaska Regional Administrator means to species determined to be threatened the Regional Administrator for the or endangered under the jurisdiction of Alaska Region of the National Marine the Secretary of the Interior, see 50 Fisheries Service, National Oceanic CFR parts 10 through 17. For rules and and Atmospheric Administration, U.S. procedures relating to the general im- Department of Commerce, or their au- plementation of the Act jointly by the thorized representative. Mail sent to Departments of the Interior and Com- the Alaska Regional Administrator merce and for certain species under the should be addressed: Alaska Regional joint jurisdiction of both the Secre- Administrator, F/AK, Alaska Regional taries of the Interior and Commerce, Office, National Marine Fisheries Serv- see 50 CFR Chapter IV. Marine mam- ice, NOAA, P.O. Box 21668 Juneau, AK mals listed as endangered or threat- 99802–1668. ened and subject to these regulations Approved turtle excluder device (TED) may also be subject to additional re- means a device designed to be installed quirements pursuant to the Marine in a trawl net forward of the cod end Mammal Protection Act (for regula- for the purpose of excluding sea turtles tions implementing that act, see 50 from the net, as described in 50 CFR CFR part 216). 223.207. (c) No statute or regulation of any Assistant Administrator means the As- state shall be construed to relieve a sistant Administrator for Fisheries of person from the restrictions, condi- the National Marine Fisheries Service, tions, and requirements contained in National Oceanic and Atmospheric Ad- parts 222, 223, and 224 of this chapter. In ministration, U.S. Department of Com- addition, nothing in parts 222, 223, and merce, or his authorized representa- 224 of this chapter, including any per- tive. Mail sent to the Assistant Admin- mit issued pursuant thereto, shall be istrator should be addressed: Assistant construed to relieve a person from any Administrator for Fisheries, National other requirements imposed by a stat- Marine Fisheries Service, NOAA, 1315 ute or regulation of any state or of the East-West Highway, Silver Spring, MD United States, including any applicable 20910. health, quarantine, agricultural, or Atlantic Area means all waters of the customs laws or regulations, or any Atlantic Ocean south of 36°33′00.8″ N.
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lat. (the line of the North Carolina/Vir- natural catastrophic event in areas ginia border) and adjacent seas, other prone to such events). than waters of the Gulf Area, and all Commercial activity means all activi- waters shoreward thereof (including ties of industry and trade, including, ports). but not limited to, the buying or sell- Atlantic Shrimp Fishery—Sea Turtle ing of commodities and activities con- Conservation Area (Atlantic SFSTCA) ducted for the purpose of facilitating means the inshore and offshore waters such buying and selling: Provided, how- extending to 10 nautical miles (18.5 km) ever, that it does not include the exhi- offshore along the coast of the States bition of commodities by museums or of Georgia and South Carolina from the similar cultural or historical organiza- Georgia-Florida border (defined as the tions. line along 30°42′45.6″ N. lat.) to the Conservation plan means the plan re- North Carolina-South Carolina border quired by section 10(a)(2)(A) of the Act (defined as the line extending in a di- that an applicant must submit when rection of 135°34′55″ from true north applying for an incidental take permit. from the North Carolina-South Caro- Conservation plans also are known as lina land boundary, as marked by the ‘‘habitat conservation plans’’ or border station on Bird Island at ‘‘HCPs.’’ 33°51′07.9″ N. lat., 078°32′32.6″ W. long.). Conserved habitat areas means areas Authorized officer means: explicitly designated for habitat res- (1) Any commissioned, warrant, or toration, acquisition, protection, or petty officer of the U.S. Coast Guard; other conservation purposes under a (2) Any special agent or enforcement conservation plan. officer of the National Marine Fish- Cooperative Agreement means an eries Service; agreement between a state(s) and the (3) Any officer designated by the head National Marine Fisheries Service, of a Federal or state agency that has NOAA, Department of Commerce, entered into an agreement with the which establishes and maintains an ac- Secretary or the Commandant of the tive and adequate program for the con- Coast Guard to enforce the provisions servation of resident species listed as of the Act; or endangered or threatened pursuant to (4) Any Coast Guard personnel ac- section 6(c)(1) of the Endangered Spe- companying and acting under the di- cies Act. rection of any person described in para- Fishing, or to fish, means: graph (1) of this definition. (1) The catching, taking, or har- Bait shrimper means a shrimp trawler vesting of fish or wildlife; that fishes for and retains its shrimp (2) The attempted catching, taking, catch alive for the purpose of selling it or harvesting of fish or wildlife; for use as bait. (3) Any other activity that can rea- Beam trawl means a trawl with a sonably be expected to result in the rigid frame surrounding the mouth catching, taking, or harvesting of fish that is towed from a vessel by means of or wildlife; or one or more cables or ropes. (4) Any operations on any waters in Certificate of exemption means any support of, or in preparation for, any document so designated by the Na- activity described in paragraphs (1) tional Marine Fisheries Service and through (3) of this definition. signed by an authorized official of the Footrope means a weighted rope or National Marine Fisheries Service, in- cable attached to the lower lip (bottom cluding any document which modifies, edge) of the mouth of a trawl net along amends, extends or renews any certifi- the forward most webbing. cate of exemption. Footrope length means the distance Changed circumstances means changes between the points at which the ends of in circumstances affecting a species or the footrope are attached to the trawl geographic area covered by a conserva- net, measured along the forward-most tion plan that can reasonably be an- webbing. ticipated by plan developers and NMFS Foreign commerce includes, among and that can be planned for (e.g., the other things, any transaction between listing of new species, or a fire or other persons within one foreign country, or
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between persons in two or more foreign Inshore means marine and tidal wa- countries, or between a person within ters landward of the 72 COLREGS de- the United States and a person in one marcation line (International Regula- or more foreign countries, or between tions for Preventing Collisions at Sea, persons within the United States, 1972), as depicted or noted on nautical where the fish or wildlife in question charts published by the National Oce- are moving in any country or countries anic and Atmospheric Administration outside the United States. (Coast Charts, 1:80,000 scale) and as de- Four-seam, straight-wing trawl means scribed in 33 CFR part 80. a design of shrimp trawl in which the Leatherback conservation zone means main body of the trawl is formed from that portion of the Atlantic Area lying a top panel, a bottom panel, and two north of a line along 28°24.6′ N. lat. side panels of webbing. The upper and (Cape Canaveral, FL). lower edges of the side panels of web- Northeast Regional Administrator bing are parallel over the entire length. means the Regional Administrator for Four-seam, tapered-wing trawl means a the Northeast Region of the National design of shrimp trawl in which the Marine Fisheries Service, National main body of the trawl is formed from Oceanic and Atmospheric Administra- a top panel, a bottom panel, and two tion, U.S. Department of Commerce, or side panels of webbing. The upper and their authorized representative. Mail lower edges of the side panels of web- sent to the Northeast Regional Admin- bing converge toward the rear of the istrator should be addressed: Northeast trawl. Regional Administrator, F/NE, North- east Regional Office, National Marine Gulf Area means all waters of the Fisheries Service, NOAA, One Gulf of Mexico west of 81° W. long. (the Blackburn Drive, Gloucester, MA 01930– line at which the Gulf Area meets the 2298. Atlantic Area) and all waters shore- Northwest Regional Administrator ward thereof (including ports). means the Regional Administrator for Gulf Shrimp Fishery-Sea Turtle Con- the Northwest Region of the National servation Area (Gulf SFSTCA) means the Marine Fisheries Service, National offshore waters extending to 10 nau- Oceanic and Atmospheric Administra- tical miles (18.5 km) offshore along the tion, U.S. Department of Commerce, or coast of the States of Texas and Lou- their authorized representative. Mail isiana from the South Pass of the Mis- sent to the Northwest Regional Admin- ° ′ sissippi River (west of 89 08.5 W. long.) istrator should be addressed: North- to the U.S.-Mexican border. west Regional Administrator, F/NW, Habitat restoration activity means an Northwest Regional Office, National activity that has the sole objective of Marine Fisheries Service, NOAA, 7600 restoring natural aquatic or riparian Sand Point Way NE, Seattle, WA 98115– habitat conditions or processes. 0070. Headrope means a rope that is at- Office of Enforcement means the na- tached to the upper lip (top edge) of the tional fisheries enforcement office of mouth of a trawl net along the for- the National Marine Fisheries Service. ward-most webbing. Mail sent to the Office of Enforcement Headrope length means the distance should be addressed: Office of Enforce- between the points at which the ends of ment, F/EN, National Marine Fisheries the headrope are attached to the trawl Service, NOAA, 8484 Suite 415, Georgia net, measured along the forward-most Ave., Silver Spring, MD 20910. webbing. Office of Protected Resources means Import means to land on, bring into, the national program office of the en- or introduce into, or attempt to land dangered species and marine mammal on, bring into, or introduce into any programs of the National Marine Fish- place subject to the jurisdiction of the eries Service. Mail sent to the Office of United States, whether or not such Protected Resources should be ad- landing, bringing, or introduction con- dressed: Office of Protected Resources, stitutes an importation within the F/PR, National Marine Fisheries Serv- meaning of the tariff laws of the ice, NOAA, 1315 East West Highway, United States. Silver Spring, MD 20910.
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Offshore means marine and tidal wa- the raw material for such product was ters seaward of the 72 COLREGS de- lawfully held within the United States marcation line (International Regula- on December 28, 1973, in the course of a tions for Preventing Collisions at Sea, commercial activity. 1972), as depicted or noted on nautical Properly implemented conservation plan charts published by the National Oce- means any conservation plan, imple- anic and Atmospheric Administration menting agreement, or permit whose (Coast Charts, 1:80,000 scale) and as de- commitments and provisions have been scribed in 33 CFR part 80. or are being fully implemented by the Operating conservation program means permittee. those conservation management activi- Pusher-head trawl (chopsticks) means ties which are expressly agreed upon a trawl that is spread by two poles sus- and described in a Conservation Plan pended from the bow of the trawler in or its Implementing Agreement. These an inverted ‘‘V’’ configuration. activities are to be undertaken for the Resident species means, for purposes affected species when implementing an of entering into cooperative agree- approved Conservation Plan, including ments with any state pursuant to sec- measures to respond to changed cir- tion 6(c) of the Act, a species that ex- cumstances. ists in the wild in that state during any Permit means any document so des- part of its life. ignated by the National Marine Fish- Right whale means, as used in part 224 eries Service and signed by an author- of this chapter, any whale that is a ized official of the National Marine member of the western North Atlantic Fisheries Service, including any docu- population of the northern right whale ment which modifies, amends, extends, species (Eubalaena glacialis). or renews any permit. Roller trawl means a variety of beam Person means an individual, corpora- trawl that is used, usually by small tion, partnership, trust, association, or vessels, for fishing over uneven or vege- any other private entity, or any offi- tated sea bottoms. cer, employee, agent, department, or Scrimshaw product means any art instrumentality of the Federal govern- form which involves the substantial ment of any state or political subdivi- etching or engraving of designs upon, sion thereof or of any foreign govern- or the substantial carving of figures, ment. patterns, or designs from any bone or Possession means the detention and tooth of any marine mammal of the control, or the manual or ideal custody order Cetacea. For purposes of this of anything that may be the subject of part, polishing or the adding of minor property, for one’s use and enjoyment, superficial markings does not con- either as owner or as the proprietor of stitute substantial etching, engraving, a qualified right in it, and either held or carving. personally or by another who exercises Secretary means the Secretary of it in one’s place and name. Possession Commerce or an authorized representa- includes the act or state of possessing tive. and that condition of facts under which Shrimp means any species of marine persons can exercise their power over a shrimp (Order Crustacea) found in the corporeal thing at their pleasure to the Atlantic Area or the Gulf Area, includ- exclusion of all other persons. Posses- ing, but not limited to: sion includes constructive possession (1) Brown shrimp (Penaeus aztecus). that which means not an actual but an (2) White shrimp (Penaeus setiferus). assumed existence one claims to hold (3) Pink shrimp (Penaeus duorarum). by virtue of some title, without having (4) Rock shrimp (Sicyonia brevirostris). actual custody. (5) Royal red shrimp (Hymenopenaeus Pre-Act endangered species part means robustus). any sperm whale oil, including deriva- (6) Seabob shrimp (Xiphopenaeus tives and products thereof, which was kroyeri). lawfully held within the United States Shrimp trawler means any vessel that on December 28, 1973, in the course of a is equipped with one or more trawl nets commercial activity; or any finished and that is capable of, or used for, fish- scrimshaw product, if such product or ing for shrimp, or whose on-board or
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landed catch of shrimp is more than 1 Summer flounder trawler means any percent, by weight, of all fish com- vessel that is equipped with one or prising its on-board or landed catch. more bottom trawl nets and that is ca- Skimmer trawl means a trawl that is pable of, or used for, fishing for floun- fished along the side of the vessel and der or whose on-board or landed catch is held open by a rigid frame and a lead of flounder is more than 100 lb (45.4 kg). weight. On its outboard side, the trawl Take means to harass, harm, pursue, is held open by one side of the frame hunt, shoot, wound, kill, trap, capture, extending downward and, on its in- or collect, or to attempt to harass, board side, by a lead weight attached harm, pursue, hunt, shoot, wound, kill, by cable or rope to the bow of the ves- trap, capture, or collect. sel. Taper, in reference to the webbing Southeast Regional Administrator used in trawls, means the angle of a means the Regional Administrator for cut used to shape the webbing, ex- the Southeast Region of the National pressed as the ratio between the cuts Marine Fisheries Service, National that reduce the width of the webbing Oceanic and Atmospheric Administra- by cutting into the panel of webbing tion, U.S. Department of Commerce, or through one row of twine (bar cuts) and their authorized representative. Mail the cuts that extend the length of the sent to the Southeast Regional Admin- panel of webbing by cutting straight istrator should be addressed: Southeast aft through two adjoining rows of Regional Administrator, F/SE, South- twine (point cuts). For example, se- east Regional Office, National Marine quentially cutting through the lengths Fisheries Service, NOAA, 9721 Execu- of twine on opposite sides of a mesh, tive Center Drive N., St. Petersburg, leaving an uncut edge of twines all FL 33702–2432. lying in the same line, produces a rel- atively strong taper called ‘‘all-bars’’; Southwest Regional Administrator making a sequence of 4-bar cuts fol- means the Regional Administrator for lowed by 1-point cut produces a more the Southwest Region of the National gradual taper called ‘‘4 bars to 1 point’’ Marine Fisheries Service, National or ‘‘4b1p’’; similarly, making a se- Oceanic and Atmospheric Administra- quence of 2-bar cuts followed by 1-point tion, U.S. Department of Commerce, or cut produces a still more gradual taper their authorized representative. Mail called ‘‘2b1p’’; and making a sequence sent to the Southwest Regional Admin- of cuts straight aft does not reduce the istrator should be addressed: South- width of the panel and is called a west Regional Administrator, F/SW, ‘‘straight’’ or ‘‘all-points’’ cut. Southwest Regional Office, National Taut means a condition in which Marine Fisheries Service, NOAA, 501 there is no slack in the net webbing. West Ocean Blvd, Suite 4200, Long Test net, or try net, means a net Beach, CA 90802–4213. pulled for brief periods of time just be- Stretched mesh size means the dis- fore, or during, deployment of the pri- tance between the centers of the two mary net(s) in order to test for shrimp opposite knots in the same mesh when concentrations or determine fishing pulled taut. conditions (e.g., presence or absence of Summer flounder means the species bottom debris, jellyfish, bycatch, Paralichthys dentatus. seagrasses, etc.). Summer flounder fishery-sea turtle pro- Tongue means any piece of webbing tection area means all offshore waters, along the top, center, leading edge of a bounded on the north by a line along trawl, whether lying behind or ahead of 37°05′ N. lat. (Cape Charles, VA) and the headrope, to which a towing bridle bounded on the south by a line extend- can be attached for purposes of pulling ing in a direction of 135°34′55″ from true the trawl net and/or adjusting the north from the North Carolina-South shape of the trawl. Carolina land boundary, as marked by Transportation means to ship, convey, the border station on Bird Island at carry or transport by any means what- 33°51′07.9″ N. lat., 078°32′32.6″ W. ever, and deliver or receive for such long.(the North Carolina-South Caro- shipment, conveyance, carriage, or lina border). transportation.
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Triple-wing trawl means a trawl with of resident species listed as endangered a tongue on the top, center, leading or threatened. In order for a state pro- edge of the trawl and an additional gram to be deemed an adequate and ac- tongue along the bottom, center, lead- tive program, the Assistant Adminis- ing edge of the trawl. trator must find, and annually recon- Two-seam trawl means a design of firm that the criteria of either sections shrimp trawl in which the main body of 6(c)(1) (A) through (E) or sections the trawl is formed from a top and a 6(c)(1) (i) and (ii) of the Act have been bottom panel of webbing that are di- satisfied. rectly attached to each other down the (2) Following receipt of an applica- sides of the trawl. tion by a state for a Cooperative Agree- Underway with respect to a vessel, ment with a copy of a proposed state means that the vessel is not at anchor, program, and a determination by the or made fast to the shore, or aground. Assistant Administrator that the state Unforeseen circumstances means program is adequate and active, the changes in circumstances affecting a Assistant Administrator shall enter species or geographic area covered by a into an Agreement with the state. conservation plan that could not rea- sonably have been anticipated by plan (3) The Cooperative Agreement, as developers and NMFS at the time of well as the Assistant Administrator’s the conservation plan’s negotiation finding upon which it is based, must be and development, and that result in a reconfirmed annually to ensure that it substantial and adverse change in the reflects new laws, species lists, rules or status of the covered species. regulations, and programs and to dem- Vessel means a vehicle used, or capa- onstrate that it is still adequate and ble of being used, as a means of trans- active. portation on water which includes (b) Allocation and availability of funds. every description of watercraft, includ- (1) The Assistant Administrator shall ing nondisplacement craft and sea- allocate funds, appropriated for the planes. purpose of carrying out section 6 of the Vessel restricted in her ability to ma- Act, to various states using the fol- neuver has the meaning specified for lowing as the basis for the determina- this term at 33 U.S.C. 2003(g). tion: Wildlife means any member of the (i) The international commitments of animal kingdom, including without the United States to protect endan- limitation any mammal, fish, bird (in- gered or threatened species; cluding any migratory, nonmigratory, (ii) The readiness of a state to pro- or endangered bird for which protec- ceed with a conservation program con- tion is also afforded by treaty or other sistent with the objectives and pur- international agreement), amphibian, poses of the Act; reptile, mollusk, crustacean, arthropod (iii) The number of federally listed or other invertebrate, and includes any endangered and threatened species part, product, egg, or offspring thereof, within a state; or the dead body or parts thereof. (iv) The potential for restoring en- Wing net (butterfly trawl) means a dangered and threatened species within trawl that is fished along the side of a state; and the vessel and that is held open by a four-sided, rigid frame attached to the (v) The relative urgency to initiate a outrigger of the vessel. program to restore and protect an en- dangered or threatened species in § 222.103 Federal/state cooperation in terms of survival of the species. the conservation of endangered and (2) Funds allocated to a state are threatened species. available for obligation during the fis- (a) Application for and renewal of coop- cal year for which they are allocated erative agreements. (1) The Assistant Ad- and until the close of the succeeding ministrator may enter into a Coopera- fiscal year. Obligation of allocated tive Agreement with any state that es- funds occurs when an award or con- tablishes and maintains an active and tract is signed by the Assistant Admin- adequate program for the conservation istrator.
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(c) Financial assistance and payments. designated by the state agency and au- (1) A state must enter into a Coopera- thorized under the laws of the state to tive Agreement before financial assist- receive public funds for the state. ance is approved by the Assistant Ad- ministrator for endangered or threat- Subpart B—Certificates of Exemp- ened species projects. Specifically, the tion for Pre-Act Endangered Agreement must contain the actions Species Parts that are to be taken by the Assistant Administrator and/or by the state, the § 222.201 General requirements. benefits to listed species expected to be (a) The Assistant Administrator may derived from these actions, and the es- exempt any pre-Act endangered species timated cost of these actions. part from the prohibitions of sections (2) Subsequent to such Agreement, 9(a)(1)(A), 9(a)(1)(E), or 9(a)(1)(F) of the the Assistant Administrator may fur- Act. ther agree with a state to provide fi- (1) No person shall engage in any ac- nancial assistance in the development tivities identified in such sections of and implementation of acceptable the Act that involve any pre-Act en- projects for the conservation of endan- dangered species part without a valid gered and threatened species. Docu- Certificate of Exemption issued pursu- ments to provide financial assistance ant to this subpart B. will consist of an application for Fed- (2) No person may export, deliver, re- eral assistance and an award or a con- ceive, carry, transport or ship in inter- tract. The availability of Federal funds state or foreign commerce in the shall be contingent upon the continued course of a commercial activity; or sell existence of the Cooperative Agree- or offer for sale in interstate or foreign ment and compliance with all applica- commerce any pre-Act finished scrim- ble Federal regulations for grant ad- shaw product unless that person has ministration and cost accounting prin- been issued a valid Certificate of Ex- ciples. emption and the product or the raw (3)(i) The payment of the Federal material for such product was held by share of costs incurred when con- such certificate holder on October 13, ducting activities included under a 1982. contract or award shall not exceed 75 (3) Any person engaged in activities percent of the program costs as stated otherwise prohibited under the Act or in the agreement. However, the Federal regulations shall bear the burden of share may be increased to 90 percent proving that the exemption or certifi- when two or more states having a com- cate is applicable, was granted, and mon interest in one or more endan- was valid and in force at the time of gered or threatened resident species, the otherwise prohibited activity. the conservation of which may be en- (b) Certificates of Exemption issued hanced by cooperation of such states, under this subpart are no longer avail- jointly enter into an agreement with able to new applicants. However, the the Assistant Administrator. Assistant Administrator may renew or (ii) The state share of program costs modify existing Certificates of Exemp- may be in the form of cash or in-kind tions as authorized by the provisions contributions, including real property, set forth in this subpart. subject to applicable Federal regula- (c) Any person granted a Certificate tions. of Exemption, including a renewal, (4) Payments of funds, including pay- under this subpart, upon a sale of any ment of such preliminary costs and ex- exempted pre-Act endangered species penses as may be incurred in connec- part, must provide the purchaser in tion with projects, shall not be made writing with a description (including unless all necessary or required docu- full identification number) of the part ments are first submitted to and ap- sold and must inform the purchaser in proved by the Assistant Administrator. writing of the purchaser’s obligation Payments shall only be made for ex- under paragraph (b) of this section, in- penditures reported and certified by cluding the address given in the certifi- the state agency. Payments shall be cate to which the purchaser’s report is made only to the state office or official to be sent.
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(d) Any purchaser of pre-Act endan- (4) The period of time for which a re- gered species parts included in a valid newal of the Certificate of Exemption Certificate of Exemption, unless an ul- is requested. However, no renewal of timate user, within 30 days after the Certificate of Exemption, or right receipt of such parts, must submit a claimed thereunder, shall be effective written report to the address given in after the close of the 5-year period be- the certificate. The report must specify ginning on the date of the expiration of the quantity of such parts or products the previous renewal of the certificate received, the name and address of the of exemption. seller, a copy of the invoice or other (5)(i) A complete and detailed up- document showing the serial numbers, dated inventory of all pre-Act endan- weight, and descriptions of the parts or gered species parts for which the appli- products received, the date on which cant seeks exemption. Each item on such parts or products were received, the inventory must be identified by the and the intended use of such parts by following information: A unique serial the purchaser. The term ‘‘ultimate user’’, for purposes of this paragraph, number; the weight of the item to the means any person who acquired such nearest whole gram; and a detailed de- endangered species part or product for scription sufficient to permit ready his or her own consumption or for identification of the item. Small lots, other personal use (including gifts) and not exceeding five pounds (2,270 grams), not for resale. of scraps or raw material, which may include or consist of one or more whole § 222.202 Certificate renewal. raw whale teeth, may be identified by a (a) Any person to whom a Certificate single serial number and total weight. of Exemption has been issued by the All finished scrimshaw items subse- National Marine Fisheries Service may quently made from a given lot of scrap apply to the Assistant Administrator may be identified by the lot serial for renewal of such certificate. Any number plus additional digits to sig- person holding a valid Certificate of nify the piece number of the individual Exemption which was renewed after finished item. Identification numbers October 13, 1982, and was in effect on will be in the following format: 00– March 31, 1988, may apply to the Sec- 000000–0000. The first two digits will be retary for one renewal for a period not the last two digits of the appropriate to exceed 5 years. certificate of exemption number; the (b) The sufficiency of the application next six digits, the serial number of the shall be determined by the Assistant individual piece or lot of scrap or raw Administrator in accordance with the material; and the last four digits, requirements of paragraph (c) of this where applicable, the piece number of section. At least 15 days should be al- an item made from a lot of scrap or lowed for processing. When an applica- raw material. The serial numbers for tion for a renewal has been received each certificate holder’s inventory and deemed sufficient, the Assistant must begin with 000001, and piece num- Administrator shall issue a Certificate bers, where applicable, must begin with of Renewal to the applicant as soon as 0001 for each separate lot. practicable. (ii) Identification numbers may be af- (c) The following information will be used as the basis for determining fixed to inventory items by any means, whether an application for renewal of a including, but not limited to, etching Certificate of Exemption is complete: the number into the item, attaching a (1) Title: Application for Renewal of label or tag bearing the number to the Certificate of Exemption. item, or sealing the item in a plastic (2) The date of application. bag, wrapper or other container bear- (3) The identity of the applicant, in- ing the number. The number must re- cluding complete name, original Cer- main affixed to the item until the item tificate of Exemption number, current is sold to an ultimate user, as defined address, and telephone number. If the in § 222.201(d). applicant is a corporation, partnership, (iii) No renewals will be issued for or association, set forth the details. scrimshaw products in excess of any
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quantities declared in the original ap- § 222.204 Administration of certifi- plication for a Certificate of Exemp- cates. tion. (a) The Certificate of Exemption cov- (6) A Certification in the following ers the business or activity specified in language: I hereby certify that the the Certificate of Exemption at the ad- foregoing information is complete, dress described therein. No Certificate true, and correct to the best of my of Exemption is required to cover a knowledge and belief. I understand separate warehouse facility used by the that this information is submitted for certificate holder solely for storage of the purpose of obtaining a renewal of pre-Act endangered species parts, if the my Certificate of Exemption under the records required by this subpart are Endangered Species Act, as amended, maintained at the address specified in and the Department of Commerce regu- the Certificate of Exemption served by lations issued thereunder, and that any the warehouse or storage facility. false statement may subject me to the (b) Certificates of Exemption issued criminal penalties of 18 U.S.C. 1001, or under this subpart are not transferable. to the penalties under the Act. However, in the event of the lease, sale, (7) Signature of the applicant. or other transfer of the operations or (d) Upon receipt of an incomplete or activity authorized by the Certificate improperly executed application for re- of Exemption, the successor is not re- newal, the applicant shall be notified quired to obtain a new Certificate of of the deficiency in the application for Exemption prior to commencing such renewal. If the application for renewal operations or activity. In such case, is not corrected and received by the As- the successor will be treated as a pur- sistant Administrator within 30 days chaser and must comply with the following the date of receipt of notifi- record and reporting requirements set cation, the application for renewal forth in § 222.201(d). shall be considered abandoned. (c) The Certificate of Exemption holder must notify the Assistant Ad- § 222.203 Modification, amendment, ministrator, in writing, of any change suspension, and revocation of cer- tificates. in address, in trade name of the busi- ness, or in activity specified in the cer- (a) When circumstances have changed tificate. The Assistant Administrator so that an applicant or certificate hold- must be notified within 10 days of a er desires to have any material, term, change of address, and within 30 days or condition of the application or cer- of a change in trade name. The certifi- tificate modified, the applicant or cer- cate with the change of address or in tificate holder must submit in writing trade name must be endorsed by the full justification and supporting infor- Assistant Administrator, who shall mation in conformance with the provi- provide an amended certificate to the sions of this part. person to whom it was issued. A certifi- (b) All certificates are issued subject cate holder who seeks amendment of a to the condition that the Assistant Ad- certificate may continue all authorized ministrator reserves the right to activities while awaiting action by the amend the provisions of a Certificate of Assistant Administrator. Exemption for just cause at any time. (d) A Certificate of Exemption issued Such amendments take effect on the under this subpart confers no right or date of notification, unless otherwise privilege to conduct a business or an specified. activity contrary to state or other law. (c) Any violation of the applicable Similarly, compliance with the provi- provisions of parts 222, 223, or 224 of sions of any state or other law affords this chapter, or of the Act, or of a con- no immunity under any Federal laws dition of the certificate may subject or regulations of any other Federal the certificate holder to penalties pro- agency. vided in the Act and to suspension, rev- (e) Any person authorized to enforce ocation, or modification of the Certifi- the Act may enter the premises of any cate of Exemption, as provided in sub- Certificate of Exemption holder or of part D of 15 CFR part 904. any purchaser during business hours,
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including places of storage, for the pur- prescribed in paragraph (g)(2) of this pose of inspecting or of examining any section when the record holder dem- records or documents and any endan- onstrates that an alternate method of gered species parts. reporting is reasonably necessary and (f) The records pertaining to pre-Act will not hinder the effective adminis- endangered species parts prescribed by tration or enforcement of this subpart. this subpart shall be in permanent form and shall be retained at the ad- § 222.205 Import and export require- dress shown on the Certificate of Ex- ments. emption or at the principal address of a (a) Any fish and wildlife subject to purchaser in the manner prescribed by the jurisdiction of the National Marine this subpart. Fisheries Service and is intended for (g)(1) Holders of Certificates of Ex- importation into or exportation from emption must maintain records of all the United States, shall not be im- pre-Act endangered species parts they ported or exported except at a port(s) receive, sell, transfer, distribute or dis- designated by the Secretary of the In- pose of otherwise. Purchasers of pre- terior. Shellfish and fishery products Act endangered species parts, unless that are neither endangered nor threat- ultimate users, as defined in ened species and that are imported for § 222.201(d), must similarly maintain purposes of human or animal consump- records of all such parts or products tion or taken in waters under the juris- they receive. diction of the United States or on the (2) Such records referred to in para- high seas for recreational purposes are graph (g)(1) of this section may consist excluded from this requirement. The of invoices or other commercial Secretary of the Interior may permit records, which must be filed in an or- the importation or exportation at non- derly manner separate from other com- designated ports in the interest of the mercial records maintained and be health or safety of the species for other readily available for inspection. Such reasons if the Secretary deems it ap- records must show the name and ad- propriate and consistent with the pur- dress of the purchaser, seller, or other pose of facilitating enforcement of the transferor; show the type, quantity, and identity of the part or product; Act and reducing the costs thereof. Im- show the date of such sale or transfer; porters and exporters are advised to see and be retained, in accordance with the 50 CFR part 14 for importation and ex- requirements of this subpart, for a pe- portation requirements and informa- riod of not less than 3 years following tion. the date of sale or transfer. Each pre- (b) No pre-Act endangered species Act endangered species part will be part shall be imported into the United identified by its number on the updated States. A Certificate of Exemption inventory required to renew a Certifi- issued in accordance with the provi- cate of Exemption. sions of this subpart confers no right or (i) Each Certificate of Exemption privilege to import into the United holder must submit a quarterly report States any such part. (to the address given in the certificate) (c)(1) Any person exporting from the containing all record information re- United States any pre-Act endangered quired by paragraph (g)(2) of this sec- species part must possess a valid Cer- tion, on all transfers of pre-Act endan- tificate of Exemption issued in accord- gered species parts made in the pre- ance with the provisions of this sub- vious calendar quarter, or such other part. In addition, the exporter must record information the Assistant Ad- provide to the Assistant Adminis- ministrator may specify from time to trator, in writing, not less than 10 days time. prior to shipment, the following infor- (ii) Quarterly reports are due on Jan- mation: The name and address of the uary 15, April 15, July 15, and October foreign consignee, the intended port of 15. exportation, and a complete descrip- (3) The Assistant Administrator may tion of the parts to be exported. No authorize the record information to be shipment may be made until these re- submitted in a manner other than that quirements are met by the exporter.
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(2) The exporter must send a copy of requirements of parts 222, 223, and 224 the Certificate of Exemption, and any of this chapter when the Assistant Ad- endorsements thereto, to the District ministrator finds that an emergency Director of Customs at the port of ex- exists and that the proposed variations portation, which must precede or ac- will not hinder effective administra- company the shipment in order to per- tion of those parts and will not be un- mit the appropriate inspection prior to lawful. Other sections within parts 222, lading. Upon receipt, the District Di- 223, and 224 of this chapter may allow rector may order such inspection, as for a waiver or variation of specific re- deemed necessary; the District will quirements for emergency situations, clear the merchandise for export, prior upon certain conditions. In such cases, to the lading of the merchandise. If those conditions must be satisfied in they are satisfied that the shipment is order for the waiver or variation to be proper and complies with the informa- lawful. tion contained in the certificate and (b) No person shall take, import, ex- any endorsement thereto. The certifi- port or engage in any other prohibited cate, and any endorsements, will be activity involving any species of fish or forwarded to the Chief of the Office of wildlife under the jurisdiction of the Enforcement for NMFS. Secretary of Commerce that has been (3) No pre-Act endangered species determined to be endangered under the part in compliance with the require- Act, or that has been determined to be ments of this subpart may be exported threatened and for which the prohibi- except at a port or ports designated by tions of section 9(a)(1) of the Act have the Secretary of the Interior, pursuant been applied by regulation, without a to § 222.103. valid permit issued pursuant to these (4) Notwithstanding any provision of regulations. The permit shall entitle this subpart, it shall not be required the person to whom it is issued to en- that the Assistant Administrator au- gage in the activity specified in the thorizes the transportation in inter- permit, subject to the limitations of state or foreign commerce of pre-Act the Act and the regulations in parts endangered species parts. 222, 223, and 224 of this chapter, for the EFFECTIVE DATE NOTE: At 64 FR 14054, Mar. period stated on the permit, unless 23, 1999, part 222 was revised effective Mar. sooner modified, suspended or revoked. 23, 1999, with the exception of § 222.205 para- (c) Each person intending to engage graphs (c)(1) and (c)(2) which contain infor- in an activity for which a permit is re- mation collection requirements and will not quired by parts 222, 223, and 224 of this be effective until approval has been given by chapter or by the Act shall, before the Office of Management and Budget. commencing such activity, obtain a valid permit authorizing such activity. Subpart C—General Permit Any person who desires to obtain per- Procedures mit privileges authorized by parts 222, 223, and 224 of this chapter must apply § 222.301 General requirements. for such permit in accordance with the (a)(1) The regulations in this subpart requirements of these sections. If the C provide uniform rules and procedures information required for each specific, for application, issuance, renewal, con- permitted activity is included, one ap- ditions, and general administration of plication may be accepted for all per- permits issuable pursuant to parts 222, mits required, and a single permit may 223, and 224 of this chapter. While this be issued. section provides generic rules and pro- (d)(1) Any permit issued under these cedures applicable to all permits, other regulations must be in the possession sections may provide more specific of the person to whom it is issued (or of rules and procedures with respect to an agent of such person) while any ani- certain types of permits. In such cases, mal subject to the permit is in the pos- the requirements in all applicable sec- session of such person or agent. Spe- tions must be satisfied. cifically, a person or his/her agent (2) Notwithstanding paragraph (a)(1) must be in possession of a permit dur- of this section, the Assistant Adminis- ing the time of the authorized taking, trator may approve variations from the importation, exportation, or of any
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other act and during the period of any records shall be retained for 5 years transit incident to such taking, impor- from the date of issuance of the permit. tation, exportation, or to any other (j) Any person holding a permit pur- act. suant to parts 222, 223, and 224 of this (2) A duplicate copy of the issued per- chapter shall allow the Assistant Ad- mit must be physically attached to the ministrator to enter the permit hold- tank, container, package, enclosure, or er’s premises at any reasonable hour to other means of containment, in which inspect any fish or wildlife held or to the animal is placed for purposes of inspect, audit, or copy any permits, storage, transit, supervision, or care. books, or records required to be kept (e) The authorizations on the face of by these regulations or by the Act. a permit setting forth specific times, Such person shall display any permit dates, places, methods of taking, num- issued pursuant to these regulations or bers and kinds of fish or wildlife, loca- to the Act upon request by an author- tion of activity, authorize certain cir- ized officer or by any other person rely- cumscribed transactions, or otherwise ing on its existence. permit a specifically limited matter, are to be strictly construed and shall § 222.302 Procedure for obtaining per- not be interpreted to permit similar or mits. related matters outside the scope of (a) Applications must be submitted strict construction. to the Assistant Administrator, by let- (f) Permits shall not be altered, ter containing all necessary informa- erased, or mutilated, and any permit tion, attachments, certification, and which has been altered, erased, or mu- signature, as specified by the regula- tilated shall immediately become in- tions in parts 222, 223, and 224 of this valid. chapter, or by the Act. In no case, (g) Any permit issued under parts 222, other than for emergencies pursuant to 223, and 224 of this chapter shall be dis- § 222.301(a)(2), will applications be ac- played for inspection, upon request, to cepted either orally or by telephone. an authorized officer, or to any other (b) Applications must be received by person relying upon its existence. the Assistant Administrator at least 90 (h) Permittees may be required to calendar days prior to the date on file reports of the activities conducted which the applicant desires to have the under the permit. Any such reports permit made effective, unless other- shall be filed not later than March 31 wise specified in the regulations or for the preceding calendar year ending guidelines pertaining to a particular December 31, or any portion thereof, permit. The National Marine Fisheries during which a permit was in force, un- Service will attempt to process appli- less the regulations of parts 222, 223, or cations deemed sufficient in the short- 224 of this chapter or the provisions of est possible time, but does not guar- the permit set forth other reporting re- antee that the permit will be issued 90 quirements. days after notice of receipt of the ap- (i) From the date of issuance of the plication is published in the FEDERAL permit, the permittee shall maintain REGISTER. complete and accurate records of any (c)(1) Upon receipt of an insuffi- taking, possession, transportation, ciently or improperly executed applica- sale, purchase, barter, exportation, or tion, the applicant shall be notified of importation of fish or wildlife pursuant the deficiency in the application. If the to such permit. Such records shall be applicant fails to supply the deficient kept current and shall include the information or otherwise fails to cor- names and addresses of persons with rect the deficiency within 60 days fol- whom any fish or wildlife has been pur- lowing the date of notification, the ap- chased, sold, bartered, or otherwise plication shall be considered aban- transferred, and the date of such trans- doned. action, and such other information as (2) The sufficiency of the application may be required or appropriate. Such shall be determined by the Assistant records, unless otherwise specified, Administrator in accordance with the shall be entered in books, legibly writ- requirements of this part. The Assist- ten in the English language. Such ant Administrator, however, may
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waive any requirement for information hearing in person or through a rep- or require any elaboration or further resentative and may submit any rel- information deemed necessary. evant material, data, views, comments, arguments, or exhibits. A summary § 222.303 Issuance of permits. record of the hearing shall be kept. (a)(1) No permit may be issued prior (d) Except as provided in subpart D to the receipt of a written application to 15 CFR part 904, as soon as prac- unless an emergency pursuant to ticable but not later than 30 days after § 222.301(a)(2) exists, and a written vari- the close of the hearing. If no hearing ation from the requirements is re- is held, as soon as practicable but not corded by the National Marine Fish- later than 30 days from the publication eries Service. of the notice in the FEDERAL REGISTER, (2) No representation of an employee the Assistant Administrator shall issue or agent of the United States shall be or deny issuance of the permit. Notice construed as a permit unless it meets of the decision of the Assistant Admin- the requirements of a permit defined in istrator shall be published in the FED- § 222.102. ERAL REGISTER within 10 days after the (3) Each permit shall bear a serial date of the issuance or denial and indi- number. Upon renewal, such a number cate where copies of the permit, if may be reassigned to the permittee to issued, may be obtained. whom issued so long as the permittee (e)(1) The Assistant Administrator maintains continuity of renewal. shall issue the permit unless: (b) When an application for a permit (i) Denial of the permit has been received by the Assistant Adminis- made pursuant to subpart D to 15 CFR trator is deemed sufficient, the Assist- part 904; ant Administrator shall, as soon as (ii) The applicant has failed to dis- practicable, publish a notice in the close material or information required, FEDERAL REGISTER. Information re- or has made false statements as to any ceived by the Assistant Administrator material fact, in connection with the as a part of the application shall be application; available to the public as a matter of (iii) The applicant has failed to dem- public record at every stage of the pro- onstrate a valid justification for the ceeding. An interested party, within 30 permit or a showing of responsibility; days after the date of publication of (iv) The authorization requested po- such notice, may submit to the Assist- tentially threatens a fish or wildlife ant Administrator written data, views, population; or or arguments with respect to the tak- (v) The Assistant Administrator finds ing, importation, or to other action through further inquiry or investiga- proposed in the application, and may tion, or otherwise, that the applicant is request a hearing in connection with not qualified. the action to be taken thereon. (2) The applicant shall be notified in (c) If a request for a hearing is made writing of the denial of any permit re- within the 30-day period referred to in quest, and the reasons thereof. If au- paragraph (b) of this section, or if the thorized in the notice of denial, the ap- Assistant Administrator determines plicant may submit further informa- that a hearing would otherwise be ad- tion or reasons why the permit should visable, the Assistant Administrator not be denied. Such further informa- may, within 60 days after the date of tion shall not be considered a new ap- publication of the notice referred to in plication. The final action by the As- paragraph (b) of this section, afford to sistant Administrator shall be consid- such requesting party or parties an op- ered the final administrative decision portunity for a hearing. Such hearing of the Department of Commerce. shall also be open to participation by (f) If a permit is issued under § 222.308, any interested members of the public. the Assistant Administrator shall pub- Notice of the date, time, and place of lish notice thereof in the FEDERAL such hearing shall be published in the REGISTER, including the Assistant Ad- FEDERAL REGISTER not less than 15 ministrator’s finding that such per- days in advance of such hearing. Any mit— interested person may appear at the (1) Was applied for in good faith;
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(2) Will not operate to the disadvan- mit, provided that they furnish the tage of such endangered species; and permit to the issuing officer for en- (3) Will be consistent with the pur- dorsement within 90 days from the date poses and policy set forth in section 2 the successor begins to carry on the ac- of the Act. tivity. Such persons are the following: (g) The Assistant Administrator may (i) The surviving spouse, child, execu- waive the 30-day period in an emer- tor, administrator, or other legal rep- gency situation where the health or resentative of a deceased permittee, life of an endangered animal is threat- and ened and no reasonable alternative is (ii) The receiver or trustee in bank- available to the applicant. Notice of ruptcy or a court designated assignee any such waiver shall be published by for the benefit of creditors. the Assistant Administrator in the (b) Except as otherwise stated on the FEDERAL REGISTER within 10 days fol- face of the permit, any person who is lowing the issuance of the permit. under the direct control of the per- mittee, or who is employed by or under § 222.304 Renewal of permits. contract to the permittee for purposes When the permit is renewable and a authorized by the permit, may carry permittee intends to continue the ac- out the activity authorized by the per- tivity described in the permit during mit. any portion of the year ensuing its ex- EFFECTIVE DATE NOTE: At 64 FR 14054, Mar. piration, the permittee shall, unless 23, 1999, part 222 was revised effective Mar. otherwise notified in writing by the As- 23, 1999, with the exception of § 222.305 para- sistant Administrator, file a request graph (a) which contains information collec- for permit renewal, together with a tion requirements and will not be effective certified statement, verifying that the until approval has been given by the Office of Management and Budget. information in the original application is still currently correct. If the infor- § 222.306 Modification, amendment, mation is incorrect the permittee shall suspension, cancellation, and rev- file a statement of all changes in the ocation of permits. original application, accompanied by (a) When circumstances have changed any required fee at least 30 days prior so that an applicant or a permittee de- to the expiration of the permit. Any sires to have any term or condition of person holding a valid renewable per- the application or permit modified, the mit, who has complied with the fore- applicant or permittee must submit in going provision of this section, may writing full justification and sup- continue such activities as were au- porting information in conformance thorized by the expired permit until with the provisions of this part and the the renewal application is acted upon. part under which the permit has been issued or requested. Such applications § 222.305 Rights of succession and for modification are subject to the transfer of permits. same issuance criteria as original ap- (a)(1) Permits issued pursuant to plications. parts 222, 223, and 224 of this chapter (b) Notwithstanding the require- are not transferable or assignable. In ments of paragraph (a) of this section, the event that a permit authorizes cer- a permittee may change the mailing tain activities in connection with a address or trade name under which business or commercial enterprise, business is conducted without obtain- which is then subject to any subse- ing a new permit or being subject to quent lease, sale or transfer, the suc- the same issuance criteria as original cessor to that enterprise must obtain a permits. The permittee must notify the permit prior to continuing the per- Assistant Administrator, in writing mitted activity, with the exceptions within 30 days, of any change in ad- provided in paragraph (a)(2) of this sec- dress or of any change in the trade tion. name for the business or activity speci- (2) Certain persons, other than the fied in the permit. The permit with the permittee, are granted the right to change of address or in trade name carry on a permitted activity for the must be endorsed by the Assistant Ad- remainder of the term of a current per- ministrator, who shall provide an
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amended permit to the person to whom certificate of inclusion issued under it was issued. paragraph (f) of this section. (c) All permits are issued subject to (b) Permit application procedures. Ap- the condition that the National Marine plications should be sent to the Assist- Fisheries Service reserves the right to ant Administrator. The Assistant Ad- amend the provisions of a permit for ministrator shall determine the suffi- just cause at any time during its term. ciency of the application in accordance Such amendments take effect on the with the requirements of this section. date of notification, unless otherwise At least 120 days should be allowed for specified. processing. Each application must be (d) When any permittee discontinues signed and dated and must include the the permitted activity, the permittee following: shall, within 30 days thereof, mail the (1) The type of application, either: permit and a request for cancellation (i) Application for an Individual Inci- to the issuing officer, and the permit dental Take Permit under the Act; or shall be deemed void upon receipt. No (ii) Application for a General Inci- refund of any part of an amount paid as dental Take Permit under the Act; a permit fee shall be made when the op- (2) The name, address, and telephone erations of the permittee are, for any number of the applicant. If the appli- reason, discontinued during the tenure cant is a partnership or a corporate en- of an issued permit. tity or is representing a group or an or- (e) Any violation of the applicable ganization, the applicable details; provisions of parts 222, 223, or 224 of (3) The species or stocks, by common this chapter, or of the Act, or of a term and scientific name, and a description or condition of the permit may subject of the status, distribution, seasonal the permittee to both the penalties distribution, habitat needs, feeding provided in the Act and suspension, habits and other biological require- revocation, or amendment of the per- ments of the affected species or stocks; mit, as provided in subpart D to 15 CFR (4) A detailed description of the pro- part 904. posed activity, including the antici- pated dates, duration, and specific lo- § 222.307 Permits for incidental taking cation. If the request is for a general of species. incidental take permit, an estimate of (a) Scope. (1) The Assistant Adminis- the total level of activity expected to trator may issue permits to take en- be conducted; dangered and threatened species inci- (5) A conservation plan, based on the dentally to an otherwise lawful activ- best scientific and commercial data ity under section 10(a)(1)(B) of the Act. available, which specifies the fol- The regulations in this section apply to lowing: all endangered species, and those (i) The anticipated impact (i.e., threatened species for which the prohi- amount, extent, and type of antici- bitions of section 9(a)(1) of the Act, pated taking) of the proposed activity under the jurisdiction of the Secretary on the species or stocks; of Commerce, apply. (ii) The anticipated impact of the (2) If the applicant represents an in- proposed activity on the habitat of the dividual or a single entity, such as a species or stocks and the likelihood of corporation, the Assistant Adminis- restoration of the affected habitat; trator will issue an individual inci- (iii) The steps (specialized equip- dental take permit. If the applicant ment, methods of conducting activi- represents a group or organization ties, or other means) that will be taken whose members conduct the same or a to monitor, minimize, and mitigate similar activity in the same geo- such impacts, and the funding avail- graphical area with similar impacts on able to implement such measures; listed species for which a permit is re- (iv) The alternative actions to such quired, the Assistant Administrator taking that were considered and the will issue a general incidental take reasons why those alternatives are not permit. To be covered by a general in- being used; and cidental take permit, each individual (v) A list of all sources of data used conducting the activity must have a in preparation of the plan, including
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reference reports, environmental as- (2) The species and number of ani- sessments and impact statements, and mals covered; personal communications with recog- (3) The authorized method of taking; nized experts on the species or activity (4) The procedures to be used to han- who may have access to data not pub- dle or dispose of any animals taken; lished in current literature. and (c) Issuance criteria. (1) In deter- (5) The payment of an adequate fee to mining whether to issue a permit, the the National Marine Fisheries Service Assistant Administrator will consider to process the application. the following: (e) Duration of permits. The duration (i) The status of the affected species or stocks; of permits issued under this section (ii) The potential severity of direct, will be such as to provide adequate as- indirect, and cumulative impacts on surances to the permit holder to com- the species or stocks and habitat as a mit funding necessary for the activities result of the proposed activity; authorized by the permit, including (iii) The availability of effective conservation activities. In determining monitoring techniques; the duration of a permit, the Assistant (iv) The use of the best available Administrator will consider the dura- technology for minimizing or miti- tion of the proposed activities, as well gating impacts; and as the possible positive and negative (v) The views of the public, sci- effects on listed species associated with entists, and other interested parties issuing a permit of the proposed dura- knowledgeable of the species or stocks tion, including the extent to which the or other matters related to the applica- conservation plan is likely to enhance tion. the habitat of the endangered species (2) To issue the permit, the Assistant or to increase the long-term surviv- Administrator must find that— ability of the species. (i) The taking will be incidental; (f) Certificates of inclusion. (1) Any in- (ii) The applicant will, to the max- dividual who wishes to conduct an ac- imum extent practicable, monitor, tivity covered by a general incidental minimize, and mitigate the impacts of take permit must apply to the Assist- such taking; ant Administrator for a Certificate of (iii) The taking will not appreciably Inclusion. Each application must be reduce the likelihood of the survival signed and dated and must include the and recovery of the species in the wild; following: (iv) The applicant has amended the (i) The general incidental take per- conservation plan to include any meas- mit under which the applicant wants ures (not originally proposed by the ap- coverage; plicant) that the Assistant Adminis- (ii) The name, address, and telephone trator determines are necessary or ap- number of the applicant. If the appli- propriate; and cant is a partnership or a corporate en- (v) There are adequate assurances tity, the applicable details; that the conservation plan will be (iii) A description of the activity the funded and implemented, including any measures required by the Assistant Ad- applicant seeks to have covered under ministrator. the general incidental take permit, in- (d) Permit conditions. In addition to cluding the anticipated dates, dura- the general conditions set forth in this tion, and specific location; and part, every permit issued under this (iv) A signed certification that the section will contain such terms and applicant has read and understands the conditions as the Assistant Adminis- general incidental take permit and the trator deems necessary and appro- conservation plan, will comply with priate, including, but not limited to their terms and conditions, and will the following: fund and implement applicable meas- (1) Reporting requirements or rights ures of the conservation plan. of inspection for determining whether (2) To issue a Certificate of Inclusion, the terms and conditions are being the Assistant Administrator must find complied with; that:
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(i) The applicant will be engaged in cumstances, NMFS may require addi- the activity covered by the general per- tional measures of the permittee where mit, and the conservation plan is being properly (ii) The applicant has made adequate implemented. However, such additional assurances that the applicable meas- measures are limited to modifications ures of the conservation plan will be within any conserved habitat areas or funded and implemented. to the conservation plan’s operating (g) Assurances provided to permittee in conservation program for the affected case of changed or unforeseen cir- species. The original terms of the con- cumstances. The assurances in this servation plan will be maintained to paragraph (g) apply only to incidental the maximum extent possible. Addi- take permits issued in accordance with tional conservation and mitigation paragraph (c) of this section where the measures will not involve the commit- conservation plan is being properly im- ment of additional land, water, or fi- plemented, and apply only with respect nancial compensation or additional re- to species adequately covered by the strictions on the use of land, water, or conservation plan. These assurances other natural resources otherwise cannot be provided to Federal agencies. This rule does not apply to incidental available for development or use under take permits issued prior to March 25, the original terms of the conservation 1998. The assurances provided in inci- plan without the consent of the per- dental take permits issued prior to mittee. March 25, 1998, remain in effect, and (iii) NMFS has the burden of dem- those permits will not be revised as a onstrating that unforeseen cir- result of this rulemaking. cumstances exist, using the best sci- (1) Changed circumstances provided for entific and commercial data available. in the plan. If additional conservation These findings must be clearly docu- and mitigation measures are deemed mented and based upon reliable tech- necessary to respond to changed cir- nical information regarding the status cumstances and were provided for in and habitat requirements of the af- the plan’s operating conservation pro- fected species. NMFS will consider, but gram, the permittee will implement not be limited to, the following factors: the measures specified in the plan. (A) Size of the current range of the (2) Changed circumstances not provided affected species; for in the plan. If additional conserva- (B) Percentage of range adversely af- tion and mitigation measures are fected by the conservation plan; deemed necessary to respond to (C) Percentage of range conserved by changed circumstances and such meas- the conservation plan; ures were not provided for in the plan’s (D) Ecological significance of that operating conservation program, portion of the range affected by the NMFS will not require any conserva- conservation plan; tion and mitigation measures in addi- (E) Level of knowledge about the af- tion to those provided for in the plan fected species and the degree of speci- without the consent of the permittee, provided the plan is being properly im- ficity of the species’ conservation pro- plemented. gram under the conservation plan; and (3) Unforeseen circumstances. (i) In ne- (F) Whether failure to adopt addi- gotiating unforeseen circumstances, tional conservation measures would ap- NMFS will not require the commit- preciably reduce the likelihood of sur- ment of additional land, water, or fi- vival and recovery of the affected spe- nancial compensation or additional re- cies in the wild. strictions on the use of land, water, or (h) Nothing in this rule will be con- other natural resources beyond the strued to limit or constrain the Assist- level otherwise agreed upon for the spe- ant Administrator, any Federal, State, cies covered by the conservation plan local, or Tribal government agency, or without the consent of the permittee. a private entity, from taking addi- (ii) If additional conservation and tional actions at his or her own ex- mitigation measures are deemed nec- pense to protect or conserve a species essary to respond to unforeseen cir- included in a conservation plan.
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§ 222.308 Permits for scientific pur- tion as would be required if such person poses or for the enhancement of were an applicant. propagation or survival of species. (4) A description of the purpose of the (a) Scope. The Assistant Adminis- proposed acts, including the following: trator may issue permits for scientific (i) A detailed justification of the purposes or for the enhancement of the need for the endangered species, in- propagation or survival of the affected cluding a discussion of possible alter- endangered or threatened species in ac- natives, whether or not under the con- cordance with the regulations in parts trol of the applicant; and 222, 223, and 224 of this chapter and (ii) A detailed description of how the under such terms and conditions as the species will be used. Assistant Administrator may pre- (5) A detailed description of the scribe, authorizing the taking, impor- project, or program, in which the en- tation, or other acts otherwise prohib- dangered species is to be used, includ- ited by section 9 of the Act. Within the ing the following: jurisdication of a State, more restric- (i) The period of time over which the tive state laws or regulations in regard project or program will be conducted; to endangered species shall prevail in (ii) A list of the names and addresses regard to taking. Proof of compliance of the sponsors or cooperating institu- with applicable state laws will be re- tions and the scientists involved; quired before a permit will be issued. (iii) A copy of the formal research (b) Application procedures. Any person proposal or contract if one has been desiring to obtain such a permit may prepared; make application therefor to the As- (iv) A statement of whether the pro- sistant Administrator. Permits for ma- posed project or program has broader rine mammals shall be issued in ac- significance than the individual re- cordance with the provisions of part searcher’s goals. For example, does the 216, subpart D of this chapter. Permits proposed project or program respond relating to sea turtles may involve the directly or indirectly to recommenda- Fish and Wildlife Service, in which tion of any national or international case the applicant shall follow the pro- scientific body charged with research cedures set out in § 222.309. The fol- or management of the endangered spe- lowing information will be used as the cies? If so, how?; and basis for determining whether an appli- (v) A description of the arrange- cation is complete and whether a per- ments, if any, for the disposition of any mit for scientific purposes or for en- dead specimen or its skeleton or other hancement of propagation or survival remains in a museum or other institu- of the affected species should be issued tional collection for the continued ben- by the Assistant Administrator. An ap- efit to science. plication for a permit shall provide the (6) A description of the endangered following information and such other species which is the subject of the ap- information that the Assistant Admin- plication, including the following: istrator may require: (i) A list of each species and the num- (1) Title, as applicable, either— ber of each, including the common and (i) Application for permit for sci- scientific name, the subspecies (if ap- entific purposes under the Act; or plicable), population group, and range; (ii) Application for permit for the en- (ii) A physical description of each hancement of the propagation or sur- animal, including the age, size, and vival of the endangered species Under sex; the Act. (iii) A list of the probable dates of (2) The date of the application. capture or other taking, importation, (3) The identity of the applicant in- exportation, and other acts which re- cluding complete name, address, and quire a permit for each animal and the telephone number. If the applicant is a location of capture or other taking, im- partnership or a corporate entity, set portation, exportation, and other acts forth the details. If the endangered spe- which require a permit, as specifically cies is to be utilized by a person other as possible; than the applicant, set forth the name (iv) A description of the status of the of that person and such other informa- stock of each species related insofar as
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possible to the location or area of tak- (ii) The water supply, amount, and ing; quality; (v) A description of the manner of (iii) The diet, amount and type, for taking for each animal, including the all animals; gear to be used; (iv) Sanitation practices used; (vi) The name and qualifications of (v) Qualifications and experience of the persons or entity which will cap- the staff; ture or otherwise take the animals; (vi) A written certification from a li- and censed veterinarian or from a recog- (vii) If the capture or other taking is nized expert who are knowledgeable on to be done by a contractor, a statement the species (or related species) or group as to whether a qualified member of covered in the application. The certifi- your staff (include name(s) and quali- cate shall verify that the veterinarian fications) will supervise or observe the has personally reviewed the amend- capture or other taking. Accompanying ments for transporting and maintain- such statement shall be a copy of the ing the animal(s) and that, in the vet- proposed contract or a letter from the erinarian’s opinion, they are adequate contractor indicating agreement to to provide for the well-being of the ani- capture or otherwise take the animals, mal; and should a permit be granted. (vii) The availability in the future of (7) A description of the manner of a consulting expert or veterinarian transportation for any live animal meeting paragraph requirements of taken, imported, exported, or shipped (b)(8)(vi) in this section. in interstate commerce, including the (9) A statement of willingness to par- following: ticipate in a cooperative breeding pro- (i) Mode of transportation; gram and maintain or contribute data (ii) Name of transportation company; to a stud book. (iii) Length of time in transit for the (10) A statement of how the appli- transfer of the animal(s) from the cap- cant’s proposed project or program will ture site to the holding facility; enhance or benefit the wild population. (iv) Length of time in transit for any (11) For the 5 years preceding the planned future move or transfer of the date of application, the applicant shall animals; provide a detailed description of all (v) The qualifications of the common mortalities involving species under the carrier or agent used for transpor- control of or utilized by the applicant tation of the animals; and are either presently listed as en- (vi) A description of the pen, tank, dangered species or are taxonomically container, cage, cradle, or other de- related within the Order to the species vices used to hold the animal at both which is the subject of this application, the capture site and during transpor- including: tation; (i) A list of all endangered species (vii) Special care before and during and related species that are the subject transportation, such as salves, anti- of this application that have been cap- biotics, moisture; and tured, transported, maintained, or uti- (viii) A statement as to whether the lized by the applicant for scientific animals will be accompanied by a vet- purposes or for the enhancement of erinarian or by another similarly propagation or survival of the affected qualified person, and the qualifications species, and/or of related species that of such person. are captured, transported, maintained, (8) Describe the contemplated care or utilized by the applicant for sci- and maintenance of any live animals entific purposes or for enhancement of sought, including a complete descrip- propagation or survival of the affected tion of the facilities where any such species; animals will be maintained including: (ii) The numbers of mortalities (i) The dimensions of the pools or among such animals by species, by other holding facilities and the num- date, by location of capture, i.e., from ber, sex, and age of animals by species which population, and the location of to be held in each; such mortalities;
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(iii) The cause(s) of any such mor- er care and maintenance of the species tality; and and the adequacy of the applicant’s fa- (iv) The steps which have been taken cilities; by applicant to avoid or decrease any (7) Whether alternative non-endan- such mortality. gered species or population stocks can (12) A certification in the following and should be used; language: I hereby certify that the (8) Whether the animal was born in foregoing information is complete, captivity or was (or will be) taken from true, and correct to the best of my the wild; knowledge and belief. I understand (9) Provision for disposition of the that this information is submitted for species if and when the applicant’s the purpose of obtaining a permit project or program terminates; under the Endangered Species Act, as (10) How the applicant’s needs, pro- amended, and regulations promulgated gram, and facilities compare and relate thereunder, and that any false state- to proposed and ongoing projects and ment may subject me to the criminal programs; penalties of 18 U.S.C. 1001, or to pen- (11) Whether the expertise, facilities, alties under the Act. or other resources available to the ap- (13) The applicant and/or an officer plicant appear adequate to successfully thereof must sign the application. accomplish the objectives stated in the (14) Assistance in completing this ap- application; and plication may be obtained by writing (12) Opinions or views of scientists or Chief, Endangered Species Division, Of- other persons or organizations knowl- fice of Protected Resources, NMFS, edgeable about the species which is the 1315 East-West Highway, Silver Spring, subject of the application or of other MD 20910 or calling the Office of Pro- matters germane to the application. tected Resources at 301–713–1401. Allow (d) Terms and conditions. Permits ap- at least 90 days for processing. plied for under this section shall con- (c) Issuance criteria. In determining tain terms and conditions as the As- whether to issue a permit for scientific sistant Administrator may deem ap- purposes or to enhance the propagation propriate, including but not limited to or survival of the affected endangered the following: species, the Assistant Administrator (1) The number and kind of species shall specifically consider, among covered; other application criteria, the fol- (2) The location and manner of tak- lowing: ing; (1) Whether the permit was applied (3) Port of entry or export; for in good faith; (4) The methods of transportation, (2) Whether the permit, if granted care, and maintenance to be used with and exercised, will not operate to the live species; disadvantage of the endangered spe- (5) Any requirements for reports or cies; rights of inspections with respect to (3) Whether the permit would be con- any activities carried out pursuant to sistent with the purposes and policy the permit; set forth in section 2 of the Act; (6) The transferability or assign- (4) Whether the permit would further ability of the permit; a bona fide and necessary or desirable (7) The sale or other disposition of scientific purpose or enhance the prop- the species, its progeny, or the species agation or survival of the endangered product; and species, taking into account the bene- (8) A reasonable fee covering the fits anticipated to be derived on behalf costs of issuance of such permit, in- of the endangered species; cluding reasonable inspections and an (5) The status of the population of appropriate apportionment of overhead the requested species and the effect of and administrative expenses of the De- the proposed action on the population, partment of Commerce. All such fees both direct and indirect; will be deposited in the Treasury to the (6) If a live animal is to be taken, credit of the appropriation which is transported, or held in captivity, the current and chargeable for the cost of applicant’s qualifications for the prop- furnishing the service.
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§ 222.309 Permits for listed species of PART 223—THREATENED MARINE sea turtles involving the Fish and AND ANADROMOUS SPECIES Wildlife Service. (a) This section establishes specific Subpart A—General Provisions procedures for issuance of the following permits: scientific purposes or to en- Sec. hance the propagation or survival of 223.101 Purpose and scope. endangered or threatened species of sea 223.102 Enumeration of threatened marine and anadromous species. turtles; zoological exhibition or edu- cational purposes for threatened spe- Subpart B—Restrictions Applicable to cies of sea turtles; and permits that re- Threatened Marine and Anadromous quires coordination with the Fish and Species Wildlife Service. The National Marine Fisheries Service maintains jurisdic- 223.201 Guadalupe fur seal. tion for such species in the marine en- 223.202 Steller sea lion. vironment. The Fish and Wildlife Serv- 223.203 Anadromous fish. ice maintains jurisdiction for such spe- 223.204 Exceptions to prohibitions relating cies of sea turtles in the land environ- to anadromous fish. 223.205 Sea turtles. ment. 223.206 Exceptions to prohibitions relating (b) For permits relating to any activ- to sea turtles. ity in the marine environment exclu- 223.207 Approved TEDs. sively, permit applicants and permit- FIGURE 1 TO PART 223—NMFS TED tees must comply with the regulations FIGURE 2 TO PART 223—CAMERON TED in parts 222, 223, and 224 of this chapter. FIGURE 3 TO PART 223—MATAGORDA TED (c) For permits relating to any activ- FIGURE 4 TO PART 223—GEORGIA TED ity in the land environment exclu- FIGURE 5 TO PART 223—NET DIAGRAM FOR THE sively, permit applicants must submit EXCLUDER PANEL OF THE PARKER SOFT applications to the Wildlife Permit Of- TED fice (WPO) of the U.S. Fish and Wildlife FIGURES 6—9b TO PART 223 [RESERVED] Service in accordance with either 50 FIGURE 10 TO PART 223—FLOUNDER TED CFR 17.22(a), if the species is endan- FIGURE 11 TO PART 223—JONES TED gered, or 50 CFR 17.32(a), if the species FIGURE 12a TO PART 223—ATTACHMENT OF THE is threatened. EXIT HOLE COVER FIGURE 12b TO PART 223—GRID TED (d) For permits relating to any activ- LEATHERBACK MODIFICATION ity in both the land and marine envi- FIGURE 13 TO PART 223—SINGLE GRID HARD ronments, applicants must submit ap- TED ESCAPE OPENING plications to the WPO. WPO will for- FIGURE 14a TO PART 223—MAXIMUM ANGLE OF ward the application to NMFS for re- DEFLECTOR BARS WITH STRAIGHT BARS view and processing of those activities ATTACHED TO THE BOTTOM OF THE FRAME under its jurisdiction. Based on this re- FIGURE 14b TO PART 223—MAXIMUM ANGLE OF view and processing, WPO will issue ei- DEFLECTOR BARS WITH BENT BARS AT- ther a permit or a letter of denial in TACHED TO THE BOTTOM OF THE FRAME accordance with its own regulations. FIGURE 15 TO PART 223—MAXIMUM ANGLE OF (e) For permits relating to any activ- DEFLECTOR BARS WITH BARS UNATTACHED TO THE BOTTOM OF THE FRAME ity in a marine environment and that also requires a permit under the Con- AUTHORITY: 16 U.S.C. 1531 et seq.; 16 U.S.C. vention on International Trade in En- 742a et seq.; 31 U.S.C. 9701. dangered Species of Wild Fauna and SOURCE: 43 FR 32809, July 28, 1978, unless Flora (CITES) (TIAS 8249, July 1, 1975) otherwise noted. Redesignated at 64 FR 14068, (50 CFR part 23), applicants must sub- Mar. 23, 1999.
mit applications to the WPO. WPO will EDITORIAL NOTE: For a document relating forward the application to NMFS for to adoption of alternative scientific testing review and processing, after which protocol for evaluating TEDs see 55 FR 41092, WPO will issue a combination ESA/ Oct. 9, 1990. CITES permit or a letter of denial.
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Subpart A—General Provisions (4) Southern Oregon/Northern Cali- fornia Coast coho salmon § 223.101 Purpose and scope. (Oncorhynchus kisutch). Includes all (a) The regulations contained in this coho salmon naturally reproduced in part identify the species under the ju- streams between Cape Blanco in Curry risdiction of the Secretary of Com- County, OR, and Punta Gorda in Hum- merce that have been determined to be boldt County, CA. threatened species pursuant to section (5) Central California Coast steelhead 4(a) of the Act, and provide for the con- (Oncorhynchus mykiss). Includes all nat- servation of such species by estab- urally spawned populations of lishing rules and procedures to gov- steelhead (and their progeny) in erning activities involving the species. streams from the Russian River to (b) The regulations contained in this Aptos Creek, Santa Cruz County, Cali- part apply only to the threatened spe- fornia (inclusive), and the drainages of cies enumerated in § 223.102. San Francisco and San Pablo Bays (c) The provisions of this part are in eastward to the Napa River (inclusive), addition to, and not in lieu of, other Napa County, California. Excludes the regulations of parts 222 through 226 of Sacramento-San Joaquin River Basin this chapter which prescribe additional of the Central Valley of California. restrictions or conditions governing (6) South-Central California Coast threatened species. steelhead (Oncorhynchus mykiss). In- cludes all naturally spawned popu- [64 FR 14068, Mar. 23, 1999] lations of steelhead (and their progeny) § 223.102 Enumeration of threatened in streams from the Pajaro River (in- marine and anadromous species. clusive), located in Santa Cruz County, California, to (but not including) the The species determined by the Sec- Santa Maria River. retary of Commerce to be threatened pursuant to section 4(a) of the Act, as (7) Snake River Basin steelhead well as species listed under the Endan- (Oncorhynchus mykiss). Includes all nat- gered Species Conservation of Act of urally spawned populations of 1969 by the Secretary of the Interior steelhead (and their progeny) in and currently under the jurisdiction of streams in the Snake River Basin of the Secretary of Commerce, are the southeast Washington, northeast Or- following: egon, and Idaho. (a) Marine and anadromous fish. (1) (8) Lower Columbia River steelhead Snake River spring/summer chinook (Oncorhynchus mykiss). Includes all nat- salmon (Oncorhynchus tshawytscha). In- urally spawned populations of cludes all natural population(s) of steelhead (and their progeny) in spring/summer chinook salmon in the streams and tributaries to the Colum- mainstem Snake River and any of the bia River between the Cowlitz and following subbasins: Tucannon River, Wind Rivers, Washington, inclusive, Grande Ronde River, Imnaha River, and the Willamette and Hood Rivers, and Salmon River. Oregon, inclusive. Excluded are (2) Snake River fall chinook salmon steelhead in the upper Willamette (Oncorhynchus tshawytscha). Includes River Basin above Willamette Falls all natural population(s) of fall chi- and steelhead from the Little and Big nook in the mainstem Snake River and White Salmon Rivers in Washington; any of the following subbasins: (9) Central Valley, California Tucannon River, Grande Ronde River, steelhead (Oncorhynchus mykiss). In- Imnaha River, Salmon River, and cludes all naturally spawned popu- Clearwater River. lations of steelhead (and their progeny) (3) Central California Coast Coho in the Sacramento and San Joaquin Salmon (Oncorhynchus kisutch). In- Rivers and their tributaries. Excluded cludes all coho salmon naturally repro- are steelhead from San Francisco and duced in streams between Punta Gorda San Pablo Bays and their tributaries. in Humboldt County, CA, and the San (10) Oregon Coast coho salmon Lorenzo River in Santa Cruz County, (Oncorhynchus kisutch). Includes all CA. naturally spawned populations of coho
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salmon in streams south of the Colum- clusive of spring-run chinook salmon in bia River and north of Cape Blanco in the Clackamas River. Curry County, OR. (18) Upper Willamette River chinook (11) Gulf sturgeon (Acipenser salmon (Oncorhynchus tshawytscha). In- oxyrinchus desotoi). cludes all naturally spawned popu- (12) Hood Canal summer-run chum lations of spring-run chinook salmon in salmon (Oncorhynchus keta). Includes the Clackamas River and in the Wil- all naturally spawned populations of lamette River, and its tributaries, summer-run chum salmon in Hood above Willamette Falls, Oregon. Canal and its tributaries as well as (19) Ozette Lake sockeye salmon populations in Olympic Peninsula riv- (Oncorhynchus nerka). Includes all nat- ers between Hood Canal and Dungeness urally spawned populations of sockeye Bay, Washington; salmon in Ozette Lake and streams and (13) Columbia River chum salmon tributaries flowing into Ozette Lake, (Oncorhynchus keta). Includes all natu- Washington. rally spawned populations of chum (20) Central Valley spring-run chi- salmon in the Columbia River and its nook salmon (Oncorhynchus tributaries in Washington and Oregon. tshawytscha). Includes all naturally (14) Upper Willamette River spawned populations of spring-run chi- steelhead (Oncorhynchus mykiss). In- nook salmon in the Sacramento River cludes all naturally spawned popu- Basin, and its tributaries, California. lations of winter-run steelhead in the (21) California coastal chinook salm- Willamette River, Oregon, and its trib- on (Oncorhynchus tshawytscha). In- utaries upstream from Willamette cludes all naturally spawned popu- Falls to the Calapooia River, inclusive; lations of chinook salmon from Red- (15) Middle Columbia River steelhead wood Creek (Humboldt County, Cali- (Oncorhynchus mykiss). Includes all nat- fornia) through the Russian River urally spawned populations of steelhead in streams from above the (Sonoma County, California). Wind River, Washington, and the Hood (b) Marine plants. Johnson’s seagrass River, Oregon (exclusive), upstream to, (Halophila johnsonii). and including, the Yakima River, (c) Marine mammals. Guadalupe fur Washington. Excluded are steelhead seal (Arctocephalus townsendi); Steller from the Snake River Basin. sea lion, eastern population (16) Puget sound chinook salmon (Eumetopias jubatus), which consists of (Oncorhynchus tshawytscha). Includes all Stellar sea lions from breeding colo- all naturally spawned populations of nies located east of 114° W. longitude. chinook salmon from rivers and (d) Sea turtles. Green turtle (Chelonia streams flowing into Puget Sound in- mydas) except for those populations cluding the Straits of Juan De Fuca listed under § 224.101(c) of this chapter; from the Elwha River eastward, includ- Loggerhead turtle (Caretta caretta); ing rivers and streams flowing into Olive ridley turtle (Lepidochelys Hood Canal, South Sound, North Sound olivacea) except for those populations and the Strait of Georgia in Wash- listed under § 224.101(c) of this chapter. ington. NOTE TO § 223.201(D): Jurisdiction for sea (17) Lower Columbia River chinook turtles by the Department of Commerce, Na- salmon (Oncorhynchus tshawytscha). In- tional Oceanic and Atmospheric Administra- cludes all naturally spawned popu- tion, National Marine Fisheries Service, is lations of chinook salmon from the Co- limited to turtles while in the water. lumbia River and its tributaries from [64 FR 14068, Mar. 23, 1999, as amended at 64 its mouth at the Pacific Ocean up- FR 14328, Mar. 24, 1999; 64 FR 14517, 14528, stream to a transitional point between 14536, Mar. 25, 1999; 64 FR 50415, Sept. 16, 1999] Washington and Oregon east of the EFFECTIVE DATE NOTE: At 64 FR 50415, Hood River and the White Salmon Sept. 16, 1999, § 223.102 was amended by add- River, and includes the Willamette ing paragraphs (a)(20) and (a)(21), effective River to Willamette Falls, Oregon, ex- Nov. 15, 1999.
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Subpart B—Restrictions Applicable § 223.202 Steller sea lion. to Threatened Marine and (a) General prohibitions. The prohibi- Anadromous Species tions of section 9 of the Act (16 U.S.C. 1538) and the following regulatory pro- § 223.201 Guadalupe fur seal. visions shall apply to the eastern popu- (a) Prohibitions. The prohibitions of lation of Steller sea lions: section 9 of the Act (16 U.S.C. 1538) re- (1) No discharge of firearms. Except as lating to endangered species apply to provided in paragraph (b) of this sec- the Guadalupe fur seal except as pro- tion, no person subject to the jurisdic- vided in paragraph (b) of this section. tion of the United States may dis- (b) Exceptions. (1) The Assistant Ad- charge a firearm at or within 100 yards ministrator may issue permits author- (91.4 meters) of a Steller sea lion. A izing activities which would otherwise firearm is any weapon, such as a pistol be prohibited under paragraph (a) of or rifle, capable of firing a missile this section in accordance with the using an explosive charge as a propel- subject to the provisions of part 222 lant. subpart C—General Permit Procedures. (2) No approach in buffer areas. Except (2) Any Federal, State or local gov- as provided in paragraph (b) of this sec- ernment official, employee, or des- tion: ignated agent may, in the course of of- (i) No owner or operator of a vessel ficial duties, take a stranded Guada- may allow the vessel to approach with- lupe fur seal without a permit if such in 3 nautical miles (5.5 kilometers) of a taking: Steller sea lion rookery site listed in (i) Is accomplished in a humane man- paragraph (a)(3) of this section; ner; (ii) No person may approach on land (ii) Is for the protection or welfare of not privately owned within one-half the animal, is for the protection of the statutory miles (0.8 kilometers) or public health or welfare, or is for the within sight of a Steller sea lion rook- salvage or disposal of a dead specimen; ery site listed in paragraph (a)(3) of (iii) Includes steps designed to ensure this section, whichever is greater, ex- the return of the animal to its natural cept on Marmot Island; and habitat, if feasible; and (iii) No person may approach on land (iv) Is reported within 30 days to the not privately owned within one and Regional Administrator, Southwest one-half statutory miles (2.4 kilo- Region, National Marine Fisheries meters) or within sight of the eastern Service, 501 West Ocean Blvd., Suite shore of Marmot Island, including the 4200, Long Beach, CA 90802. Steller sea lion rookery site listed in (3) Any animal or specimen taken paragraph (a)(3) of this section, which- under paragraph (b)(2) of this section ever is greater. may only be retained, disposed of, or (3) Listed sea lion rookery sites. Listed salvaged in accordance with directions Steller sea lion rookery sites consist of from the Director, Southwest Region. the rookeries in the Aleutian Islands [50 FR 51258, Dec. 16, 1985. Redesignated and and the Gulf of Alaska listed in Table amended at 64 FR 14068, Mar. 23, 1999] 1.
TABLE 1 TO § 223.202ÐLISTED STELLER SEA LION ROOKERY SITES 1
From To Island NOAA Notes Lat. Long. Lat. Long. chart
1. Outer I...... 59°20.5 N 150°23.0 W 59°21.0 N 150°24.5 W 16681 S quadrant. 2. Sugarloaf I...... 58°53.0 N 152°02.0 W 16580 Whole is- land. 3. Marmot I...... 58°14.5 N 151°47.5 W 58°10.0 N 151°51.0 W 16580 SE quad- rant. 4. Chirikof I...... 55°46.5 N 155°39.5 W 55°46.5 N 155°43.0 W 16580 S quadrant. 5. Chowiet I...... 56°00.5 N 156°41.5 W 56°00.5 N 156°42.0 W 16013 S quadrant. 6. Atkins I...... 55°03.5 N 159°18.5 W 16540 Whole is- land. 7. Chernabura I...... 54°47.5 N 159°31.0 W 54°45.5 N 159°33.5 W 16540 SE corner.
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TABLE 1 TO § 223.202ÐLISTED STELLER SEA LION ROOKERY SITES 1ÐContinued
From To Island NOAA Notes Lat. Long. Lat. Long. chart
8. Pinnacle Rock ...... 54°46.0 N 161°46.0 W 16540 Whole is- land. 9. Clubbing Rks (N) ...... 54°43.0 N 162°26.5 W 16540 Whole is- land. Clubbing Rks (S) ...... 54°42.0 N 162°26.5 W 16540 Whole Is- land. 10. Sea Lion Rks ...... 55°28.0 N 163°12.0 W 16520 Whole is- land. 11. Ugamak I...... 54°14.0 N 164°48.0 W 54°13.0 N 164°48.0 W 16520 E end of is- land. 12. Akun I...... 54°18.0N 165°32.5W 54°18.0N 165°31.5W 16547 Billings Head Bight. 13. Akutan I...... 54°03.5 N 166°00.0 W 54°05.5 N 166°05.0 W 16520 SW corner, Cape Mor- gan. 14. Bogoslof I...... 53°56.0 N 168°02.0 W 16500 Whole is- land. 15. Ogchul I...... 53°00.0 N 168°24.0 W 16500 Whole is- land. 16. Adugak I...... 52°55.0 N 169°10.5 W 16500 Whole is- land. 17. Yunaska I...... 52°42.0 N 170°38.5 W 52°41.0 N 170°34.5 W 16500 NE end. 18. Seguam I...... 52°21.0 N 172°35.0 W 52°21.0 N 172°33.0 W 16480 N coast, Saddlerid- ge Pt. 19. Agligadak I...... 52°06.5 N 172°54.0 W 16480 Whole is- land. 20. Kasatochi I...... 52°10.0N 175°31.5W 52°10.5N 175°29.0W 16480 N half of is- land. 21. Adak I...... 51°36.5N 176°59.0W 51°38.0N 176°59.5W 16460 SW Point, Lake Point. 22. Gramp rock ...... 51°29.0 N 178°20.5 W 16460 Whole is- land. 23. Tag I...... 51°33.5 N 178°34.5 W 16460 Whole is- land. 24. Ulak I...... 51°20.0 N 178°57.0 W 51°18.5 N 178°59.5 W 16460 SE corner, Hasgox Pt. 25. Semisopochnoi ...... 51°58.5 N 179°45.5 E 51°57.0 N 179°46.0 E 16440 E quadrant, Pochnoi Pt. Semisopochnoi ...... 52°01.5 N 179°37.5 E 52°01.5 N 179°39.0 E 16440 N quadrant, Petrel Pt. 26. Amchitka I...... 51°22.5N 179°28.0E 51°21.5N 179°25.0E 16440 East Cape. 27. Amchitka I...... 51°32.5N 178°49.5E 16440 Column Rocks. 28. Ayugadak Pt...... 51°45.5 N 178°24.5 E 16440 SE coast of Rat Island. 29. Kiska I...... 51°57.5 N 177°21.0 E 51°56.5 N 177°20.0 E 16440 W central, Lief Cove. 30. Kiska I...... 51°52.5 N 177°13.0 E 51°53.5 N 177°12.0 E 16440 Cape St. Stephen. 31. Walrus I...... 57°11.0 N 169°56.0 W 16380 Whole is- land. 32. Buldir I...... 52°20.5 N 175°57.0 E 52°23.5 N 175°51.0 E 16420 Se point to NW point. 33. Agattu I...... 52°24.0 N 173°21.5 E 16420 Gillion Point. 34. Agattu I...... 52°23.5 N 173°43.5 E 52°22.0 N 173°41.0 E 16420 Cape Sabak. 35. Attu I...... 52°54.5N 172°28.5E 52°57.5N 172°31.5E 16681 S Quadrant.
1 Each site extends in a clockwise direction from the first set of geographic coordinates along the shoreline at mean lower low water to the second set of coordinates; or, if only one set of geographic coordinates is listed, the site extends around the entire shoreline of the island at mean lower low water.
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(4) Commercial Fishing Operations. The tivity has been conducted historically incidental mortality and serious injury or traditionally in the buffer zones, and of endangered and threatened Steller there is no readily available and ac- sea lions in commercial fisheries can ceptable alternative to or site for the be authorized in compliance with sec- activity. tions 101(a)(5) and 118 of the Marine (6) Navigational transit. Paragraph Mammal Protection Act. (a)(2) of this section does not prohibit a (b) Exceptions—(1) Permits. The Assist- vessel in transit from passing through ant Administrator may issue permits a strait, narrows, or passageway listed authorizing activities that would oth- in this paragraph if the vessel proceeds erwise be prohibited under paragraph in continuous transit and maintains a (a) of this section in accordance with minimum of 1 nautical mile from the and subject to the provisions of part rookery site. The listing of a strait, 222, subpart C—General Permit Proce- narrows, or passageway does not indi- dures. cate that the area is safe for naviga- (2) Official activities. The taking of tion. The listed straits, narrows, or Steller sea lions must be reported with- passageways include the following: in 30 days to the Regional Adminis- trator, Alaska Region. Paragraph (a) of Rookery Straits, narrows, or pass this section does not prohibit or re- strict a Federal, state or local govern- Akutan Island Akutan Pass between Cape Mor- gan and Unalga Island. ment official, or his or her designee, Clubbing Between Clubbing Rocks and who is acting in the course of official Rocks. Cherni Island. duties from: Outer Island ... Wildcat Pass between Rabbit and (i) Taking a Steller sea lion in a hu- Ragged Islands. mane manner, if the taking is for the protection or welfare of the animal, the (c) Penalties. (1) Any person who vio- protection of the public health and wel- lates this section or the Act is subject fare, or the nonlethal removal of nui- to the penalties specified in section 11 sance animals; or of the Act, and any other penalties pro- (ii) Entering the buffer areas to per- vided by law. form activities that are necessary for (2) Any vessel used in violation of national defense, or the performance of this section or the Endangered Species other legitimate governmental activi- Act is subject to forfeiture under sec- ties. tion 11(e)(4)(B) of the Act. (3) Subsistence takings by Alaska na- [55 FR 49210, Nov. 26, 1990, as amended at 56 tives. Paragraph (a) of this section does FR 42542, Aug. 28, 1991; 56 FR 58184, Nov. 18, not apply to the taking of Steller sea 1991; 58 FR 16371, Mar. 26, 1993; 58 FR 53139, lions for subsistence purposes under 53141, Oct. 14, 1993; 58 FR 58594, Nov. 2, 1993; section 10(e) of the Act. 62 FR 24355, May 5, 1997. Redesignated and (4) Emergency situations. Paragraph amended at 64 FR 14068–14069, Mar. 23, 1999] (a)(2) of this section does not apply to an emergency situation in which com- § 223.203 Anadromous fish. pliance with that provision presents a (a) Prohibitions. The prohibitions of threat to the health, safety, or life of a section 9 of the ESA (16 U.S.C. 1538) re- person or presents a significant threat lating to endangered species apply to to the vessel or property. the threatened species of salmon listed (5) Exemptions. Paragraph (a)(2) of in § 223.102(a)(1) through (a)(4), except this section does not apply to any ac- as provided in paragraph (b) of this sec- tivity authorized by a prior written ex- tion. emption from the Director, Alaska Re- (b) Exceptions. (1) The exceptions of gion, National Marine Fisheries Serv- section 10 of the ESA (16 U.S.C. 1539) ice. Concurrently with the issuance of and other exceptions under the Act re- any exemption, the Assistant Adminis- lating to endangered species, including trator will publish notice of the exemp- regulations in part 222 of this chapter tion in the FEDERAL REGISTER. An ex- II implementing such exceptions, also emption may be granted only if the ac- apply to the threatened species of tivity will not have a significant ad- salmon listed in § 223.102(a)(1) through verse affect on Steller sea lions, the ac- (a)(4).
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(2) The prohibitions of paragraph (a) Memorandum of Agreement (MOA) be- of this section relating to threatened tween the State of Oregon and NMFS. species of salmon listed in § 223.102(a)(4) (2) Incidental take of SONCC coho do not apply to activities specified in salmon in ocean fisheries within 3 an application for a permit for sci- miles (approximately 5 km) of the entific purposes or to enhance the coast that are regulated under the sole propagation or survival of the species, authority of the State of California is provided that the application has been not prohibited, provided that the ocean received by the Assistant Adminis- salmon fishing regulations adopted by trator for Fisheries, NOAA (AA), by the California Fish and Game Commis- September 16, 1997. This exception sion and CDFG for recreational and ceases upon the AA’s rejection of the commercial fisheries within 3 miles application as insufficient, upon (approximately 5 km) of the coast are issuance or denial of a permit, or on consistent with the Pacific Fishery Janury 20, 1998 whichever occurs ear- Management Council’s Fishery Man- liest. agement Plan for Ocean Salmon Fish- (3) The prohibitions of paragraph (a) eries and the annual ocean salmon fish- of this section relating to threatened ing regulations issued by the Secretary species of salmon listed in § 223.102(a)(4) of Commerce for the Federal EEZ. do not apply to any employee or agent (3) Take of SONCC coho salmon in a of the NMFS, any other Federal land hatchery program regulated under the management agency, or the Oregon De- sole authority of the State of Oregon is partment of Fish and Wildlife (ODFW) not prohibited, if the take results from or the California Department of Fish a hatchery program conducted in ac- and Game (CDFG), who is designated cordance with the OCSRI, and the take by his/her agency for such purposes, is counted against the total allocation when that employee or agent, acting in of harvest-related mortality as speci- the course of his/her official duties, fied in the OCSRI. NMFS must have takes a coho salmon in California or issued a written concurrence stating Oregon without a permit if such action that the hatchery program is con- is necessary to: (1) Aid a sick, injured, sistent with the OCSRI including the or stranded individual, (2) dispose of a hatchery and genetic management plan dead individual, or (3) salvage a dead adopted pursuant to the OCSRI, using individual, which may be useful for sci- information provided through the entific study. MOA. (4) Take of SONCC coho salmon in [62 FR 38483, July 18, 1997. Redesignated and fisheries research and monitoring ac- amended at 64 FR 14068–14069, Mar. 23, 1999] tivities conducted in California and Or- egon is not prohibited provided that: § 223.204 Exceptions to prohibitions (i) Research and monitoring involv- relating to anadromous fish. ing directed take of coho salmon is (a) The following exceptions to the conducted by CDFG personnel (in Cali- prohibitions of § 223.203(a) of this part fornia) and ODFW personnel (in Or- apply to the Southern Oregon/Northern egon); California Coast (SONCC) coho salmon. (ii) The CDFG and ODFW, respec- (1) Take of SONCC coho salmon with- tively, provide NMFS with a list of all in 3 miles (approximately 5 km) of the research and monitoring activities in- coast, and in the bay, estuarine or volving coho salmon directed take freshwater fisheries regulated under planned for the coming year for NMFS’ the sole authority of the State of Or- review and approval. This report shall egon is not prohibited, if the take re- include an estimate of the total di- sults from a fisheries harvest program rected take that is anticipated, a de- conducted in accordance with the Or- scription of the study design, including egon Coastal Salmon Restoration Ini- a justification for taking the species tiative of March 1997 (OCSRI). NMFS and a description of the techniques to must have issued a written concur- be used, and a point of contact; rence that the fisheries regulations are (iii) The CDFG and ODFW, respec- consistent with the OCSRI, using infor- tively, provide NMFS annually with mation provided through the April 1997 the results of research and monitoring
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studies directed at SONCC coho salm- § 222.307(c) of this chapter for Califor- on, including a report of the directed nia’s Watershed Protection Program. take resulting from the studies; NMFS must concur, in writing, that (iv) The CDFG and ODFW, provide the plan is consistent with those guide- NMFS annually with a list of all re- lines; or search and monitoring studies per- (ii) Until a watershed protection or mitted that may allow incidental take restoration plan is certified by the of listed coho salmon during the com- State of California and NMFS as de- ing year and report the level of inci- scribed in paragraph (a)(6)(i) of this dental take of listed coho salmon from section, or until August 18, 1999, which- the previous year’s research and moni- ever occurs first, when NMFS has made toring activities, for NMFS’ review and a written finding that the activity is approval. consistent with State of California con- (v) The research and monitoring ac- servation guidelines previously found tivities do not include the use of to meet the standards set forth in electrofishing in any body of water § 222.307(c) of this chapter by NMFS. known or suspected to contain coho salmon. [64 FR 14069, Mar. 23, 1999] (5) Incidental take of the SONCC § 223.205 Sea turtles. coho salmon in Oregon resulting from a habitat restoration activity is not pro- (a) The prohibitions of section 9 of hibited, provided that: the Act (16 U.S.C. 1538) relating to en- (i) The activity is conducted pursu- dangered species apply to threatened ant to a watershed action or restora- species of sea turtle, except as provided tion plan that has been affirmed by the in § 223.206. state in writing as consistent with (b) Except as provided in § 223.206, it NMFS’ approved state watershed plan is unlawful for any person subject to guidelines set forth in § 222.307(c) of the jurisdiction of the United States to this chapter. NMFS shall also concur do any of the following: in writing that the plan is consistent (1) Own, operate, or be on board a with the state watershed plan guide- vessel, except if that vessel is in com- lines; or pliance with all applicable provisions (ii) Until a watershed action or res- of § 223.206(d); toration plan is approved by both Or- (2) Fish for, catch, take, harvest, or egon and NMFS as described in para- possess, fish or wildlife while on board graph (a)(5)(i) of this section, or until a vessel, except if that vessel is in com- August 18, 1999, whichever occurs first, pliance with all applicable provisions the ODFW has made a written finding of § 223.206(d); that the activity is consistent with (3) Fish for, catch, take, harvest, or state restoration activity guidelines possess, fish or wildlife contrary to any that NMFS has agreed, in writing, notice of tow-time or other restriction meet the standards set forth in specified in, or issued under, § 222.307(c) of this chapter. § 223.206(d)(3) or (d)(4); (6) Incidental take of the SONCC (4) Possess fish or wildlife taken in coho salmon in California resulting violation of paragraph (b) of this sec- from a habitat restoration activity, as tion; defined in paragraph (a)(6)(iii) of this (5) Fail to follow any of the sea turtle section, is not prohibited, provided handling and resuscitation require- that California has a program in effect ments specified in § 223.206(d)(1); that NMFS finds will assure tech- (6) Possess a sea turtle in any man- nically supported watershed assess- ner contrary to the handling and resus- ments and coordinated long-term mon- citation requirements of § 223.206(d)(1); itoring strategies for watershed protec- (7) Fail to comply immediately, in tion plans and activities and: the manner specified at § 600.730 (b) (i) The activity is conducted pursu- through (d) of this Title, with instruc- ant to a watershed protection plan that tions and signals specified therein CDFG has affirmed, in writing, is con- issued by an authorized officer, includ- sistent with NMFS’ approved state wa- ing instructions and signals to haul tershed plan guidelines set forth in back a net for inspection;
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(8) Refuse to allow an authorized offi- of § 223.207 (c) or (d) has the burden of cer to board a vessel, or to enter an proving such claim. area where fish or wildlife may be [64 FR 14069, Mar. 23, 1999] found, for the purpose of conducting a boarding, search, inspection, seizure, § 223.206 Exceptions to prohibitions investigation, or arrest in connection relating to sea turtles. with enforcement of this section; (a) Permits—(1) Scientific research, edu- (9) Destroy, stave, damage, or dispose cation, zoological exhibition, or species of in any manner, fish or wildlife, gear, enhancement permits. The Assistant Ad- cargo, or any other matter after a com- ministrator may issue permits author- munication or signal from an author- izing activities which would otherwise ized officer, or upon the approach of be prohibited under § 223.205(a) for sci- such an officer or of an enforcement entific or educational purposes, for zoo- vessel or aircraft, before the officer has logical exhibition, or to enhance the an opportunity to inspect same, or in propagation or survival of threatened contravention of directions from the species of sea turtles, in accordance officer; with and subject to the conditions of (10) Assault, resist, oppose, impede, part 222, subpart C—General Permit intimidate, threaten, obstruct, delay, Procedures. prevent, or interfere with an author- (2) Incidental-take permits. The Assist- ized officer in the conduct of any ant Administrator may issue permits boarding, search, inspection, seizure, authorizing activities that would oth- investigation, or arrest in connection erwise be prohibited under § 223.205(a) with enforcement of this section; in accordance with section 10(a)(1)(B) (11) Interfere with, delay, or prevent of the Act (16 U.S.C. 1539(a)(1)(B)), and by any means, the apprehension of an- in accordance with, and subject to, the other person, knowing that such person implementing regulations in part 222 of committed an act prohibited by this this chapter. Such permits may be issued for the incidental taking of section; threatened and endangered species of (12) Resist a lawful arrest for an act sea turtles. prohibited by this section; (b) Exception for injured, dead, or (13) Make a false statement, oral or stranded specimens. If any member of written, to an authorized officer or to any threatened species of sea turtle is the agency concerning the fishing for, found injured, dead, or stranded, any catching, taking, harvesting, landing, agent or employee of the National Ma- purchasing, selling, or transferring fish rine Fisheries Service, the Fish and or wildlife, or concerning any other Wildlife Service, the U.S. Coast Guard, matter subject to investigation under or any other Federal land or water this section by such officer, or required management agency, or any agent or to be submitted under this part 223; employee of a state agency responsible (14) Sell, barter, trade or offer to sell, for fish and wildlife who is designated barter, or trade, a TED that is not an by his or her agency for such purposes, approved TED; or may, when acting in the course of his (15) Attempt to do, solicit another to or her official duties, take such speci- do, or cause to be done, any of the fore- mens without a permit if such taking going. is necessary to aid a sick, injured, or (c) In connection with any action al- stranded specimen or dispose of a dead leging a violation of this section, any specimen or salvage a dead specimen person claiming the benefit of any ex- which may be useful for scientific emption, exception, or permit under study. Whenever possible, live speci- this subpart B has the burden of prov- mens shall be returned to their aquatic ing that the exemption, exception, or environment as soon as possible. Every permit is applicable, was granted, and action shall be reported in writing to was valid and in force at the time of the Assistant Administrator within 30 the alleged violation. Further, any per- days, and reports of further occurrence son claiming that a modification made shall be made as deemed appropriate to a TED that is the subject of such an by the Assistant Administrator until action complies with the requirements the specimen is either returned to its
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environment or disposed of. Reports tally during the course of fishing or shall be mailed by registered or cer- scientific research activities must be tified mail, return receipt requested, to handled with due care to prevent in- the Assistant Administrator and shall jury to live specimens, observed for ac- contain the following information: tivity, and returned to the water ac- (1) Name and position of the official cording to the following procedures: or employee involved; (A) Sea turtles that are dead or ac- (2) Description of the specimen(s) in- tively moving must be released over volved; the stern of the boat. In addition, they (3) Date and location of disposal; must be released only when trawls are (4) Circumstances requiring the ac- not in use, when the engine gears are tion; in neutral position, and in areas where (5) Method of disposal; they are unlikely to be recaptured or (6) Disposition of the specimen(s), in- injured by vessels. cluding, where the specimen(s) has (B) Resuscitation must be attempted been retained in captivity, a descrip- on sea turtles that are comatose or in- tion of the place and means of confine- active but not dead by: ment, and the measures taken for its (1) Placing the turtle on its back maintenance and care; and (carapace) and pumping its breastplate (7) Such other information as the As- (plastron) with hand or foot; or sistant Administrator may require. (2) Placing the turtle on its breast- (c) Exception for research or conserva- plate (plastron) and elevating its hind- tion. Any employee or agent of the Na- tional Marine Fisheries Service, the quarter several inches for a period of 1 Fish and Wildlife Service, or a state up to 24 hours. The amount of the ele- fish and wildlife agency operating a vation depends on the size of the tur- conservation program pursuant to the tle; greater elevations are needed for terms of a Cooperative Agreement with larger turtles. Sea turtles being resus- the National Marine Fisheries Service citated must be shaded and kept wet or or the Fish and Wildlife Service in ac- moist. Those that revive and become cordance with section 6(c) of the Act, active must be released over the stern designated by his or her agency for of the boat only when trawls are not in such purposes, may, when acting in the use, when the engine gears are in neu- course of his or her official duties, take tral position, and in areas where they any threatened species to carry out sci- are unlikely to be recaptured or in- entific research or conservation pro- jured by vessels. Similarly, sea turtles grams. All such takings shall be re- that fail to move within several hours ported within 30 days of the taking to (up to 24, if possible) must be returned the Assistant Administrator who may to the water in the same manner. request additional reports of the tak- (ii) Any specimen taken incidentally ing and research at the Assistant Ad- during the course of fishing or sci- ministrator’s discretion. entific research activities must not be (d) Exception for incidental taking. The consumed, sold, landed, offloaded, prohibitions against taking in transshipped, or kept below deck. § 223.205(a) do not apply to the inci- (2) Gear requirements—(i) TED require- dental take of any member of a threat- ment for shrimp trawlers. Any shrimp ened species of sea turtle (i.e., a take trawler that is in the Atlantic Area or not directed toward such member) dur- Gulf Area must have an approved TED ing fishing or scientific research activi- installed in each net that is rigged for ties, to the extent that those involved fishing. A net is rigged for fishing if it are in compliance with all applicable is in the water, or if it is shackled, requirements of paragraphs (d)(1) tied, or otherwise connected to any through (d)(5) of this section, or in trawl door or board, or to any tow rope, compliance with the terms and condi- cable, pole or extension, either on tions of an incidental take permit board or attached in any manner to the issued pursuant to paragraph (a)(2) of shrimp trawler. Exceptions to the TED this section. requirement for shrimp trawlers are (1) Handling and resuscitation require- provided in paragraph (d)(2)(ii) of this ments. (i) Any specimen taken inciden- section.
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(ii) Exemptions from the TED require- fishing. A net is rigged for fishing if it ment—(A) Alternative tow-time restric- is in the water, or if it is shackled, tions. A shrimp trawler is exempt from tied, or otherwise connected to any the TED requirements of paragraph trawl door or board, or to any tow rope, (d)(2)(i) of this section if it complies cable, pole or extension, either on with the alternative tow-time restric- board or attached in any manner to the tions in paragraph (d)(3)(i) of this sec- summer flounder trawler. Exceptions tion and if it: to the TED requirement for summer (1) Has on board no power or mechan- flounder trawlers are provided in para- ical-advantage trawl retrieval system graph (d)(2)(iii)(B) of this section. (i.e., any device used to haul any part (B) Exemptions from the TED require- of the net aboard); ment. Any summer flounder trawler (2) Is a bait shrimper that retains all north of 35°46.1′ N. lat. (Oregon Inlet, live shrimp on board in a container NC) from January 15 through March 15 with a circulating seawater system, if annually is exempt from the TED re- it does not possess more than 32 pounds quirement of paragraph (d)(2)(iii)(A) of (14.5 kg) of dead shrimp on board, and this section, unless the Assistant Ad- if it has on board a valid original state ministrator determines that TED use bait-shrimp license (if in a state that is necessary to protect sea turtles or requires such a license); ensure compliance, pursuant to the (3) Has only a pusher-head trawl, procedures of paragraph (d)(4) of this skimmer trawl, or wing net rigged for section. fishing; and (C) Monitoring. Summer flounder (4) Is in an area during a period for trawlers must carry onboard a NMFS- which tow-time restrictions apply under paragraphs (d)(3) (ii) or (iii) of approved observer if requested by the this section, if it complies with all ap- Southeast Regional Administrator or plicable provisions imposed under the Northeast Regional Administrator. those paragraphs. A written notification will be sent to (B) Exempted gear or activities. The fol- the address specified for the vessel in lowing fishing gear or activities are ex- either the NMFS or state fishing per- empted from the TED requirements of mit application, or to the address spec- paragraph (d)(2)(i) of this section: ified for registration or documentation (1) A single test net (try net) with a purposes, or upon written notification headrope length of 12 ft (3.6 m) or less otherwise served on the owner or oper- and with a footrope length of 15 ft (4.6 ator of the vessel. Owners and opera- m) or less, if it is either pulled imme- tors must comply with the terms and diately in front of another net or is not conditions specified in such written no- connected to another net in any way, if tification. All NMFS-approved observ- no more than one test net is used at a ers will report any violations of this time, and if it is not towed as a pri- section, or other applicable regulations mary net; and laws. Information collected by ob- (2) A beam or roller trawl, if the servers may be used for enforcement frame is outfitted with rigid vertical purposes. bars, and if none of the spaces between (D) Additional sea turtle conservation the bars, or between the bars and the measures. The Assistant Administrator frame, exceeds 4 inches (10.2 cm); and may impose other such restrictions (3) A shrimp trawler fishing for, or upon summer flounder trawlers as the possessing, royal red shrimp, if royal Assistant Administrator deems nec- red shrimp constitutes at least 90 per- essary or appropriate to protect sea cent (by weight) of all shrimp either turtles and ensure compliance, pursu- found on board, or offloaded from that ant to the procedures of paragraph shrimp trawler. (d)(4) of this section. Such measures (iii) Gear requirement—summer floun- may include, but are not limited to, a der trawlers—(A) TED requirement. Any requirement to use TEDs in areas other summer flounder trawler in the sum- than summer flounder fishery-sea tur- mer flounder fishery-sea turtle protec- tle protection area, a requirement to tion area must have an approved TED use limited tow-times, and closure of installed in each net that is rigged for the fishery.
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(iv) Gear requirement—leatherback con- of the Federal Register. Owners and op- servation zone—(A) Leatherback surveys. erators of shrimp trawl vessels in the From January 1 through June 30 of leatherback conservation zone are re- each year, weekly aerial surveys will sponsible for monitoring the NOAA be conducted in the leatherback con- weather radio channel for closure an- servation zone by NMFS or state nouncements. Shrimp trawlers may agents, contingent upon weather condi- also call the Southeast Regional Office tions. If sighting rates of greater than at (813) 570–5312 to receive updated area 10 leatherback turtles per 50 nautical closure information. miles (92.6 km) of trackline are ob- (3) Tow-time restrictions—(i) Duration served, the aerial surveys of that area of tows. If tow-time restrictions are uti- will be replicated within 24 hours, or as lized pursuant to paragraph (d)(2)(ii), soon as practicable thereafter. (d)(3)(ii), or (d)(3)(iii) of this section, a (B) TED requirements and registration. shrimp trawler must limit tow times. If surveys pursuant to paragraph The tow time is measured from the (d)(2)(iv)(A) of this section indicate a time that the trawl door enters the sighting rate within the leatherback water until it is removed from the conservation zone of greater than 10 water. For a trawl that is not attached leatherback sea turtles per 50 nautical to a door, the tow time is measured miles (92.6 km) of trackline, NMFS will from the time the codend enters the close an area of the leatherback con- water until it is removed from the servation zone encompassing all, or a water. Tow times may not exceed: portion of, inshore waters and offshore (A) 55 minutes from April 1 through waters 10 nautical miles (18.5 km) sea- October 31; and ward of the COLREGS demarcation (B) 75 minutes from November 1 line, bounded by 1° lat. coinciding with through March 31. the trackline, within the leatherback (ii) Alternative—special environmental conservation zone. This closure will be conditions. The Assistant Adminis- for a 2-week period. Within such closed trator may allow compliance with tow- area, fishing by any shrimp trawler re- time restrictions, as an alternative to quired to have a NMFS-approved TED the TED requirement of paragraph installed in each net rigged for fishing (d)(2)(i) of this section, if the Assistant is prohibited, unless the TED installed Administrator determines that the is one described at § 223.207(a)(7)(ii)(B) presence of algae, seaweed, debris or or, prior to October 13, 1999, other special environmental conditions § 223.207(c)(1)(iv)(B), and the owner or in a particular area makes trawling operator of the shrimp trawler has no- with TED-equipped nets impracticable. tified the Southeast Regional Adminis- (iii) Substitute—ineffectiveness of trator of his or her intention to fish in TEDs. The Assistant Administrator that area, in accordance with the pro- may require compliance with tow-time cedure provided in paragraph (d)(5) of restrictions, as a substitute for the this section. If requested in writing TED requirement of paragraph (d)(2)(i) from the Southeast Regional Adminis- of this section, if the Assistant Admin- trator, owners and operators of shrimp istrator determines that TEDs are inef- trawlers in the leatherback conserva- fective in protecting sea turtles. tion zone must carry NMFS-approved (iv) Notice; applicability; conditions. observers aboard such vessel(s). A The Assistant Administrator will pub- shrimp trawler in the leatherback con- lish notification concerning any tow- servation zone must comply with the time restriction imposed under para- terms and conditions specified in such graph (d)(3)(ii) or (iii) of this section in written request, as well as provide in- the FEDERAL REGISTER and will an- formation on trawling hours, gear nounce it in summary form on channel modifications, and turtle captures. 16 of the marine VHF radio. A notifica- (C) Notification. NMFS will imme- tion of tow-time restrictions will in- diately announce specific area closures clude findings in support of these re- on the NOAA weather radio channel, in strictions as an alternative to, or as newspapers, and other media. Specific substitute for, the TED requirements. area closures will be effective upon fil- The notification will specify the effec- ing for public inspection at the Office tive dates, the geographic area where
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tow-time restrictions apply, and any may restrict fishing activities in order applicable conditions or restrictions to conserve a species listed under the that the Assistant Administrator de- Act, including, but not limited to, re- termines are necessary or appropriate strictions on the fishing activities of to protect sea turtles and ensure com- vessels subject to paragraph (d)(2) of pliance, including, but not limited to, a this section. The Assistant Adminis- requirement to carry observers, to reg- trator will take such action if the As- ister vessels in accordance with proce- sistant Administrator determines that dures at paragraph (d)(5) of this sec- restrictions are necessary to avoid un- tion, or for all shrimp trawlers in the authorized takings that may be likely area to synchronize their tow times so to jeopardize the continued existence that all trawl gear remains out of the of a listed species. The Assistant Ad- water during certain times. A notifica- ministrator may withdraw or modify a tion withdrawing tow-time restrictions determination concerning unauthor- will include findings in support of that ized takings or any restriction on fish- action. ing activities if the Assistant Adminis- (v) Procedures. The Assistant Admin- trator determines that such action is istrator will consult with the appro- warranted. priate fishery officials (state or Fed- (iii) Notice; applicability; conditions. eral) where the affected shrimp fishery The Assistant Administrator will pub- is located in issuing a notification con- lish a notification of a determination cerning tow-time restrictions. An concerning unauthorized takings or a emergency notification can be effective notification concerning the restriction for a period of up to 30 days and may be renewed for additional periods of up to of fishing activities in the FEDERAL 30 days each if the Assistant Adminis- REGISTER. The Assistant Administrator trator finds that the conditions neces- will provide as much advance notice as sitating the imposition of tow-time re- possible, consistent with the require- strictions continue to exist. The As- ments of the Act, and will announce sistant Administrator may invite com- the notification in summary form on ments on such an action, and may channel 16 of the marine VHF radio. withdraw or modify the action by fol- Notification of a determination con- lowing procedures similar to those for cerning unauthorized takings will in- implementation. The Assistant Admin- clude findings in support of that deter- istrator will implement any permanent mination; specify the fishery, including tow-time restriction through rule- the target species and gear used by the making. fishery, the area, and the times, for (4) Limitations on incidental takings which incidental takings are not au- during fishing activities—(i) Limitations. thorized; and include such other condi- The exemption for incidental takings tions and restrictions as the Assistant of sea turtles in paragraph (d) of this Administrator determines are nec- section does not authorize incidental essary or appropriate to protect sea takings during fishing activities if the turtles and ensure compliance. Notifi- takings: cation of restriction of fishing activi- (A) Would violate the restrictions, ties will include findings in support of terms, or conditions of an incidental the restriction, will specify the time take statement or biological opinion; and area where the restriction is appli- (B) Would violate the restrictions, cable, and will specify any applicable terms, or conditions of an incidental conditions or restrictions that the As- take permit; or sistant Administrator determines are (C) May be likely to jeopardize the necessary or appropriate to protect sea continued existence of a species listed turtles and ensure compliance. Such under the Act. conditions and restrictions may in- (ii) Determination; restrictions on fish- clude, but are not limited to, limita- ing activities. The Assistant Adminis- tions on the types of fishing gear that trator may issue a determination that may be used, tow-time restrictions, al- incidental takings during fishing ac- teration or extension of the periods of tivities are unauthorized. Pursuant time during which particular tow-time thereto, the Assistant Administrator requirements apply, requirements to
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use TEDs, registration of vessels in ac- into the area where and during the cordance with procedures at paragraph time when the restrictions apply. (d)(5) of this section, and requirements [64 FR 14070, Mar. 23, 1999] to provide observers. Notification of withdrawal or modification will in- EFFECTIVE DATE NOTE: At 64 FR 14070, Mar. clude findings in support of that ac- 23, 1999, newly redesignated § 223.206 was re- tion. vised. Paragraph (d)(5) contains information (iv) Procedures. The Assistant Admin- collection requirements and will not become effective until approval has been given by istrator will consult with the appro- the Office of Management and Budget. priate fisheries officials (state or Fed- eral) where the fishing activities are § 223.207 Approved TEDs. located in issuing notification of a de- termination concerning unauthorized Any netting, webbing, or mesh that takings or notification concerning the may be measured to determine compli- restriction of fishing activities. An ance with this section is subject to emergency notification will be effec- measurement, regardless of whether it tive for a period of up to 30 days and is wet or dry. Any such measurement may be renewed for additional periods will be of the stretched mesh size. of up to 30 days each. The Assistant (a) Hard TEDs. Hard TEDs are TEDs Administrator may invite comments with rigid deflector grids and are cat- on such action, and may withdraw or egorized as ‘‘hooped hard TEDs,’’ such modify the action by following proce- as the NMFS and Cameron TEDs (Fig- dures similar to those for implementa- ures 1 & 2 to this part), or ‘‘single-grid tion. The Assistant Administrator will hard TEDs,’’ such as the Matagorda implement any permanent determina- and Georgia TEDs (Figures 3 & 4 to this tion or restriction through rule- part). Hard TEDs complying with the making. following generic design criteria are (5) Registration. If the Assistant Ad- approved TEDs: ministrator imposes restrictions under (1) Construction materials. A hard TED paragraph (d)(2)(iv), (d)(3)(ii), (d)(3)(iii), must be constructed of one or a com- or (d)(4)(ii) of this section, the Assist- bination of the following materials, ant Administrator may require the with minimum dimensions as follows: owner and operator of a vessel to reg- (i) Solid steel rod with a minimum ister before entering an area where, outside diameter of 1⁄4 inch (0.64 cm); and during the time when, the restric- (ii) Fiberglass or aluminum rod with tions apply. If registration is required, a minimum outside diameter of 1⁄2 inch the vessel’s owner and operator must (1.27 cm); or submit the following information to (iii) Steel or aluminum tubing with a the NMFS Regional Office: minimum outside diameter of 1⁄2 inch (i) The name and official number (or (1.27 cm) and a minimum wall thick- registration number) of the vessel; ness of 1⁄8 inch (0.32 cm) (also known as (ii) The names, mailing and street ad- schedule 40 tubing). dresses, and telephone numbers of the (2) Method of attachment. A hard TED vessel owner and operator; must be sewn into the trawl around the (iii) The permit number or other entire circumference of the TED with identification of relevant state or Fed- heavy twine. eral fishing permit(s); (3) Angle of deflector bars. (i) The (iv) Where and when the vessel in- angle of the deflector bars must be be- tends to fish; tween 30° and 55° from the normal, hor- (v) Where and when the vessel will izontal flow through the interior of the depart on any fishing trip, with suffi- trawl, except as provided in paragraph cient specificity to allow for an ob- (a)(3)(ii) of this section. server to embark on the trip; and (ii) For any shrimp trawler fishing in (vi) Any changes in the information the Gulf SFSTCA or the Atlantic submitted under paragraphs (d)(5)(i) SFSTCA, a hard TED with the position through (d)(5)(v) of this section. Fail- of the escape opening at the bottom of ure to do so immediately will void the the net when the net is in its deployed registration, rendering unlawful any position, the angle of the deflector bars subsequent entry of the fishing vessel from the normal, horizontal flow
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through the interior of the trawl, at outside width of the grid minus 4 any point, must not exceed 55°, and: inches (10.2 cm) on both sides of the (A) If the deflector bars that run grid, when measured as a straight line from top to bottom are attached to the width. (Figure 13 to this part illus- bottom frame of the TED, the angle of trates the dimensions of this cut.) The the bottom-most 4 inches (10.2 cm) of resulting escape opening in the net each deflector bar, measured along the webbing must measure at least 32 bars, must not exceed 45° (Figures 14a inches (81.3 cm) in horizontal taut and 14b to this part); length and, simultaneously, 10 inches (B) If the deflector bars that run (25.4 cm) in vertical taut height in the from top to bottom are not attached to Gulf Area; or 35 inches (88.9 cm) in hor- the bottom frame of the TED, the izontal taut length and, simulta- angle of the imaginary lines con- neously, 12 inches (30.5 cm) in vertical necting the bottom frame of the TED taut height in the Atlantic Area. The to the bottom end of each deflector bar vertical measurement must be taken at which runs from top to bottom must the midpoint of the horizontal meas- not exceed 45° (Figure 15 to this part). urement. (4) Space between bars. The space be- (B) Escape opening for leatherback tur- tween deflector bars and between the tles. A single-grid hard TED escape deflector bars and the frame must not opening shall be enlarged to allow exceed 4 inches (10.2 cm). leatherback turtles to escape by cut- (5) Direction of bars. The deflector ting an exit hole in the extension for- bars must run from top to bottom of ward of the TED frame 26 inches (66 the TED, as the TED is positioned in cm) deep, on each side, by 83 inches (211 the net, except that up to four of the cm) across (Figures 12a and 12b to this bottom bars and two of the top bars, part). Excess webbing is removed by including the frame, may run from side cutting across 1⁄2 mesh forward of the to side of the TED. TED frame. The exit hole cover is made (6) Position of escape opening. The en- by cutting a 133-inch (338-cm) by 58- tire width of the escape opening from inch (148 cm) piece of webbing no the trawl must be centered on and im- smaller than 11⁄2 inch (4 cm) stretch mediately forward of the frame at ei- mesh and no larger than 15⁄8 inch (4.2 ther the top or bottom of the net when cm) stretch mesh. The 133-inch (338 cm) the net is in its deployed position. The edge of the cover is attached to the for- escape opening must be at the top of ward edge of the opening (83-inch (211- the net when the slope of the deflector cm) edge) with a sewing sequence of 3:2. bars from forward to aft is upward, and The cover should overlap 5 inches (13 must be at the bottom when such slope cm) of the exit hole on each side. The is downward. For a single-grid TED, side of the cover is attached, maintain- the escape opening must be cut hori- ing the 5-inch (13-cm) overlap, to the zontally along the same plane as the side of the opening by sewing 28 inches TED, and may not be cut in a fore-and- (71 cm) of the cover to 26 inches (66 cm) aft direction. of the opening forward of the TED (7) Size of escape opening—(i) Hooped frame and by sewing 15 inches (38 cm) hard TED. On a hooped hard TED, the of the cover to 15 inches (38 cm) of the escape opening must not be smaller extension behind the TED frame. The than 25 inches by 25 inches (63.5 cm by cover may extend no more than 24 63.5 cm) in the Gulf Area, or 30 inches inches (61 cm) behind the posterior by 30 inches (76.2 cm by 76.2 cm) in the edge of the TED frame. The circum- Atlantic Area. A door frame may not ference of the exit opening must be 142 be used over the escape opening; how- inches (361 cm) when stretched. If an ever, a webbing flap may be used as accelerator funnel is used with a sin- provided in paragraph (e)(4)(iv)(C) of gle-grid hard TED, modified as above, this section. it must also have a minimum circum- (ii) Single-grid hard TED—(A) Escape ference of 142 inches (361 cm). opening for standard single-grid hard (8) Size of hoop or grid—(i) Hooped TED. On a single-grid hard TED, the hard TED. (A) An oval front hoop on a cut in the trawl webbing for the escape hard TED must have an inside hori- opening cannot be narrower than the zontal measurement of at least 32
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inches (81.3 cm) and an inside vertical aluminum or hard plastic float, no measurement of at least 20 inches (50.8 smaller than 9.8 inches (25.0 cm) in di- cm) in the Gulf Area, or an inside hori- ameter, or one expanded polyvinyl zontal measurement of at least 35 chloride or expanded ethylene vinyl ac- inches (88.9 cm) and an inside vertical etate float, no smaller than 6.75 inches measurement of at least 30 inches (76.2 (17.2 cm) in diameter by 8.75 inches cm) in the Atlantic Area. (22.2 cm) in length, must be attached. (B) A circular front hoop on a hard (ii) Float buoyancy requirements. TED must have an inside diameter of Floats of any size and in any combina- at least 32 inches (81.3 cm) in the Gulf tion must be attached such that the Area or 35 inches (88.9 cm) in the At- combined buoyancy of the floats, as lantic Area. marked on the floats, equals or exceeds (ii) Single-grid hard TED. A single- the weight of the hard TED, as marked grid hard TED must have an inside hor- on the TED. The buoyancy of the floats izontal and vertical measurement of at and the weight of the TED must be least 28 inches (71.1 cm) in the Gulf clearly marked on the floats and the Area or 30 inches (76.2 cm) in the At- TED as follows: lantic Area. The required inside meas- (A) Float buoyancy markings. Mark- urements must be at the mid-point of ings on floats must be made in clearly the deflector grid. legible raised or recessed lettering by (9) Flotation. Floats must be attached the original manufacturer. The mark- to the top one-half of all hard TEDs ing must identify the buoyancy of the with bottom escape openings. The float in water, expressed in grams or floats may be attached either outside kilograms, and must include the met- or inside the net, but not to a flap. ric unit of measure. The marking may Floats attached inside the net must be additionally include the buoyancy in behind the rear surface of the TED. English units. The marking must iden- Floats must be attached with heavy tify the nominal buoyancy for the twine or rope. Floats must be con- manufactured float. structed of aluminum, hard plastic, ex- panded polyvinyl chloride, or expanded (B) TED weight markings. The mark- ethylene vinyl acetate unless otherwise ing must be made by the original TED specified. The requirements of this manufacturer and must be permanent paragraph may be satisfied by compli- and clearly legible. The marking must ance with either the dimension require- identify the in-air, dry weight of the ments of paragraph (a)(9)(i) of this sec- TED, expressed in grams or kilograms, tion, or the buoyancy requirements of and must include the metric unit of paragraph (a)(9)(ii) of this section, or measure. The marking may addition- the buoyancy-dimension requirements ally include the weight in English of paragraph (a)(9)(iii) of this section. units. The marked weight must rep- If roller gear is used pursuant to para- resent the actual weight of the indi- graph (d)(5) of this section, the roller vidual TED as manufactured. Pre- gear must be included in the circum- viously manufactured TEDs may be ference measurement of the TED or the marked upon return to the original total weight of the TED. manufacturer. Where a TED is com- (i) Float dimension requirements. (A) prised of multiple detachable compo- For hard TEDs with a circumference of nents, the weight of each component 120 inches (304.8 cm) or more, a min- must be separately marked. imum of either one round, aluminum (iii) Buoyancy-dimension requirements. or hard plastic float, no smaller than Floats of any size and in any combina- 9.8 inches (25.0 cm) in diameter, or two tion, provided that they are marked expanded polyvinyl chloride or ex- pursuant to paragraph (a)(9)(ii)(A) of panded ethylene vinyl acetate floats, this section, must be attached such each no smaller than 6.75 inches (17.2 that the combined buoyancy of the cm) in diameter by 8.75 inches (22.2 cm) floats equals or exceeds the following in length, must be attached. values: (B) For hard TEDs with a circum- (A) For floats constructed of alu- ference of less than 120 inches (304.8 minum or hard plastic, regardless of cm), a minimum of either one round, the size of the TED grid, the combined
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buoyancy must equal or exceed 14 lb the angle of the deflector bars, the po- (6.4 kg); sition of the escape opening, and the (B) For floats constructed of ex- size of the escape opening, except that panded polyvinyl chloride or expanded the deflector bars must be positioned ethylene vinyl acetate, where the cir- in the net to deflect turtles to the es- cumference of the TED is 120 inches cape opening in the top of the trawl. (304.8 cm) or more, the combined buoy- This TED may not be configured with a ancy must equal or exceed 20 lb (9.1 bottom escape opening. Installation of kg); or an accelerator funnel is not permitted (C) For floats constructed of ex- with this TED. panded polyvinyl chloride or expanded (2) Jones TED (Figure 11 to this part). ethylene vinyl acetate, where the cir- The Jones TED must be constructed of cumference of the TED is less than 120 at least 11⁄4 inch (3.2 cm) outside diame- inches (304.8 cm), the combined buoy- ter aluminum or steel pipe, and the ancy must equal or exceed 10 lb (4.5 pipe must have a wall thickness of at kg). least 1⁄8 inch (0.3 cm). It must be gen- (b) Special Hard TEDs. Special hard erally oval in shape with a flattened TEDs are hard TEDs which do not meet bottom. The deflector bars must be at- all of the design and construction cri- tached to the frame at a 45° angle from teria of the generic standards specified the horizontal positioning downward in paragraph (a) of this section. The and each bar must be attached at only following special hard TEDs are ap- one end to the frame. The deflector proved TEDs: bars must be attached and lie in the (1) Flounder TED (Figure 10 to this same plane as the frame. The space be- part). The Flounder TED is approved tween the ends of the bottom deflector for use only in the Atlantic summer bars and the bottom frame bar must be flounder bottom trawl fishery. The no more than 3 inches (7.6 cm). The Flounder TED is not an approved TED spacing between the bottom three de- for use by shrimp trawlers. The Floun- flector bars on each side must be no der TED must be constructed of at greater than 21⁄2 inches (6.4 cm). The least 11⁄4 inch (3.2 cm) outside diameter spacing between all other deflector aluminum or steel pipe with a wall bars must not exceed 31⁄2 inches (8.9 cm) thickness of at least 1⁄8 inch (0.3 cm). It and spacing between ends of opposing must have a rectangular frame with deflector bars also must not exceed 31⁄2 outside dimensions which can be no inches (8.9 cm). This TED must comply less than 51 inches (129.5 cm) in length with paragraphs (a)(2), (a)(3), (a)(6), and 32 inches (81.3 cm) in width. It (a)(7)(ii), (a)(8)(ii), and (a)(9) of this sec- must have at least five vertical deflec- tion with respect to the method of at- tor bars, with bar spacings of no more than 4 inches (10.2 cm). The vertical tachment, the angle of the deflector bars must be connected to the top of bars, the position of the escape open- the frame and to a single horizontal ing, the size of the escape opening, the bar near the bottom. The horizontal size of the grid, and flotation. bar must be connected at both ends to (c) Soft TEDs. Soft TEDs are TEDs the sides of the frame and parallel to with deflector panels made from poly- the bottom bar of the frame. There propylene or polyethylene netting. must be a space no larger than 10 Prior to October 13, 1999, the following inches (25.4 cm) between the horizontal soft TEDs are approved TEDs: bar and the bottom bar of the frame. (1) Parker TED. The Parker TED is a One or more additional vertical bars soft TED, consisting of a single tri- running from the bottom bar to the angular panel, composed of webbing of horizontal bar must divide the opening two different mesh sizes, that forms a at the bottom into two or more rectan- complete barrier inside a trawl and gles, each with a maximum height of 10 that angles toward an escape opening inches (25.4 cm) and a maximum width in the top of the trawl. of 141⁄2 inches (36.8 cm). This TED must (i) Excluder Panel. (Figure 5 to this comply with paragraphs (a)(2), (a)(3), part) The excluder panel of the Parker (a)(6), and (a)(7)(ii) of this section with TED must be constructed of a single respect to the method of attachment, triangular piece of 8-inch (20.3 cm)
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stretched mesh webbing and two trape- straight-wing trawl, the row of meshes zoidal pieces of 4-inch (10.2-cm) for attachment to the trawl must run stretched mesh webbing. The webbing the entire width of the bottom body must consist of number 48 (3-mm thick) panel and half the height of each wing or larger polypropylene or poly- panel of the trawl. Every mesh of the ethylene webbing that is heat-set knot- leading edge of the excluder panel must ted or braided. The leading edge of the be evenly sewn to this row of meshes; 8-inch (20.3-cm) mesh panel must be 36 meshes may not be laced to the trawl. meshes wide. The 8-inch (20.3-cm) mesh The row of meshes for attachment to panel must be tapered on each side the trawl must contain the following with all-bar cuts to converge on an number of meshes, depending on the apex, such that the length of each side stretched mesh size used in the trawl: is 36 bars. The leading edges of the 4- (1) For a mesh size of 21⁄4 inches (5.7 inch (10.2-cm) mesh panels must be 8 cm), 152–168 meshes; meshes wide. The edges of the 4-inch (2) For a mesh size of 21⁄8 inches (5.4 (10.2-cm) mesh panels must be cut with cm), 161–178 meshes; all-bar cuts running parallel to each (3) For a mesh size of 2 inches (5.1 other, such that the length of the inner cm), 171–189 meshes; edge is 72 bars and the length of the (4) For a mesh size of 17⁄8 inches (4.8 outer edge is 89 bars and the resulting cm), 182–202 meshes; fore-and-aft edge is 8 meshes deep. The (5) For a mesh size of 13⁄4 inches (4.4 two 4-inch (10.2-cm) mesh panels must cm), 196–216 meshes; be sewn to the 8-inch (20.3-cm) mesh (6) For a mesh size of 15⁄8 inches (4.1 panel to create a single triangular ex- cm), 211–233 meshes; cluder panel. The 72-bar edge of each 4- (7) For a mesh size of 11⁄2 inches (3.8 inch (10.2-cm) mesh panel must be se- cm), 228–252 meshes; curely joined with twine to one of the (8) For a mesh size of 13⁄8 inches (3.5 36-bar edges of the 8-inch (20.3-cm) cm), 249–275 meshes; and mesh panel, tied with knots at each (9) For a mesh size of 11⁄4 inches (3.2 knot of the 4-inch (10.2-cm) webbing cm), 274–302 meshes. and at least two wraps of twine around (B) Apex attachment. The apex of the each bar of 4-inch (10.2-cm) mesh and triangular excluder panel must be at- the adjoining bar of the 8-inch (20.3-cm) tached to the inside of the top body mesh. The adjoining fore-and-aft edges panel of the trawl at the centerline of of the two 4-inch (10.2-cm) mesh panels the trawl. The distance, measured aft must be sewn together evenly. along the centerline of the top body (ii) Limitations on which trawls may panel from the same row of meshes for have a Parker TED installed. The Parker attachment of the excluder panel to TED must not be installed or used in a the bottom body panel of the trawl, to two-seam trawl with a tongue, nor in a the apex attachment point must con- triple-wing trawl (a trawl with a tain the following number of meshes, tongue along the headrope and a sec- depending on the stretched mesh size ond tongue along the footrope). The used in the trawl: Parker TED may be installed and used (1) For a mesh size of 21⁄4 inches (5.7 in any other trawl if the taper of the cm), 78–83 meshes; body panels of the trawl does not ex- (2) For a mesh size of 21⁄8 inches (5.4 ceed 4b1p and if it can be properly in- cm), 83–88 meshes; stalled in compliance with paragraph (3) For a mesh size of 2 inches (5.1 (c)(1)(iii) of this section. cm), 87–93 meshes; (iii) Panel installation—(A) Leading (4) For a mesh size of 17⁄8 inches (4.8 edge attachment. The leading edge of cm), 93–99 meshes; the excluder panel must be attached to (5) For a mesh size of 13⁄4 inches (4.4 the inside of the bottom of the trawl cm), 100–106 meshes; across a straight row of meshes. For a (6) For a mesh size of 15⁄8 inches (4.1 two-seam trawl or a four-seam, ta- cm), 107–114 meshes; pered-wing trawl, the row of meshes for (7) For a mesh size of 11⁄2 inches (3.8 attachment to the trawl must run the cm), 114–124 meshes; entire width of the bottom body panel, (8) For a mesh size of 13⁄8 inches (3.5 from seam to seam. For a four-seam, cm), 127–135 meshes; and
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(9) For a mesh size of 11⁄4 inches (3.2 the escape opening described in this cm), 137–146 meshes. paragraph meets the requirements of (C) Side attachment. The sides of the § 223.206(d)(2)(iv)(B). excluder panel must be attached evenly (2) [Reserved] to the inside of the trawl from the out- (d) Allowable modifications to hard side attachment points of the excluder TEDs and special hard TEDs. Unless panel’s leading edge to the apex of the otherwise prohibited in paragraph (b) excluder panel. Each side must be sewn of this section, only the following with the same sewing sequence, and, if modifications may be made to an ap- the sides of the excluder panel cross proved hard TED or an approved spe- rows of bars in the trawl, the crossings cial hard TED: must be distributed evenly over the (1) Floats. In addition to floats re- length of the side attachment. quired pursuant to paragraph (a)(9) of (iv) Escape opening. The escape open- this section, floats may be attached to ing for the Parker soft TED must the top one-half of the TED, either out- match one of the following specifica- side or inside the net, but not to a flap. tions: Floats attached inside the net must be (A) Longitudinal cut. A slit at least 56 behind the rear surface at the top of inches (1.4 m) in taut length must be the TED. cut along the centerline of the top (2) Accelerator funnel. An accelerator body panel of the trawl net imme- funnel may be installed in the trawl, if diately forward of the apex of the panel it is made of net webbing material with webbing. The slit must not be covered a stretched mesh size not greater than or closed in any manner. The edges and 15⁄8 inches (4.1 cm), if it has an inside end points of the slit must not be rein- horizontal opening of at least 39 inches forced in any way; for example, by at- (99.1 cm) when measured in a taut posi- taching additional rope or webbing or tion, if it is inserted in the net imme- by changing the orientation of the web- diately forward of the TED, and if its bing. rear edge does not extend past the bars (B) Leatherback escape opening. A hor- of the TED. The trailing edge of the ac- izontal cut extending from the attach- celerator funnel may be attached to ment of one side of the deflector panel the TED on the side opposite the es- to the trawl to the attachment of the cape opening if not more than 1⁄3 of the other side of the deflector panel to the circumference of the funnel is at- trawl must be made in a single row of tached, and if the inside horizontal meshes across the top of the trawl and opening of at least 39 inches (99.1 cm) is measure at least 96 inches (244 cm) in maintained. In a bottom-opening TED, taut width. All trawl webbing above only the top 1⁄3 of the circumference of the deflector panel between the 96-inch the funnel may be attached to the (244-cm) cut and edges of the deflector TED. In a top-opening TED, only the panel must be removed. A rectangular bottom 1⁄3 of the circumference of the flap of nylon webbing not larger than 2- funnel may be attached to the TED. inch (5.1-cm) stretched mesh may be (3) Webbing flap. A webbing flap may sewn to the forward edge of the escape be used to cover the escape opening opening. The width of the flap must under the following conditions: No de- not be larger than the width of the for- vice holds it closed or otherwise re- ward edge of the escape opening. The stricts the opening; it is constructed of flap must not extend more than 12 webbing with a stretched mesh size no inches (30.4 cm) beyond the rear point larger than 15⁄8 inches (4.1 cm); it lies of the escape opening. The sides of the on the outside of the trawl; it is at- flap may be attached to the top of the tached along its entire forward edge trawl but must not be attached farther forward of the escape opening; it is not aft than the row of meshes through the attached on the sides beyond the row of rear point of the escape opening. One meshes that lies 6 inches (15.2 cm) be- row of steel chain not larger than 3⁄16 hind the posterior edge of the grid; and inch (4.76 mm) may be sewn evenly to it does not extend more than 24 inches the back edge of the flap. The stretched (61.0 cm) beyond the posterior edge of length of the chain must not exceed 96 the grid, except for trawlers fishing in inches (244 cm). A Parker TED using the Gulf SFSTCA or Atlantic SFSTCA
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with a hard TED with the position of or heavy twine passed through the cen- the escape opening at the bottom of ter of the roller tubing. The roller shall the net when the net is in its deployed lie flush against the TED. The max- position, in which case the webbing imum outside diameter of the roller flap must not extend beyond the pos- shall be 31⁄2 inches (8.0 cm), the min- terior edge of the grid. imum outside diameter of the roller (4) Chafing webbing. A single piece of shall be 2 inches (5.1 cm), and the max- nylon webbing, with a twine size no imum length of the roller shall be 12 smaller than size 36 (2.46 mm in diame- inches (30.4 cm). The roller must lie en- ter), may be attached outside of the es- tirely behind the plane of the face of cape opening webbing flap to prevent the grid. chafing on bottom opening TEDs. This (e) Revision of generic design criteria, webbing may be attached along its and approval of TEDs, of allowable modi- leading edge only. This webbing may fications of hard TEDs, and of special not extend beyond the trailing edge or hard TEDs. (1) The Assistant Adminis- sides of the existing escape opening webbing flap, and it must not interfere trator may revise the generic design or otherwise restrict the turtle escape criteria for hard TEDs set forth in opening. paragraph (a) of this section, may ap- (5) Roller gear. Roller gear may be at- prove special hard TEDs in addition to tached to the bottom of a TED to pre- those listed in paragraph (b) of this vent chafing on the bottom of the TED section, may approve allowable modi- and the trawl net. When a webbing flap fications to hard TEDs in addition to is used in conjunction with roller gear, those authorized in paragraph (d) of the webbing flap must be of a length this section, or may approve other such that no part of the webbing flap TEDs, by regulatory amendment, if, can touch or come in contact with any according to a NMFS-approved sci- part of the roller gear assembly or the entific protocol, the TED demonstrates means of attachment of the roller gear a sea turtle exclusion rate of 97 percent assembly to the TED, when the trawl or greater (or an equivalent exclusion net is in its normal, horizontal posi- rate). Two such protocols have been tion. Roller gear must be constructed published by NMFS (52 FR 24262, June according to one of the following de- 29, 1987; and 55 FR 41092, October 9, sign criteria: 1990) and will be used only for testing (i) A single roller consisting of hard relating to hard TED designs. Testing plastic shall be mounted on an axle under any protocol must be conducted rod, so that the roller can roll freely under the supervision of the Assistant about the axle. The maximum diame- Administrator, and shall be subject to ter of the roller shall be 6 inches (15.24 all such conditions and restrictions as cm), and the maximum width of the the Assistant Administrator deems ap- axle rod shall be 12 inches (30.4 cm). propriate. Any person wishing to par- The axle rod must be attached to the ticipate in such testing should contact TED by two support rods. The max- the Director, Southeast Fisheries imum clearance between the roller and Science Center, NMFS, 75 Virginia the TED shall not exceed 1 inch (2.5 Beach Dr., Miami, FL 33149–1003. cm) at the center of the roller. The support rods and axle rod must be (2) Upon application, the Assistant made from solid steel or solid alu- Administrator may issue permits, sub- ject to such conditions and restrictions minum rod no larger than 1⁄2 inch (1.28 cm) in diameter. The attachment of as the Assistant Administrator deems the support rods to the TED shall be appropriate, authorizing public or pri- such that there are no protrusions vate experimentation aimed at improv- (lips, sharp edges, burrs, etc.) on the ing shrimp retention efficiency of ex- front face of the grid. The axle rod and isting approved TEDs and at devel- support rods must lie entirely behind oping additional TEDs, or conducting the plane of the face of the TED grid. fishery research, that would otherwise (ii) A single roller consisting of hard be subject to § 223.206(d)(2). Applica- plastic tubing shall be tightly tied to tions should be made to the Southeast the back face of the TED grid with rope Regional Administrator (see § 222.102
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definition of ‘‘Southeast Regional Ad- EFFECTIVE DATE NOTE: At 64 FR 14073, Mar. ministrator’’). 23, 1999, § 223.207 was added. Paragraphs (a)(9)(ii)(A) and (B) contain information and [64 FR 14073, Mar. 23, 1999] collection requirements and will not become effective until approved by the Office of Management and Budget.
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FIGURE 1 TO PART 223—NMFS TED [60 FR 15519, Mar. 24, 1995]
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FIGURE 2 TO PART 223—CAMERON TED [52 FR 24259, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]
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FIGURE 3 TO PART 223—MATAGORDA TED [52 FR 24260, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]
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FIGURE 4 TO PART 223—GEORGIA TED [52 FR 24261, June 29, 1987. Redesignated at 57 FR 40868, Sept. 8, 1992]
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FIGURE 5 TO PART 223—NET DIAGRAM FOR THE EXCLUDER PANEL OF THE PARKER SOFT TED [63 FR 17958, Apr. 13, 1998]
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FIGURES 6–9b TO PART 223 [RESERVED]
FIGURE 10 TO PART 223—FLOUNDER TED [58 FR 54069, Oct. 20, 1993]
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FIGURE 11 TO PART 223—JONES TED [58 FR 54070, Oct. 20, 1993]
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FIGURE 12A TO PART 223—ATTACHMENT OF THE EXIT HOLE COVER [59 FR 25830, May 18, 1994]
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FIGURE 12B TO PART 223—GRID TED LEATHERBACK MODIFICATION [59 FR 25831, May 18, 1994]
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FIGURE 13 TO PART 223—SINGLE GRID HARD TED ESCAPE OPENING [60 FR 15520, Mar. 24, 1995]
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FIGURE 14A TO PART 223—MAXIMUM ANGLE OF DEFLECTOR BARS WITH STRAIGHT BARS ATTACHED TO THE BOTTOM OF THE FRAME
FIGURE 14B TO PART 223—MAXIMUM ANGLE OF DEFLECTOR BARS WITH BENT BARS ATTACHED TO THE BOTTOM OF THE FRAME [61 FR 66946, Dec. 19, 1996]
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FIGURE 15 TO PART 223—MAXIMUM ANGLE OF DEFLECTOR BARS WITH BARS UNATTACHED TO THE BOTTOM OF THE FRAME [61 FR 66947, Dec. 19, 1996]
PART 224—ENDANGERED MARINE cies listed under the Endangered Spe- AND ANADROMOUS SPECIES cies Conservation Act of 1969 by the Secretary of the Interior and currently Sec. under the jurisdiction of the Secretary 224.101 Enumeration of endangered marine of Commerce, are the following: and anadromous species. (a) Marine and anadromous fish. 224.102 Permits for endangered marine and Shortnose sturgeon (Acipenser anadromous species. brevirostrum); Totoaba (Cynoscian 224.103 Special prohibitions for endangered macdonaldi), Snake River sockeye marine mammals. salmon (Oncorhynchus nerka), Umpqua 224.104 Incidental capture of endangered sea River cutthroat trout (Oncorhynchus turtles. clarki clarki); Southern California AUTHORITY: 16 U.S.C. 1531–1543 and 16 U.S.C. steelhead (Oncorhynchus mykiss), in- 1361 et seq. cluding all naturally spawned popu- SOURCE: 64 FR 14066, Mar. 23, 1999, unless lations of steelhead (and their progeny) otherwise noted. in streams from the Santa Maria River, San Luis Obispo County, California (in- § 224.101 Enumeration of endangered clusive) to Malibu Creek, Los Angeles marine and anadromous species. County, California (inclusive); Upper The marine and anadromous species Columbia River steelhead determined by the Secretary of Com- (Oncorhynchus mykiss), including the merce to be endangered pursuant to Wells Hatchery stock and all naturally section 4(a) of the Act, as well as spe- spawned populations of steelhead (and
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their progeny) in streams in the Co- NOTE TO § 224.101(C): Jurisdiction for sea lumbia River Basin upstream from the turtles by the Department of Commerce, Na- Yakima River, Washington, to the tional Oceanic and Atmospheric Administra- United States—Canada Border; Upper tion, National Marine Fisheries Service, is limited to turtles while in the water. Columbia River spring-run chinook salmon (Oncorhynchus tshawytscha), [64 FR 14066, Mar. 23, 1999, as amended 64 FR including all naturally spawned popu- 14328, Mar. 24, 1999] lations of chinook salmon in Columbia River tributaries upstream of the Rock § 224.102 Permits for endangered ma- rine and anadromous species. Island Dam and downstream of Chief Joseph Dam in Washington (excluding No person shall take, import, export, the Okanogan River), the Columbia or engage in any activity prohibited by River from a straight line connecting section 9 of the Act involving any ma- the west end of the Clatsop jetty (south rine species that has been determined jetty, Oregon side) and the west end of to be endangered under the Endangered the Peacock jetty (north jetty, Wash- Species Conservation Act of 1969 or the ington side) upstream to Chief Joseph Act, and that is under the jurisdiction Dam in Washington, and the Chiwawa of the Secretary, without a valid per- River (spring run), Methow River mit issued pursuant to part 222, sub- (spring run), Twisp River (spring run), part C of this chapter. Chewuch River (spring run), White River (spring run), and Nason Creek § 224.103 Special prohibitions for en- dangered marine mammals. (spring run) hatchery stocks (and their progeny); Sacramento River winter-run (a) Approaching humpback whales in chinook salmon (Oncorhynchus Hawaii. Except as provided in part 222, tshawytscha). subpart C, of this chapter (General Per- (b) Marine mammals. Blue whale mit Procedures), it is unlawful for any (Balaenoptera musculus); Bowhead person subject to the jurisdiction of whale (Balaena mysticetus); Caribbean the United States to commit, to at- monk seal (Monachus tropicalis); Chi- tempt to commit, to solicit another to nese river dolphin (Lipotes vexillifer); commit, or to cause to be committed, Cochito (Phocoena sinus); Fin or within 200 nautical miles (370.4 km) of finback whale (Balaenoptera physalus); the Islands of Hawaii, any of the fol- Hawaiian monk seal (Monachus lowing acts with respect to humpback schauinslandi); Humpback whale whales (Megaptera novaeangliae): (Megaptera novaeangliae); Indus River (1) Operate any aircraft within 1,000 dolphin (Platanista minor); Mediterra- feet (300 m) of any humpback whale; nean monk seal (Monachus monachus); (2) Approach, by any means, within Right whales (Eubalaena spp.); Saimaa 100 yard (90 m) of any humpback whale; seal (Phoca hispida saimensis); Sei whale (3) Cause a vessel or other object to (Balaenoptera borealis); Sperm whale approach within 100 yd (90 m) of a (Physeter catodon); Western North Pa- humpback whale; or cific (Korean) gray whale (Eschrichtius (4) Disrupt the normal behavior or robustus); Steller sea lion, western pop- prior activity of a whale by any other ulation, (Eumetopias jubatus), which act or omission. A disruption of normal consists of Stellar sea lions from breed- behavior may be manifested by, among ing colonies located west of 144° W. lon- other actions on the part of the whale, gitude. a rapid change in direction or speed; es- (c) Sea turtles. Green turtle (Chelonia cape tactics such as prolonged diving, mydas) breeding colony populations in underwater course changes, underwater Florida and on the Pacific coast of exhalation, or evasive swimming pat- Mexico; Hawksbill turtle (Eretmochelys terns; interruptions of breeding, nurs- imbricata); Kemp’s ridley turtle ing, or resting activities, attempts by a (Lepidochelys kempii); Leatherback tur- whale to shield a calf from a vessel or tle (Dermochelys coriacea); Olive ridley human observer by tail swishing or by turtle (Lepidochelys olivacea) breeding other protective movement; or the colony population on the Pacific coast abandonment of a previously fre- of Mexico. quented area.
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(b) Approaching North Atlantic right unless the aircraft is conducting whale whales—(1) Prohibitions. Except as pro- watch activities. vided under paragraph (b)(3) of this sec- (v) Paragraph (b)(2) of this section tion, it is unlawful for any person sub- does not apply to the extent that a ves- ject to the jurisdiction of the United sel is restricted in her ability to ma- States to commit, attempt to commit, neuver and, because of the restriction, to solicit another to commit, or cause cannot comply with paragraph (b)(2) of to be committed any of the following this section. acts: (c) Special prohibitions relating to en- (i) Approach (including by intercep- dangered Steller sea lion protection. The tion) within 500 yards (460 m) of a right regulatory provisions set forth in part whale by vessel, aircraft, or any other 223 of this chapter, which govern means; threatened Steller sea lions, shall also (ii) Fail to undertake required right apply to the western population of whale avoidance measures specified Steller sea lions, which consists of all under paragraph (b)(2) of this section. Steller sea lions from breeding colonies ° (2) Right whale avoidance measures. located west of 144 W. long. Except as provided under paragraph § 224.104 Incidental capture of endan- (b)(3) of this section, the following gered sea turtles. avoidance measures must be taken if within 500 yards (460 m) of a right (a) Shrimp fishermen in the south- whale: eastern United States and the Gulf of Mexico who comply with rules for (i) If underway, a vessel must steer a threatened sea turtles specified in course away from the right whale and § 223.206 of this chapter will not be sub- immediately leave the area at a slow ject to civil penalties under the Act for safe speed. incidental captures of endangered sea (ii) An aircraft must take a course turtles by shrimp trawl gear. away from the right whale and imme- (b) Summer flounder fishermen in diately leave the area at a constant the Summer flounder fishery-sea turtle airspeed. protection area who comply with rules (3) Exceptions. The following excep- for threatened sea turtles specified in tions apply to this section, but any § 223.206 of this chapter will not be sub- person who claims the applicability of ject to civil penalties under the Act for an exception has the burden of proving incidental captures of endangered sea that the exception applies: turtles by summer flounder gear. (i) Paragraphs (b)(1) and (b)(2) of this (c) Special prohibitions relating to section do not apply if a right whale leatherback sea turtles are provided at approach is authorized by the National § 223.206(d)(2)(iv) of this chapter. Marine Fisheries Service through a permit issued under part 222, subpart C, of this chapter (General Permit Proce- PART 225 [RESERVED] dures) or through a similar authoriza- tion. PART 226—DESIGNATED CRITICAL (ii) Paragraphs (b)(1) and (b)(2) of this HABITAT section do not apply where compliance would create an imminent and serious Sec. threat to a person, vessel, or aircraft. 226.101 Purpose and scope. 226.201 Critical habitat for Hawaiian monk (iii) Paragraphs (b)(1) and (b)(2) of seals. this section do not apply when ap- 226.202 Critical habitat for Steller sea lions. proaching to investigate a right whale 226.203 Critical habitat for Northern right entanglement or injury, or to assist in whales. the disentanglement or rescue of a 226.204 Critical habitat for Sacramento win- right whale, provided that permission ter-run chinook salmon. is received from the National Marine 226.205 Critical habitat for Snake River Fisheries Service or designee prior to sockeye salmon, Snake River fall chi- nook salmon, and Snake River spring/ the approach. summer chinook salmon. (iv) Paragraphs (b)(1) and (b)(2) of 226.206 Critical habitat for Umpqua River this section do not apply to an aircraft cutthroat trout.
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226.207 Critical habitat for leatherback tur- Commerce. Those species are enumer- tle. ated at § 223.102 of this chapter, if 226.208 Critical habitat for green turtle. threatened and at § 224.101 of this chap- 226.209 Critical habitat for hawksbill turtle. 226.210 Central California Coast Coho Salm- ter, if endangered. For regulations per- on (Oncorhynchus kisutch), Southern Or- taining to the designation of critical egon/Northern California Coasts Coho habitat, see part 424 of this title, and Salmon (Oncorhynchus kisutch). for regulations pertaining to prohibi- TABLE 1 TO PART 226—MAJOR STELLER SEA tions against the adverse modification LION ROOKERY SITES or destruction of critical habitat, see TABLE 2 TO PART 226—MAJOR STELLER SEA part 402 of this title. Maps and charts LION HAULOUT SITES IN ALASKA identifying designated critical habitat TABLE 3 TO PART 226—HYDROLOGIC UNITS that are not provided in this section CONTAINING CRITICAL HABITAT FOR SNAKE RIVER SOCKEYE SALMON AND SNAKE RIVER may be obtained upon request to the SPRING/SUMMER AND FALL CHINOOK SALM- Office of Protected Resources (see ON § 222.102, definition of ‘‘Office of Pro- TABLE 4 TO PART 226—HYDROLOGIC UNITS tected Resources’’). CONTAINING CRITICAL HABITAT FOR EN- DANGERED UMPQUA RIVER CUTTHROAT [64 FR 14067, Mar. 23, 1999] TROUT AND COUNTIES CONTAINED IN EACH HYDROLOGIC UNIT § 226.201 Critical habitat for Hawaiian TABLE 5 TO PART 226—HYDROLOGIC UNITS AND monk seals. COUNTIES CONTAINING CRITICAL HABITAT FOR CENTRAL CALIFORNIA COAST COHO HAWAIIAN MONK SEAL SALMON, TRIBAL LANDS WITHIN THE RANGE OF THE ESU, AND DAMS/RES- (Monachus schauinslandi) ERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT All beach areas, sand spits and islets, TABLE 6 TO PART 226—HYDROLOGIC UNITS AND including all beach crest vegetation to COUNTIES CONTAINING CRITICAL HABITAT its deepest extent inland, lagoon wa- FOR SOUTHERN OREGON/NORTHERN CALI- ters, inner reef waters, and ocean wa- FORNIA COASTS COHO SALMON, TRIBAL ters out to a depth of 20 fathoms LANDS WITHIN THE RANGE OF THE ESU, around the following: AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT Kure Atoll (28°24′ N, 178°20′ W) AUTHORITY: 16 U.S.C. 1533. Midway Islands, except Sand Island and its harbor (28°14′ N, 177°22′ W) § 226.101 Purpose and scope. Pearl and Hermes Reef (27°55′ N, 175° W) Lisianski Island (26°46′ N, 173°58′ W) The regulations contained in this Laysan Island (25°46′ N, 171°44′ W) part identify those habitats designated Maro Reef (25°25′ N, 170°35′ W) by the Secretary of Commerce as crit- Gardner Pinnacles (25°00′ N, 168°00′ W) ical under section 4 of the Act, for en- French Frigate Shoals (23°45′ N, 166°00′ W) dangered and threatened species under Necker Island (23°34′ N, 164°42′ W) the jurisdiction of the Secretary of Nihoa Island (23°03.5′ N, 161°55.5′ W).
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[53 FR 18990, May 26, 1988. Redesinated at 64 FR 14067, Mar. 23, 1999]
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§ 226.202 Critical habitat for Stellar lands (connected by the shortest lines); sea lions. bounded on the west by a line con- necting Cape Kumlik (56°38″/157°27′W) STELLER SEA LION (Eumetopias jubatus) and the southwestern tip of Tugidak Is- (a) Alaska rookeries, haulouts, and as- land (56°24′N/154°41′W) and bounded in sociated areas. In Alaska, all major the east by a line connecting Cape Steller sea lion rookeries identified in Douglas (58°51′N/153°15′W) and the Table 1 and major haulouts identified northernmost tip of Shuyak Island in Table 2 and associated terrestrial, (58°37′N/152°22′W). air, and aquatic zones. Critical habitat (2) Critical habitat includes the includes a terrestrial zone that extends Bogoslof area in the Bering Sea shelf 3,000 feet (0.9 km) landward from the and consists of the area between baseline or base point of each major 170°00′W and 164°00′W, south of straight rookery and major haulout in Alaska. lines connecting 55°00′N/170°00′W and Critical habitat includes an air zone 55°00′N/168°00′W; 55°30′N/168°00′W and that extends 3,000 feet (0.9 km) above ° ′ ° ′ ° ′ ° ′ the terrestrial zone of each major rook- 55 30 N/166 00 W; 56 00 N/166 00 W and ° ′ ° ′ ery and major haulout in Alaska, 56 00 N/164 00 W and north of the Aleu- measured vertically from sea level. tian Islands and straight lines between Critical habitat includes an aquatic the islands connecting the following zone that extends 3,000 feet (0.9 km) coordinates in the order listed: seaward in State and Federally man- 52°49.2′N/169°40.4′W aged waters from the baseline or 52°49.8′N/169°06.3′W basepoint of each major rookery and 53°23.8′N/167°50.1′W major haulout in Alaska that is east of 53°18.7′N/167°51.4′W 144° W. longitude. Critical habitat in- 53°59.0′N/166°17.2′W cludes an aquatic zone that extends 20 54°02.9′N/166°03.0′W nm (37 km) seaward in State and Fed- 54°07.7′N/165°40.6′W erally managed waters from the base- 54°08.9′N/165°38.8′W line or basepoint of each major rookery 54°11.9′N/165°23.3′W and major haulout in Alaska that is 54°23.9′N/164°44.0′W west of 144° W. longitude. (3) Critical habitat includes the (b) California and Oregon rookeries and Seguam Pass area and consists of the associated areas. In California and Or- area between 52°00′N and 53°00′N and be- egon, all major Steller sea lion rook- tween 173°30′W and 172°30′W. eries identified in Table 1 and associ- ated air and aquatic zones. Critical [58 FR 45278, Aug. 27, 1993. Redesignated and habitat includes an air zone that ex- amended at 64 FR 14067, Mar. 23, 1999] tends 3,000 feet (0.9 km) above areas historically occupied by sea lions at § 226.203 Critical habitat for Northern each major rookery in California and right whales. Oregon, measured vertically from sea NORTHERN RIGHT WHALE (Eubalaena level. Critical habitat includes an aquatic zone that extends 3,000 feet (0.9 glacialis) km) seaward in State and Federally (a) Great South Channel. The area managed waters from the baseline or bounded by 41°40′ N/69°45′ W; 41°00′ N/ basepoint of each major rookery in 69°05′ W; 41°38′ N/68°13′ W; and 42°10′ N/ California and Oregon. 68°31′ W. (c) Three special aquatic foraging areas (b) Cape Cod Bay, Massachusetts. The in Alaska. Three special aquatic for- area bounded by 42°04.8′ N/70°10′ W; aging areas in Alaska, including the ° ′ ° ′ ° ′ ° ′ ° ′ Shelikof Strait area, the Bogoslof area, 42 12 N/70 15 W; 42 12 N/70 30 W; 41 46.8 ° ′ and the Seguam Pass area. N/70 30 W and on the south and east by (1) Critical habitat includes the the interior shore line of Cape Cod, Shelikof Strait area in the Gulf of Massachusetts. Alaska and consists of the area be- (c) Southeastern United States. The tween the Alaska Peninsula and coastal waters between 31°15′ N and Tugidak, Sitkinak, Aiaktilik, Kodiak, 30°15′ N from the coast out 15 nautical Raspberry, Afognak and Shuyak Is- miles; and the coastal waters between
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30°15′ N and 28°00′ N from the coast out which are incorporated by reference. 5 nautical miles (Figure 8 to part 226). This incorporation by reference was ap- proved by the Director of the Federal [59 FR 28805, June 3, 1994. Redesignated and amended at 64 FR 14067, Mar. 23, 1999] Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the § 226.204 Critical habitat for Sac- USGS publication and maps may be ob- ramento winter-run chinook salm- tained from the USGS, Map Sales, Box on. 25286, Denver, CO 80225. Copies may be The following waterways, bottom and inspected at NMFS, Endangered Spe- water of the waterways and adjacent cies Branch, Environmental and Tech- riparian zones: The Sacramento River nical Services Division, 911 NE. 11th from Keswick Dam, Shasta County Avenue, room 620, Portland, OR 97232, (River Mile 302) to Chipps Island (River NMFS, Office of Protected Resources, Mile 0) at the westward margin of the 1335 East-West Highway, Silver Spring, Sacramento-San Joaquin Delta, all wa- MD 20910, or at the Office of the Fed- ters from Chipps Island westward to eral Register, 800 North Capitol Street, Carquinez Bridge, including Honker NW., suite 700, Washington, DC. Bay, Grizzly Bay, Suisun Bay, and (a) Snake River Sockeye Salmon Carquinez Strait, all waters of San (Oncorhynchus nerka). The Columbia Pablo Bay westward of the Carquinez River from a straight line connecting Bridge, and all waters of San Francisco the west end of the Clatsop jetty (south Bay (north of the San Francisco/Oak- jetty, Oregon side) and the west end of land Bay Bridge) from San Pablo Bay the Peacock jetty (north jetty, Wash- to the Golden Gate Bridge. ington side) and including all Columbia River estuarine areas and river reaches [58 FR 33218, June 16, 1993. Redesignated and amended at 64 FR 14067. Mar. 23, 1999] upstream to the confluence of the Co- lumbia and Snake Rivers; all Snake § 226.205 Critical habitat for Snake River reaches from the confluence of River sockeye salmon, Snake River the Columbia River upstream to the fall chinook salmon, and Snake confluence of the Salmon River; all River spring/summer chinook salm- Salmon River reaches from the con- on. fluence of the Snake River upstream to The following areas consisting of the Alturas Lake Creek; Stanley, Redfish, water, waterway bottom, and adjacent Yellow Belly, Pettit, and Alturas riparian zone of specified lakes and Lakes (including their inlet and outlet river reaches in hydrologic units pres- creeks); Alturas Lake Creek, and that ently or historically accessible to list- portion of Valley Creek between Stan- ed Snake River salmon (except reaches ley Lake Creek and the Salmon River. above impassable natural falls, and Critical habitat is comprised of all Dworshak and Hells Canyon Dams). river lakes and reaches presently or Adjacent riparian zones are defined as historically accessible (except reaches those areas within a horizontal dis- above impassable natural falls, and tance of 300 feet (91.4 m) from the nor- Dworshak and Hells Canyon Dams) to mal line of high water of a stream Snake River sockeye salmon in the fol- channel (600 feet or 182.8 m, when both lowing hydrologic units: Lower Salm- sides of the stream channel are in- on, Lower Snake, Lower Snake-Asotin, cluded) or from the shoreline of a Lower Snake-Tucannon, Middle Salm- standing body of water. The complete on-Chamberlain, Middle Salmon-Pan- text delineating critical habitat for ther, and Upper Salmon. Critical habi- each species follows. Hydrologic units tat borders on or passes through the (table 3) are those defined by the De- following counties in Oregon: Clatsop, partment of the Interior (DOI), U.S. Columbia, Gillium, Hood River, Mor- Geological Survey (USGS) publication, row, Multnomah, Sherman, Umatilla, ‘‘Hydrologic Unit Maps, United States Wallowa, Wasco; the following counties Geological Survey Water Supply Paper in Washington: Asotin, Benton, Clark, 2294, 1987’’, and the following DOI, Columbia, Cowlitz, Franklin, Garfield, USGS, 1:500,000 scale hydrologic unit Klickitat, Pacific, Skamania, map: State of Oregon, 1974; State of Wahkiakum, Walla, Whitman; and the Washington, 1974; State of Idaho, 1974, following counties in Idaho: Blaine,
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Custer, Idaho, Lemhi, Lewis, Nez water River from its confluence with Perce. the Snake River upstream to its con- (b) Snake River Spring/Summer Chinook fluence with Lolo Creek; the North Salmon (Oncorhynchus tshawytscha). Fork Clearwater River from its con- The Columbia River from a straight fluence with the Clearwater River up- line connecting the west end of the stream to Dworshak Dam. Critical Clatsop jetty (south jetty, Oregon side) habitat also includes river reaches and the west end of the Peacock jetty presently or historically accessible (ex- (north jetty, Washington side) and in- cept reaches above impassable natural cluding all Columbia River estuarine falls, and Dworshak and Hells Canyon areas and river reaches proceeding up- Dams) to Snake River fall chinook stream to the confluence of the Colum- salmon in the following hydrologic bia and Snake Rivers; all Snake River units; Clearwater, Hells Canyon, reaches from the confluence of the Co- Imnaha, Lower Grande Ronde, Lower lumbia River upstream to Hells Canyon North Fork Clearwater, Lower Salmon, Dam. Critical habitat also includes Lower Snake, Lower Snake-Asotin, river reaches presently or historically Lower Snake-Tucannon, and Palouse. accessible (except reaches above im- Critical habitat borders on or passes passable natural falls, and Dworshak through the following counties in Or- and Hells Canyon Dams) to Snake egon: Baker, Clatsop, Columbia, River spring/summer chinook salmon Gillium, Hood River, Morrow, Mult- in the following hydrologic units: Hells nomah, Sherman, Umatilla, Wallowa, Canyon, Imnaha, Lemhi, Little Salm- Wasco; the following counties in Wash- on, Lower Grande Ronde, Lower Middle ington: Adams, Asotin, Benton, Clark, Fork Salmon, Lower Salmon, Lower Columbia, Cowlitz, Franklin, Garfield, Snake-Asotin, Lower Snake-Tucannon, Klickitat, Lincoln, Pacific, Skamania, Middle Salmon-Chamberlain, Middle Spokane, Wahkiakum, Walla, Whit- Salmon-Panther, Pahsimeroi, South man; and the following counties in Fork Salmon, Upper Middle Fork Idaho: Adams, Benewah, Clearwater, Salmon, Upper Grande Ronde, Upper Idaho, Latah, Lewis, Nez Perce, Sho- Salmon, Wallowa. Critical habitat bor- shone, Valley. ders on or passes through the following counties in Oregon: Baker, Clatsop, Co- [58 FR 68551, Dec. 28, 1993, as amended at 63 lumbia, Gillium, Hood River, Morrow, FR 1393, Jan. 9, 1998. Redesignated and Multnomah, Sherman, Umatilla, amended at 64 FR 14067, Mar. 23, 1999] Union, Wallowa, Wasco; the following counties in Washington: Asotin, Ben- § 226.206 Critical habitat for Umpqua River cutthroat trout. ton, Clark, Columbia, Cowlitz, Frank- lin, Garfield, Klickitat, Pacific, (a) The following areas consisting of Skamania, Wahkiakum, Walla, Whit- the water, waterway bottom, and adja- man; and the following counties in cent riparian zone of specified lakes Idaho: Adams, Blaine, Custer, Idaho, and river reaches in hydrologic units Lemhi, Lewis, Nez Perce, Valley. presently accessible to listed Umpqua (c) Snake River Fall Chinook Salmon River cutthroat trout. Adjacent ripar- (Oncorhynchus tshawytscha). The Co- ian zones are defined as those areas lumbia River from a straight line con- within a slope distance of 300 ft. (91.4 necting the west end of the Clatsop m) from the normal line of high water jetty (south jetty, Oregon side) and the of a stream channel (600 ft. or 182.8 m, west end of the Peacock jetty (north when both sides of the stream channel jetty, Washington side) and including are included) or from the shoreline of a all Columbia River estuarine areas and standing body of water. The complete river reaches proceeding upstream to text delineating the critical habitat for the confluence of the Columbia and the species follows. Hydrologic units Snake Rivers; the Snake River, all are those defined by the Department of river reaches from the confluence of the Interior (DOI), U.S. Geological Sur- the Columbia River, upstream to Hells vey (USGS) publication, ‘‘Hydrologic Canyon Dam; the Palouse River from Unit Maps, Water Supply Paper 2294, its confluence with the Snake River 1987, and the following DOI, USGS, upstream to Palouse Falls; the Clear- 1:500,000 scale hydrologic unit map:
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State of Oregon (1974) which is incor- § 226.207 Critical habitat for porated by reference. This incorpora- leatherback turtle. tion by reference was approved by the Director of the Federal Register in ac- [44 FR 17711, Mar. 23, 1979. Redesignated and cordance with 5 U.S.C. 552(a) and 1 CFR amended at 64 FR 14067, Mar. 23, 1999] part 51. Copies of the USGS publication LEATHERBACK SEA TURTLE and maps may be obtained from the (DERMOCHELYS CORIACEA) USGS, Map Sales, Box 25286, Denver, CO 80225. Copies may be inspected dur- The waters adjacent to Sandy Point, ing normal business hours at NMFS, St. Croix, U.S. Virgin Islands, up to Protected Resources Division, 525 NE and inclusive of the waters from the Oregon St., Suite 500, Portland, OR hundred fathom curve shoreward to the 97232–2737, or NMFS, Office of Pro- level of mean high tide with boundaries tected Resources, 1315 East-West High- at 17°42′12″ North and 64°50′00″ West. way, Silver Spring, MD 20910, or at the Office of the Federal Register, 800 § 226.208 Critical habitat for green tur- North Capitol Street, NW., Suite 700, tle. Washington, DC. (a) Culebra Island, Puerto Rico—Wa- (b) Geographic boundaries. All river ters surrounding the island of Culebra reaches accessible to listed Umpqua from the mean high water line seaward River cutthroat trout in the Umpqua to 3 nautical miles (5.6 km). These wa- River from a straight line connecting ters include Culebra’s outlying Keys the west end of the South jetty and the including Cayo´ Norte, Cayo Ballena, west end of the North jetty and includ- Cayos Geniquı, Isla Culebrita, Arrecife˜ ing all Umpqua River estuarine areas Culebrita, Cayo de Luis Pena, Las (including the Smith River) and tribu- Hermanas, El Mono, Cayo Lobo, Cayo taries proceeding upstream from the Lobito, Cayo Botijuela, Alcarraza, Los Pacific Ocean to the confluence of the Gemelos, and Piedra Steven. North and South Umpqua Rivers; the (b) [Reserved] North Umpqua River, including all [63 FR 46701, Sept. 2, 1998. Redesignated and tributaries, from its confluence with amended at 64 FR 14067, Mar. 23, 1999] the mainstem Umpqua River to Soda Springs dam; the South Umpqua River, § 226.209 Critical habitat for hawksbill including all tributaries, from its con- turtle. fluence with the mainstem Umpqua (a) Mona and Monito Islands, Puerto River to its headwaters (including Cow Rico—Waters surrounding the islands Creek, tributary to the South Umpqua of Mona and Monito, from the mean River). Critical habitat includes all high water line seaward to 3 nautical river reaches below longstanding, natu- miles (5.6 km). rally impassable barriers (i.e., water- (b) [Reserved] falls in existence for several hundred years) in the following hydrologic [63 FR 46701, Sept. 2, 1998. Redesignated and units: North Umpqua, South Umpqua, amended at 64 FR 14067, Mar. 23, 1999] and Umpqua. Critical habitat borders § 226.210 Central California Coast on or passes through the following Coho Salmon (Oncorhynchus counties in Oregon: Douglas, Lane, kisutch), Southern Oregon/North- Coos, Jackson, and Klamath counties. ern California Coasts Coho Salmon Perennial rivers and creeks within the (Oncorhynchus kisutch). defined areas are also included in the Critical habitat is designated to in- critical habitat designation (but are clude all river reaches accessible to not specifically named), unless other- listed coho within the range of the wise noted. Critical habitat maps are ESUs listed, except for reaches on In- available upon request from NMFS, dian lands defined in Tables 5 and 6 to Protected Resources Division, 525 NE this part. Critical habitat consists of Oregon St., Suite 500, Portland, OR the water, substrate, and adjacent ri- 97232–2737, telephone (503/230–5422). parian zone of estuarine and riverine [63 FR 1393, Jan. 9, 1998. Redesignated and reaches in hydrologic units and coun- amended at 64 FR 14067, 14068, Mar. 23, 1999, ties identified in Tables 5 and 6 to this as amended at 64 FR 24061, May 5, 1999] part for all of the coho ESUs listed in
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this section. Accessible reaches are habitats) in hydrologic units and coun- those within the historical range of the ties identified in Table 5 of this part. ESUs that can still be occupied by any Accessible reaches are those within the life stage of coho salmon. Inaccessible historical range of the ESU that can reaches are those above longstanding, still be occupied by any life stage of naturally impassable barriers (i.e., nat- coho salmon. Inaccessible reaches are ural waterfalls in existence for at least those above specific dams identified in several hundred years) and specific Table 5 of this part or above long- dams within the historical range of standing, naturally impassable barriers each ESU identified in Tables 5 and 6 (i.e., natural waterfalls in existence for to this part. Hydrologic units are those at least several hundred years). defined by the Department of the Inte- (b) Southern Oregon/Northern Cali- rior (DOI), U.S. Geological Survey fornia Coasts Coho Salmon (USGS) publication, ‘‘Hydrologic Unit (Oncorhynchus kisutch). Critical habitat Maps,’’ Water Supply Paper 2294, 1987, is designated to include all river and the following DOI, USGS, 1:500,000 reaches accessible to listed coho salm- scale hydrologic unit maps: State of on between Cape Blanco, Oregon, and Oregon, 1974 and State of California, Punta Gorda, California. Critical habi- 1978 which are incorporated by ref- tat consists of the water, substrate, erence. This incorporation by reference and adjacent riparian zone of estuarine was approved by the Director of the and riverine reaches (including off- Federal Register in accordance with 5 channel habitats) in hydrologic units U.S.C. 552(a) and 1 CFR part 51. Copies and counties identified in Table 6 of of the USGS publication and maps may this part. Accessible reaches are those be obtained from the USGS, Map Sales, within the historical range of the ESU Box 25286, Denver, CO 80225. Copies may that can still be occupied by any life be inspected at NMFS, Protected Re- stage of coho salmon. Inaccessible sources Division, 525 NE Oregon reaches are those above specific dams Street—Suite 500, Portland, OR 97232– identified in Table 6 of this part or 2737, or NMFS, Office of Protected Re- above longstanding, naturally impass- sources, 1315 East-West Highway, Sil- able barriers (i.e., natural waterfalls in ver Spring, MD 20910, or at the Office of existence for at least several hundred the Federal Register, 800 North Capitol years). Street, NW., Suite 700, Washington, DC. [64 FR 24061, May 5, 1999] (a) Central California Coast Coho Salm- TABLE 1 TO PART 226—MAJOR STELLAR on (Oncorhynchus kisutch). Critical SEA LION ROOKERY SITES habitat is designated to include all river reaches accessible to listed coho Major Steller sea lion rookery sites salmon from Punta Gorda in northern are identified in the following table. California south to the San Lorenzo Where two sets of coordinates are River in central California, including given, the baseline extends in a clock- Arroyo Corte Madera Del Presidio and wise direction from the first set of geo- Corte Madera Creek, tributaries to San graphic coordinates along the shoreline Francisco Bay. Critical habitat con- at mean lower-low water to the second sists of the water, substrate, and adja- set of coordinates. Where only one set cent riparian zone of estuarine and of coordinates is listed, that location is riverine reaches (including off-channel the base point.
Boundaries toÐ State/region/site Latitude Longitude Latitude Longitude
Alaska: Western Aleutians: Agattu I.: Cape Sabak 1 ...... 52 23.5N ...... 173 43.5E ...... 52 22.0N ...... 173 41.0E Gillon Point 1 ...... 52 24.0N ...... 173 21.5E. Attu I.1 ...... 52 54.5N ...... 172 28.5E ...... 52 57.5N ...... 172 31.5E Buldir I.1 ...... 52 20.5N ...... 175 57.0E ...... 52 23.5N ...... 172 51.0E Central Aleutians: Adak I.1 ...... 51 36.5N ...... 176 59.0W ...... 51 38.0N ...... 176 59.5W
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Boundaries toÐ State/region/site Latitude Longitude Latitude Longitude
Agligadak I.1 ...... 52 06.5N ...... 172 54.0W. Amchitka I.:1 Column Rock 1 ...... 51 32.5N ...... 178 49.5E. East Cape 1 ...... 51 22.5N ...... 179 28.0E ...... 51 21.5N ...... 179 25.0E Ayugadak I.1 ...... 51 45.5N ...... 178 24.5E. Gramp Rock 1 ...... 51 29.0N ...... 178 20.5W. Kasatochi I.1 ...... 52 10.0N ...... 175 31.5W ...... 52 10.5N ...... 175 29.0W Kiska I.: Lief Cove 1 ...... 51 57.5N ...... 177 21.0E ...... 51 56.5N ...... 177 20.0E Cape St. Stephen 1 ...... 51 52.5N ...... 177 13.0E ...... 51 53.5N ...... 177 12.0E Seguam I./Saddleridge 1 ...... 52 21.0N ...... 172 35.0W ...... 52 21.0N ...... 172 33.0W Semisopochnoi I.: Pochnoi Pt 1 ...... 51 58.5N ...... 179 45.5E ...... 51 57.0N ...... 179 46.0E Petrel Pt 1 ...... 52 01.5N ...... 179 37.5E ...... 52 01.5E ...... 179 39.0E Tag I.1 ...... 51 33.5N ...... 178 34.5W. Ulak I.1 ...... 51 20.0N ...... 178 57.0W ...... 51 18.5N ...... 178 59.5W Yunaska I.1 ...... 52 42.0N ...... 170 38.5W ...... 52 41.0N ...... 170 34.5W Eastern Aleutian: Adugak I.1 ...... 52 55.0N ...... 169 10.5W. Akun I./Billings Head 1 ...... 54 18.0N ...... 165 32.5W ...... 54 18.0N ...... 165 31.5W Akutan I./Cape Morgan 1 ...... 54 03.5N ...... 166 00.0W ...... 54 05.5N ...... 166 05.0W Bogoslof I.12 ...... 53 56.0N ...... 168 02.0W. Ogchul I.1 ...... 53 00.0N ...... 168 24.0W. Sea Lion Rocks. (Amak) 1 ...... 55 28.0N ...... 163 12.0W. Ugamak I.1 ...... 54 14.0N ...... 164 48.0W ...... 54 13.0N ...... 164 48.0W Bering Sea: Walrus I.1 ...... 57 11.0N ...... 169 56.0W. Western Gulf of Alaska: Atkins I.1 ...... 55 03.5N ...... 159 18.5W. Chernabura I.1 ...... 54 47.5N ...... 159 31.0W ...... 54 45.5N ...... 159 33.5W Clubbing Rocks (N) 1 ...... 54 43.0N ...... 162 26.5W. Clubbing Rocks (S) 1 ...... 54 42.0N ...... 162 26.5W. Pinnacle Rock 1 ...... 54 46.0N ...... 161 46.0W. Central Gulf of Alaska: Chirikof I.1 ...... 55 46.5N ...... 155 39.5W ...... 55 46.5N ...... 155 43.0W Chowiet I.1 ...... 56 00.5N ...... 156 41.5W ...... 56 00.5N ...... 156 42.0W Marmot I.1 ...... 58 14.5N ...... 151 47.5W ...... 58 10.0N ...... 151 51.0W Outer I.1 ...... 59 20.5N ...... 150 23.0W ...... 59 21.0N ...... 150 24.5W Sugarloaf I.1 ...... 58 53.0N ...... 152 02.0W. Eastern Gulf of Alaska: Seal Rocks 1 ...... 60 10.0N ...... 146 50.0W. Fish I.1 ...... 59 53.0N ...... 147 20.5W. Southeast Alaska: Forrester I...... 54 51.0N ...... 133 32.0W ...... 54 52.5N ...... 133 35.5W Hazy I ...... 55 52.0N ...... 134 34.0W ...... 55 51.5N ...... 134 35.0W White Sisters ...... 57 38.0N ...... 136 15.5W. Oregon: Rogue Reef: Pyramid Rock ...... 42 26.4N ...... 124 28.1W. Orford Reef: Long Brown Rock ...... 42 47.3N ...... 124 36.2W. Seal Rock ...... 42 47.1N ...... 124 35.4W. California: Ano Nuevo I...... 37 06.3N ...... 122 20.3W. Southeast Farallon I...... 37 41.3N ...... 123 00.1W. Sugarloaf I. & Cape Mendocino ...... 40 26.0N ...... 124 24.0W. 1 Includes an associated 20 NM aquatic zone. 2 Associated 20 NM aquatic zone lies entirely within one of the three special foraging areas. [58 FR 45278, Aug. 27, 1993]
TABLE 2 TO PART 226—MAJOR STELLAR a clockwise direction from the first set SEA LION HAULOUT SITES IN ALASKA of geographic coordinates along the Major Steller sea lion haulout sites shoreline at mean lower-low water to in Alaska are identified in the fol- the second set of coordinates. Where lowing table. Where two sets of coordi- only one set of coordinates is listed, nates are given, the baseline extends in that location is the basepoint.
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Boundaries toÐ State/region/site Latitude Longitude Latitude Longitude
Alaska: Western Aleutians: Alaid I.1 ...... 52 45.0N ...... 173 56.5E ...... 52 46.5N ...... 173 51.5E Attu/Chirikof Pt.1 ...... 52 30.0N ...... 173 26.7E ...... Shemya I.1 ...... 52 44.0N ...... 174 09.0E ...... Central Aleutians: Amatignak I.1 ...... 51 13.0N ...... 179 08.0E ...... Amlia I: East 1 ...... 52 05.0N ...... 172 58.5W ...... 52 06.0N ...... 172 57.0W Sviech. Harbor 1 ...... 52 02.0N ...... 173 23.0W ...... Amukta I. & Rocks 1 ...... 52 31.5N ...... 171 16.5W ...... 52 26.5N ...... 171 16.5W Anagaksik I.1 ...... 51 51.0N ...... 175 53.5W ...... Atka I.1 ...... 52 23.5N ...... 174 17.0W ...... 52 24.5N ...... 174 07.5W Bobrof I.1 ...... 51 54.0N ...... 177 27.0W ...... Chagulak I.1 ...... 52 34.0N ...... 171 10.5W ...... Chuginadak I.1 ...... 52 46.5N ...... 169 44.5W ...... 52 46.5N ...... 169 42.0W Great Sitkin I.1 ...... 52 06.0N ...... 176 10.5W ...... 52 07.0N ...... 176 08.5W Kagamil I.1 ...... 53 02.5N ...... 169 41.0W ...... Kanaga I: North Cape 1 ...... 51 56.5N ...... 177 09.0W ...... Ship Rock 1 ...... 51 47.0N ...... 177 22.5W ...... Kavalga I.1 ...... 51 34.5N ...... 178 51.5W ...... 51 34.5N ...... 178 49.5W Kiska I./Sirius Pt.1 ...... 52 08.5N ...... 177 36.5E ...... Kiska I./Sobaka & Vega 1 ...... 51 50.0N ...... 177 20.0E ...... 51 48.5N ...... 177 20.5E Little Sitkin I.1 ...... 51 59.5N ...... 178 30.0E ...... Little Tanaga I.1 ...... 51 50.5N ...... 176 13.0W ...... 51 49.0N ...... 176 13.0W Sagigik I.1 ...... 52 00.5N ...... 173 08.0W ...... Seguam I: South 1 ...... 52 19.5N ...... 172 18.0W ...... 52 15.0N ...... 172 37.0W Finch Pt.1 ...... 52 23.5N ...... 172 25.5W ...... 52 23.5N ...... 172 24.0W Segula I.1 ...... 52 00.0N ...... 178 06.5E ...... 52 03.5N ...... 178 09.0E Tanaga I.1 ...... 51 55.0N ...... 177 58.5W ...... 51 55.0N ...... 177 57.0W Tanadak I. (Amlia) 1 ...... 52 04.5N ...... 172 57.0W ...... Tanadak I. (Kiska) 1 ...... 51 57.0N ...... 177 47.0E ...... Ugidak I.1 ...... 51 35.0N ...... 178 30.5W ...... Uliaga I.1 ...... 53 04.0N ...... 169 47.0W ...... 53 05.0N ...... 169 46.0W Unalga & Dinkum Rocks 1 ...... 51 34.0N ...... 179 04.0W ...... 51 34.5N ...... 179 03.0W Eastern Aleutians: Akutan I./Reef-Lava 1 ...... 54 10.5N ...... 166 04.5W ...... 54 07.5N ...... 166 06.5W Amak I.1 ...... 55 24.0N ...... 163 07.0W ...... 55 26.0N ...... 163 10.0W Cape Sedanka & Island 1 ...... 53 50.5N ...... 166 05.0W ...... Emerald I.1 ...... 53 17.5N ...... 167 51.5W ...... Old Man Rocks 1 ...... 53 52.0N ...... 166 05.0W ...... Polivnoi Rock 1 ...... 53 16.0N ...... 167 58.0W ...... Tanginak I.1 ...... 54 13.0N ...... 165 19.5W ...... Tigalda I.1 ...... 54 08.5N ...... 164 58.5W ...... Umnak I./Cape Aslik 1 ...... 53 25.0N ...... 168 24.5W ...... Bering Sea: Cape Newenham 1 ...... 58 39.0N ...... 162 10.5W ...... Hall I.1 ...... 60 37.0N ...... 173 00.0W ...... Round I.1 ...... 58 36.0N ...... 159 58.0W ...... St. Paul I: Northeast Point 1 ...... 57 15.0N ...... 170 06.5W ...... Sea Lion Rock 1 ...... 57 06.0N ...... 170 17.5W ...... St. George I: S Rookery 1 ...... 56 33.5N ...... 169 40.0W ...... Dalnoi Point 1 ...... 56 36.0N ...... 169 46.0W ...... St. Lawrence I: S Punuk I.1 ...... 64 04.0N ...... 168 51.0W ...... SW Cape 1 ...... 63 18.0N ...... 171 26.0W ...... Western Gulf of Alaska: Bird I. 1 ...... 54 40.5N ...... 163 18.0W ...... Castle Rock 1 ...... 55 17.0N ...... 159 30.0W ...... Caton I.1 ...... 54 23.5N ...... 162 25.5W ...... Jude I.1 ...... 55 16.0N ...... 161 06.0W ...... Lighthouse Rocks 1 ...... 55 47.5N ...... 157 24.0W ...... Nagai I.1 ...... 54 52.5N ...... 160 14.0W ...... 54 56.0N ...... 160 15.0W Nagai Rocks 1 ...... 55 50.0N ...... 155 46.0W ...... Sea Lion Rocks (Unga) 1 ...... 55 04.5N ...... 160 31.0W ...... South Rock 1 ...... 54 18.0N ...... 162 43.5W ...... Spitz I.1 ...... 55 47.0N ...... 158 54.0W ...... The Whaleback 1 ...... 55 16.5N ...... 160 06.0W ......
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Boundaries toÐ State/region/site Latitude Longitude Latitude Longitude
Central Gulf of Alaska: Cape Barnabas 1 ...... 57 10.0N ...... 152 55.0W ...... 57 07.5N ...... 152 55.0W Cape Chiniak 1 ...... 57 35.0N ...... 152 09.0W ...... 57 37.5N ...... 152 09.0W Cape Gull 12 ...... 58 13.5N ...... 154 09.5W ...... 58 12.5N ...... 154 10.5W Cape Ikolik 12 ...... 57 17.0N ...... 154 47.5W ...... Cape Kuliak 12 ...... 58 08.0N ...... 154 12.5W ...... Cape Sitkinak 1 ...... 56 32.0N ...... 153 52.0W ...... Cape Ugat 12 ...... 57 52.0N ...... 153 51.0W ...... Gore Point 1 ...... 59 12.0N ...... 150 58.0W ...... Gull Point 1 ...... 57 21.5N ...... 152 36.5W ...... 57 24.5N ...... 152 39.0W Latax Rocks 1 ...... 58 42.0N ...... 152 28.5W ...... 58 40.5N ...... 152 30.0W Long I.1 ...... 57 45.5N ...... 152 16.0W ...... Nagahut Rocks 1 ...... 59 06.0N ...... 151 46.0W ...... Puale Bay 12 ...... 57 41.0N ...... 155 23.0W ...... Sea Lion Rocks (Marmot) 1 ...... 58 21.0N ...... 151 48.5W ...... Sea Otter I.1 ...... 58 31.5N ...... 152 13.0W ...... Shakun Rock 12 ...... 58 33.0N ...... 153 41.5W ...... Sud I.1 ...... 58 54.0N ...... 152 12.5W ...... Sutwik I.1 ...... 56 32.0N ...... 157 14.0W ...... 56 32.0N ...... 157 20.0W Takli I. 12 ...... 58 03.0N ...... 154 27.5W ...... 58 03.0N ...... 154 30.0W Two-headed I.1 ...... 56 54.5N ...... 153 33.0W ...... 56 53.5N ...... 153 35.5W Ugak I.1 ...... 57 23.0N ...... 152 15.5W ...... 57 22.0N ...... 152 19.0W Ushagat I. 1 ...... 58 55.0N ...... 152 22.0W ...... Eastern Gulf of Alaska: Cape Fairweather ...... 58 47.5N ...... 137 56.3W ...... Cape St. Elias 1 ...... 59 48.0N ...... 144 36.0W ...... Chiswell Islands 1 ...... 59 36.0N ...... 149 34.0W ...... Graves Rock ...... 58 14.5N ...... 136 45.5W. Hook Point 1 ...... 60 20.0N ...... 146 15.5W ...... Middleton I.1 ...... 59 26.5N ...... 146 20.0W ...... Perry I.1 ...... 60 39.5N ...... 147 56.0W ...... Point Eleanor 1 ...... 60 35.0N ...... 147 34.0W ...... Point Elrington 1 ...... 59 56.0N ...... 148 13.5W ...... Seal Rocks 1 ...... 60 10.0N ...... 146 50.0W ...... The Needle 1 ...... 60 07.0N ...... 147 37.0W ...... Southeast Alaska: Benjamin I...... 58 33.5N ...... 134 54.5W ...... Biali Rock ...... 56 43.0N ...... 135 20.5W ...... Biorka I...... 56 50.0N ...... 135 34.0W ...... Cape Addington ...... 55 26.5N ...... 133 49.5W ...... Cape Cross ...... 57 55.0N ...... 136 34.0W. Cape Ommaney ...... 56 10.5N ...... 134 42.5W. Coronation I...... 55 56.0N ...... 134 17.0W. Gran Point ...... 59 08.0N ...... 135 14.5W. Lull Point ...... 57 18.5N ...... 134 48.5W. Sunset I...... 57 30.5N ...... 133 35.0W ...... Timbered I...... 55 42.0N ...... 133 48.0W ...... 1 Includes an associated 20 NM aquatic zone. 2 Associated 20 nm aquatic zone lies entirely within one of the three special foraging areas. [58 FR 45279, Aug. 27, 1993, as amended at 59 FR 30716, June 15, 1994]
TABLE 3.ÐHYDROLOGIC UNITS CONTAINING CRITICAL HABITAT FOR SNAKE RIVER SOCKEYE SALMON AND SNAKE RIVER SPRING/SUMMER AND FALL CHINOOK SALMON
Hydrologic unit number Spring/ Hydrologic unit name Sockeye summer Fall chi- salmon chinook nook salmon salmon
Hells Canyon ...... 17060101 17060101 Imnaha ...... 17060102 17060102 Lower SnakeÐAsotin ...... 17060103 17060103 17060103 Upper Grande Ronde ...... 17060104 ...... Wallowa ...... 17060105 ...... Lower Grande Ronde ...... 17060106 17060106 Lower SnakeÐTucannon ...... 17060107 17060107 17060107 Palouse ...... 17060108
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TABLE 3.ÐHYDROLOGIC UNITS CONTAINING CRITICAL HABITAT FOR SNAKE RIVER SOCKEYE SALMON AND SNAKE RIVER SPRING/SUMMER AND FALL CHINOOK SALMONÐContinued
Hydrologic unit number Spring/ Hydrologic unit name Sockeye summer Fall chi- salmon chinook nook salmon salmon
Lower Snake ...... 17060110 17060110 17060110 Upper Salmon ...... 17060201 17060201 ...... Pahsimeroi ...... 17060202 ...... Middle SalmonÐPanther ...... 17060203 17060203 ...... Lemhi ...... 17060204 ...... Upper Middle Fork Salmon ...... 17060205 ...... Lower Middle Fork Salmon ...... 17060206 ...... Middle SalmonÐChamberlain ...... 17060207 17060207 ...... South Fork Salmon ...... 17060208 ...... Lower Salmon ...... 17060209 17060209 17060209 Little Salmon ...... 17060210 ...... Clearwater ...... 17060306 Lower North Fork Clearwater ...... 17060308 1 Hydrologic units and names taken from DOI, USGS 1:500,000 scale hydrologic unit maps (available from USGS); State of Oregon, 1974; State of Washington, 1974; State of Idaho, 1974. [58 FR 68552, Dec. 28, 1993]
TABLE 4.ÐHYDROLOGIC UNITS CONTAINING TABLE 4.ÐHYDROLOGIC UNITS CONTAINING CRITICAL HABITAT FOR ENDANGERED UMPQUA CRITICAL HABITAT FOR ENDANGERED UMPQUA RIVER CUTTHROAT TROUT AND COUNTIES RIVER CUTTHROAT TROUT AND COUNTIES CONTAINED IN EACH HYDROLOGIC UNIT CONTAINED IN EACH HYDROLOGIC UNITÐ Continued Hydro- Counties contained in Hydrologic unit name logic unit hydrologic unit Hydro- No. Hydrologic unit name logic unit Counties contained in No. hydrologic unit North Umpqua ...... 17100301 Douglas, Lane, Klam- ath. Umpqua ...... 17100303 Douglas, Lane, Coos. South Umpqua ...... 17100302 Douglas, Jackson, 1 1 Hydrologic units and names taken from DOI, USGS Coos. 1:500,000 scale State of Oregon (1974) hydrologic unit map (available from USGS).
[63 FR 1394, Jan. 9, 1998]
TABLE 5 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR CENTRAL CALIFORNIA COAST COHO SALMON, TRIBAL LANDS WITHIN THE RANGE OF THE ESU, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT
Hydrologic Hydrologic Counties and tribal lands contained in hy- unit name unit No. drologic unit and within the range of Dams (reservoirs) ESU12
San Lorenzo-Soquel .. 18060001 Santa Cruz (CA), San Mateo (CA) ...... Newell Dam (Loch Lomond). San Francisco Coastal 18050006 San Mateo (CA). South. San Pablo Bay ...... 18050002 Marin (CA), Napa (CA) ...... Phoenix Dam (Phoenix Lake). Tomales-Drake Bays.. 18050005 Marin (CA), Sonoma (CA) ...... Peters Dam (Kent Lake); Seeger Dam (Nicasio Reservoir). Bodega Bay ...... 18010111 Marin (CA), Sonoma (CA). Russian ...... 18010110 Sonoma (CA), Mendocino (CA)Ð Warm Springs Dam (Lake Sonoma); Coy- Cloverdale Rancheria; Coyote Valley ote Dam (Lake Mendocino). Rancheria; Dry Creek Rancheria; Guidiville Rancheria; Hopland Rancheria; Lytton Rancheria; Pinoleville Rancheria; Stewarts Point Rancheria. Gualala-Salmon ...... 18010109 Sonoma (CA), Mendocino (CA).
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Hydrologic Hydrologic Counties and tribal lands contained in hy- unit name unit No. drologic unit and within the range of Dams (reservoirs) ESU12
Big-Navarro-Garcia .... 18010108 Mendocino (CA)ÐManchester/Point Arena Rancheria;. 1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. 2 Tribal lands are specifically excluded from critical habitat for this ESU. [64 FR 24061, May 5, 1999]
TABLE 6 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR SOUTHERN OREGON/NORTHERN CALIFORNIA COASTS COHO SALMON, TRIBAL LANDS WITHIN THE RANGE OF THE ESU, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRIT- ICAL HABITAT
Hydrologic Counties and tribal lands contained in hy- Hydrologic unit name unit No. drologic unit and within the range of Dams (reservoirs) ESU12
Mattole ...... 18010107 Humboldt (CA), Mendocino (CA). South Fork Eel...... 18010106 Mendocino (CA), Humboldt (CA)Ð Laytonville Rancheria; Sherwood Valley Rancheria. Lower Eel ...... 18010105 Mendocino (CA), Humboldt (CA), Trinity (CA). Middle Fork Eel ...... 18010104 Mendocino (CA), Trinity (CA), Glenn (CA), Lake (CA)ÐRound Valley Reservation. Upper Eel ...... 18010103 Mendocino (CA), Glenn (CA), Lake (CA) ... Scott Dam (Lake Pillsbury). Mad-Redwood ...... 18010102 Humboldt (CA), Trinity (CA)ÐBig Lagoon Rancheria; Blue Lake Rancheria. Smith ...... 18010101 Del Norte (CA), Curry (OR)ÐElk Valley Rancheria; Smith River Rancheria. South Fork Trinity ...... 18010212 Humboldt (CA), Trinity (CA). Trinity ...... 18010211 Humboldt (CA), Trinity (CA)ÐHoopa Valley Lewiston Dam (Lewiston Reservoir). Reservation. Salmon ...... 18010210 Siskiyou (CA). Lower Klamath ...... 18010209 Del Norte (CA), Humboldt (CA), Siskiyou (CA)ÐKaruk Reservation; Resighini Rancheria; Yurok Reservation. Scott ...... 18010208 Siskiyou (CA)ÐQuartz Valley Reservation. Shasta ...... 18010207 Siskiyou (CA) ...... Dwinnell Dam (Dwinnell Reservoir). Upper Klamath ...... 18010206 Siskiyou (CA), Jackson (OR) ...... Irongate Dam (Irongate Reservoir). Chetco ...... 17100312 Curry (OR), Del Norte (CA). Illinois ...... 17100311 Curry (OR), Josephine (OR), Del Norte Selmac Lake Dam (Lake Selmac). (CA). Lower Rogue ...... 17100310 Curry (OR), Josephine (OR), Jackson (OR). Applegate ...... 17100309 Josephine (OR), Jackson (OR), Siskiyou Applegate Dam (Applegate Reservoir). (CA). Middle Rogue ...... 17100308 Josephine (OR), Jackson (OR) ...... Emigrant Lake Dam (Emigrant Lake). Upper Rogue...... 17100307 Jackson (OR), Klamath (OR), Douglas Agate Lake Dam (Agate Lake); Fish Lake (OR). Dam (Fish Lake); Willow Lake Dam (Wil- low Lake); Lost Creek Dam (Lost Creek Reservoir). Sixes ...... 17100306 Curry (OR). 1 Some counties have very limited overlap with estuarine, riverine, or riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. 2 Tribal lands are specifically excluded from critical habitat for this ESU. [64 FR 24061, May 5, 1999]
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PART 229—AUTHORIZATION FOR (b) Section 118 of the Act, rather COMMERCIAL FISHERIES UNDER than sections 103 and 104, governs the THE MARINE MAMMAL PROTEC- incidental taking of marine mammals in the course of commercial fishing op- TION ACT OF 1972 erations by persons using vessels of the United States, other than vessels fish- Subpart A—General Provisions ing for yellowfin tuna in the eastern Sec. tropical Pacific Ocean purse seine fish- 229.1 Purpose and scope. ery, and vessels that have valid fishing 229.2 Definitions. permits issued in accordance with sec- 229.3 Prohibitions. tion 204(b) of the Magnuson Fishery 229.4 Requirements for Category I and II Conservation and Management Act (16 fisheries. 229.5 Requirements for Category III fish- U.S.C. 1824(b)). eries. (c) The regulations of Subpart B also 229.6 Reporting requirements. govern the incidental taking by com- 229.7 Monitoring of incidental mortalities mercial fishers of marine mammals and serious injuries. from species or stocks designated 229.8 Publication of List of Fisheries. under the Act as depleted on the basis 229.9 Emergency regulations. of their listing as threatened species or 229.10 Penalties. 229.11 Confidential fisheries data. endangered species under the Endan- 229.12 Consultation with the Secretary of gered Species Act of 1973 (16 U.S.C. 1531 the Interior. et seq.). (d) The regulations of this part do Subpart B—Takes of Endangered and not apply to the incidental taking of Threatened Marine Mammals California sea otters or to Northwest treaty Indian tribal members exer- 229.20 Issuance of permits. cising treaty fishing rights. Subpart C—Take Reduction Plan (e) Authorizations under subpart A of Regulations and Emergency Regulations this part are exemptions only from the taking prohibitions under the Act and 229.30 Basis. not those under the Endangered Spe- 229.31 Pacific Offshore Cetacean Take Re- cies Act of 1973. To be exempt from the duction Plan. 229.32 Atlantic large whale take reduction taking prohibitions under the Endan- plan regulations. gered Species Act, specific authoriza- 229.33 Harbor Porpoise Take Reduction Plan tion under subpart B of this part is re- Implementing Regulations—Gulf of quired. Maine. (f) Authorizations under this part do 229.34 Harbor Porpoise Take Reduction not apply to the intentional lethal tak- Plan—Mid-Atlantic. ing of marine mammals in the course FIGURE 1 TO PART 229—DRIFT GILLNET PINGER of commercial fishing operations ex- CONFIGURATION AND EXTENDER REQUIRE- cept as provided for under §§ 229.4(k) MENTS and 229.5(f). AUTHORITY: 16 U.S.C. 1361 et seq. (g) The purposes of the regulations in SOURCE: 60 FR 45100, Aug. 30, 1995, unless this part are to: otherwise noted. (1) Reduce the incidental mortality or serious injury of marine mammals Subpart A—General Provisions occurring in the course of commercial fishing operations below the potential § 229.1 Purpose and scope. biological removal level for a par- (a) The regulations in this part im- ticular stock, and plement sections 101(a)(5)(E) and 118 of (2) Reduce the incidental mortality the Marine Mammal Protection Act of or serious injury of marine mammals 1972, as amended (16 U.S.C. 1371(a)(5)(E) occurring in the course of commercial and 1387) that provide for exceptions fishing operations to insignificant lev- for the taking of marine mammals in- els approaching a zero mortality and cidental to certain commercial fishing serious injury rate by the statutory operations from the Act’s general mor- deadline of April 30, 2001. atorium on the taking of marine mam- [60 FR 45100, Aug. 30, 1995, as amended at 64 mals. FR 9086, Feb. 24, 1999]
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§ 229.2 Definitions. nual removal of between 1 and 50 per- In addition to the definitions con- cent, exclusive, of any stock’s poten- tained in the Act and § 216.3 of this tial biological removal level. In the ab- chapter, and unless the context other- sence of reliable information indi- wise requires, in this part 229: cating the frequency of incidental mor- Act or MMPA means the Marine tality and serious injury of marine Mammal Protection Act of 1972, as mammals by a commercial fishery, the amended (16 U.S.C. 1361 et seq.). Assistant Administrator will deter- American lobster or lobster means mine whether the incidental serious in- Homarus americanus. jury or mortality is ‘‘occasional’’ by Anchored gillnet means any gillnet evaluating other factors such as fishing gear, including a sink gillnet or stab techniques, gear used, methods used to net, that is set anywhere in the water deter marine mammals, target species, column and which is anchored, secured seasons and areas fished, qualitative or weighted to the bottom of the sea. data from logbooks or fisher reports, Also called a set gillnet. stranding data, and the species and dis- Assistant Administrator means the As- tribution of marine mammals in the sistant Administrator for Fisheries of area, or at the discretion of the Assist- the National Oceanic and Atmospheric ant Administrator. Eligible commer- Administration. cial fisheries not specifically identified Authorization Certificate means a doc- in the list of fisheries are deemed to be ument issued by the Assistant Admin- Category II fisheries until the next list istrator, or designee, under the author- of fisheries is published. ity of section 118 of the Act that au- Category III fishery means a commer- thorizes the incidental, but not inten- cial fishery determined by the Assist- tional, taking of marine mammals in ant Administrator to have a remote Category I or II fisheries. likelihood of, or no known incidental Breaking strength means the highest mortality and serious injury of marine tensile force which an object can with- mammals. A commercial fishery that stand before breaking. has a remote likelihood of causing inci- Bridle means the lines connecting a dental mortality and serious injury of gillnet to an anchor or buoy line. marine mammals is one that collec- Buoy line means a line connecting tively with other fisheries is respon- fishing gear in the water to a buoy at sible for the annual removal of: the surface of the water. (1) Ten percent or less of any marine Category I fishery means a commer- mammal stock’s potential biological cial fishery determined by the Assist- removal level, or ant Administrator to have frequent in- (2) More than 10 percent of any ma- cidental mortality and serious injury rine mammal stock’s potential biologi- of marine mammals. A commercial cal removal level, yet that fishery by fishery that frequently causes mor- itself is responsible for the annual re- tality or serious injury of marine mam- moval of 1 percent or less of that mals is one that is by itself responsible stock’s potential biological removal for the annual removal of 50 percent or level. In the absence of reliable infor- more of any stock’s potential biologi- mation indicating the frequency of in- cal removal level. cidental mortality and serious injury Category II fishery means a commer- of marine mammals by a commercial cial fishery determined by the Assist- fishery, the Assistant Administrator ant Administrator to have occasional will determine whether the incidental incidental mortality and serious injury serious injury or mortality is ‘‘remote’’ of marine mammals. A commercial by evaluating other factors such as fishery that occasionally causes mor- fishing techniques, gear used, methods tality or serious injury of marine mam- used to deter marine mammals, target mals is one that, collectively with species, seasons and areas fished, quali- other fisheries, is responsible for the tative data from logbooks or fisher re- annual removal of more than 10 per- ports, stranding data, and the species cent of any marine mammal stock’s po- and distribution of marine mammals in tential biological removal level and the area or at the discretion of the As- that is by itself responsible for the an- sistant Administrator.
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Commercial fishing operation means ster traps in a lobster trap trawl, and, the catching, taking, or harvesting of with reference to gillnet gear, means a fish from the marine environment (or line connecting a gillnet or gillnet bri- other areas where marine mammals dle to an anchor or buoy line. occur) that results in the sale or barter Incidental means, with respect to an of all or part of the fish harvested. The act, a non-intentional or accidental act term includes licensed commercial pas- that results from, but is not the pur- senger fishing vessel (as defined in pose of, carrying out an otherwise law- § 216.3 of this chapter) activities and ful action. aquaculture activities. Injury means a wound or other phys- Depleted species means any species or ical harm. Signs of injury to a marine population that has been designated as mammal include, but are not limited depleted under the Act and is listed in to, visible blood flow, loss of or damage § 216.15 of this chapter or part 18, sub- to an appendage or jaw, inability to use part E of this title, or any endangered one or more appendages, asymmetry in or threatened species of marine mam- the shape of the body or body position, mal. noticeable swelling or hemorrhage, lac- Driftnet, drift gillnet, or drift entangle- eration, puncture or rupture of eyeball, ment gear means a gillnet or gillnets listless appearance or inability to de- that is/are unattached to the ocean fend itself, inability to swim or dive bottom and not anchored, secured or upon release from fishing gear, or signs weighted to the bottom, regardless of of equilibrium imbalance. Any animal whether attached to a vessel. that ingests fishing gear, or any ani- Fisher or fisherman means the vessel mal that is released with fishing gear owner or operator, or the owner or op- entangling, trailing or perforating any erator of gear in a nonvessel fishery. part of the body will be considered in- Fishery has the same meaning as in jured regardless of the absence of any section 3 of the Magnuson Fishery Con- wound or other evidence of an injury. servation and Management Act (16 Inshore Lobster waters means all state U.S.C. 1802). and Federal waters between 36°33′00.8″N Fishing trip means any time spent lat. (the Virginia/North Carolina bor- away from port actively engaged in der) and the U.S./Canada border that is commercial fishing operations. The end shoreward of the area designated below of a fishing trip will be the time of a as ‘‘offshore lobster waters.’’ fishing vessel’s return to port or the re- Integrated fishery means a fishery for turn of a fisher from tending gear in a which the granting and the administra- nonvessel fishery. tion of Authorization Certificates have Fishing vessel or vessel means any ves- been integrated and coordinated with sel, boat, ship, or other craft that is existing fishery license, registration, used for, equipped to be used for, or of or permit systems and related pro- a type normally used for, fishing. grams. Float-line means the rope at the top Interaction means coming in contact of a gillnet from which the mesh por- with fishing gear or catch. An inter- tion of the net is hung. action may be characterized by a ma- Gillnet means fishing gear consisting rine mammal entangled, hooked, or of a wall of webbing (meshes) or nets, otherwise trapped in fishing gear, re- designed or configured so that the web- gardless of whether injury or mortality bing (meshes) or nets are placed in the occurs, or situations where marine water column, usually held approxi- mammals are preying on catch. Catch mately vertically, and are designed to means fish or shellfish that has been capture fish by entanglement, gilling, hooked, entangled, snagged, trapped or or wedging. The term ‘‘gillnet’’ in- otherwise captured by commercial fish- cludes gillnets of all types, including ing gear. but not limited to sink gillnets, other Large mesh gillnet means a gillnet anchored gillnets (e.g. stab and set constructed with a mesh size of 7 nets), and drift gillnets. Gillnets may inches (17.78 cm) to 18 inches (45.72 cm). or may not be attached to a vessel. Lead-line means the rope, weighted or Groundline, with reference to lobster otherwise, to which the bottom edge of trap gear, means a line connecting lob- a gillnet is attached.
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List of Fisheries means the most re- NMFS means the National Marine cent final list of commercial fisheries Fisheries Service. published in the FEDERAL REGISTER by Nonvessel fishery means a commercial the Assistant Administrator, cat- fishing operation that uses fixed or egorized according to the likelihood of other gear without a vessel, such as incidental mortality and serious injury gear used in set gillnet, trap, beach of marine mammals during commercial seine, weir, ranch, and pen fisheries. fishing operations. Northeast waters means those U.S. wa- Lobster trap means any trap, pot or ters east of 72°30′W and north of other similar type of enclosure that is 36°33′00.8″N lat. (the Virginia-North placed on the ocean bottom and is de- Carolina border). signed to or is capable of catching lob- Observer means an individual author- sters. This definition includes but is ized by NMFS, or a designated con- not limited to lobster pots, black sea tractor, to record information on ma- bass pots and scup pots. rine mammal interactions, fishing op- Lobster trap trawl means two or more erations, marine mammal life history lobster traps attached to a single information, and other scientific data, groundline. and collect biological specimens during Mesh size means the distance between commercial fishing activities. inside knot to inside knot. Mesh size is Offshore lobster waters comprises en- measured as described in § 648.80(f)(1) of tirely federal waters as defined by the this title. area bounded by straight lines con- Mid-Atlantic coastal waters means wa- necting the following points, in the ters bounded by the line defined by the order stated, except for waters in the following points: The southern shore- Great South Channel critical right line of Long Island, New York at whale habitat: 72°30′W, then due south to 33°51′N lat., thence west to the North Carolina/ Point Latitude (°N) Longitude (°W) South Carolina border. A ...... 43° 58′ 67° 22′ Minimum population estimate means B ...... 43° 41′ 68° 00′ an estimate of the number of animals C ...... 43° 12.5′ 69° 00′ in a stock that: D ...... 42° 49′ 69° 40′ ° ′ ° ′ (1) Is based on the best available sci- E ...... 42 15.5 69 40 F ...... 42° 10′ 69° 56′ entific information on abundance, in- K ...... 41° 10′ 69° 06.5′ corporating the precision and varia- N ...... 40° 45.5′ 71° 34′ bility associated with such informa- M ...... 40° 27.5′ 72° 14′ tion; and U ...... 40° 12.5′ 72° 48.5′ V ...... 39° 50′ 73° 01′ (2) Provides reasonable assurance X ...... 38° 39.5′ 73° 40′ that the stock size is equal to or great- Y ...... 38° 12′ 73° 55′ er than the estimate. Z ...... 37° 12′ 74° 44′ Mudhole means waters off New Jersey ZA ...... 36° 33′ 74° 47′ bounded as follows: From the point 40°30′ N. latitude where it intersects From point ‘‘ZA’’ east to the EEZ with the shoreline of New Jersey east boundary and thence along the seaward to its intersection with 73°20′ W. lon- EEZ boundary to point ‘‘A’’. gitude, then south to its intersection Operator, with respect to any vessel, with 40°05′ N. latitude, then west to its means the master, captain, or other in- intersection with the shoreline of New dividual in charge of that vessel. Jersey. Potential biological removal level means Negligible impact has the same mean- the maximum number of animals, not ing as in § 228.3 of this chapter. including natural mortalities, that Net productivity rate means the an- may be removed from a marine mam- nual per capita rate of increase in a mal stock while allowing that stock to stock resulting from additions due to reach or maintain its optimum sustain- reproduction, less losses due to mor- able population. The potential biologi- tality. cal removal level is the product of the Night means any time between one following factors: half hour before sunset and one half (1) The minimum population esti- hour after sunrise. mate of the stock;
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(2) One-half the maximum theo- the 43°15′N lat. line and west of the 70° retical or estimated net productivity W long. line. rate of the stock at a small population Stowed means nets that are unavail- size; and able for use and that are stored in ac- (3) A recovery factor of between 0.1 cordance with the regulations found in and 1.0. § 648.81(e) of this title. Regional Fishery Management Council Strategic stock means a marine mam- means a regional fishery management mal stock: council established under section 302 of (1) For which the level of direct the Magnuson Fishery Conservation human-caused mortality exceeds the and Management Act. potential biological removal level; Serious injury means any injury that (2) Which, based on the best available will likely result in mortality. scientific information, is declining and Shark gillnetting means to fish a is likely to be listed as a threatened gillnet in waters south of the South species under the Endangered Species Carolina/Georgia border with webbing Act of 1973 within the foreseeable fu- of 5 inches or greater stretched mesh. ture; Sink gillnet or stab net means any (3) Which is listed as a threatened gillnet, anchored or otherwise, that is species or endangered species under the designed to be, or is fished on or near Endangered Species Act of 1973; or the bottom in the lower third of the (4) Which is designated as depleted water column. under the Marine Mammal Protection Sinking line means rope that sinks Act of 1972, as amended. and does not float at any point in the Strikenet or to fish with strikenet gear water column. Polypropylene rope is means a gillnet that is designed so not sinking line unless it contains a that, when it is deployed, it encircles lead core. or encloses an area of water either with Small mesh gillnet means a gillnet the net or by utilizing the shoreline to constructed with a mesh size of greater complete encirclement, or to fish with than 5 inches (12.7 cm) to less than 7 such a net and method. inches (17.78 cm). Take Reduction Plan means a plan de- Southeast waters means waters south veloped to reduce the incidental mor- of a line extending due eastward from tality and serious injury of marine 33°51′N lat. (the North Carolina/South mammals during commercial fishing Carolina border). operations in accordance with section Southern Mid-Atlantic waters means 118 of the Marine Mammal Protection all state and Federal waters off the Act of 1972, as amended. States of Delaware, Maryland, Vir- Take Reduction Team means a team ginia, and North Carolina, bounded on established to recommend methods of the north by a line extending eastward reducing the incidental mortality and from the northern shoreline of Dela- serious injury of marine mammals due ware at 38°47′ N. latitude (the latitude to commercial fishing operations, in that corresponds with Cape Henlopen, accordance with section 118 of the Ma- DE), east to its intersection with 72°30′ rine Mammal Protection Act of 1972, as W. longitude, south to the 33°51′ N. lati- amended. tude (the latitude that corresponds Tended gear or tend means fishing with the North Carolina/South Caro- gear that is physically attached to a lina border), and then west to its inter- vessel in a way that is capable of har- section with the shoreline of the North vesting fish, or to fish with gear at- Carolina/South Carolina border. tached to the vessel. Spotter plane means a plane that is Tie-down refers to twine used be- deployed for the purpose of locating tween the floatline and the lead line as schools of target fish for a fishing ves- a way to create a pocket or bag of net- sel that intends to set fishing gear on ting to trap fish alive. them. To strikenet for sharks means to fish Stellwagen Bank/Jeffreys Ledge area with strikenet gear in waters south of means all Federal waters in the Gulf of the South Carolina/Georgia border with Maine, except those designated as right webbing of 5 inches or greater whale critical habitat, that lie south of stretched mesh.
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U.S. waters means both state and any marine mammal, or providing in- Federal waters to the outer boundaries formation to any observer. of the U.S. exclusive economic zone (d) It is prohibited to tamper with or along the east coast of the United destroy observer equipment in any States from the Canadian/U.S. border way. southward to a line extending eastward (e) It is prohibited to retain any ma- from the southernmost tip of Florida rine mammal incidentally taken in on the Florida shore. commercial fishing operations unless Vessel owner or operator means the authorized by NMFS personnel, by des- owner or operator of: ignated contractors or an official ob- (1) A fishing vessel that engages in a server, or by a scientific research per- commercial fishing operation; or mit that is in the possession of the ves- (2) Fixed or other commercial fishing sel operator. gear that is used in a nonvessel fishery. (f) It is prohibited to intentionally Vessel of the United States has the lethally take any marine mammal in same meaning as in section 3 of the the course of commercial fishing oper- Magnuson Fishery Conservation and ations unless imminently necessary in Management Act (16 U.S.C. 1802). self-defense or to save the life of a per- Waters off New Jersey means all state son in immediate danger, and such tak- and Federal waters off New Jersey, ing is reported in accordance with the bounded on the north by a line extend- requirements of § 229.6. ing eastward from the southern shore- (g) It is prohibited to violate any reg- line of Long Island, NY at 40°40′ N. lati- ulation in this part or any provision of tude, on the south by a line extending section 118 of the Act. eastward from the northern shoreline (h) It is prohibited to fish with lob- of Delaware at 38°47′ N. latitude (the ster trap gear in the areas and for the latitude that corresponds with Cape times specified in § 229.32(c)(3) through Henlopen, DE), and on the east by the (c)(9) unless the lobster trap gear com- 72°30′ W. longitude. This area includes plies with the closures, marking re- the Mudhole. quirements, modifications, and restric- Weak link means a breakable compo- tions specified in § 229.32(c)(1) through nent of gear that will part when sub- (c)(10). ject to a certain tension load. (i) It is prohibited to fish with an- [60 FR 45100, Aug. 30, 1995, as amended at 62 chored gillnet gear in the areas and for FR 39183, July 22, 1997; 63 FR 66487, Dec. 2, the times specified in § 229.32(d)(2) 1998; 64 FR 7551, Feb. 16, 1999; 64 FR 9086, Feb. through (d)(7) unless that gillnet gear 24, 1999] complies with the closures, marking requirements, modifications, and re- § 229.3 Prohibitions. strictions specified in § 229.32(d)(1) (a) It is prohibited to take any ma- through (d)(8). rine mammal incidental to commercial (j) It is prohibited to fish with drift fishing operations except as otherwise gillnets in the areas and for the times provided in part 216 of this chapter or specified in § 229.32(e)(1) unless the drift in this part 229. gillnet gear complies with the restric- (b) It is prohibited to assault, harm, tions specified in § 229.32(e)(1). harass (including sexually harass), op- (k) It is prohibited to fish with shark pose, impede, intimidate, impair, or in gillnet gear in the areas and for the any way influence or interfere with an times specified in § 229.32(f)(1) and (3) observer, or attempt the same. This unless the gear meets the marking re- prohibition includes, but is not limited quirements specified in § 229.32(f)(2) and to, any action that interferes with an complies with the restrictions and re- observer’s responsibilities, or that cre- quirements specified in 229.32(f)(1) and ates an intimidating, hostile, or offen- (f)(3). sive environment. (l) It is prohibited to fish with, set, (c) It is prohibited to provide false in- haul back, possess on board a vessel formation when registering for an Au- unless stowed, or fail to remove sink thorization Certificate, applying for re- gillnet gear or gillnet gear capable of newal of the Authorization Certificate, catching multispecies, from the areas reporting the injury or mortality of and for the times specified in § 229.33
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(a)(1) through (a)(6), except with the questing up to the maximum number of use of pingers as provided in § 229.33 nets allowed in those paragraphs and (d)(1) through (d)(4). This prohibition must include a check for the cost of does not apply to the use of a single pe- the tags. Vessel owners and operators lagic gillnet (as described and used as will be given notice with instructions set forth in § 648.81(f)(2)(ii) of this title). informing them of the costs associated (m) It is prohibited to fish with, set, with this tagging requirement and di- haul back, possess on board a vessel rections for obtaining tags. Tag num- unless stowed, or fail to remove any bers will be unique for each vessel and gillnet gear from the areas and for the recorded on a certificate. The vessel times as specified in § 229.34 (b)(1) (ii) or operator must produce the certificate (iii) or (b)(2)(ii). and all net tags upon request by an au- (n) It is prohibited to fish with, set, thorized officer. haul back, possess on board a vessel [60 FR 45100, Aug. 30, 1995, as amended at 62 unless stowed, or fail to remove any FR 39184, July 22, 1997; 63 FR 66487, Dec. 2, large mesh or small mesh gillnet gear 1998; 64 FR 7552, Feb. 16, 1999; 64 FR 9086, Feb. from the areas and for the times speci- 24, 1999] fied in § 229.34 (c)(1) through (c)(4) un- less the gear complies with the speci- § 229.4 Requirements for Category I fied gear restrictions set forth in those and II fisheries. provisions. (a) General. (1) For a vessel owner or (o) Beginning on January 1, 1999, it is crew members to lawfully incidentally prohibited to fish with, set, or haul take marine mammals in the course of back sink gillnets or gillnet gear, or a commercial fishing operation in a leave such gear in closed areas where Category I or II fishery, the owner or pingers are required, as specified under authorized representative of a fishing § 229.33 (c)(1) through (c)(4), unless a vessel or nonvessel fishing gear must person on board the vessel during fish- have in possession a valid Certificate of ing operations possesses a valid pinger Authorization. The owner of a fishing certification training certificate issued vessel or nonvessel fishing gear is re- by NMFS. sponsible for obtaining a Certificate of (p) Beginning on January 1, 2000, it is Authorization. prohibited to fish with, set, haul back, (2) The granting and administration or possess any large mesh or small of Authorization Certificates under mesh gillnet gear in Mid-Atlantic wa- this part will be integrated and coordi- ters in the areas and during the times nated with existing fishery license, reg- specified under § 229.34(d), unless the istration, or permit systems and re- gear is properly tagged in compliance lated programs wherever possible. with that provision and unless a net These programs may include, but are tag certificate is on board the vessel. It not limited to, state or interjurisdic- is prohibited to refuse to produce a net tional fisheries programs. If the admin- tag certificate or net tags upon the re- istration of Authorization Certificates quest of an authorized officer. is integrated into a program, NMFS (q) Net tag requirement. Beginning on will publish a notice in the FEDERAL January 1, 2000, all gillnets fished, REGISTER announcing the integrated hauled, possessed, or deployed during program and summarizing how an the times and areas specified below owner or authorized representative of a must have one tag per net, with one fishing vessel or non-fishing gear may tag secured to every other bridle of register under that program or how every net and with one tag secured to registration will be achieved if no ac- every other bridle of every net within a tion is required on the part of the af- string of nets. This applies to small fected fisher. NMFS will make addi- mesh and large mesh gillnet gear in tional efforts to contact participants in New Jersey waters from January 1 the affected fishery via other appro- through April 30 or in southern Mid-At- priate means of notification. lantic waters from February 1 through (b) Registration. (1) The owner of a April 30. The owner or operator of fish- vessel, or for nonvessel gear fisheries, ing vessels must indicate to NMFS the the owner of gear, who participates in number of gillnet tags that they are re- a Category I or II fishery is required to
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be registered for a Certificate of Au- mation, the person shall notify NMFS thorization. within 10 days following receipt. If a (2) Unless a notice is published in the fisher participating in a Category I or FEDERAL REGISTER announcing an inte- II fishery who expects to receive auto- grated registration program, the owner matic registration does not receive of a vessel, or for nonvessel fishery, the that registration within the time speci- owner of the gear must register for and fied in the notice announcing the inte- receive an Authorization Certificate. grated registration program, the per- To register, owners must submit the son shall notify NMFS as directed in following information using the format the notice or may apply for registra- specified by NMFS: tion by submitting the information re- (i) Name, address, and phone number quired under paragraph (b)(1)(i) of owner. through (b)(1)(vi) of this section. (ii) Name, address, and phone number (c) Address. Unless the granting and of operator, if different from owner, un- administration of authorizations under less the name of the operator is not this part 229 is integrated and coordi- known or has not been established at nated with existing fishery licenses, the time the registration is submitted. registrations, or related programs pur- (iii) For a vessel fishery, vessel name, suant to paragraph (a) of this section, length, home port; U.S. Coast Guard requests for registration forms and documentation number or state reg- completed registration and renewal istration number, and if applicable; forms should be sent to the NMFS Re- state commercial vessel license num- ber and for a nonvessel fishery, a de- gional Offices as follows: scription of the gear and state commer- (1) Alaska Region, NMFS, P.O. Box cial license number, if applicable. 21668, 709 West 9th Street, Juneau, AK (iv) A list of all Category I and II 99802; telephone: 907–586-7235; fisheries in which the fisher may ac- (2) Northwest Region, NMFS, 7600 tively engage during the calendar year. Sand Point Way NE., Seattle, WA (v) A certification signed and dated 98115-0070; telephone: 206–526-4353; by the owner of an authorized rep- (3) Southwest Region, NMFS, 501 resentative of the owner as follows: ‘‘I West Ocean Blvd., Suite 4200, Long hereby certify that I am the owner of Beach, CA 90802–4213; telephone: 562– the vessel, that I have reviewed all in- 980–4001; formation contained on this document, (4) Northeast Region, NMFS, 1 and that it is true and complete to the Blackburn Drive, Gloucester, MA 01930; best of my knowledge.’’ telephone: 978–281–9254; or (vi) A check or money order made (5) Southeast Region, NMFS, 9721 Ex- payable to NMFS in the amount speci- ecutive Center Drive North, St. Peters- fied in the notice of the final List of burg, FL 33702; telephone: 727–570–5312. Fisheries must accompany each reg- (d) Issuance. (1) For integrated fish- istration submitted to NMFS. The eries, an Authorization Certificate or amount of this fee will be based on re- other proof of registration will be covering the administrative costs in- issued annually to each fisher reg- curred in granting an authorization. istered for that fishery. The Assistant Administrator may (2) For all other fisheries (i.e., non- waive the fee requirement for good integrated fisheries), NMFS will issue cause upon the recommendation of the Regional Director. an Authorization Certificate and, if necessary, a decal to an owner or au- (3) If a notice is published in the FED- thorized representative who: ERAL REGISTER announcing an inte- grated registration program, the owner (i) Submits a completed registration of a vessel, or for nonvessel fishery, the form and the required fee. owner of the gear may register by fol- (ii) Has complied with the require- lowing the directions provided in that ments of this section and §§ 229.6 and notice. If a person receives a registra- 229.7 tion to which he or she is not entitled (iii) Has submitted updated registra- or if the registration contains incor- tion or renewal registration which in- rect, inaccurate or incomplete infor- cludes a statement (yes/no) whether
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any marine mammals were killed or in- must be immediately returned to the jured during the current or previous sea with a minimum of further injury, calender year. unless directed otherwise by NMFS (3) If a person receives a renewed Au- personnel, a designated contractor or thorization Certificate or a decal to an official observer, or authorized oth- which he or she is not entitled, the per- erwise by a scientific research permit son shall notify NMFS within 10 days that is in the possession of the oper- following receipt. ator. (e) Authorization Certificate and decal (h) Monitoring. Authorization Certifi- requirements. (1) If a decal has been cate holders must comply with the ob- issued under the conditions specified in server or other monitoring require- paragraph (e)(2) of this section, the ments specified under § 229.7. decal must be attached to the vessel on (i) Deterrence. When necessary to the port side of the cabin or, in the ab- deter a marine mammal from dam- sence of a cabin, on the forward port aging fishing gear, catch, or other pri- side of the hull, and must be free of ob- vate property, or from endangering struction and in good condition. The personal safety, vessel owners and crew decal must be attached to the Author- members engaged in a Category I or II ization Certificate for nonvessel fish- fishery must comply with all deter- eries. rence provisions set forth in the Act (2) The Authorization Certificate, or and all guidelines and prohibitions pub- a copy, must be on board the vessel lished thereunder. while it is operating in a Category I or (j) Self defense. When imminently nec- II fishery, or, in the case of nonvessel essary in self-defense or to save the life fisheries, the Authorization Certificate of a person in immediate danger, a ma- with decal attached, or copy must be in rine mammal may be lethally taken if the possession of the person in charge such taking is reported to NMFS in ac- of the fishing operation. The Author- cordance with the requirements of ization Certificate, or copy, must be § 229.6. made available upon request to any (k) Take reduction plans and emer- state or Federal enforcement agent au- gency regulations. Authorization Cer- thorized to enforce the Act, any des- tificate holders must comply with any ignated agent of NMFS, or any con- applicable take reduction plans and tractor providing observer services to emergency regulations. NMFS. (l) Expiration. Authorization Certifi- (3) Authorization Certificates and de- cates expire at the end of each calendar cals are not transferable. In the event year. of the sale or change in ownership of the vessel, the Authorization Certifi- [60 FR 45100, Aug. 30, 1995, as amended at 62 cate is void and the new owner must FR 46, Jan. 2, 1997; 64 FR 9086, Feb. 24, 1999] register for an Authorization Certifi- cate and decal. § 229.5 Requirements for Category III fisheries. (4) An Authorization Certificate hold- er must notify the issuing office in (a) General. Vessel owners and crew writing: members of such vessels engaged only (i) If the vessel or nonvessel fishing in Category III fisheries may inciden- gear will engage in any Category I or II tally take marine mammals without fishery not listed on the initial reg- registering for or receiving an Author- istration form at least 30 days prior to ization Certificate. engaging in that fishery; and, (b) Reporting. Vessel owners engaged (ii) If there are any changes in the in a Category III fishery must comply mailing address or vessel ownership with the reporting requirements speci- within 30 days of such change. fied in § 229.6. (f) Reporting. Any Authorization Cer- (c) Disposition of marine mammals. Any tificate holders must comply with the marine mammal incidentally taken reporting requirements specified under must be immediately returned to the § 229.6. sea with a minimum of further injury (g) Disposition of marine mammals. Any unless directed otherwise by NMFS marine mammal incidentally taken personnel, a designated contractor, or
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an official observer, or authorized oth- (3) The name and description of the erwise by a scientific research permit fishery, including gear type and target in the possession of the operator. species; and (d) Monitoring. Vessel owners engaged (4) The species and number of each in a Category III fishery must comply marine mammal incidentally killed or with the observer requirements speci- injured, and the date, time, and ap- fied under § 229.7(d). proximate geographic location of such (e) Deterrence. When necessary to occurrence. A description of the ani- deter a marine mammal from dam- mal(s) killed or injured must be pro- aging fishing gear, catch, or other pri- vided if the species is unknown. vate property, or from endangering (b) Participants in nonvessel fisheries must provide all of the information in personal safety, vessel owners and crew paragraphs (a)(1) through (a)(4) of this members engaged in commercial fish- section except, instead of providing the ing operations must comply with all vessel name and vessel registration deterrence provisions set forth in the number, participants in nonvessel fish- Act and all guidelines and prohibitions eries must provide the gear permit published thereunder. number. (f) Self-defense. When imminently necessary in self-defense or to save the [60 FR 45100, Aug. 30, 1995, as amended at 64 life of a person in immediate danger, a FR 9087, Feb. 24, 1999] marine mammal may be lethally taken § 229.7 Monitoring of incidental mor- if such taking is reported to NMFS in talities and serious injuries. accordance with the requirements of (a) Purpose. The Assistant Adminis- § 229.6. trator will establish a program to mon- (g) Emergency regulations. Vessel own- itor incidental mortality and serious ers engaged in a Category III fishery injury of marine mammals during the must comply with any applicable emer- course of commercial fishing oper- gency regulations. ations in order to: [60 FR 45100, Aug. 30, 1995, as amended at 64 (1) Obtain statistically reliable esti- FR 9087, Feb. 24, 1999] mates of incidental mortality and seri- ous injury; § 229.6 Reporting requirements. (2) Determine the reliability of re- (a) Vessel owners or operators en- ports of incidental mortality and in- jury under § 229.6; and gaged in any commercial fishery must (3) Identify changes in fishing meth- report all incidental mortality and in- ods or technology that may increase or jury of marine mammals in the course decrease incidental mortality and seri- of commercial fishing operations to the ous injury. Assistant Administrator, or appro- (b) Observer program. Pursuant to priate Regional Office, by mail or other paragraph (a) of this section, the As- means, such as fax or overnight mail sistant Administrator may observe specified by the Assistant Adminis- Category I and II vessels as necessary. trator. Reports must be sent within 48 Observers may, among other tasks: hours after the end of each fishing trip (1) Record incidental mortality and during which the incidental mortality injury, and bycatch of other nontarget or injury occurred, or, for nonvessel species; fisheries, within 48 hours of an occur- (2) Record numbers of marine mam- rence of an incidental mortality or in- mals sighted; and jury. Reports must be submitted on a (3) Perform other scientific inves- standard postage-paid form as provided tigations, which may include, but are by the Assistant Administrator. The not limited to, sampling and vessel owner or operator must provide photographing incidental mortalities the following information on this form: and serious injuries. (1) The vessel name, and Federal, (c) Observer requirements for partici- state, or tribal registration numbers of pants in Category I and II fisheries. (1) If the registered vessel; requested by NMFS or by a designated (2) The name and address of the ves- contractor providing observer services sel owner or operator; to NMFS, a vessel owner/operator must
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take aboard an observer to accompany or non-target catch specimens, upon the vessel on fishing trips. request by NMFS personnel, designated (2) After being notified by NMFS, or contractors, or the observer, if ade- by a designated contractor providing quate facilities are available and if fea- observer services to NMFS, that the sible; vessel is required to carry an observer, (vii) Notifying the observer in a the vessel owner/operator must comply timely fashion of when all commercial with the notification by providing in- fishing operations are to begin and end; formation requested within the speci- (viii) Not impairing or in any way fied time on scheduled or anticipated interfering with the research or obser- fishing trips. vations being carried out; and (3) NMFS, or a designated contractor (ix) Complying with other guidelines providing observer services to NMFS, or regulations that NMFS may develop may waive the observer requirement to ensure the effective deployment and based on a finding that the facilities use of observers. for housing the observer or for carrying (5) Marine mammals or other speci- out observer functions are so inad- mens identified in paragraph (c)(4)(vi) equate or unsafe that the health or of this section, which are readily acces- safety of the observer or the safe oper- sible to crew members, must be ation of the vessel would be jeopard- brought on board the vessel and re- ized. tained for the purposes of scientific re- (4) The vessel owner/operator and search if feasible and requested by crew must cooperate with the observer NMFS personnel, designated contrac- in the performance of the observer’s tors, or the observer. Specimens so col- duties including: lected and retained must, upon request (i) Providing, at no cost to the ob- by NMFS personnel, designated con- server, the United States government, tractors, or the observer, be retained in or the designated observer provider, cold storage on board the vessel, if fea- food, toilet, bathing, sleeping accom- sible, until removed at the request of modations, and other amenities that NMFS personnel, designated contrac- are equivalent to those provided to the tors, or the observer, retrieved by au- crew, unless other arrangements are thorized personnel of NMFS, or re- approved in advance by the Regional leased by the observer for return to the Administrator; ocean. These biological specimens may (ii) Allowing for the embarking and be transported on board the vessel dur- debarking of the observer as specified ing the fishing trip and back to port by NMFS personnel or designated con- under this authorization. tractors. The operator of a vessel must (d) Observer requirements for partici- ensure that transfers of observers at pants in Category III fisheries. (1) The sea are accomplished in a safe manner, Assistant Administrator may place ob- via small boat or raft, during daylight servers on Category III vessels if the hours if feasible, as weather and sea Assistant Administrator: conditions allow, and with the agree- (i) Believes that the incidental mor- ment of the observer involved; tality and serious injury of marine (iii) Allowing the observer access to mammals from such fishery may be all areas of the vessel necessary to con- contributing to the immediate and sig- duct observer duties; nificant adverse impact on a species or (iv) Allowing the observer access to stock listed as a threatened species or communications equipment and navi- endangered species under the Endan- gation equipment, when available on gered Species Act of 1973 (16 U.S.C. 1531 the vessel, as necessary to perform ob- et seq.); and server duties; (ii) Has complied with § 229.9(a)(3)(i) (v) Providing true vessel locations by and (ii); or latitude and longitude, accurate to the (iii) Has the consent of the vessel minute, or by loran coordinates, upon owner. request by the observer; (2) If an observer is placed on a Cat- (vi) Sampling, retaining, and storing egory III vessel, the vessel owner and/ of marine mammal specimens, other or operator must comply with the re- protected species specimens, or target quirements of § 229.7(c).
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(e) Alternative observer program. The (1) In the case of a stock or species Assistant Administrator may establish for which a take reduction plan is in ef- an alternative observer program to fect— provide statistically reliable informa- (i) Prescribe emergency regulations tion on the species and number of ma- that, consistent with such plan to the rine mammals incidentally taken in maximum extent practicable, reduce the course of commercial fishing oper- incidental mortality and serious injury ations. The alternative observer pro- in that fishery; and gram may include direct observation of (ii) Approve and implement on an ex- fishing activities from vessels, air- pedited basis, any amendments to such planes, or points on shore. plan that are recommended by the Take Reduction Team to address such [60 FR 45100, Aug. 30, 1995, as amended at 64 adverse impact; FR 9087, Feb. 24, 1999] (2) In the case of a stock or species for which a take reduction plan is § 229.8 Publication of List of Fisheries. being developed— (a) The Assistant Administrator will (i) Prescribe emergency regulations publish in the FEDERAL REGISTER a pro- to reduce such incidental mortality posed revised List of Fisheries on or and serious injury in that fishery; and about July 1 of each year for the pur- (ii) Approve and implement, on an ex- pose of receiving public comment. Each pedited basis, such plan, which will year, on or about October 1, the Assist- provide methods to address such ad- ant Administrator will publish a final verse impact if still necessary; revised List of Fisheries, which will be- (3) In the case of a stock or species come effective January 1 of the next for which a take reduction plan does calendar year. not exist and is not being developed, or (b) The proposed and final revised in the case of a Category III fishery List of Fisheries will: that the Assistant Administrator be- (1) Categorize each commercial fish- lieves may be contributing to such ad- ery based on the definitions of Cat- verse impact, egory I, II, and III fisheries set forth in (i) Prescribe emergency regulations § 229.2; and to reduce such incidental mortality (2) List the marine mammals that and serious injury in that fishery, to have been incidentally injured or killed the extent necessary to mitigate such by commercial fishing operations and adverse impact; the estimated number of vessels or per- (ii) Immediately review the stock as- sons involved in each commercial fish- sessment for such stock or species and ery. the classification of such commercial (c) The Assistant Administrator may fishery under this section to determine publish a revised List of Fisheries at if a take reduction team should be es- other times, after notification and op- tablished and if recategorization of the portunity for public comment. fishery is warranted; and (d) The revised final List of Fisheries (iii) Where necessary to address such will become effective no sooner than 30 adverse impact on a species or stock days after publication in the FEDERAL listed as a threatened species or endan- REGISTER. gered species under the Endangered Species Act (16 U.S.C. 1531 et seq.), [60 FR 45100, Aug. 30, 1995, as amended at 64 place observers on vessels in a Cat- FR 9087, Feb. 24, 1999] egory III fishery if the Assistant Ad- ministrator has reason to believe such § 229.9 Emergency regulations. vessels may be causing the incidental (a) If the Assistant Administrator mortality and serious injury to marine finds that the incidental mortality or mammals from such stock. serious injury of marine mammals (b) Prior to taking any action under from commercial fisheries is having, or § 229.9(a)(1) through (3), the Assistant is likely to have, an immediate and Administrator will consult with the significant adverse impact on a stock Marine Mammal Commission, all ap- or species, the Assistant Administrator propriate Regional Fishery Manage- will: ment Councils, state fishery managers,
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and the appropriate take reduction penalties of sections 105 and 107 of the team, if established. Act, and may be subject to the pen- (c) Any emergency regulations issued alties of section 106 of the Act. under this section: (e) For fishers operating in Category (1) Shall be published in the FEDERAL I or II fisheries, failure to report all in- REGISTER and will remain in effect for cidental injuries and mortalities with- no more than 180 days or until the end in 48 hours of the end of each fishing of the applicable commercial fishing trip, or failure to comply with require- season, whichever is earlier, except as ments to carry an observer, will sub- provided in paragraph (d) of this sec- ject such persons to the penalties of tion; and sections 105 and 107 and may subject (2) May be terminated by notification them to the penalties of section 106 of in the FEDERAL REGISTER at an earlier the Act, which will result in suspen- date if the Assistant Administrator de- sion, revocation, or denial of an Au- termines that the reasons for the emer- thorization Certificate until such re- gency regulations no longer exist. quirements have been fulfilled. (d) If the Assistant Administrator (f) For fishers operating in Category finds that incidental mortality and se- III fisheries, failure to report all inci- rious injury of marine mammals in a dental injuries and mortalities within commercial fishery is continuing to 48 hours of the end of each fishing trip have an immediate and significant ad- will subject such persons to the pen- verse impact on a stock or species, the alties of sections 105 and 107, and may Assistant Administrator may extend subject them to section 106, of the Act. the emergency regulations for an addi- (g) Suspension, revocation or denial of tional period of not more than 90 days Authorization Certificates. (1) Until the or until reasons for the emergency reg- Authorization Certificate holder com- ulations no longer exist, whichever is plies with the regulations under this earlier. part, the Assistant Administrator shall [60 FR 45100, Aug. 30, 1995, as amended at 64 suspend or revoke an Authorization FR 9087, Feb. 24, 1999] Certificate or deny an annual renewal of an Authorization Certificate in ac- § 229.10 Penalties. cordance with the provisions in 15 CFR (a) Except as provided for in para- part 904 if the Authorization Certifi- graphs (b) and (c) of this section, any cate holder fails to report all inci- person who violates any regulation dental mortality and injury of marine under this part or any provision of sec- mammals as required under § 229.6; or tion 118 of the MMPA shall be subject fails to take aboard an observer if re- to all penalties set forth in the Act. quested by NMFS or its designated (b) The owner or master of a vessel contractors. that fails to comply with a take reduc- (2) The Assistant Administrator may tion plan shall be subject to the pen- suspend or revoke an Authorization alties of sections 105 and 107 of the Act, Certificate or deny an annual renewal and may be subject to the penalties of of an Authorization Certificate in ac- section 106 of the Act. cordance with the provisions in 15 CFR (c) The owner of a vessel engaged in part 904 if the Authorization Certifi- a Category I or II fishery who fails to cate holder fails to comply with any ensure that a decal, or other physical applicable take reduction plan, take evidence of such authorization issued reduction regulations, or emergency by NMFS, is displayed on the vessel or regulations developed under this sub- is in possession of the operator of the part or subparts B and C of this part or vessel shall be subject to a penalty of if the Authorization Certificate holder not more than $100. fails to comply with other require- (d) Failure to comply with take re- ments of these regulations; duction plans or emergency regulations (3) A suspended Authorization Cer- issued under this part may result in tificate may be reinstated at any time suspension or revocation of an Author- at the discretion of the Assistant Ad- ization Certificate, and failure to com- ministrator provided the Assistant Ad- ply with a take reduction plan or emer- ministrator has determined that the gency regulation is also subject to the reasons for the suspension no longer
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apply or corrective actions have been Subpart B—Takes of Endangered taken. and Threatened Marine Mammals [60 FR 45100, Aug. 30, 1995, as amended at 64 FR 9088, Feb. 24, 1999] § 229.20 Issuance of permits. (a) Determinations. During a period of § 229.11 Confidential fisheries data. up to 3 consecutive years, NMFS will (a) Proprietary information collected allow the incidental, but not the inten- under this part is confidential and in- tional, taking by persons using vessels cludes information, the unauthorized of the United States or foreign vessels disclosure of which could be prejudicial that have valid fishing permits issued or harmful, such as information or by the Assistant Administrator in ac- data that are identifiable with an indi- cordance with section 204(b) of the vidual fisher. Proprietary information Magnuson Fishery Conservation and obtained under part 229 will not be dis- Management Act (16 U.S.C. 1824(b)), closed, in accordance with NOAA Ad- while engaging in commercial fishing ministrative Order 216–100, except: operations, of marine mammals from a (1) To Federal employees whose du- species or stock designated as depleted ties require access to such information; because of its listing as an endangered (2) To state employees under an species or threatened species under the agreement with NMFS that prevents Endangered Species Act of 1973 if the public disclosure of the identity or Assistant Administrator determines business of any person; that: (3) When required by court order; or (1) The incidental mortality and seri- (4) In the case of scientific informa- ous injury from commercial fisheries tion involving fisheries, to employees will have a negligible impact on such of Regional Fishery Management Coun- species or stock; cils who are responsible for fishery (2) A recovery plan has been devel- management plan development and oped or is being developed for such spe- monitoring. cies or stock pursuant to the Endan- (5) To other individuals or organiza- gered Species Act of 1973; and tions authorized by the Assistant Ad- (3) Where required under regulations ministrator to analyze this informa- in subpart A of this part: tion, so long as the confidentiality of (i) A monitoring program has been individual fishers is not revealed. established under § 229.7; (b) Information will be made avail- (ii) Vessels engaged in such fisheries able to the public in aggregate, sum- are registered in accordance with mary, or other such form that does not § 229.4; and disclose the identity or business of any (iii) A take reduction plan has been person in accordance with NOAA Ad- developed or is being developed for ministrative Order 216–100. Aggregate such species or stock in accordance or summary form means data struc- with regulations at subpart C of this tured so that the identity of the sub- part. mitter cannot be determined either (b) Procedures for making determina- from the present release of the data or tions. In making any of the determina- in combination with other releases. tions listed in paragraph (a) of this sec- [60 FR 45100, Aug. 30, 1995, as amended at 64 tion, the Assistant Administrator will FR 9088, Feb. 24, 1999] publish an announcement in the FED- ERAL REGISTER of fisheries having § 229.12 Consultation with the Sec- takes of marine mammals listed under retary of the Interior. the Endangered Species Act, including The Assistant Administrator will a summary of available information re- consult with the Secretary of the Inte- garding the fisheries interactions with rior prior to taking actions or making listed species. Any interested party determinations under this part that af- may, within 45 days of such publica- fect or relate to species or population tion, submit to the Assistant Adminis- stocks of marine mammals for which trator written data or views with re- the Secretary of the Interior is respon- spect to the listed fisheries. As soon as sible under the Act. practicable after the end of the 45 days
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following publication, NMFS will pub- there has been a significant change in lish in the FEDERAL REGISTER a list of the information or conditions used to the fisheries for which the determina- determine such a list. tions listed in paragraph (a) of this sec- (g) Southern sea otters. This subpart tion have been made. This publication does not apply to the taking of South- will set forth a summary of the infor- ern (California) sea otters. mation used to make the determina- [60 FR 45100, Aug. 30, 1995, as amended at 64 tions. FR 9088, Feb. 24, 1999] (c) Issuance of authorization. The As- sistant Administrator will issue appro- Subpart C—Take Reduction Plan priate permits for vessels in fisheries that are required to register under Regulations and Emergency § 229.4 and for which determinations Regulations under the procedures of paragraph (b) § 229.30 Basis. of this section can be made. (d) Category III fisheries. Vessel own- Section 118(f)(9) of the Act authorizes ers engaged only in Category III fish- the Director, NMFS, to impose regula- eries for which determinations are tions governing commercial fishing op- made under the procedures of para- erations, when necessary, to imple- graph (b) of this section will not be ment a take reduction plan in order to subject to the penalties of this Act for protect or restore a marine mammal the incidental taking of marine mam- stock or species covered by such a plan. mals to which this subpart applies, as [64 FR 9088, Feb. 24, 1999] long as the vessel owner or operator of such vessel reports any incidental mor- § 229.31 Pacific Offshore Cetacean tality or injury of such marine mam- Take Reduction Plan. mals in accordance with the require- (a) Purpose and scope. The purpose of ments of § 229.6. this section is to implement the Pa- (e) Emergency authority. During the cific Offshore Cetacean Take Reduction course of the commercial fishing sea- Plan. Paragraphs (b) through (d) of this son, if the Assistant Administrator de- section apply to all U.S. drift gillnet termines that the level of incidental fishing vessels operating in waters sea- mortality or serious injury from com- ward of the coast of California or Or- mercial fisheries for which such a de- egon, including adjacent high seas wa- termination was made under this sec- ters. For purposes of this section, the tion has resulted or is likely to result fishing season is defined as beginning in an impact that is more than neg- May 1 and ending on January 31 of the ligible on the endangered or threatened following year. species or stock, the Assistant Admin- (b) Extenders. An extender is a line istrator will use the emergency author- that attaches a buoy (float) to a drift ity of § 229.9 to protect such species or gillnet’s floatline. The floatline is at- stock, and may modify any permit tached to the top of the drift gillnet. granted under this paragraph as nec- All extenders (buoy lines) must be at essary. least 6 fathoms (36 ft; 10.9 m) in length (f) Suspension, revocation, modification during all sets. Accordingly, all and amendment. The Assistant Admin- floatlines must be fished at a minimum istrator may, pursuant to the provi- of 36 feet (10.9 m) below the surface of sions of 15 CFR part 904, suspend or re- the water. voke a permit granted under this sec- (c) Pingers. (1) For the purposes of tion if the Assistant Administrator de- this paragraph (c), a pinger is an acous- termines that the conditions or limita- tic deterrent device which, when im- tions set forth in such permit are not mersed in water, broadcasts a 10 kHz (± being complied with. The Assistant Ad- 2 kHz) sound at 132 dB (± 4 dB) re 1 ministrator may amend or modify, micropascal at 1 m, lasting 300 milli- after notification and opportunity for seconds (+ 15 milliseconds), and repeat- public comment, the list of fisheries ing every 4 seconds (+ .2 seconds); and published in accordance with para- remains operational to a water depth graph (b) of this section whenever the of at least 100 fathoms (600 ft or 182.88 Assistant Administrator determines m).
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(2) While at sea, operators of drift embayment, harbor, or inlet and to wa- gillnet vessels with gillnets onboard ters landward of the following lines: must carry enough pingers on the ves- sel to meet the requirements set forth Rhode Island under paragraphs (c)(3) through(6) of 41° 27.99′ N 71° 11.75′ W TO 41° 28.49′ N 71° this section. 14.63′ W (3) Floatline. Pingers shall be at- (Sakonnet River) tached within 30 ft (9.14 m) of the 41° 26.96′ N 71° 21.34′ W TO 41° 26.96′ 71° floatline and spaced no more than 300 25.92″ W ft (91.44 m) apart. (Narragansett Bay) (4) Leadline. Pingers shall be attached 41° 22.41′ N 71° 30.80′ W TO 41° 22.41′ N 71° within 36 ft (10.97 m) of the leadline and 30.85′ W spaced no more than 300 ft (91.44 m) (Pt. Judith Pond Inlet) apart. 41° 21.31′ 71° 38.30′ W TO 41° 21.30′ N 71° (5) Staggered Configuration. Pingers 38.33′ W attached within 30 ft (9.14 m) of the (Ninigret Pond Inlet) floatline and within 36 ft (10.97 m) of 41° 19.90′ N 71° 43.08′ W TO 41° 19.90′ N 71° the leadline shall be staggered such 43.10′ W that the horizontal distance between (Quonochontaug Pond Inlet) them is no more than 150 ft (45.5 m). 41° 19.66′ N 71° 45.75′ W TO 41° 19.66′ N 71° (6) Any materials used to weight 45.78′ W pingers must not change its specifica- (Weekapaug Pond Inlet) tions set forth under paragraph (c)(1) of this section. New York (7) The pingers must be operational West of the line from the Northern and functioning at all times during de- fork of the eastern end of Long Island, ployment. NY (Orient Pt.) to Plum Island to Fish- (8) If requested, NMFS may authorize er’s Island to Watch Hill, RI. (Long Is- the use of pingers with specifications land Sound) or pinger configurations differing from 41° 11.40′ N 72° 09.70′ W TO 41° 04.50′ N 71° those set forth in paragraphs (c)(1) and 51.60;min; W (c)(3) of this section for limited, experi- (Gardiners Bay) mental purposes within a single fishing 40° 50.30′ 72° 28.50′ W TO 40° 50.36′ N 72° season. 28.67′ W (d) Skipper education workshops. After (Shinnecock Bay Inlet) notification from NMFS, vessel opera- 40° 45.70′ N 72° 45.15′ W TO 40° 45.72′ N 72° tors must attend a skipper education 45.30′ W workshop before commencing fishing (Moriches Bay Inlet) each fishing season. For the 1997/1998 40° 37.32′ N 73° 18.40′ W TO 40° 38.00′ N 73° fishing season, all vessel operators 18.56′ W must have attended one skipper edu- (Fire Island Inlet) cation workshop by October 30, 1997. 40° 34.40′ N 73° 34.55′ W TO 40° 35.08′ N 73° NMFS may waive the requirement to 35.22′ W attend these workshops by notice to all (Jones Inlet) vessel operators. New Jersey [62 FR 51813, Oct. 3, 1997, as amended at 63 FR 27861, May 21, 1998; 64 FR 3432, Jan. 22, 1999] 39° 45.90′ N 74° 05.90′ W TO 39° 45.15′ N 74° 06.20′ W § 229.32 Atlantic large whale take re- (Barnegat Inlet) duction plan regulations. 39° 30.70′ N 74° 16.70′ W TO 39° 26.30′ N 74° (a)(1) Regulated waters. The regula- 19.75′ W tions in this section apply to all U.S. (Beach Haven to Brigantine Inlet) waters in the Atlantic except for the 38° 56.20′ N 74° 51.70′ W TO 38° 56.20′ N 74° areas exempted in paragraph (a)(2) of 51.90′ W this section. (Cape May Inlet) (2) Exempted waters. The regulations 39° 16.70′ N 75° 14.60′ W TO 39° 11.25′ N 75° in this section do not apply to waters 23.90′ W landward of the first bridge over any (Delaware Bay)
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Maryland/Virginia Stellwagen Bank/Jeffreys Ledge Area— black 38° 19.48′ N 75° 05.10′ W TO 38° 19.35′ N 75° 05.25′ W (3) Markings. All specified gear in specified areas must be marked with (Ocean City Inlet) two color codes, one designating the 37° 52.50′ N 75° 24.30′ W TO 37° 11.90′ N 75° ′ gear type, the other indicating the area 48.30 W where the gear is set. Each color of the (Chincoteague to Ship Shoal Inlet) color codes must be permanently 37° 11.10′ N 75° 49.30′ W TO 37° 10.65′ N 75° marked on or along the line or lines 49.60′ W specified under paragraphs (c)(3)(ii), (Little Inlet) (c)(4)(ii), (c)(5)(ii), (d)(2)(ii), (d)(3)(ii), 37° 07.00′ N 75° 53.75′ W TO 37° 05.30′ N 75° (d)(4)(ii), (d)(5)(ii), and (f)(2) of this sec- 56.50′ W tion. Each color mark of the color (Smith Island Inlet) codes must be clearly visible when the gear is hauled or removed from the North Carolina to Florida water. Each mark must be at least 4 All marine and tidal waters landward inches (10.2 cm) long. The two color of the 72 COLREGS demarcation line marks must be placed within 6 inches (International Regulations for Pre- (15.2 cm) of each other. If the color of venting Collisions at Sea, 1972), as de- the rope is the same as or similar to a picted or noted on nautical charts pub- color code, a white mark may be sub- lished by the National Oceanic and At- stituted for that color code. (For exam- mospheric Administration (Coast ple, buoy lines of gillnet gear set in the Charts 1:80,000 scale), and as described Great South Channel Sliver Restricted in 33 CFR part 80. Area must have a yellow mark and a (b) Gear marking provisions—(1)(i) green mark, each at least 4 inches (10.2 Specified gear. Specified fishing gear cm) long, with the yellow and green consists of lobster trap gear and gillnet marks placed within 6 inches (15.2 cm) gear set in specified areas. of each other. If the buoy line is yel- (ii) Specified areas. Specified areas low, the gear must have white and are: Southeast U.S. Observer Area, green marks.) In marking or affixing Great South Channel Restricted Areas the color code, the line may be dyed, (including the Great South Channel painted, or marked with thin colored Sliver Restricted Area), Cape Cod Bay whipping line, thin colored plastic or Restricted Area, and the Stellwagen heat shrink tubing, or other material, Bank/Jeffreys Ledge Restricted Area. or a thin line may be woven into or through the line, or the line may be (iii) Requirement. From January 1, marked as approved in writing by the 1999, and as otherwise required in para- Assistant Administrator. graphs (c)(3)(ii), (c)(4)(ii), (c)(5)(ii), (4) Changes to requirements. If the As- (d)(2)(ii), (d)(3)(ii), (d)(4)(ii), (d)(5)(ii), sistant Administrator revises the gear and (f)(2) of this section, any person marking requirements under paragraph who owns or fishes with specified fish- (g) of this section, the gear must be ing gear in specified areas must mark marked in compliance with those re- that gear as specified in paragraphs quirements. (b)(2) and (b)(3) of this section, unless (c) Restrictions applicable to lobster otherwise required by the Assistant trap gear in regulated waters—(1) No line Administrator under paragraph (g) of floating at the surface. No person may this section. fish with lobster trap gear that has any (2) Color code. Specified gear must be portion of the buoy line floating at the marked with the appropriate colors to surface at any time, except that, if designate gear-types and areas as fol- more than one buoy is attached to a lows: single buoy line or if a high flyer and a Lobster trap gear—red buoy are used together on a single Gillnet gear—green buoy line, floating line may be used be- Southeast U.S. Observer Area—blue tween these objects. Great South Channel Restricted (2) No wet storage of gear. Lobster Areas—yellow traps must be hauled out of the water Cape Cod Bay Restricted Area—orange at least once in 30 days.
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(3) Cape Cod Bay Restricted Area—(i) (4) Great South Channel Restricted Lob- Area. The Cape Cod Bay restricted area ster Area—(i) Area. The Great South consists of the Cape Cod Bay Critical Channel restricted area consists of the Habitat area specified under 50 CFR Great South Channel Critical Habitat 216.13(b), unless the Assistant Adminis- area specified under 50 CFR 216.13(a) trator changes that area in accordance unless the Assistant Administrator with paragraph (g) of this section. changes that area in accordance with (ii) Gear marking requirements. No per- paragraph (g) of this section. son may fish with lobster trap gear in (ii) Gear marking requirements. No per- the Cape Cod Bay Restricted Area un- son may fish with lobster trap gear in less that gear is marked according to the Great South Channel Restricted the gear marking code specified under Area unless that gear is marked ac- paragraph (b) of this section. All buoy cording to the gear marking code spec- lines used in connection with lobster ified under paragraph (b) of this sec- trap gear must be marked within 2 ft tion. All buoy lines used in connection (0.6 m) of the top of the buoy line (or 2 with lobster trap gear must be marked ft (0.6 m) below a weak link) and mid- within 2 ft (0.6 m) of the top of the way along the length of the buoy line. buoy line (or 2 ft (0.6 m) below a weak (iii) Winter restricted period. The win- link) and midway along the length of ter restricted period for this area is the buoy line. from January 1 through May 15 of each (iii) Spring closed period. The spring year. During the winter restricted pe- closed period for this area is from April riod, no person may fish with lobster 1 through June 30 of each year unless trap gear in the Cape Cod Bay Re- the Assistant Administrator revises stricted Area unless that person’s gear the closed period in accordance with complies with the following require- paragraph (g) of this section. During ments: the spring closed period, no person may (A) Weak links—All buoy lines are at- fish with or set lobster trap gear in the tached to the buoy with a weak link. Great South Channel restricted lobster The breaking strength of this weak area unless the Assistant Adminis- link must be no more than 500 lb (226.7 trator specifies gear modifications or kg). alternative fishing practices in accord- (B) Multiple trap trawls—All traps are ance with paragraph (g) of this section set in either a two-trap string or in a and the gear or practices comply with trawl of four or more traps. Single those specifications. traps and three trap trawls are not al- (iv) Other restricted period. From July lowed. A two-trap string must have 1 through March 31 no person may fish only one buoy line. with lobster trap gear in the Great (C) Sinking buoy lines—All buoy lines South Channel Restricted Lobster Area are comprised of sinking line except unless that person’s gear complies with the bottom portion of the line, which at least two of the characteristics of may be a section of floating line not to the Lobster Take Reduction Tech- exceed one-third the overall length of nology List in paragraph (c)(10) of this the buoy line. section. The Assistant Administrator (D) Sinking ground line—All ground may revise this restricted period in ac- lines are made entirely of sinking line. cordance with paragraph (g) of this sec- (iv) Other restricted period. From May tion. 16 through December 31 of each year, (5) Stellwagen Bank/Jeffreys Ledge Re- no person may fish with lobster trap stricted Area—(i) Area. The Stellwagen gear in the Cape Cod Bay Restricted Bank/Jeffreys Ledge restricted area Area unless that person’s gear complies consists of all Federal waters of the with at least two of the characteristics Gulf of Maine that lie to the south of of the Lobster Take Reduction Tech- the 43°15′ N lat. line and west of the 70° nology List in paragraph (c)(10) of this W long. line, except for right whale section. The Assistant Administrator critical habitat, unless the Assistant may revise this restricted period in ac- Administrator changes that area in ac- cordance with paragraph (g) of this sec- cordance with paragraph (g) of this sec- tion. tion.
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(ii) Gear marking requirements. No per- (8) Northern inshore lobster waters—(i) son may fish with lobster trap gear in Area. Northern inshore lobster waters the Stellwagen Bank/Jeffreys Ledge consist of all inshore lobster waters (as Restricted Area unless that gear is defined in § 229.2) north of 41°30′ N lat., marked according to the gear marking except the Cape Cod Bay restricted code specified under paragraph (b) of area, Great South Channel restricted this section. All buoy lines used in con- area and the Stellwagen Bank/Jeffreys nection with lobster trap gear must be Ledge restricted area. marked within 2 ft (0.6 m) of the top of (ii) Gear Requirements. No person may the buoy line (or 2 ft (0.6 m) below a fish with lobster trap gear in the weak link) and midway along the northern inshore lobster waters area length of the buoy line. unless that person’s gear complies with (iii) Gear requirements. No person may at least one of the characteristics of fish with lobster trap gear in the the Lobster Take Reduction Tech- Stellwagen Bank/Jeffreys Ledge Re- nology List in paragraph (c)(10) of this stricted Area unless that person’s gear section. The Assistant Administrator complies with at least two of the char- may revise this requirement in accord- acteristics of the Lobster Take Reduc- ance with paragraph (g) of this section. tion Technology List in paragraph (9) Southern inshore lobster waters—(i) (c)(10) of this section. The Assistant Area. The southern inshore lobster wa- Administrator may revise this require- ters consist of all inshore lobster wa- ment in accordance with paragraph (g) ters (as defined in § 229.2) south of 41°30′ of this section. N lat., except the Great South Channel (6) Northern offshore lobster waters—(i) restricted area. Area. The northern offshore lobster wa- (ii) Gear requirements. From December ters area includes all offshore lobster 1 through March 31, no person may fish waters (as defined in § 229.2) north of with lobster trap gear in the southern 41°30 N lat., except for areas included in inshore lobster waters area unless that the Great South Channel Critical Habi- person’s gear complies with at least tat. one of the characteristics of the Lob- (ii) Gear requirements. No person may ster Take Reduction Technology List fish with lobster trap gear in the in paragraph (c)(10) of this section. The northern offshore lobster waters area Assistant Administrator may revise unless that person’s gear complies with this requirement in accordance with at least one of the characteristics of paragraph (g) of this section. the Lobster Take Reduction Tech- (10) Lobster Take Reduction Technology nology List in paragraph (c)(10) of this List. The following gear characteristics section. The Assistant Administrator comprise the Lobster Take Reduction may revise this requirement in accord- Technology List: ance with paragraph (g) of this section. (i) All buoy lines are 7⁄16 inches (1.11 (7) Southern offshore lobster waters—(i) cm) in diameter or less. Area. The southern offshore lobster wa- (ii) All buoys are attached to the ters area includes all offshore lobster buoy line with a weak link having a waters (as defined in § 229.2) south of maximum breaking strength of up to 41°30 N lat., except for areas included in 1100 lb (498.8 kg). Weak links may in- the Great South Channel Critical Habi- clude swivels, plastic weak links, rope tat. of appropriate diameter, hog rings, (ii) Gear requirements. From December rope stapled to a buoy stick, or other 1 through March 31, no person may fish materials or devices approved in writ- with lobster trap gear in the southern ing by the Assistant Administrator. offshore lobster waters area unless that (iii) For gear set in offshore lobster person’s gear complies with at least areas only, all buoys are attached to one of the characteristics of the Lob- the buoy line with a weak link having ster Take Reduction Technology List a maximum breaking strength of up to in paragraph (c)(10) of this section. The 3780 lb (1714.3 kg). Assistant Administrator may revise (iv) For gear set in offshore lobster this requirement in accordance with areas only, all buoys are attached to paragraph (g) of this section. the buoy line by a section of rope no
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more than three fourths the diameter (iv) Other restricted period. From May of the buoy line. 16 through December 31 of each year, (v) All buoy lines are composed en- no person may fish with anchored tirely of sinking line. gillnet gear in the Cape Cod Bay Re- (vi) All ground lines are made of stricted Area unless that person’s gear sinking line. complies with at least two of the char- (d) Restrictions applicable to anchored acteristics of the Gillnet Take Reduc- gillnet gear—(1) No line floating at the tion Technology List in paragraph surface. No person may fish with an- (d)(8) of this section. The Assistant Ad- chored gillnet gear that has any por- ministrator may revise this restricted tion of the buoy line floating at the period in accordance with paragraph surface at any time, except that, if (g) of this section. more than one buoy is attached to a (3) Great South Channel Restricted single buoy line or if a high flyer and a Gillnet Area—(i) Area. The Great South buoy are used together on a single Channel Restricted Gillnet Area con- buoy line, floating line may be used be- sists of the area bounded by lines con- tween these objects. necting the following four points: 41°02.2′ N/69°02′ W, 41°43.5′ N/69°36.3′ W, (2) Cape Cod Bay Restricted Area—(i) 42°10′ N/68°31′ W, and 41°38′ N/68°13′ W, Area. The Cape Cod Bay Restricted unless the Assistant Administrator Area consists of the Cape Cod Bay Crit- changes that area in accordance with ical Habitat area specified under 50 paragraph (g) of this section. This area CFR 216.13(b), unless the Assistant Ad- includes the Great South Channel crit- ministrator changes that area under ical habitat area specified under 50 paragraph (g) of this section. CFR 216.13(a), except for the ‘‘sliver (ii) Gear marking requirements. No per- area’’ identified in paragraph (d)(4) of son may fish with anchored gillnet this section. gear in the Cape Cod Bay Restricted (ii) Gear marking requirements. No per- Area unless that gear is marked ac- son may fish with anchored gillnet cording to the gear marking code spec- gear in the Great South Channel Re- ified under paragraph (b) of this sec- stricted Gillnet Area unless that gear tion. All buoy lines used in connection is marked according to the gear mark- with anchored gillnets must be marked ing code specified under paragraph (b) within 2 ft (0.6 m) of the top of the of this section. All buoy lines used in buoy line (or 2 ft (0.6 m) below a weak connection with anchored gillnets link) and midway along the length of must be marked within 2 ft (0.6 m) of the buoy line. the top of the buoy line (or 2 ft (0.6 m) (iii) Winter restricted period. The win- below a weak link) and midway along ter restricted period for this area is the length of the buoy line. from January 1 through May 15 of each (iii) Spring closed period. The spring year, unless the Assistant Adminis- closed period for this area is from April trator revises the restricted period 1 through June 30 of each year unless under paragraph (g) of this section. the Assistant Administrator revises During the winter restricted period, no the closed period in accordance with person may fish with anchored gillnet paragraph (g) of this section. During gear in the Cape Cod Bay Restricted the spring closed period, no person may Area unless the Assistant Adminis- set or fish with anchored gillnet gear trator specifies gear modifications or in the Great South Channel Restricted alternative fishing practices under Gillnet Area unless the Assistant Ad- paragraph (g) of this section and the ministrator specifies gear modifica- gear or practices comply with those tions or alternative fishing practices in specifications. The Assistant Adminis- accordance with paragraph (g) of this trator may waive this closure for the section and the gear or practices com- remaining portion of any year through ply with those specifications. a notification in the FEDERAL REG- (iv) Other restricted period. From July ISTER if NMFS determines that right 1 through March 31 no person may fish whales have left the critical habitat with anchored gillnet gear in the Great and are unlikely to return for the re- South Channel Restricted Gillnet Area mainder of the season. unless that person’s gear complies with
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at least two of the characteristics of must be marked within 2 ft (0.6 m) of the Gillnet Take Reduction Tech- the top of the buoy line (or 2 ft below nology List in paragraph (d)(8) of this a weak link) and midway along the section. The Assistant Administrator length of the buoy line. may revise this restricted period in ac- (iii) Gear requirements. No person may cordance with paragraph (g) of this sec- fish with anchored gillnet gear in the tion. Stellwagen Bank/Jeffreys Ledge Re- (4) Great South Channel Sliver Re- stricted Area unless that person’s gear stricted Area—(i) Area. The Great South complies with at least two of the char- Channel Sliver Restricted Area con- acteristics of the Gillnet Take Reduc- sists of the area bounded by lines con- tion Technology List in paragraph necting the following points: 41°02.2′ N/ (d)(8) of this section. The Assistant Ad- 69°02′ W, 41°43.5′ N/69°36.3′ W, 41°40′ N/ ministrator may revise these require- 69°45′ W, and 41°00′ N/69°05′ W, unless the ments in accordance with paragraph (g) Assistant Administrator changes that of this section. area in accordance with paragraph (g) (6) Other Northeast Waters Area—(i) of this section. Area. The ‘‘Other Northeast Waters (ii) Gear marking requirements. No per- Area’’ consists of all northeast waters son may fish with anchored gillnet (as defined in § 229.2) except for the gear in the Great South Channel Sliver Cape Cod Bay Restricted Area, the Restricted Area unless that gear is Great South Channel Restricted marked according to the gear marking Gillnet Area, Great South Channel code specified under paragraph (b) of Sliver Restricted Area and the this section. All buoy lines used in con- Stellwagen Bank/Jeffreys Ledge Re- nection with anchored gillnets must be stricted Area. marked within 2 ft (0.6 m) of the top of (ii) Gear requirements. No person may the buoy line (or 2 ft below a weak fish with anchored gillnet gear in the link) and midway along the length of Other Northeast Waters Area unless the buoy line. that person’s gear complies with at (iii) Gear requirements. No person may fish with anchored gillnet gear in the least one of the characteristics of the Great South Channel Sliver Restricted Gillnet Take Reduction Technology Area unless that person’s gear complies List in paragraph (d)(8) of this section. with at least two of the characteristics The Assistant Administrator may re- of the Gillnet Take Reduction Tech- vise these requirements in accordance nology List in paragraph (d)(8) of this with paragraph (g) of this section. section. The Assistant Administrator (7) Mid-Atlantic Coastal Waters Area— may revise these requirements in ac- (i) Area. The mid-Atlantic Coastal Wa- cordance with paragraph (g) of this sec- ters Area is defined in § 229.2. tion. (ii) Gear requirements. From December (5) Stellwagen Bank/Jeffreys Ledge Re- 1 through March 31, no person may fish stricted Area—(i) Area. The Stellwagen with anchored gillnets in the Mid-At- Bank/Jeffreys Ledge Restricted Area lantic Coastal Waters Area unless that consists of all Federal waters of the person’s gear complies with at least Gulf of Maine that lie to the south of one of the characteristics of the Gillnet the 43°15′ N lat. line and west of the 70° Take Reduction Technology List in W long. line, except right whale crit- paragraph (d)(8) of this section. The As- ical habitat, unless the Assistant Ad- sistant Administrator may revise these ministrator changes that area in ac- requirements in accordance with para- cordance with paragraph (g) of this sec- graph (g) of this section. tion. (8) Gillnet Take Reduction Technology (ii) Gear marking requirements. No per- List. The following gear characteristics son may fish with anchored gillnet comprise the Gillnet Take Reduction gear in the Stellwagen Bank/Jeffreys Technology List: Ledge Restricted Area unless that gear (i) All buoy lines are 7⁄16 inches (1.11 is marked according to the gear mark- cm) in diameter or less. ing code specified under paragraph (b) (ii) All buoys are attached to the of this section. All buoy lines used in buoy line with a weak link having a connection with anchored gillnets maximum breaking strength of up to
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1100 lb (498.8 kg). Weak links may in- 1999, each net panel must be marked clude swivels, plastic weak links, rope along both the float line and the lead of appropriate diameter, hog rings, line at least once every 100 yards (92.4 rope stapled to a buoy stick, or other m). materials or devices approved in writ- (3) Restrictions—(i) Observer require- ing by the Assistant Administrator. ment. No person may fish with shark (iii) Weak links with a breaking gillnet gear in the southeast U.S. ob- strength of up to 1100 lb (498.8 kg) are server area from November 15 through installed in the float rope between net March 31 of the following year unless panels. the operator of the vessel calls the SE (iv) All buoy lines are composed en- Regional Office in St. Petersburg, FL, tirely of sinking line. not less than 48 hours prior to depart- (e) Restrictions applicable to mid-Atlan- ing on any fishing trip in order to ar- tic driftnet gear—(1) Restrictions. From range for observer coverage. If the Re- December 1 through March 31 of the gional Office requests that an observer following year, no person may fish with be taken on board a vessel during a driftnet gear at night in the mid-Atlan- fishing trip at any time from November tic coastal waters area unless that gear 15 through March 31 of the following is tended. During that time, all year, no person may fish with shark driftnet gear set by that vessel in the gillnet gear aboard that vessel in the mid-Atlantic coastal waters area must southeast U.S. observer area unless an be removed from the water and stowed observer is on board that vessel during on board the vessel before a vessel re- the trip. turns to port. The Assistant Adminis- (ii) Closure. Except as provided under trator may revise these requirements paragraph (f)(3)(iii) of this section, no in accordance with paragraph (g) of person may fish with shark gillnet gear this section. in the southeast U.S. restricted area (f) Restrictions applicable to shark during the closed period. The closed pe- gillnet gear—(1) Management areas—(i) riod for this area is from November 15 Southeast U.S. restricted area. The through March 31 of the following year, southeast U.S. restricted area consists unless the Assistant Administrator of the area from 32°00′ N lat. (near Sa- changes that closed period in accord- vannah, GA) south to 27°51′ N lat. (near ance with paragraph (g) of this section. Sebastian Inlet, FL), extending from (iii) Special provision for strikenets. the shore eastward to 80°00′ W long., Fishing for sharks with strikenet gear unless the Assistant Administrator is exempt from the restriction under changes that area in accordance with paragraph (f)(3)(ii) of this section if: paragraph (g) of this section. (A) No nets are set at night or when (ii) Southeast U.S. observer area. The visibility is less than 500 yards (460 m). southeast U.S. observer area consists (B) Each set is made under the obser- of the southeast U.S. restricted area vation of a spotter plane. and an additional area along the coast (C) No net is set within 3 nautical south to 26°46.5′ N lat. (near West Palm miles of a right, humpback, fin or Beach, FL) and extending from the minke whale. shore eastward out to 80°00′ W long., (D) If a right, humpback, fin or unless the Assistant Administrator minke whale moves within 3 nautical changes that area in accordance with miles of the set gear, the gear is re- paragraph (g) of this section. moved immediately from the water. (2) Gear marking requirements. From (g) Other provisions. In addition to November 15 through March 31 of the any other emergency authority under following year, no person may fish with the Marine Mammal Protection Act, gillnet gear in the southeast U.S. ob- the Endangered Species Act, the Mag- server area unless that gear is marked nuson-Stevens Fishery Conservation according to the gear marking code and Management Act, or other appro- specified under paragraph (b) of this priate authority, the Assistant admin- section. All buoy lines must be marked istrator may take action under this within 2 ft (0.6 m) of the top of the section in the following situations: buoy line and midway along the length (1) Entanglements in critical habitat. If of the buoy line. From November 15, a serious injury or mortality of a right
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whale occurs in the Cape Cod Bay crit- stowed, or fail to remove sink gillnet ical habitat from January 1 through gear or gillnet gear capable of catching May 15, in the Great South Channel multispecies, from Northeast Closure Restricted Area from April 1 through Area. This prohibition does not apply June 30, or in the Southeast U.S. Re- to a single pelagic gillnet (as described stricted Area from November 15 and used as set forth in § 648.81(f)(2)(ii) through March 31 as a result of an en- of this title). The Northeast Closure tanglement by lobster or gillnet gear Area is the area bounded by straight allowed to be used in those areas and lines connecting the following points in times, the Assistant Administrator the order stated: shall close that area to that gear type for the rest of that time period and for NORTHEAST CLOSURE AREA that same time period in each subse- Point N. Lat. W. Long. quent year, unless the Assistant Ad- ministrator revises the restricted pe- NE1 (1)68°55.0′ NE2 43°29.6′ 68°55.0′ riod in accordance with paragraph NE3 44°04.4′ 67°48.7′ (g)(2) of this section or unless other NE4 44°06.9′ 67°52.8′ measures are implemented under para- NE5 44°31.2′ 67°02.7′ NE6 (1)67°02.7′ graph (g)(2). (2) Other special measures. The Assist- 1 Maine shoreline. ant Administrator may revise the re- (2) Mid-coast Closure Area. From Sep- quirements of this section through a tember 15 through May 31, it is prohib- publication in the FEDERAL REGISTER ited to fish with, set, haul back, pos- if: sess on board a vessel unless stowed, or (i) NMFS verifies that certain gear fail to remove sink gillnet gear or characteristics are both operationally gillnet gear capable of catching multi- effective and reduce serious injuries species. This prohibition does not apply and mortalities of endangered whales; to a single pelagic gillnet (as described (ii) New gear technology is developed and used as set forth in § 648.81(f)(2)(ii) and determined to be appropriate; of this title). The Mid-Coast Closure (iii) Revised breaking strengths are Area is the area bounded by straight determined to be appropriate; lines connecting the following points in (iv) New marking systems are devel- the order stated: oped and determined to be appropriate; (v) NMFS determines that right MID-COAST CLOSURE AREA whales are remaining longer than ex- Point N. Lat. W. Long. pected in a closed area or have left ear- lier than expected; MC1 42°30′ (1) (vi) NMFS determines that the MC2 42°30′ 70°15′ MC3 42°40′ 70°15′ boundaries of a closed area are not ap- MC4 42°40′ 70°00′ propriate; MC5 43°00′ 70°00′ (vii) Gear testing operations are con- MC6 43°00′ 69°30′ MC7 43°30′ 69°30′ sidered appropriate; or MC8 43°30′ 69°00′ (viii) Similar situations occur. MC9 (2)69°00′ [64 FR 7552, Feb. 16, 1999] 1 Massachusetts shoreline. 2 Maine shoreline. EFFECTIVE DATE NOTE: At 64 FR 17292, Apr. (3) Massachusetts Bay Closure Area. 9, 1999, in § 229.32, paragraphs (b), (c)(3)(ii), (c)(4)(ii), (c)(5)(ii), (d)(2)(ii), (d)(3)(ii), From December 1 through May 31, it is (d)(4)(ii), (d)(5)(ii) and (f)(2) were stayed until prohibited to fish with, set, haul back, Nov. 1, 1999. possess on board a vessel unless stowed, or fail to remove sink gillnet § 229.33 Harbor Porpoise Take Reduc- gear or gillnet gear capable of catching tion Plan Implementing Regula- multispecies from the Massachusetts tions—Gulf of Maine. Bay Closure Area, except with the use (a) Restrictions—(1) Northeast Closure of pingers as provided in paragraph Area. From August 15 through Sep- (d)(2) of this section. This prohibition tember 13 of each fishing year, it is does not apply to a single pelagic prohibited to fish with, set, haul back, gillnet (as described in § 648.81(f)(2)(ii) possess on board a vessel unless of this title). The Massachusetts Bay
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Closure Area is the area bounded by OFFSHORE CLOSURE AREA straight lines connecting the following points in the order stated: Point N. Lat. W. Long. OFS1 42°50′ 69°30′ MASSACHUSETTS BAY CLOSURE AREA OFS2 43°10′ 69°10′ OFS3 43°10′ 67°40′ OFS4 42°10′ 67°40′ Point N. Lat. W. Long. OFS5 42°10′ 69°30′ OFS6 42°50′ 69°30′ MB1 42°30′ (1) MB2 42°30′ 70°30′ MB3 42°12′ 70°30′ (6) Cashes Ledge Closure Area. For the MB4 42°12′ 70°00′ month of February of each fishing MB5 (2)70°00′ year, it is prohibited to fish with, set, MB6 42°00′ (2) haul back, possess on board a vessel MC7 42°00′ (1) unless stowed, or fail to remove sink 1 Massachusetts shoreline. gillnet gear or gillnet gear capable of 2 Cape Cod shoreline. catching multispecies from the Cashes (4) Cape Cod South Closure Area. From Ledge Closure Area. This prohibition does not apply to a single pelagic December 1 through May 31, it is pro- gillnet (as described in § 648.81(f)(2)(ii) hibited to fish with, set, haul back, of this title). The Cashes Ledge Closure possess on board a vessel unless Area is the area bounded by straight stowed, or fail to remove sink gillnet lines connecting the following points in gear or gillnet gear capable of catching the order stated: multispecies from Cape Cod South Clo- sure Area, except with the use of CASHES LEDGE CLOSURE AREA pingers as provided in paragraph (d)(3) of this section. This prohibition does Point N. Lat. W. Long. not apply to a single pelagic gillnet (as CL1 42°30′ 69°00′ CL2 42°30′ 68°30′ described in § 648.81(f)(2)(ii) of this CL3 43°00′ 68°30′ title). The Cape Cod South Closure CL4 43°00′ 69°00′ Area is the area bounded by straight CL5 42°30′ 69°00′ lines connecting the following points in the order stated: (b) Pingers—(1) Pinger specifications. For the purposes of this subpart, a pinger is an acoustic deterrent device CAPE COD SOUTH CLOSURE AREA which, when immersed in water, broad- Point N. Lat. W. Long. casts a 10 kHz (±2 kHz) sound at 132 dB (±4 dB) re 1 micropascal at 1 m, lasting CCS1 (1)71°45′ ± ° ′ ° ′ 300 milliseconds ( 15 milliseconds), and CCS2 40 40 71 45 repeating every 4 seconds (±.2 seconds). CCS3 40°40′ 70°30′ CCS4 (2)70°30′ (2) Pinger attachment. An operating and functional pinger must be attached 1 Rhode Island shoreline. at the end of each string of the gillnets 2 Massachusetts shoreline. and at the bridle of every net within a (5) Offshore Closure Area. From No- string of nets. vember 1 through May 31, it is prohib- (c) Pinger training and certification. ited to fish with, set, haul back, pos- Beginning on January 1, 1999, the oper- sess on board a vessel unless stowed, or ator of a vessel may not fish with, set fail to remove sink gillnet gear or or haul back sink gillnets or gillnet gillnet gear capable of catching multi- gear, or allow such gear to be in closed species from Offshore Closure Area, ex- areas where pingers are required as cept for the use of pingers as provided specified under paragraph (b) of this in § 229.33(d)(4). This prohibition does section, unless the operator has satis- not apply to a single pelagic gillnet (as factorily completed the pinger certifi- cation training program and possesses described in § 648.81(f)(2)(ii) of this on board the vessel a valid pinger title). The Offshore Closure Area is the training certificate issued by NMFS. area bounded by straight lines con- Notice will be given announcing the necting the following points in the times and locations of pinger certifi- order stated: cation training programs.
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(d) Use of pingers in closed areas—(1) inadequate to reduce bycatch to the Vessels, subject to the restrictions and PBR level with the current plan. regulations specified in paragraph (2) NMFS determines that the bound- (a)(2) of this section, may fish in the ary or timing of a closed area is inap- Mid-coast Closure Area from Sep- propriate, or that gear modifications tember 15 through May 31 of each fish- (including pingers) are not reducing by- ing year, provided that pingers are catch to below the PBR level. used in accordance with the require- [63 FR 66487, Dec. 2, 1998; 63 FR 71042, Dec. 23, ments of paragraphs (b) (1) and (2) of 1998] this section. (2) Vessels, subject to the restrictions § 229.34 Harbor Porpoise Take Reduc- and regulations specified in paragraph tion Plan—Mid-Atlantic. (a)(3) of this section, may fish in the (a)(1) Regulated waters. The regula- Massachusetts Bay Closure Area from tions in this section apply to all waters December 1 through the last day of in the Mid-Atlantic bounded on the February and from April 1 through east by 72°30′ W. longitude and on the May 31 of each fishing year, provided south by the North Carolina/South that pingers are used in accordance Carolina border (33°51′ N. latitude), ex- with the requirements of paragraphs cept for the areas exempted in para- (b) (1) and (2) of this section. graph (a)(2) of this section. (3) Vessels, subject to the restrictions (2) Exempted waters. All waters land- and regulations specified in paragraph ward of the first bridge over any (a)(4) of this section, may fish in the embayment, harbor, or inlet will be ex- Cape Cod South Closure Area from De- empted. The regulations in this section cember 1 through the last day of Feb- do not apply to waters landward of the ruary and from April 1 through May 31 following lines: of each fishing year, provided that pingers are used in accordance with the New York requirements of paragraphs (b) (1) and 40° 45.70′ N 72° 45.15′ W TO 40° 45.72′ N 72° 45.30′ (2) of this section. W (Moriches Bay Inlet) (4) Vessels, subject to the restrictions 40° 37.32′ N 73° 18.40′ W TO 40° 38.00′ N 73° 18.56′ and regulations specified in paragraph W (Fire Island Inlet) 40° 34.40′ N 73° 34.55′ W TO 40° 35.08′ N 73° 35.22′ (a)(5) of this section, may fish in the W (Jones Inlet) Offshore Closure Area from November 1 through May 31 of each fishing year, New Jersey with the exception of the Cashes Ledge 39° 45.90′ N 74° 05.90′ W TO 39° 45.15′ N 74° 06.20′ Closure Area. From February 1 W (Barnegat Inlet) through the end of February, the area 39° 30.70′ N 74° 16.70′ W TO 39° 26.30′ N 74° 19.75′ within the Offshore Closure Area de- W (Beach Haven to Brigantine Inlet) fined as ‘‘Cashes Ledge’’ is closed to all 38° 56.20′ N 74° 51.70′ W TO 38° 56.20′ N 74° 51.90′ fishing with sink gillnets. Vessels sub- W (Cape May Inlet) ject to the restrictions and regulation 39° 16.70′ N 75° 14.60′ W TO 39° 11.25′ N 75° 23.90′ specified in paragraph (a)(5) of this sec- W (Delaware Bay) tion may fish in the Offshore Closure Maryland/Virginia Area outside the Cashes Ledge Area 38° 19.48′ N 75° 05.10′ W TO 38° 19.35′ N 75° 05.25′ from February 1 through the end of W (Ocean City Inlet) February provided that pingers are 37° 52.′ N 75° 24.30′ W TO 37° 11.90′ N 75° 48.30′ used in accordance with the require- W (Chincoteague to Ship Shoal Inlet) ments of paragraphs (b) (1) and (2) of 37° 11.10′ N 75° 49.30′ W TO 37° 10.65′ N 75° 49.60′ this section. W (Little Inlet) (e) Other special measures. The Assist- 37° 07.00′ N 75° 53.75′ W TO 37° 05.30′ N 75° 56.′ ant Administrator may revise the re- W (Smith Island Inlet) quirements of this section through no- North Carolina tification published in the FEDERAL All marine and tidal waters landward of REGISTER if: the 72 COLREGS demarcation line (Inter- (1) After plan implementation, NMFS national Regulations for Preventing Colli- determines that pinger operating effec- sions at Sea, 1972), as depicted or noted on tiveness in the commercial fishery is nautical charts published by NOAA (Coast
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Charts 1:80,000 scale), and as described in 33 (v) Tie-down system. The gillnet is CFR part 80. equipped with tie-downs spaced not (b) Closures—(1) New Jersey waters. more than 15 ft (4.6 m) apart along the From April 1 through April 20, it is floatline, and each tie-down is not prohibited to fish with, set, haul back, more than 48 inches (18.90 cm) in length possess on board a vessel unless from the point where it connects to the stowed, or fail to remove any large floatline to the point where it connects mesh gillnet gear from the waters off to the lead line. New Jersey. (vi) Tagging requirements. Beginning January 1, 2000, the gillnet is equipped (2) Mudhole. From February 15 with one tag per net, with one tag se- through March 15, it is prohibited to cured to each bridle of every net within fish with, set, haul back, possess on a string of nets. board a vessel unless stowed, or fail to (2) Waters off New Jersey—small mesh remove any large mesh or small mesh gillnet gear requirements and limitations. gillnet gear from the waters off New From January 1 through April 30 of Jersey known as the Mudhole. each year, no person may fish with, (3) From Southern Mid-Atlantic waters. set, haul back, possess on board a ves- February 15 through March 15, it is sel unless stowed, or fail to remove any prohibited to fish with, set, haul back, small mesh gillnet gear in waters off possess on board a vessel unless New Jersey, unless the gear complies stowed, or fail to remove any large with the specified gear characteristics. mesh gillnet gear from the southern During this period, no person who owns Mid-Atlantic waters. or operates the vessel may allow the (c) Gear requirements and limita- vessel to enter or remain in waters off tions—(1) Waters off New Jersey—large New Jersey with small mesh gillnet mesh gear requirements and limitations. gear on board, unless the gear complies From January 1 through April 30 of with the specified gear characteristics each year, no person may fish with, or unless the gear is stowed. In order to set, haul back, possess on board a ves- comply with these specified gear char- sel unless stowed, or fail to remove any acteristics, the gear must have all the large mesh gillnet gear in waters off following characteristics: New Jersey, unless the gear complies (i) Floatline length. The floatline is with the specified gear characteristics. less than 3,000 ft (914.4 m). During this period, no person who owns (ii) Twine size. The twine is at least or operates the vessel may allow the 0.031 inches (0.081 cm) in diameter. vessel to enter or remain in waters off (iii) Size of nets. Individual nets or New Jersey with large mesh gillnet net panels are not more than 300 ft (91.4 gear on board, unless the gear complies m or 50 fathoms) in length. with the specified gear characteristics (iv) Number of nets. The total number or unless the gear is stowed. In order to of individual nets or net panels for a comply with these specified gear char- vessel, including all nets on board the acteristics, the gear must have all the vessel, hauled by the vessel or deployed following characteristics: by the vessel, does not exceed 45. (i) Floatline length. The floatline is no (v) Tie-down system. Tie-downs are longer than 4,800 ft (1,463.0 m), and, if prohibited. the gear is used in the Mudhole, the (vi) Tagging requirements. Beginning floatline is no longer than 3,900 ft January 1, 2000, the gillnet is equipped (1,188.7 m). with one tag per net, with one tag se- (ii) Twine size. The twine is at least cured to each bridle of every net within 0.04 inches (0.090 cm) in diameter. a string of nets. (iii) Size of nets. Individual nets or (3) Southern Mid-Atlantic waters—large net panels are not more than 300 ft mesh gear requirements and limitations. (91.44 m, or 50 fathoms), in length. From February 1 through April 30 of (iv) Number of nets. The total number each year, no person may fish with, of individual nets or net panels for a set, haul back, possess on board a ves- vessel, including all nets on board the sel unless stowed, or fail to remove any vessel, hauled by the vessel or deployed large mesh gillnet gear in Southern by the vessel, does not exceed 80. Mid-Atlantic waters, unless the gear
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complies with the specified gear char- who owns or operates the vessel may acteristics. During this period, no per- allow the vessel to enter or remain in son who owns or operates the vessel Southern Mid-Atlantic waters with may allow the vessel to enter or re- small mesh gillnet gear on board, un- main in Southern Mid-Atlantic waters less the gear complies with the speci- with large mesh sink gillnet gear on fied gear characteristics or unless the board, unless the gear complies with gear is stowed. In order to comply with the specified gear characteristics or these specified gear characteristics, unless the gear is stowed. In order to the gear must have all the following comply with these specified gear char- characteristics: acteristics, the gear must have all the (i) Floatline length. The floatline is no following characteristics: longer than 2118 ft (645.6 m). (i) Floatline length. The floatline is no (ii) Twine size. The twine is at least longer than 3,900 ft (1,188.7 m). 0.03 inches (0.080 cm) in diameter. (ii) Twine size. The twine is at least 0.04 inches (0.090 cm) in diameter. (iii) Size of nets. Individual nets or (iii) Size of nets. Individual nets or net panels are not more than 300 ft (91.4 net panels are not more than 300 ft (91.4 m or 50 fathoms) in length. m or 50 fathoms) in length. (iv) Number of nets. The total number (iv) Number of nets. The total number of individual nets or net panels for a of individual nets or net panels for a vessel, including all nets on board the vessel, including all nets on board the vessel, hauled by the vessel or deployed vessel, hauled by the vessel or deployed by the vessel, does not exceed 45. by the vessel, does not exceed 80. (v) Tie-down system. Tie-downs are (v) Tie-down system. The gillnet is prohibited. equipped with tie-downs spaced not (vi) Tagging requirements. Beginning more than 15 ft (4.6 m) apart along the January 1, 2000, the gillnet is equipped floatline, and each tie-down is not with one tag per net, with one tag se- more than 48 inches (18.90 cm) in length cured to each bridle of every net within from the point where it connects to the a string of nets. floatline to the point where it connects (d) Other special measures. The Assist- to the lead line. ant Administrator may revise the re- (vi) Tagging requirements. Beginning quirements of this section through no- January 1, 2000, the gillnet is equipped tification published in the FEDERAL with one tag per net, with one tag se- REGISTER if: cured to each bridle of every net within (1) After plan implementation, NMFS a string of nets. determines that pinger operating effec- (4) Southern Mid-Atlantic waters—small tiveness in the commercial fishery is mesh gillnet gear requirements and limita- inadequate to reduce bycatch to the tions. From February 1 through April PBR level with the current plan. 30 of each year, no person may fish (2) NMFS determines that the bound- with, set, haul back, possess on board a ary or timing of a closed area is inap- vessel unless stowed, or fail to remove propriate, or that gear modifications any small mesh gillnet gear in waters (including pingers) are not reducing by- off New Jersey, unless the gear com- catch to below the PBR level. plies with the specified gear character- istics. During this period, no person [63 FR 66489, Dec. 2, 1998]
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[64 FR 3434, Jan. 22, 1999]
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PART 230—WHALING PROVISIONS (4) Any Coast Guard personnel ac- companying and acting under the di- Sec. rection of any person described in para- 230.1 Purpose and scope. graph (1) of this definition. 230.2 Definitions. Calf means any whale less than 1 230.3 General prohibitions. year old or having milk in its stomach. 230.4 Aboriginal subsistence whaling. Commission means the International 230.5 Licenses for aboriginal subsistence Whaling Commission established by ar- whaling. ticle III of the Convention. 230.6 Quotas and other restrictions. Convention means the International 230.7 Salvage of stinkers. 230.8 Reporting by whaling captains. Convention for the Regulation of Whal- ing signed at Washington on December AUTHORITY: 16 U.S.C. 916 et seq. 2, 1946. SOURCE: 61 FR 29631, June 11, 1996, unless Cooperative agreement means a writ- otherwise noted. ten agreement between the National Oceanic and Atmospheric Administra- § 230.1 Purpose and scope. tion and a Native American whaling The purpose of the regulations in this organization for the cooperative man- part is to implement the Whaling Con- agement of aboriginal subsistence vention Act (16 U.S.C. 916 et seq.) by whaling operations. prohibiting whaling except for aborigi- Landing means bringing a whale or nal subsistence whaling allowed by the any parts thereof onto the ice or land International Whaling Commission. in the course of whaling operations. Provisions of the Marine Mammal Pro- Native American whaling organization tection Act of 1972 (16 U.S.C. 1361 et means an entity recognized by the Na- seq.) and the Endangered Species Act of tional Oceanic and Atmospheric Ad- 1973 (16 U.S.C. 1531 et seq.) also pertain ministration as representing and gov- to human interactions with whales. erning Native American whalers for Rules elsewhere in this chapter govern the purposes of cooperative manage- such topics as scientific research per- ment of aboriginal subsistence whal- mits, and incidental take and harass- ing. ment of marine mammals. Regulations of the Commission means the regulations in the Schedule an- § 230.2 Definitions. nexed to and constituting a part of the Aboriginal subsistence whaling means Convention, as modified, revised, or whaling authorized by paragraph 13 of amended by the Commission from time the Schedule annexed to and consti- to time. tuting a part of the Convention. Stinker means a dead, unclaimed Assistant Administrator means the As- whale found upon a beach, stranded in sistant Administrator for Fisheries of shallow water, or floating at sea. the National Oceanic and Atmospheric Strike means hitting a whale with a Administration. harpoon, lance, or explosive device. Authorized officer means: Wasteful manner means a method of (1) Any commissioned, warrant, or whaling that is not likely to result in petty officer of the U.S. Coast Guard; the landing of a struck whale or that (2) Any special agent or enforcement does not include all reasonable efforts officer of the National Marine Fish- to retrieve the whale. eries Service; Whale products means any unproc- (3) Any officer designated by the head essed part of a whale and blubber, of a Federal or state agency that has meat, bones, whale oil, sperm oil, sper- entered into an agreement with the maceti, meal, and baleen. Secretary of Commerce or the Com- Whaling means the scouting for, mandant of the Coast Guard to enforce hunting, striking, killing, flensing, or the provisions of the Whaling Conven- landing of a whale, and the processing tion Act; or of whales or whale products.
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Whaling captain or captain means any (e) No person may receive money for Native American who is authorized by participation in aboriginal subsistence a Native American whaling organiza- whaling. tion to be in charge of a vessel and (f) No person may sell or offer for whaling crew. sale whale products from whales taken Whaling crew means those Native in an aboriginal subsistence hunt, ex- Americans under the control of a cap- cept that authentic articles of Native tain. handicrafts may be sold or offered for Whaling village means any U.S. vil- sale. lage recognized by the Commission as (g) No whaling captain shall continue having a cultural and/or subsistence to whale after: need for whaling. (1) The quota set for his/her village by the relevant Native American whal- § 230.3 General prohibitions. ing organization is reached; (2) The license under which he/she is (a) No person shall engage in whaling whaling is suspended as provided in in a manner that violates the Conven- § 230.5(b); or tion, any regulation of the Commis- (3) The whaling season for that spe- sion, or this part. cies has been closed pursuant to § 230.6. (b) No person shall engage in whaling (h) No whaling captain shall claim without first having obtained a license domicile in more than one whaling vil- or scientific research permit issued by lage. the Assistant Administrator. (i) No person may salvage a stinker (c) No person shall ship, transport, without complying with the provisions purchase, sell, offer for sale, import, of § 230.7. export, or possess any whale or whale (j) No whaling captain shall engage products taken or processed in viola- in whaling with a harpoon, lance, or tion of the Convention, any regulation explosive dart that does not bear a per- of the Commission, or this part, except manent distinctive mark identifying as specified in § 230.4(f). the captain as the owner thereof. (d) No person shall fail to make, (k) No whaling captain shall engage keep, submit, or furnish any record or in whaling in a wasteful manner. report required of him/her by the Con- § 230.5 Licenses for aboriginal subsist- vention, any regulation of the Commis- ence whaling. sion, or this part. (e) No person shall refuse to permit (a) A license is hereby issued to whal- any authorized officer to enforce the ing captains identified by the relevant Convention, any regulation of the Com- Native American whaling organization. mission, or this part. (b) The Assistant Administrator may suspend the license of any whaling cap- § 230.4 Aboriginal subsistence whaling. tain who fails to comply with the regu- lations in this part. (a) No person shall engage in aborigi- nal subsistence whaling, except a whal- § 230.6 Quotas and other restrictions. ing captain licensed pursuant to § 230.5 (a) Quotas for aboriginal subsistence or a member of a whaling crew under whaling shall be set in accordance with the control of a licensed captain. the regulations of the Commission. (b) No whaling captain shall engage Quotas shall be allocated to each whal- in whaling that is not in accordance ing village or captain by the appro- with the regulations of the Commis- priate Native American whaling orga- sion, this part, and the relevant coop- nization. The Assistant Administrator erative agreement. shall publish in the FEDERAL REGISTER, (c) No whaling captain shall engage at least annually, aboriginal subsist- in whaling for any calf or any whale ence whaling quotas and any other lim- accompanied by a calf. itations on aboriginal subsistence (d) No whaling captain shall engage whaling deriving from regulations of in whaling without an adequate crew the Commission. These quotas and re- or without adequate supplies and strictions shall also be incorporated in equipment. the relevant cooperative agreements.
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(b) The relevant Native American § 230.5 to provide a written statement of whaling organization shall monitor the his/her name and village of domicile whale hunt and keep tally of the num- and a description of the distinctive ber of whales landed and struck. When marking to be placed on each harpoon, a quota is reached, the organization lance, and explosive dart. shall declare the whaling season closed, (b) Each whaling captain shall pro- and there shall be no further whaling vide to the relevant Native American under that quota during the calendar whaling organization an oral or writ- year. If the organization fails to close ten report of whaling activities includ- the whaling season after the quota has ing but not limited to the striking, at- been reached, the Assistant Adminis- tempted striking, or landing of a whale trator may close it by filing notifica- and, where possible, specimens from tion in the FEDERAL REGISTER. landed whales. The Assistant Adminis- trator is authorized to provide techno- § 230.7 Salvage of stinkers. logical assistance to facilitate prompt (a) Any person salvaging a stinker reporting and collection of specimens shall submit to the Assistant Adminis- from landed whales, including but not trator or his/her representative an oral limited to ovaries, ear plugs, and ba- or written report describing the cir- leen plates. The report shall include at cumstances of the salvage within 12 least the following information: hours of such salvage. He/she shall pro- (1) The number, dates, and locations vide promptly to the Assistant Admin- of each strike, attempted strike, or istrator or his/her representative each landing. harpoon, lance, or explosive dart found (2) The length (taken as the straight- in or attached to the stinker. The de- line measurement from the tip of the vice shall be returned to the owner upper jaw to the notch between the tail thereof promptly, unless it is retained flukes) and the sex of the whales land- as evidence of a possible violation. ed. (b) There shall be a rebuttable pre- (3) The length and sex of a fetus, if sumption that a stinker has been present in a landed whale. struck by the captain whose mark ap- (4) An explanation of circumstances pears on the harpoon, lance, or explo- associated with the striking or at- sive dart found in or attached thereto, tempted striking of any whale not and, if no strike has been reported by landed. such captain, such strike shall be (c) If the relevant Native American deemed to have occurred at the time of whaling organization fails to provide recovery of the device. the National Marine Fisheries Service the required reports, the Assistant Ad- § 230.8 Reporting by whaling captains. ministrator may require the reports to (a) The relevant Native American be submitted by the whaling captains whaling organization shall require each directly to the National Marine Fish- whaling captain licensed pursuant to eries Service.
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PART 253—FISHERIES ASSISTANCE (b) Subpart C implements Title III of PROGRAMS Public Law 99–659 (16 U.S.C. 4100 et seq.), which has two objectives: (1) To promote and encourage State Subpart A—General activities in support of the manage- Sec. ment of interjurisdictional fishery re- 253.1 Purpose. sources identified in interstate or Fed- eral fishery management plans; and Subpart B—Fisheries Obligation Guarantee (2) To promote and encourage man- Program agement of interjurisdictional fishery resources throughout their range. 253.10 Definitions. (3) The scope of this part includes 253.11 Guarantee policy. guidance on making financial assist- 253.12 Guaranteed note, U.S. note, and secu- rity documents. ance awards to States or Interstate 253.13 Ability and experience requirements. Commissions to undertake projects in 253.14 Economic and financial require- support of management of interjuris- ments. dictional fishery resources in both the 253.15 Miscellaneous. exclusive economic zone (EEZ) and 253.16 Fees. State waters, and to encourage States 253.17 Demand and payment. to enter into enforcement agreements 253.18 Program operating guidelines. with either the Department of Com- 253.19 Default and liquidation. merce or the Department of the Inte- rior. Subpart C—Interjurisdictional Fisheries
253.20 Definitions. Subpart B—Fisheries Obligation 253.21 Apportionment. Guarantee Program 253.22 State projects. 253.23 Other funds. § 253.10 Definitions. 253.24 Administrative requirements. The terms used in this subpart have AUTHORITY: 46 U.S.C. 1271–1279 and 16 U.S.C. the following meanings: 4101 et seq. Act means Title XI of the Merchant Marine Act, 1936, as amended. SOURCE: 61 FR 19172, May 1, 1996, unless Actual cost means project cost (less a otherwise noted. 10-percent salvage value), depreciated (excluding land) on a straightline basis Subpart A—General at 1-year intervals over the project property’s useful life including archi- § 253.1 Purpose. tectural, engineering, inspection, deliv- (a) The regulations in this part per- ery, outfitting, and interest costs, as tain to fisheries assistance programs. well as the cost of any consulting con- Subpart B of these rules governs the tract the Division requires. Fisheries Obligation Guarantee Pro- Applicant means the one applying for gram, which guarantees the repayment a guarantee (the prospective of certain long-term fisheries and notemaker). aquacultural debts. This allows those Application means an application for debts to be placed in the same private a guarantee. investment market that buys U.S. Application fee means 0.5 percent of Treasury securities, where interest the dollar amount of an application. rates are lower and maturities are Aquacultural facility means land, land longer. The Program does all credit structures, water structures, water work and holds and services all credit craft built in the U.S., and equipment collateral. The Program’s guarantee for hatching, caring for, or growing fee makes it self-supporting. fish under controlled circumstances
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and for its unloading, receiving, hold- to repay a guaranteed note if a ing, processing, or distribution for notemaker fails to repay it as agreed. commercial purposes. Guarantee fee means 1 percent of a CCF means Capital Construction guaranteed note’s average annual un- Fund. paid principal balance. Citizen means a citizen or national of Guaranteed note means a promissory the U.S. who is otherwise also a citizen note from a notemaker to a noteholder for the purpose of documenting a vessel whose repayment the guarantor guar- in the coastwise trade under section 2 antees. of the Shipping Act, 1916, as amended. Guarantor means the U.S., acting, Contributory project means any under the Act, by and through the Sec- project that contributes to developing retary of Commerce. the U.S. fishing industry by: Causing Industry means the fisheries and/or any vessel to catch less overutilized aquacultural industry. species than before; applying new tech- Noteholder means a guaranteed note nology; improving safety or fuel effi- payee. ciency; making project property more Notemaker means a guaranteed note efficient, productive, or competitive; payor. potentially increasing fisheries ex- Passenger fishing means carrying in ports; helping develop an underutilized vessels for commercial purposes pas- fishery; or enhancing financial sta- sengers who catch fish. bility, financial performance, growth, Program means the Fisheries Obliga- productivity, or any other business at- tion Guarantee Program. tribute. Project means the construction of Demand means a noteholder’s request new project property or the refur- that the guarantor pay a guaranteed bishing or purchase of used project note’s full principal and interest bal- property including architectural, engi- ance. neering, inspection, delivery, outfit- ting, and interest costs, as well as the Division means the Financial Services cost of any consulting contract the Di- Division, National Marine Fisheries vision requires. Service, National Oceanic and Atmos- means the vessel or pheric Administration, U.S. Depart- Project property facility involved in a project whose ac- ment of Commerce. tual cost is eligible under the Act for Dual Use CCF means a CCF agree- guarantee and controls the dollar ment whose qualified vessel is project amount of a guaranteed note. property and whose deposits are Property means the project property pledged to repayment of the U.S. note. and all other property pledged as secu- Facility means a fisheries facility or rity for a U.S. note. aquacultural facility. Qualified means acceptable, in the Di- Financing means the first permanent vision’s credit risk judgment, and oth- debt placed on project property for fi- erwise meeting the Division’s require- nancing its project cost. ments for guarantee. Fish means all forms of aquatic ani- Refinancing means newer debt that mal and plant life, except marine mam- either replaces older debt or reim- mals and birds. burses applicants for previous expendi- Fishery facility means land, land tures. structures, water craft that do not fish, Refinancing/assumption fee means 0.25 and equipment used for transporting, percent of the principal amount of a unloading, receiving, holding, proc- guaranteed note to be refinanced or as- essing, or distributing fish for commer- sumed. cial purposes (including any fishery fa- Refurbishing means any reconstruc- cility for passenger fishing). tion, reconditioning, or other improve- Fishing means catching wild fish for ment of used project property involv- commercial purposes (including pas- ing more than routine repair or main- senger fishing). tenance. Guarantee means the guarantor’s con- Security documents mean all collateral tractual promise, backed by the full securing the U.S. note’s repayment and faith and credit of the United States, all other assurances, undertakings, and
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contractual arrangements associated not inconsistent with wise use, but fi- with the U.S. note. nancing it may be. Underutilized fishery means: (3) Purchasing a used vessel or used (1) For a vessel, any fish species har- fishery facility. The Program will nei- vested below its sustainable yield. ther finance nor refinance this project (2) For a fisheries facility, any facil- cost (except for a used vessel or fishery ity using that species or any for which facility that the Program purchased aggregate facilities are inadequate to and is reselling), unless the used vessel best use harvests of that or any other or fishery facility will be refurbished in species. the United States and will be a con- U.S. means the United States of tributory project or it will be used in America and, for citizenship purposes, an underutilized fishery. includes the Commonwealth of Puerto (b) Every project, other than those Rico; American Samoa; the U.S. Virgin specified in paragraphs (a) (1) and (2) of Islands; Guam; the Republic of the this section, is consistent with wise use Marshal Islands; the Federated States and every project, other than those of Micronesia; the Commonwealth of specifically precluded in paragraphs (a) the Northern Mariana Islands; any (1) and (2) of this section, may be fi- other commonwealth, territory, or pos- nanced, as well as refinanced. session of the United States; or any po- litical subdivision of any of them. § 253.12 Guaranteed note, U.S. note, U.S. note means a promissory note and security documents. payable by the notemaker to the guar- (a) Guaranteed note—(1) Principal. antor. This may not exceed 80 percent of ac- Useful life means the period during tual cost, but may, in the Division’s which project property will, as deter- credit judgment, be less. mined by the Division, remain eco- (2) Maturity. This may not exceed 25 nomically productive. years, but shall not exceed the project Vessel means any vessel documented property’s useful life and may, in the under U.S. law and used for fishing. Division’s credit judgment, be less. Wise use means the wise use of fish- (3) Interest rate. This may not exceed eries resources and their development, the amount the Division deems reason- advancement, management, conserva- able. tion, and protection. (4) Prepayment penalty. The Division will allow a reasonable prepayment § 253.11 Guarantee policy. penalty, but the guarantor will not (a) A guarantee financing or refi- guarantee a notemaker’s payment of nancing up to 80 percent of a project’s it. actual cost shall be available to any (5) Form. This will be the simple qualified citizen otherwise eligible promissory note (with the guarantee under the Act and these rules, except: attached) the Division prescribes, (1) Vessel construction. The Program promising only to pay principal, inter- will not finance this project cost. The est, and prepayment penalty. Program will only refinance this (6) Sole security. The guaranteed note project cost for an existing vessel and the guarantee will be the whose previous construction cost has noteholder’s sole security. already been financed (or otherwise (b) U.S. note and security documents— paid). Refinancing this project cost for (1) Form. The U.S. note and security a vessel that already exists is not in- documents will be in the form the Divi- consistent with wise use, but financing sion prescribes. it may be. (2) U.S. note. This exists to evidence (2) Vessel refurbishing that materially the notemaker’s actual and contingent increases an existing vessel’s harvesting liability to the guarantor (contingent capacity. The Program will not finance if the guarantor does not pay the guar- this project cost. The Program will anteed note (including any portion of only refinance this project cost for a it), on the notemaker’s behalf or if the vessel whose previous refurbishing cost guarantor does not advance any other has already been financed (or otherwise amounts or incur any other expenses paid). Refinancing this project cost is on the notemaker’s behalf to protect
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the U.S. or accommodate the (c) Dual-use CCF. For a vessel, the Di- notemaker; actual if, and to the same vision may require annually depositing monetary extent that, the guarantor some portion of the project property’s does). Payment of the guaranteed note net income into a dual-use CCF. A by anyone but the guarantor will am- dual-use CCF provides the normal CCF ortize the original principal balance tax-deferral benefits, but also both (and interest accruing on it) of the U.S. gives the Program control of CCF with- note to the same extent that it amor- drawals and recourse against CCF de- tizes the guaranteed note. The U.S posits and ensures an emergency refur- note will, among other things, contain bishing reserve (tax-deferred) for provisions for adding to its principal project property. balance all amounts the Program ad- vances, or expenses it incurs, to pro- § 253.13 Ability and experience re- quirements. tect the U.S. or accommodate the notemaker. A notemaker and the majority of its (3) Security documents. The Division principals must generally have the will, at a minimum, require a pledge of ability, experience, resources, char- all project property (or adequate sub- acter, reputation, and other qualifica- tions the Division deems necessary for stitute collateral). The Division will successfully operating the project require such other security as it deems property and protecting the U.S. The the circumstances of each notemaker Program will ordinarily not provide and project require to protect the U.S. guarantees: For venture capital pur- All security documents will secure the poses; to a notemaker whose principals U.S. note. The security documents will, are all from outside the industry; or for among other things, contain provisions a notemaker the majority of whose for adding to the U.S. note all Program principals cannot document successful advances, expenditures, and expenses industry ability and experience of a du- required to protect the U.S. or accom- ration, degree, and nature consistent modate the notemaker. with protecting the U.S. (4) Recourse. Significant Program re- liance, as a secondary means of repay- § 253.14 Economic and financial re- ment, on the net worths of parties quirements. other than the notemaker will ordi- (a) Income and expense projections. The narily require secured recourse against Division’s conservative income and ex- those net worths. Recourse may be by pense projections for the project prop- a repayment guarantee or irrevocable erty’s operation must prospectively in- letter of credit. Ordinarily, the Divi- dicate net earnings that can service all sion will require recourse against: All debt, properly maintain the project major shareholders of a closely-held property, and protect the U.S. against corporate notemaker, the parent cor- the industry’s cyclical economics and poration of a subsidiary corporate other risks of loss. notemaker without substantial pledged (b) Working capital. The Division’s assets other than the project property, conservative assessment of an appli- and all major limited partners. The Di- cant’s financial condition must indi- vision may also require recourse cate initial working capital prospec- against others it deems necessary to tively sufficient to provide for the protect the U.S. The principal parties project property to achieve net earn- in interest, who ultimately stand most ings projections, fund all foreseeable to benefit from the project, should or- contingencies, and protect the U.S. At dinarily be held financially account- the Division’s discretion, some portion able for the project’s performance. of projected working capital needs may Where otherwise appropriate recourse be met by something other than cur- is unavailable, the conservatively pro- rent assets minus current liabilities jected net liquidating value of the (i.e., by a line or letter of credit, non- notemaker’s assets pledged to the Pro- current assets readily capable of gener- gram must, in the Division’s credit ating working capital, a guarantor judgment, substantially exceed all pro- with sufficient financial resources, jected Program exposure. etc.).
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(c) Audited financial statements. These Division deems necessary to protect will ordinarily be required for any the U.S. Insurance must be endorsed to notemaker with large or financially ex- include the requirements the U.S., as tensive operations whose financial con- respects its interest only, deems nec- dition the Division believes it cannot essary to protect the U.S. (e.g., the otherwise assess with reasonable cer- Program will ordinarily be an addi- tainty. tional insured as well as the sole loss (d) Consultant services. Infrequently, payee for the amount of its interest; expert consulting services may be nec- cancellation will require 20 days’ ad- essary to help the Division assess a vance written notice; vessel seaworthi- project’s economic, technical, or finan- ness will be admitted, and the Program cial feasibility. The Division will select will be adequately protected against and employ the necessary consultant, other insureds’ breaches of policy war- but require the applicant to reimburse ranties, negligence, omission, etc.) the Division. A subsequently approved (d) Property inspections. The Division application will not be closed until the will require adequate condition and applicant reimburses the Division. This valuation inspection of all property as cost may, at the Division’s discretion, the basis for assessing the property’s be included in a guaranteed note’s worth and suitability for guarantee. amount. For a declined application, the The Division may also require these at Division may reimburse itself from the specified periods during guarantee life. remaining 25 percent of the application These must be conducted by competent fee. and impartial inspectors acceptable to the Division. Inspection cost will be at § 253.15 Miscellaneous. an applicant’s expense. Those occur- (a) Applicant. Only the legal title ring before application approval may holder of project property (or the lessee be included in actual cost. of an appropriate long-term financing (e) Guarantee terms and conditions. lease) may apply for a guarantee. Ap- The Division’s approval in principle plicants must submit an ‘‘Application letter shall specify the terms and con- for Fisheries Obligation Program Guar- ditions of the guarantor’s willingness antee’’ to the appropriate NMFS Re- to guarantee. These shall be incor- gional Financial Services Branch to be porated in closing documents that the considered for a guaranteed loan. Division prepares. Terms and condi- (b) Investigation and approval. The Di- tions are at the Division’s sole discre- vision shall do a due diligence inves- tion. An applicant’s nonacceptance will tigation of every application it accepts result in disqualification for guar- and determine if, in the Division’s sole antee. judgment, the application is eligible (f) Noteholder. The Division will, as a and qualified. Applications the Divi- gratuitous service, request parties in- sion deems ineligible or unqualified terested in investing in guaranteed will be declined. The Division will ap- notes to submit offers to fund each pro- prove eligible and qualified applica- spective guaranteed note. The Division tions based on the applicability of the and the applicant will, by mutual con- information obtained during the appli- sent, choose the responsive bidder, cation and investigation process to the which ordinarily will be the prospec- programmatic goals and financial re- tive noteholder whose bid represents quirements of the program and under the lowest net effective annual cost of terms and conditions that, in the Divi- capital. Until the Division has closed sion’s sole discretion, protect the U.S. the guarantee, arrangements between The Division will state these terms and an applicant and a prospective conditions in its approval in principal noteholder are a matter of private con- letter. tract between them, and the Program (c) Insurance. All property and other is not responsible to either for non- risks shall be continuously insured performance by the other. during the term of the U.S. note. Insur- (g) Closing—(1) Approval in principle ers must be acceptable to the Division. letters. Every closing will be in strict Insurance must be in such forms and accordance with a final approval in amounts and against such risks as the principle letter.
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(2) Contracts. The guaranteed note, guarantee closing. Each subsequent U.S. note, and security documents will one is due and payable on the guar- ordinarily be on standard Program antee closing’s anniversary date. Each forms that may not be altered without is fully earned when due, and shall not Divisional approval. The Division will subsequently be refunded for any rea- ordinarily prepare all contracts, except son. certain pledges involving real property, (c) Refinancing or assumption fee. This which will be prepared by each fee applies only to refinancing or as- notemaker’s attorney at the direction suming existing guaranteed notes. It is and approval of the Division’s attor- due upon application for refinancing or ney. assuming a guaranteed note. It is fully (3) Closing schedules. The Division earned when due and shall be non- will ordinarily close guarantee trans- refundable. The Division may waive a actions with minimal services from ap- refinancing or assumption fee’s pay- plicants’ attorneys, except where real ment when the refinancing or assump- property pledges or other matters ap- tion’s primary purpose is to protect the propriate for private counsel are in- U.S. volved. Real property services required from an applicant’s attorney may in- (d) Where payable. Fees are payable clude: Title search, mortgage and other by check made payable to ‘‘NMFS/ document preparation, execution and FSFF.’’ Other than those collected at recording, escrow and disbursement, application or closing, fees are payable and a legal opinion and other assur- by mailing checks to: U.S. Department ances. An applicant’s attorney’s ex- of Commerce, National Oceanic and At- pense, and that of any other private mospheric Administration, National contractor required, is for applicant’s Marine Fisheries Service, P.O. Box account. Attorneys and other contrac- 73004, Chicago, Ill. 60673. To ensure tors must be satisfactory to the Divi- proper crediting, each check must in- sion. The Division will attempt to meet clude the official case number the Divi- reasonable closing schedules, but will sion assigns to each guarantee. not be liable for adverse interest-rate fluctuations, loss of commitments, or § 253.17 Demand and payment. other consequences of being unable to Every demand must be delivered in meet an applicant’s and a prospective writing to the Division. Each must in- noteholder’s closing schedule. These clude the noteholder’s certified record parties should work closely with the of the date and amount of each pay- Division to ensure a closing schedule ment made on the guaranteed note and the Division can meet. the manner of its application. Should the Division not acknowledge receipt § 253.16 Fees. of a timely demand, the noteholder (a) Application fee. The Division will must possess evidence of the demand’s not accept an application without the timely delivery. application fee. Fifty percent of the ap- plication fee is fully earned at applica- § 253.18 Program operating guidelines. tion acceptance, and is not refundable. The rest is fully earned when the Divi- The Division may issue Program op- sion issues an approval in principal let- erating guidelines, as the need arises, ter, and it is refundable only if the Di- governing national Program policy and vision declines an application or an ap- administrative issues not addressed by plicant requests refund before the Divi- these rules. sion issues an approval in principal let- ter. § 253.19 Default and liquidation. (b) Guarantee fee. Each guarantee fee Upon default of the security docu- will be due in advance and will be based ments, the Division shall take such re- on the guaranteed note’s repayment medial action (including, where appro- provisions for the prospective year. priate, liquidation) as it deems best The first annual guarantee fee is due at able to protect the U.S.’ interest.
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Subpart C—Interjurisdictional (3) A fishery resource which migrates Fisheries between the waters under the jurisdic- tion of two or more States bordering § 253.20 Definitions. on the Great Lakes. The terms used in this subpart have Interstate Commission means a com- the following meanings: mission or other administrative body Act means the Interjurisdictional established by an interstate compact. Fisheries Act of 1986, Public Law 99–659 Interstate compact means a compact (Title III). that has been entered into by two or Adopt means to implement an inter- more states, established for purposes of state fishery management plan by conserving and managing fishery re- State action or regulation. sources throughout their range, and Commercial fishery failure means a se- consented to and approved by Congress. rious disruption of a fishery resource Interstate Fisheries Research Program affecting present or future productivity means research conducted by two or due to natural or undetermined causes. more state agencies under a formal It does not include either: interstate agreement. (1) The inability to harvest or sell Interstate fishery management plan raw fish or manufactured and processed means a plan for managing a fishery fishery merchandise; or resource developed and adopted by the (2) Compensation for economic loss member states of an Interstate Marine suffered by any segment of the fishing Fisheries Commission, and contains in- industry as the result of a resource dis- formation regarding the status of the aster. fishery resource and fisheries, and rec- Enforcement agreement means a writ- ommends actions to be taken by the ten agreement, signed and dated, be- States to conserve and manage the tween a state agency and either the fishery resource. Secretary of the Interior or Secretary Landed means the first point of off- of Commerce, or both, to enforce Fed- loading fishery resources. eral and state laws pertaining to the NMFS Regional Director means the Di- protection of interjurisdictional fish- rector of any one of the five National ery resources. Marine Fisheries Service regions. Federal fishery management plan Project means an undertaking or a means a plan developed and approved proposal for research in support of under the Magnuson Fishery Conserva- management of an interjurisdictional tion and Management Act (16 U.S.C. fishery resource or an interstate fish- 1801 et seq.). ery management plan. Fisheries management means all ac- Research means work or investigative tivities concerned with conservation, study, designed to acquire knowledge restoration, enhancement, or utiliza- of fisheries resources and their habitat. tion of fisheries resources, including Secretary means the Secretary of research, data collection and analysis, Commerce or his/her designee. monitoring, assessment, information State means each of the several dissemination, regulation, and enforce- states, the District of Columbia, the ment. Commonwealth of Puerto Rico, Amer- Fishery resource means finfish, mol- ican Samoa, the Virgin Islands, Guam, lusks, and crustaceans, and any form of or the Commonwealth of the Northern marine or Great Lakes animal or plant Mariana Islands. life, including habitat, other than ma- State Agency means any department, rine mammals and birds. agency, commission, or official of a Interjurisdictional fishery resource state authorized under the laws of the means: State to regulate commercial fisheries (1) A fishery resource for which a or enforce laws relating to commercial fishery occurs in waters under the ju- fisheries. risdiction of one or more states and the Value means the monetary worth of U.S. Exclusive Economic Zone; or fishery resources used in developing (2) A fishery resource for which an the apportionment formula, which is interstate or a Federal fishery manage- equal to the price paid at the first ment plan exists; or point of landing.
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Volume means the weight of the fish- (1) Is signatory to an interstate fish- ery resource as landed, at the first ery compact; point of landing. (2) Has entered into an enforcement agreement with the Secretary and/or § 253.21 Apportionment. the Secretary of the Interior for a fish- (a) Apportionment formula. The ery that is managed under an inter- amount of funds apportioned to each state fishery management plan; state is to be determined by the Sec- (3) Borders one or more of the Great retary as the ratio which the equally Lakes; weighted average of the volume and (4) Has entered into an interstate co- value of fishery resources harvested by operative fishery management agree- domestic commercial fishermen and ment and has in effect an interstate landed within such state during the 3 fisheries management plan or an inter- most recent calendar years for which state fisheries research program; or data satisfactory to the Secretary are (5) Has adopted a Federal fishery available bears to the total equally management plan for an interjurisdic- weighted average of the volume and tional fishery resource. value of all fishery resources harvested (d) Any state that has a ratio of less by domestic commercial fishermen and than one-third of 1 percent and meets landed within all of the states during any of the requirements set forth in those calendar years. paragraphs (c) (1) through (5) of this (1) The equally weighted average section may receive an apportionment value is determined by the following for any fiscal year that is not less than formula: 0.5 percent of the total amount of funds available for apportionment for such Volume of X State fiscal year. = A percent (e) No state may receive an appor- Volume of all States tionment under this section for any fis- cal year that is more than 6 percent of Value of X State = the total amount of funds available for B percent apportionment for such fiscal year. Value of all States (f) Unused apportionments. Any part of an apportionment for any fiscal year [%AB+ %] State percentage used to = determine state© s share of to any state: 2 the total available funds (1) That is not obligated during that year; (2) Upon appropriation of funds by (2) With respect to which the state Congress, the Secretary will take the notifies the Secretary that it does not following actions: wish to receive that part; or (i) Determine each state’s share ac- (3) That is returned to the Secretary cording to the apportionment formula. by the state, may not be considered to (ii) Certify the funds to the respec- be appropriated to that state and must tive NMFS Regional Director. be added to such funds as are appro- (iii) Instruct NMFS Regional Direc- priated for the next fiscal year. Any tors to promptly notify states of funds’ notification or return of funds by a availability. state referred to in this section is ir- (b) No state, under the apportion- revocable. ment formula in paragraph (a) of this section, that has a ratio of one-third of § 253.22 State projects. 1 percent or higher may receive an ap- (a) General—(1) Designation of state portionment for any fiscal year that is agency. The Governor of each state less than 1 percent of the total amount shall notify the Secretary of which of funds available for that fiscal year. agency of the state government is au- (c) If a State’s ratio under the appor- thorized under its laws to regulate tionment formula in paragraph (b) of commercial fisheries and is, therefore, this section is less than one-third of 1 designated receive financial assistance percent, that state may receive funding awards. An official of such agency shall if the state: certify which official(s) is authorized
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in accordance with state law to com- planation of the reason(s) for the dis- mit the state to participation under approval. the Act, to sign project documents, and (e) Restrictions. (1) The total cost of to receive payments. all items included for engineering, (2) States that choose to submit pro- planning, inspection, and unforeseen posals in any fiscal year must so notify contingencies in connection with any the NMFS Regional Director before the works to be constructed as part of such end of the third quarter of that fiscal a proposed project shall not exceed 10 year. percent of the total cost of such works, (3) Any state may, through its state and shall be paid by the state as a part agency, submit to the NMFS Regional of its contribution to the total cost of Director a completed NOAA Grants and the project. Cooperative Agreement Application (2) The expenditure of funds under Package with its proposal for a project, which may be multiyear. Proposals this subpart may be applied only to must describe the full scope of work, projects for which a proposal has been specifications, and cost estimates for evaluated under paragraph (b) of this such project. section and approved by the Secretary, (4) States may submit a proposal for except that up to $25,000 each fiscal a project through, and request pay- year may be awarded to a state out of ment to be made to, an Interstate Fish- the state’s regular apportionment to eries Commission. Any payment so carry out an ‘‘enforcement agree- made shall be charged against the ap- ment.’’ An enforcement agreement portionment of the appropriate does not require state matching funds. state(s). Submitting a project through (f) Prosecution of work. All work must one of the Commissions does not re- be performed in accordance with appli- move the matching funds requirement cable state laws or regulations, except for any state, as provided in paragraph when such laws or regulations are in (c) of this section. conflict with Federal laws or regula- (b) Evaluation of projects. The Sec- tions such that the Federal law or reg- retary, before approving any proposal ulation prevails. for a project, will evaluate the proposal as to its applicability, in accordance § 253.23 Other funds. with 16 U.S.C. 4104(a)(2). (a) Funds for disaster assistance. (1) (c) State matching requirements. The The Secretary shall retain sole author- Federal share of the costs of any project conducted under this subpart, ity in distributing any disaster assist- including a project submitted through ance funds made available under sec- an Interstate Commission, cannot ex- tion 308(b) of the Act. The Secretary ceed 75 percent of the total estimated may distribute these funds after he or cost of the project, unless: she has made a thorough evaluation of (1) The state has adopted an inter- the scientific information submitted, state fishery management plan for the and has determined that a commercial fishery resource to which the project fishery failure of a fishery resource applies; or arising from natural or undetermined (2) The state has adopted fishery reg- causes has occurred. Funds may only ulations that the Secretary has deter- be used to restore the resource affected mined are consistent with any Federal by the disaster, and only by existing fishery management plan for the spe- methods and technology. Any fishery cies to which the project applies, in resource used in computing the states’ which case the Federal share cannot amount under the apportionment for- exceed 90 percent of the total esti- mula in § 253.21(a) will qualify for fund- mated cost of the project. ing under this section. The Federal (d) Financial assistance award. If the share of the cost of any activity con- Secretary approves or disapproves a ducted under the disaster provision of proposal for a project, he or she will the Act shall be limited to 75 percent of promptly give written notification, in- the total cost. cluding, if disapproved, a detailed ex-
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(2) In addition, pursuant to section 259.34 Minimum and maximum deposits; 308(d) of the Act, the Secretary is au- maximum time to deposit. thorized to award grants to persons en- 259.35 Annual deposit and withdrawal re- gaged in commercial fisheries, for un- ports required. 259.36 CCF accounts. insured losses determined by the Sec- 259.37 Conditional consents to withdrawal retary to have been suffered as a direct qualification. result of a fishery resource disaster. 259.38 Miscellaneous. Funds may be distributed by the Sec- AUTHORITY: 46 U.S.C. 1177. retary only after notice and oppor- tunity for public comment of the ap- JOINT TAX REGULATIONS propriate limitations, terms, and con- ditions for awarding assistance under § 259.1 Execution of agreements and this section. Assistance provided under deposits made in a Capital Con- this section is limited to 75 percent of struction Fund. an uninsured loss to the extent that In the case of a taxable year of a tax- such losses have not been compensated payer beginning after December 31, by other Federal or State programs. 1969, and before January 1, 1972, the (b) Funds for interstate commissions. rules governing the execution of agree- Funds authorized to support the efforts ments and deposits under such agree- of the three chartered Interstate Ma- ments shall be as follows: rine Fisheries Commissions to develop (a) A capital construction fund agree- and maintain interstate fishery man- ment executed and entered into by the agement plans for interjurisdictional taxpayer on or prior to the due date, fisheries will be divided equally among with extensions, for the filing of his the Commissions. Federal income tax return for such tax- able year or years will be deemed to be § 253.24 Administrative requirements. effective on the date of the execution Federal assistance awards made as a of such agreement or as of the close of result of this Act are subject to all business of the last regular business Federal laws, Executive Orders, Office day of each such taxable year or years of Management and Budget Circulars to which such deposit relates, which- as incorporated by the award; Depart- ever day is earlier. ment of Commerce and NOAA regula- (b) Notwithstanding the provisions of tions; policies and procedures applica- paragraph (a) of this section, where: ble to Federal financial assistance (1) For taxable years beginning after awards; and terms and conditions of December 31, 1969, and prior to January the awards. 1, 1971, an application for a capital con- struction fund agreement is filed by a taxpayer prior to January 1, 1972, and a PART 259—CAPITAL capital construction fund agreement is CONSTRUCTION FUND executed and entered into by the tax- payer prior to March 1, 1972, and JOINT TAX REGULATIONS (2) For taxable years beginning after Sec. December 31, 1970, and prior to January 259.1 Execution of agreements and deposits 1, 1972, an application for a capital con- made in a Capital Construction Fund. struction fund agreement is filed by a taxpayer prior to January 1, 1973, and a CAPITAL CONSTRUCTION FUND AGREEMENT capital construction fund agreement is 259.30 Application for Interim Capital Con- executed and entered into by the tax- struction Fund Agreement (‘‘Interim payer prior to March 1, 1973 (or, if ear- CCF Agreement’’). lier, 60 days after the publication of 259.31 Acquisition, construction, or recon- final joint regulations under section struction. 607 of the Merchant Marine Act, 1936, 259.32 Conditional fisheries. as amended); then such a capital con- 259.33 Constructive deposits and with- struction fund agreement will be drawals; ratification of withdrawals (as qualified) made without first having ob- deemed to be effective as of the close of tained Secretary’s consent; first tax year business of the last regular business for which Interim CCF Agreement is ef- day of each such taxable year or years fective. to which such deposit related.
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(c)(1) Deposits made in a capital con- § 259.30 Application for Interim Cap- struction fund pursuant to such an ital Construction Fund Agreement agreement within 60 days after the (‘‘Interim CCF Agreement’’). date of execution of the agreement, or (a) General qualifications. To be eligi- on or prior to the due date, with exten- ble to enter into an Interim CCF sions, for the filing of his Federal in- Agreement an applicant must: come tax return for such taxable year (1) Be a citizen of the United States or years, whichever date shall be later, (citizenship requirements are those for shall be deemed to have been made on documenting vessels in the coastwise the date of the actual deposit or as of trade within the meaning of section 2 the close of business of the last regular of the Shipping Act, 1916, as amended); business day of each such taxable year (2) Own or lease one or more eligible or years to which such deposit relates, vessels (as defined in section 607(k)(1) whichever day is earlier. of the Act) operating in the foreign or (2) Notwithstanding paragraph (c)(1) domestic commerce of the United of this section, for taxable years begin- States. ning after December 31, 1970, and end- (3) Have an acceptable program for ing prior to January 1, 1972, deposits the acquisition, construction, or recon- made later than the last date per- struction of one or more qualified ves- mitted under paragraph (c)(1) of this sels (as defined in section 607(k)(2) of section but on or before January 9, the Act). Qualified vessels must be for 1973, in a capital construction fund pur- commercial operation in the fisheries suant to an agreement with the Sec- of the United States. If the qualified vessel is 5 net tons or over, it must be retary of Commerce, acting by and documented in the fisheries of the through the Administrator of the Na- United States. Dual documentation in tional Oceanic and Atmospheric Ad- both the fisheries and the coastwise ministration, shall be deemed to have trade of the United States is permis- been made on the date of the actual de- sible. Any vessel which will carry fish- posit or as of the close of business of ing parties for hire must be inspected the last regular business day of such and certified (under 46 CFR part 176) by taxable year, whichever is earlier. the U.S. Coast Guard as qualified to (d) Nothing in this section shall alter carry more than six passengers or dem- the rules and regulations governing the onstrate to the Secretary’s satisfaction timing of deposits with respect to ex- that the carrying of fishing parties for isting capital and special reserve funds hire will constitute its primary activ- or with respect to the treatment of de- ity. The program must be a firm rep- posits for any taxable year or years resentation of the applicant’s actual other than a taxable year or years be- intentions. Vague or contingent objec- ginning after December 31, 1969, and be- tives will not be acceptable. fore January 1, 1972.1 (b) Content of application. Applicants seeking an Interim CCF Agreement [37 FR 25025, Nov. 25, 1972, as amended at 38 may make application by letter pro- FR 8163, Mar. 29, 1973] viding the following information: (1) Proof of U.S. citizenship; CAPITAL CONSTRUCTION FUND AGREEMENT (2) The first taxable year for which the Interim CCF Agreement is to apply (see § 259.33 for the latest time at which SOURCE: Sections 259.30 to 259.38 appear at 39 FR 33675, Sept. 19, 1974, unless otherwise applications for an Interim CCF Agree- noted. ment relating to a previous taxable year may be received); (3) The following information regard- 1 The phrase ‘‘existing capital and special ing each ‘‘eligible vessel’’ which is to reserve funds’’ does not refer to the Capital Construction Fund program but rather to be incorporated in Schedule A of the funds established with the Maritime Admin- Interim CCF Agreement for purposes of istration prior to the amendment of the Mer- making deposits into a CCF pursuant chant Marine Act, 1936, which authorized the to section 607 of the Act: Capital Construction Fund program. (i) Name of vessel,
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(ii) Official number, or, in the case of must be submitted as soon as available, vessels under 5 net tons, the State reg- together with sufficient additional evi- istration number where required, dence to establish that full proceeds of (iii) Type of vessel (i.e., catching ves- the indebtedness to be paid from a CCF sel, processing vessel, transporting ves- under an Interim CCF Agreement, were sel, charter vessel, barge, passenger used solely for the purpose of the con- carrying fishing vessel, etc.), struction, acquisition, or reconstruc- (iv) General characteristic (i.e., net tion of Schedule B vessels), tonnage, fish-carrying capacity, age, (vi) Date of construction, acquisition, length, type of fishing gear, number of or reconstruction, passengers carried or in the case of ves- (vii) Fishery of operation (which in sels operating in the foreign or domes- this section means each species or tic commerce the various uses of the group of species—each species must be vessel, etc.), specifically identified by acceptable (v) Whether owned or leased and, if common name—of fish, shellfish, or leased, the name of the owner, and a other living marine resources), copy of the lease, (viii) Area of operation (which in this (vi) Date and place of construction, section means the general geographic (vii) If reconstructed, date of redeliv- areas in which each vessel will will op- ery and place of reconstruction, erate for each species or group of spe- (viii) Trade (or trades) in which ves- cies of fish, shellfish, or other living sel is documented and date last docu- marine resources). mented, (c) Filing. The application must be (ix) If a fishing vessel, the fishery of signed and submitted in duplicate to operation (which in this section means the Regional Office of the National Ma- each species or group of species—each rine Fisheries Service’s Financial As- species must be specifically identified sistance Division corresponding to the by acceptable common names—of fish, region in which the party conducts its shellfish, or other living marine re- business. As a general rule, the Interim sources which each vessel catches, CCF Agreement must be executed and processes, or transports or will catch, entered into by the taxpayer on or process, or transport for commercial prior to the due date, with extensions, purposes such as marketing or proc- for the filing of the Federal tax return essing the catch), in order to be effective for the tax year (x) If a fishing vessel, the area of op- to which that return relates. It is eration (which for fishing vessels manifestly in the Applicant’s best in- means the general geographic areas in terest to file at least 45 days in ad- which each vessel will catch, process, vance of such date. or transport, or charter for each spe- cies or group of species of fish, shell- [39 FR 33675, Sept. 19, 1974, as amended at 42 fish, or other living marine resources). FR 65185, Dec. 30, 1978] (4) The specific objectives to be achieved by the accumulation of assets § 259.31 Acquisition, construction, or in a Capital Construction Fund (to be reconstruction. incorporated in Schedule B of the In- (a) Acquisition. No vessel having pre- terim CCF Agreement) including: viously been operated in a fishery of (i) Number of vessels, the United States prior to its acquisi- (ii) Type of vessel (i.e., catching, tion by the party seeking CCF with- processing, transporting, or passenger drawal therefor shall be a qualified ves- carrying fishing vessel), sel for the purpose of acquisition, ex- (iii) General characteristics (i.e., net cept in the cases specified in para- tonnage, fish-carrying capacity, age, graphs (a)(1) and (2) of this section: length, type of fishing gear, number of (1) A vessel not more than 5 years passengers carried), old, at the time of its acquisition by (iv) Cost of projects, the party seeking CCF withdrawal (v) Amount of indebtedness to be paid therefor may be a qualified vessel for for vessels to be constructed, acquired, the purpose of acquisition, but only if or reconstructed (all notes, mortgages, each acquisition in this category be- or other evidences of the indebtedness comes a Schedule A vessel and there
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exists for each acquisition in this cat- the $100,000 test, then the 20 percent egory (on a one-for-one basis) an addi- test applies. tional Schedule B construction or re- (1) Reconstruction may include re- construction. The sole consideration building, replacing, reconditioning, for permitting an acquisition in this converting and/or improving any por- category is that it will enable the tion of a vessel. A reconstruction party (but the Secretary will not at- project must, however, substantially tempt to predetermine such an ability) prolong the useful life of the recon- to accelerate accomplishment of the structed vessel, increase its value, or additional Schedule B construction or adapt it to a different commercial use reconstruction. Should this consider- in the fishing trade or industry. ation materially fail, the Secretary (2) All, or the major portion (ordi- shall, at his discretion, disqualify pre- narily, not less than 80 percent), of a viously qualified withdrawals in this reconstruction project’s actual cost category, seek liquidated damages as must (for the purpose of meeting the provided for in paragraph (a)(4) of this above dollar or percentage tests) be section and/or terminate the Interim classifiable as a capital expenditure for CCF Agreement. Internal Revenue Service (IRS) pur- (2) A vessel more than 5 years old, poses. That otherwise allowable (i.e., but not more than 25 years old (special for the purpose of meeting the above showing required if more than 25 years dollar or percentage tests) portion of a old, see paragraph (b) of this section), reconstruction project’s actual cost at the time of acquisition by the party which is not classifiable as a capital seeking CCF withdrawal therefor may expenditure shall, however, be excluded be a qualified vessel for the purpose of from the amount qualified for with- acquisition, but only if that same ves- drawal as a result of the reconstruction sel becomes a Schedule A vessel and (in project. addition to being a Schedule B vessel (3) No vessel more than 25 years old for the purpose of its acquisition) be- at the time of withdrawal or request for withdrawal shall be a qualified ves- comes a Schedule B vessel for the pur- sel for the purpose of reconstruction pose of that same vessel’s reconstruc- unless a special showing is made, to tion to be accomplished ordinarily the Secretary’s discretionary satisfac- within 7 years from the date of acquisi- tion, that the type and degree of recon- tion. The sole consideration for permit- struction intended will result in an ef- ting an acquisition in this category is ficient and productive vessel with an that it will enable a party (but the Sec- economically useful life at least 10 retary will not attempt to predeter- years beyond the date reconstruction is mine such an ability) to accelerate ac- completed. complishment of the Schedule B recon- (c) Time permitted for construction or struction of the vessel so acquired. reconstruction. Construction or recon- Should this consideration materially struction must be completed within 18 fail, the same penalty prescribed in months from the date construction or paragraph (a)(1) of this section applies. reconstruction first commences, unless (3) Reserved for minimum deposits otherwise consented to by the Sec- under this section. retary. (4) Reserved for liquidated damages. (d) Energy saving improvements. An (b) Reconstruction. No reconstruction improvement made to a vessel to con- project costing less than $100,000 shall serve energy shall, regardless of cost, qualify a vessel for reconstruction, un- be treated as a reconstruction for the less the reconstruction project costs, purpose of qualifying a CCF withdrawal or will cost, 20 percent or more of the for such expenditure and shall be ex- reconstructed vessel’s acquisition cost empted from having to meet condi- (in its unreconstructed state) to the tional fishery requirements for recon- party seeking CCF withdrawal there- struction as set forth in § 259.32 and for. If the reconstruction project meets from all qualifying tests for recon- the $100,000 test, then the 20 percent struction set forth in paragraph (b) of test does not apply. Conversely, if the this section with the following excep- reconstruction project does not meet tions:
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(1) An energy saving improvement projects proposed to be considered as shall be required to meet both condi- falling within this paragraph (e). tional fishery requirements and the Projects not required by law or regula- qualifying tests for reconstruction if it tion whose central purpose clearly in- serves the dual purpose of saving en- volves something other than an im- ergy and meeting the reconstruction provement that materially increases requirement of paragraph (a) of this the safety of a vessel will not be con- section for qualifying a withdrawal for sidered to fall within this paragraph the acquisition of a used vessel. (e). (2) That portion of the actual cost of [39 FR 33675, Sept. 19, 1974, as amended at 46 an energy saving improvement which is FR 54563, Nov. 3, 1981; 62 FR 331, Jan. 3, 1997] to be paid for from the CCF must be classifiable and treated as a capital ex- § 259.32 Conditional fisheries. penditure for Internal Revenue Service (a) The Secretary may from time-to- purposes. time establish certain fisheries in (e) Safety projects. The acquisition which CCF benefits will be restricted. and installation of safety equipment The regulatory mechanism for so doing for a qualified vessel and vessel modi- is part 251 of this chapter. Each fishery fications whose central purpose is ma- so restricted is termed a ‘‘conditional terially increasing the safety of a fishery’’. Subpart A of part 251 of this qualified vessel or the acquisition and chapter establishes the procedure to be installation of equipment required by used by the Secretary in proposing and law or regulation that materially in- adopting a fishery as a conditional creases the safety of a qualified vessel fishery. Subpart B of part 251 of this shall, regardless of cost, be treated as chapter enumerates each fishery actu- reconstruction for the purpose of quali- ally adopted as a conditional fishery fying a CCF withdrawal for such ex- (part 251 of this chapter should be re- penditure, shall be exempt from having ferred to for details). The purpose of to meet conditional fishery require- this § 259.32 is to establish the effect of ments for reconstruction as set forth in conditional fishery adoption upon In- § 259.32, and shall be exempt from all terim CCF Agreements. qualifying tests for reconstruction set (b) If a written request for an other- forth in paragraph (b) of this section, wise permissible action under an In- with the following exceptions: terim CCF Agreement is submitted (1) A safety improvement shall be re- prior to the date upon which condi- quired to meet both conditional fishery tional fishery adoption occurs, then requirements and all qualifying tests the Secretary will act, in an otherwise for reconstruction if it serves the dual normal manner, upon so much of the purpose of safety and meeting the re- action then applied for as is then per- construction requirement of paragraph missible without regard to the subse- (a) of this section for qualifying a with- quent adoption of a conditional fishery drawal for the acquisition of a used (even, if that adoption occurs before vessel; the Secretary gives his consent or (2) That portion of the actual cost of issues an Interim CCF Agreement or a safety improvement that is to be paid amendment thereto, all as the case for from the CCF must be classifiable may be). Nevertheless, the conditions and treated as a capital expenditure for as set forth in paragraph (d) of this sec- Internal Revenue Service purposes; tion shall apply. (3) Safety improvement projects (c) If a written request for an other- whose clear and central purpose is re- wise permissible action under an In- stricted to complying with the require- terim CCF Agreement, or an applica- ments of the Commercial Fishing In- tion for an Interim CCF Agreement, is dustry Vessel Safety Act of 1988 (Public submitted after the date upon which Law 100–424 Sec. 1, 102 stat. 1585 (1988) conditional fishery adoption occurs, (codified in scattered sections of 46 then the Secretary will act, in an oth- U.S.C.)) shall, without further docu- erwise normal manner, upon so much mentation, be considered to fall within of the action then applied for as is then this paragraph (e). Satisfactory docu- permissible without regard to the pre- mentation will be required for all other vious adoption of a conditional fishery
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provided, however, that this paragraph vessel (vessel ‘‘Z’’) which has during shall apply only to construction or re- the previous 18 months operated sub- construction for which a binding stantially in the same fishery as the contract has been reduced to writing ‘‘Y’’ vessel and which has a fishing ca- prior to the date upon which condi- pacity substantially equivalent to the tional fishery adoption occurred. Nev- ‘‘Y’’ vessel. Failure to remove a vessel ertheless, the conditions as set forth in could subject all withdrawals to be paragraph (d) of this section shall treated as nonqualified and may be apply. cause for termination of the CCF. What (d) Conditional fishery adoption shall constitutes substantially equivalent have no effect whatsoever upon a fishing capacity shall be a matter for Schedule B objective whose qualifica- the Secretary’s discretion. Ordinarily, tion for withdrawal (which may be in in exercising his discretion about what an amount equal to the total cost over does or does not constitute substan- time of a Schedule B objective, i.e., a tially equivalent fishing capacity, the series of withdrawals) has been, prior Secretary will take into consideration to the date of conditional fishery adop- (i) the average size of vessels con- tion, either consented to by the Sec- structed for the adopted conditional retary or requested in accordance with fishery in question at the time vessel paragraph (b) or (c) of this section. ‘‘Z’’ was constructed (or, if constructed This extends to past, present, and fu- for a different fishery, the average size ture withdrawals in an amount rep- of vessels in the adopted conditional resenting up to 100 percent of the cost fishery at the time vessel ‘‘Z’’ entered of a Schedule B objective. Commence- it), (ii) the average size of vessels con- ment of any project in these categories structed for the adopted conditional shall, however, be started not later fishery at the time vessel ‘‘Y’’ was or than 6 months from the date of condi- will be constructed, and (iii) such other tional fishery adoption and shall be factors as the Secretary may deem ma- completed within 24 months from the terial and equitable, including the date of conditional fishery adoption, length of time the party had owned or unless for good and sufficient cause leased vessel ‘‘Z’’ and the length of shown the Secretary, at his discretion, time the vessel has operated in the consents to a longer period for either conditional fishery. The Secretary will project commencement or completion. consider these factors, and exercise his Consent to the qualification of with- discretion, in such a way as to encour- drawal for any project in these cat- age use of this program by established egories not commenced or completed fishermen who have owned or leased for within the periods allowed shall be re- substantial periods vessels which need voked at the end of the periods al- to be replaced, even though a ‘‘Z’’ ves- lowed. sel may have been constructed at a (e) Conditional fishery adoption shall time which dictated a lesser fishing ca- have no effect whatsoever upon Sched- pacity than dictated for a ‘‘Y’’ vessel ule B objectives which will not result at the time of its construction. in significantly increasing harvesting (2) Acquisition and/or reconstruction capacity in a fishery adopted as a con- of a used vessel for operation in an ditional fishery. adopted conditional fishery shall be (1) Construction of a new vessel (ves- deemed to significantly increase har- sel ‘‘Y’’) for operation in an adopted vesting capacity in that fishery unless conditional fishery shall be deemed to the vessel to be acquired and/or recon- significantly increase harvesting ca- structed had during the previous 3 pacity in that fishery unless the party years operated substantially in the causing the ‘‘Y’’ vessel to be con- same fishery as the adopted condi- structed causes (within 1 year after the tional fishery in which it will operate delivery of vessel ‘‘Y’’) to be perma- after acquisition and/or reconstruction. nently removed from all fishing, or If less than 3 years, then acquisition placed permanently in a fishery not and/or reconstruction of a used vessel then adopted as a conditional fishery, for operation in an adopted conditional under such conditions as the Secretary fishery shall be deemed to significantly may deem necessary or desirable, a increase harvesting capacity in that
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fishery unless there occurs vessel re- to December 31, 1974, and conditional moval or permanent placement else- fishery adoption occurs on August 15, where under the same conditions speci- 1974, (i.e., during the 8th month of the fied for construction in paragraph (e)(1) party’s tax year), then the pro-rata of this section. portion for that year is eight-twelfths (3) Construction of a new vessel or of the total eligible ceilings generated the acquisition and/or reconstruction during that year. of a used vessel for operation in an (2) Qualified withdrawals in excess of adopted conditional fishery shall not the amount specified in paragraph (f)(1) be deemed to significantly increase the of this section shall not, during the harvesting capacity where the vessel continuance of the adopted conditional constructed, acquired and/or recon- fishery, be consented to. Parties at this structed replaces another vessel which point shall have the following option: was lost or destroyed and which had, (i) Make, with the Secretary’s con- immediately prior to the loss or de- sent, a nonqualified withdrawal of the struction, operated in the same fishery excess and discontinue the future de- as the adopted conditional fishery, pro- posit of eligible ceilings (which may ef- vided, however, that the fishing capac- fect termination of the Interim CCF ity of the replacement vessel has a Agreement). fishing capacity substantially equiva- (ii) Reserve the excess, as well as the lent to the vessel lost or destroyed and future deposit of eligible ceilings, for a that the construction, acquisition and/ Schedule B objective not then involv- or reconstruction is completed within 2 ing an adopted conditional fishery. If years after the close of the taxable amendment of an Interim CCF Agree- year in which the loss or destruction ment is necessary in order to include a occurred. The Secretary may, at his Schedule B objective not then involv- discretion, and for good and sufficient ing an adopted conditional fishery, the cause shown, extend the replacement party may, with the Secretary’s con- period, provided that the request for sent, make the necessary amendment. extension of time to replace is timely (iii) Reserve the excess, as well as the filed with the Secretary future deposit of eligible ceilings, for a (f) Conditional fishery adoption shall Schedule B objective involving a then have the following effect on all Sched- adopted conditional fishery in antici- ule B objectives (whether for acquisi- pation that the then adopted condi- tion, construction, or reconstruction) tional fishery will eventually be which the Secretary deems to signifi- disadopted, in which case all deposits cantly increase harvesting capacity in of eligible ceilings will once again be that fishery, excluding those cir- eligible for the Secretary’s consent as cumstances specifically exempted by qualified withdrawals. If the adoption paragraphs (b) through (e) of this sec- of a conditional fishery continues for a tion (which shall be governed by the substantial length of time and there is provisions of paragraphs (b) through (e) no forseeable prospect of disadoption, of this section). then the Secretary, in his discretion, (1) The Secretary may nevertheless may require paragraph (f)(2)(i) or (ii) of consent to the qualification of with- this section to be effected. drawal, but only up to an amount not (g) The Secretary shall neither enter exceeding the total of eligible ceilings into a new Interim CCF Agreement, actually deposited during tax years nor permit amendment of an existing other than the taxable year in which one, which involves a Schedule B objec- conditional fishery adoption occurs tive in a then adopted conditional fish- plus a pro-rata portion of eligible ceil- ery unless paragraph (b), (c) or (d) of ings generated in the tax year in which this § 259.32 applies or unless the Sched- conditional fishery adoption occurs. ule B objective is expressly conditioned Pro-ration shall be according to the upon acquisition construction, or re- number of months or any part thereof construction of the type permitted in a party’s tax year which elapse be- under paragraph (e) of this § 259.32. fore the adoption of the conditional Such an express condition would not fishery occurs. For example, if a par- survive beyond the time at which con- ty’s tax year runs from January 1, 1974, ditional fishery status is removed.
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§ 259.33 Constructive deposits and Period (cc), whichever applies, the Sec- withdrawals; ratification of with- retary’s administrative workload re- drawals (as qualified) made without quires. Should IRS relief be, for any first having obtained Secretary’s reason, unavailable, the Secretary consent; first tax year for which In- shall regard the same as merely due to terim CCF Agreement is effective. the applicant’s having failed to apply (a) Periods controlling permissibility. in a more timely fashion. For the purpose of this § 259.33, the pe- (c) Constructive deposits (after Interim riod between the beginning and the end CCF Agreement effectiveness date). The of a party’s tax year is designated ‘‘Pe- Secretary shall not permit construc- riod (aa)’’; the period between the end tive deposits or withdrawals after the of a party’s tax year and the party’s effective date of an Interim CCF Agree- tax due date for that tax year is des- ment. Eligible ceilings must, after the ignated ‘‘Period (bb)’’; the period be- effective date of an interim CCF Agree- tween the party’s tax due date and the ment, be physically deposited in money date on which ends the party’s last ex- or kind in scheduled depositories be- tension (if any) of that tax due date is fore the last date eligible ceilings for designated ‘‘Period (cc)’’. any Period (aa) of any party become in- (b) Constructive deposits and with- eligible for deposit (the last date being drawals (before Interim CCF Agreement Period (bb) or Period (cc), whichever effectiveness date). Constructive depos- applies). its and withdrawals shall be permis- (d) Ratification of withdrawals (as sible only during the Period (aa) during qualified) made without first having ob- which a written application for an in- tained Secretary’s consent. The Secre- terim CCF Agreement is submitted to the Secretary and so much of the next tary may ratify as qualified any with- succeeding Period (aa), if any, which drawal made without first having ob- occurs before the Secretary executes tained the Secretary’s consent there- the Interim CCF Agreement previously for, provided the withdrawal was such applied for. All otherwise qualified ex- as would have resulted in the Sec- penditures of eligible ceilings during retary’s consent had it been requested Period (aa) may be consented to by the before withdrawal, and provided fur- Secretary as constructive deposits and ther that the party’s request for con- withdrawals: Provided, The applicant’s sent (together with sufficient sup- application for an Interim CCF Agree- porting data to enable issuance of the ment and for consent to constructive Secretary’s consent) is submitted to deposit and withdrawal qualification the Secretary either before the end of (together with sufficient supporting Period (bb) or, if extension was re- data to enable the Secretary’s execu- quested and received, before the end of tion or issuance of consent) is sub- Period (cc). mitted to the Secretary either before (1) If, however, the Secretary receives the end of Period (bb) or, if extension the request in proper form so close to was requested and received, before the the latest permissible period that the end of Period (cc). If, however, the Sec- consent cannot be given before expira- retary receives the completed applica- tion of Period (bb) or Period (cc), tion in proper form so close to the lat- whichever applies, then the burden is est permissible period that the Interim entirely upon the party to negotiate CCF Agreement cannot be executed with IRS for such relief as may be and/or the consent given before the end available (e.g., filing an amended tax of Period (bb) or Period (cc), whichever return, if appropriate). The Secretary applies, then the burden is entirely will nevertheless issue his consent upon the applicant to negotiate with however long past the party’s Period the Internal Revenue Service (IRS) for (bb) or Period (cc), whichever applies, such relief as may be available (e.g., the Secretary’s administrative work- filing an amended tax return, if appro- load requires. Should IRS relief be, for priate). The Secretary willl neverthe- any reason, unavailable, the Secretary less execute the Interim CCF Agree- shall regard the same as merely due to ment and issue his consent however the party’s having failed to apply in a long past the applicant’s Period (bb) or more timely fashion.
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(2) All parties shall be counseled that (bb) or Period (cc), whichever applies, it is manifestly in their best interest to then the Agreement will be first effec- request the Secretary’s consent 45 days tive for the next succeeding Period in advance of the expected date of (aa). withdrawal. Withdrawals made without (1) If, however, the Secretary receives the Secretary’s consent, in reliance on an Agreement executed and entered obtaining the Secretary’s consent, are into by the party in proper form so made purely at a party’s own risk. close to the latest permissible period Should any withdrawal made without that the Secretary cannot execute the the Secretary’s consent prove, for any Agreement before expiration of Period reason, to be one to which the Sec- (bb) or Period (cc), whichever applies, retary will not or cannot consent by then the burden is entirely upon the ratification, then the result will be ei- party to negotiate with IRS for such ther, or both, at the Secretary’s discre- relief as may be available (e.g., filing tion, an unqualified withdrawal or an an amended tax return, if appropriate). involuntary termination of the Interim CCF Agreement. The Secretary will nevertheless exe- (3) Should the withdrawal made with- cute the Agreement however long past out having first obtained the Sec- the party’s Period (bb) or Period (cc), retary’s consent be made in pursuance whichever applies, the Secretary’s ad- of a project not then an eligible Sched- ministrative workload requires. Should ule B objective, then the Secretary IRS relief be, for any reason, unavail- may entertain an application to amend able, the Secretary shall regard the the Interim CCF Agreement’s Schedule same as merely due to the party’s hav- B objectives as the prerequisite to con- ing failed to apply in a more timely senting by ratification to the with- manner. drawal, all under the same time con- (2) All parties shall be counseled that straints and conditions as otherwise it is manifestly in their best interest to specified herein. enter into and execute an Agreement, (4) Any withdrawals made, after the and submit the same to the Secretary, effective date of an Interim CCF Agree- at least 45 days in advance of the Pe- ment, without the Secretary’s consent riod (bb) or Period (cc), whichever ap- are automatically non-qualified with- plies, for the Period (aa) for which the drawals unless the Secretary subse- Agreement is first intended to be effec- quently consents to them by ratifica- tive. tion as otherwise specified herein. (5) Redeposit of that portion of the § 259.34 Minimum and maximum de- ceiling withdrawn without the Sec- posits; maximum time to deposit. retary’s consent, and for which such (a) Minimum annual deposit. The min- consent is not subsequently given (ei- imum annual (based on each party’s ther by ratification or otherwise), shall taxable year) deposit required by the not be permitted. If such a non-quali- Secretary in order to maintain an In- fied withdrawal adversely affects the Interim CCF Agreement’s general sta- terim CCF Agreement shall be an tus in any wise deemed by the Sec- amount equal to 2 percent of the total retary, at his discretion, to be signifi- anticipated cost of all Schedule B ob- cant and material, the Secretary may jectives unless such 2 percent exceeds involuntarily terminate the Interim during any tax year 50 percent of a par- CCF Agreement. ty’s Schedule A taxable income, in (e) First tax year for which Interim CCF which case the minimum deposit for Agreement is effective. An Agreement, to that year shall be 50 percent of the par- be effective for any party’s Period (aa), ty’s Schedule A taxable income. must be executed and entered into by (1) Minimum annual deposit compli- the party, and submitted to the Sec- ance shall be audited at the end of each retary, before the end of Period (bb) or party’s taxable year unless any one or Period (cc), whichever applies, for such more of the Schedule B objectives is Period (aa). If executed and entered scheduled for commencement more into by the party, and/or received by than 3 taxable years in advance of the the Secretary, after the end of Period taxable year in which the agreement is
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effected, in which case minimum an- (1) A preliminary deposit and with- nual deposit compliance shall be au- drawal report at the end of each cal- dited at the end of each 3 year taxable endar year, which must be submitted period. In any taxable year, a Party not later than 45 days after the close of may apply any eligible amount in ex- the calendar year. The report must cess of the 2 percent minimum annual give the amounts withdrawn from and deposit toward meeting the party’s deposited into the party’s CCF during minimum annual deposit requirement the subject year, and be in letter form in past or future years: Provided, how- showing the agreement holder’s name, ever, At the end of each 3 year period, FVCCF identification number, and tax- the aggregate amount in the fund must payer identification number. Each re- be in compliance with 2 percent min- port must bear certification that the imum annual deposit rule (unless the deposit and withdrawal information 50 percent of taxable income situation given includes all deposit and with- applies). drawal activity for the year and the ac- (2) The Secretary may, at his discre- count reported. Negative reports must tion and for good and sufficient cause be submitted in those cases where shown, consent to minimum annual de- there is no deposit and/or withdrawal posits in any given tax year or com- activity. If the party’s tax year is the bination of tax years in an amount same as the calendar year, and if the lower than prescribed herein: Provided, final deposit and withdrawal report re- The party demonstrates to the Sec- quired under paragraph (a)(2) of this retary’s satisfaction the availability of section is submitted before the due sufficient funds from any combination date for this preliminary report, then of sources to accomplish Schedule B this report is not required. objectives at the time they are sched- (2) A final deposit and withdrawal re- uled for accomplishment. port at the end of the tax year, which (b) Maximum deposits. Other than the shall be submitted not later than 30 maximum annual ceilings established days after expiration of the due date, by the Act, the Secretary shall not es- with extensions (if any), for filing the tablish a maximum annual ceiling: Pro- party’s Federal income tax return. The vided, however, That deposits can no longer be made once a party has depos- report must be made on a form pre- ited 100 percent of the anticipated cost scribed by the Secretary using a sepa- of all Schedule B objectives, unless the rate form for each FVCCF depository. Interim CCF Agreement is then amend- Each report must bear certification ed to establish additional Schedule B that the deposit and withdrawal infor- objectives. mation given includes all deposit and (c) Maximum time to deposit. Ten years withdrawal activity for the year and shall ordinarily be the maximum time account reported. Negative reports the Secretary shall permit in which to must be submitted in those cases where accumulate deposits prior to com- there is no deposit and/or withdrawal mencement of any given Schedule B activity. objective. A time longer than 10 years, (b) Failure to submit the required an- either by original scheduling or by sub- nual deposit and withdrawal reports sequent extension through amendment, shall be cause after due notice for ei- may, however, be permitted at the Sec- ther, or both, disqualification of with- retary’s discretion and for good and drawals or involuntary termination of sufficient cause shown. the Interim CCF Agreement, at the Secretary’s discretion. § 259.35 Annual deposit and with- (c) Additionally, the Secretary shall drawal reports required. require from each Interim CCF Agree- (a) The Secretary will require from ment holder, not later than 30 days each Interim CCF Agreement holder after expiration of the party’s tax due (Party) the following annual deposit date, with extensions (if any), a copy of and withdrawal reports. Failure to sub- the party’s Federal Income Tax Return mit such reports may be cause for in- filed with IRS for the preceding tax voluntary termination of CCF Agree- year. Failure to submit shall after due ments. notice be cause for the same adverse
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action specified in the paragraph which have been or will be promulgated above. governing the investment or manage- ment of the Fund. [39 FR 33675, Sept. 19, 1974, as amended at 48 FR 57302, Dec. 29, 1983; 53 FR 35203, Sept. 12, 1988] § 259.37 Conditional consents to with- drawal qualification. § 259.36 CCF accounts. The Secretary may conditionally (a) General: Each CCF account in consent to the qualification of with- each scheduled depository shall have drawal, such consent being conditional an account number, which must be re- upon the timely submission to the Sec- flected on the reports required by retary of such further proofs, assur- § 259.35. All CCF accounts shall be re- ances, and advices as the Secretary, in served only for CCF transactions. his discretion, may require. Failure of There shall be no intermingling of CCF a party to comply with the conditions and non-CCF transactions and there of such a consent within a reasonable shall be no pooling of 2 or more CCF time and after due notice shall, at the accounts without prior consent of the Secretary’s discretion, be cause for ei- Secretary. Safe deposit boxes, safes, or ther, or both, nonqualification of with- the like shall not be eligible CCF de- drawal or involuntary Interim CCF positories without the Secretary’s con- Agreement termination. sent and then only under such condi- tions as the Secretary, in his discre- § 259.38 Miscellaneous. tion, prescribes. (a) Wherever the Secretary prescribes (b) Assignment: The use of Fund as- time constraints herein for the submis- sets for transactions in the nature of a sion of any CCF transactions, the post- countervailing balance, compensating mark date shall control if mailed or, if balance, pledge, assignment, or similar personally delivered, the actual date of security arrangement shall constitute submission. All required materials may a material breach of the Agreement un- be submitted to any Financial Assist- less prior written consent of the Sec- ance Division office of the National retary is obtained. Marine Fisheries Service. (c) Depositories: (1) Section 607(c) of (b) All CCF information received by the Act provides that amounts in a the Secretary shall be held strictly CCF must be kept in the depository or confidential, except that it may be depositories specified in the Agree- published or disclosed in statistical ments and be subject to such trustee or form provided such publication does other fiduciary requirements as the not disclose, directly or indirectly, the Secretary may specify. identity of any fundholder. (2) Unless otherwise specified in the (c) While recognizing that precise Agreement, the party may select the regulations are necessary in order to type or types of accounts in which the treat similarly situated parties simi- assets of the Fund may be deposited. larly, the Secretary also realizes that (3) Non-cash deposits or investments precision in regulations can often of the Fund should be placed in control cause inequitable effects to result from of a trustee under the following condi- unavoidable, unintended, or minor dis- tions: crepancies between the regulations and (i) The trustee should be specified in the circumstances they attempt to the Agreement; govern. The Secretary will, con- (ii) The trust instrument should pro- sequently, at his discretion, as a mat- vide that all investment restrictions ter of privilege and not as a matter of stated in section 607(c) of the Act will right, attempt to afford relief to par- be observed; ties where literal application of the (iii) The trust instrument should pro- purely procedural, as opposed to sub- vide that the trustee will give consider- stantive, aspects of these regulations ation to the party’s withdrawal re- would otherwise work an inequitable quirements under the Agreement when hardship. This privilege will be spar- investing the Fund; ingly granted and no party should be- (iv) The trustee must agree to be fore the fact attempt to act in reliance bound by all rules and regulations on its being granted after the fact.
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(d) These §§ 259.30 through 259.38 are (1) The vessel age limitations im- applicable absolutely to all Interim posed by § 259.31 shall not apply to al- CCF Agreements first entered into (or ready scheduled Schedule B objectives. the amendment of all then existing In- (2) The minimum deposits imposed by terim CCF Agreements, which amend- § 259.34 shall not apply to any party’s ment is first entered into) on or after tax year before that party’s tax year the date these §§ 259.30 through 259.38 next following the one in which these are adopted. These §§ 259.30 through §§ 259.30 through 259.38 are adopted. 259.38 are applicable to all Interim CCF (e) These §§ 259.30 through 259.38 are Agreements entered into before the specifically incorporated in all past, present, and future Interim CCF Agree- date these §§ 259.30 through 259.38 are ments by reference thereto made in adopted, with the following exceptions Whereas Clause number 2 of all such only: Interim CCF Agreements.
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PART 260—INSPECTION AND 260.49 Inspectors. 260.50 Suspension or revocation of license of CERTIFICATION licensed sampler or licensed inspector. 260.51 Surrender of license. Subpart A—Inspection and Certification of Establishments and Fishery Products for SAMPLING Human Consumption 260.57 How samples are drawn by inspectors or licensed samplers. Sec. 260.58 Accessibility for sampling. 260.1 Administration of regulations. 260.59 How officially drawn samples are to DEFINITIONS be identified. 260.60 How samples are to be shipped. 260.6 Terms defined. 260.61 Sampling plans and procedures for de- 260.7 Designation of official certificates, termining lot compliance. memoranda, marks, other identifica- 260.62 Issuance of certificate of sampling. tions, and devices for purposes of the Ag- 260.63 Identification of lots sampled. ricultural Marketing Act. FEES AND CHARGES INSPECTION SERVICE 260.69 Payment fees and charges. 260.12 Where inspection service is offered. 260.70 Schedule of fees. 260.13 Who may obtain inspection service. 260.14 How to make application. 260.71 [Reserved] 260.15 Information required in connection 260.72 Fees for inspection service performed with application. under cooperative agreement. 260.16 Filing of application. 260.73 Disposition of fees for inspections 260.17 Record of filing time. made under cooperative agreement. 260.18 When application may be rejected. 260.74 Fee for appeal inspection. 260.19 When application may be withdrawn. 260.76 [Reserved] 260.20 Disposition of inspected sample. 260.77 Fees for score sheets. 260.21 Basis of inspection and grade or com- 260.78 Fees for additional copies of inspec- pliance determination. tion certificates. 260.22 Order of inspection service. 260.79 Travel and other expenses. 260.23 Postponing inspection service. 260.80 Charges for inspection service on a 260.24 Financial interest of inspector. contract basis. 260.25 Forms of certificates. 260.81 Readjustment and increase in hourly 260.26 Issuance of certificates. rates of fees. 260.27 Issuance of corrected certificates. 260.28 Issuance of an inspection report in MISCELLANEOUS lieu of an inspection certificate. 260.84 Policies and procedures. 260.29 Disposition of inspection certificates. 260.86 Approved identification. 260.30 Report of inspection results prior to 260.88 Political activity. issuance of formal report. 260.90 Compliance with other laws. 260.91 Identification. APPEAL INSPECTION 260.93 Debarment and suspension. 260.36 When appeal inspection may be re- quested. REQUIREMENTS FOR PLANTS OPERATING 260.37 Where to file for an appeal inspection UNDER CONTINUOUS INSPECTION ON A CON- and information required. TRACT BASIS 260.38 When an application for an appeal in- 260.96 Application for fishery products in- spection may be withdrawn. spection service on a contract basis at of- 260.39 When appeal inspection may be re- ficial establishments. fused. 260.97 Conditions for providing fishery prod- 260.40 Who shall perform appeal inspection. ucts inspection service at official estab- 260.41 Appeal inspection certificate. lishments. 260.98 Premises. LICENSING OF SAMPLERS AND INSPECTORS 260.99 Buildings and structures. 260.47 Who may become licensed sampler. 260.100 Facilities. 260.48 Application to become a licensed 260.101 Lavatory accommodations. sampler. 260.102 Equipment.
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260.103 Operations and operating procedures lowing terms shall have the following shall be in accordance with an effective meanings: sanitation program. Acceptance number. ‘‘Acceptance 260.104 Personnel. number’’ means the number in a sam- LABELING REQUIREMENTS pling plan that indicates the maximum number of deviants permitted in a sam- 260.200–260.201 [Reserved] ple of a lot that meets a specific re- AUTHORITY: Sec. 6, 70 Stat. 1122, 16 U.S.C. quirement. 742e; secs. 203, 205, 60 Stat. 1087, 1090 as Act. ‘‘Act’’ means the applicable pro- amended; 7 U.S.C. 1622, 1624; Reorganization Plan No. 4 of 1970 (84 Stat. 2090). visions of the Agricultural Marketing Act of 1946 (60 Stat. 1087 et seq., as SOURCE: 31 FR 16052, Dec. 15, 1966, unless amended; 7 U.S.C. 1621 et seq.). otherwise noted. Applicant. ‘‘Applicant’’ means any in- terested party who requests inspection Subpart A—Inspection and Certifi- service under the regulations in this cation of Establishments and part. Fishery Products for Human Case. ‘‘Case’’ means the number of Consumption containers (cased or uncased) which, by the particular industry are ordinarily § 260.1 Administration of regulations. packed in a shipping container. The Secretary of Commerce is Certificate of loading. ‘‘Certificate of charged with the administration of the loading’’ means a statement, either regulations in this part except that he written or printed, issued pursuant to may delegate any or all of such func- the regulations in this part, relative to tions to any officer or employee of the check-loading of a processed product National Marine Fisheries Service of subsequent to inspection thereof. the Department in his discretion.1 Certificate of sampling. ‘‘Certificate of sampling’’ means a statement, either [36 FR 21037, Nov. 3, 1971] written or printed issued pursuant to DEFINITIONS the regulations in this part, identifying officially drawn samples and may in- § 260.6 Terms defined. clude a description of condition of con- Words in the regulations in this part tainers and the condition under which in the singular form shall be deemed to the processed product is stored. import the plural and vice versa, as the Class. ‘‘Class’’ means a grade or rank case may demand. For the purposes of of quality. the regulations in this part, unless the Condition. ‘‘Condition’’ means the de- context otherwise requires, the fol- gree of soundness of the product which may affect its merchantability and in- cludes, but is not limited to those fac- 1 All functions of the Department of Agri- tors which are subject to change as a culture which pertain to fish, shellfish, and any products thereof, now performed under result of age, improper preparation and the authority of title II of the Act of August processing, improper packaging, im- 14, 1946, popularly known as the Agricultural proper storage, or improper handling. Marketing Act of 1946, as amended (7 U.S.C. Department. ‘‘Department’’ means the 1621–1627) including but not limited to the U.S. Department of Commerce. development and promulgation of grade Deviant. ‘‘Deviant’’ means a sample standards, the inspection and certification, and improvement of transportation facilities unit affected by one or more deviations and rates for fish and shellfish and any prod- or a sample unit that varies in a spe- ucts thereof, were transferred to the Depart- cifically defined manner from the re- ment of the Interior by the Director of the quirements of a standard, specifica- Budget (23 FR 2304) pursuant to section 6(a) tion, or other inspection document. of the Act of Aug. 8, 1956, popularly known as Deviation. ‘‘Deviation’’ means any the Fish and Wildlife Act of 1956 (16 U.S.C. specifically defined variation from a 742e). Reorganization Plan No. 4 of 1970 (84 Stat. 2090) transferred, among other things, particular requirement. such functions from the U.S. Department of Director. ‘‘Director’’ means the Direc- the Interior to the U.S. Department of Com- tor of the National Marine Fisheries merce. Service.
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Establishment. ‘‘Establishment’’ licensed by the Secretary to inves- means any premises, buildings, struc- tigate, sample, inspect, and certify in tures, facilities, and equipment (in- accordance with the regulations in this cluding vehicles) used in the proc- part to any interested party the class, essing, handling, transporting, and quality and condition of processed storage of fish and fishery products. products covered in this part and to Inspection certificate. ‘‘Inspection cer- perform related duties in connection tificate’’ means a statement, either with the inspection service. written or printed, issued pursuant to Interested party. ‘‘Interested party’’ the regulations in this part, setting means any person who has a financial forth in addition to appropriate de- interest in the commodity involved. scriptive information relative to a Licensed sampler. ‘‘Licensed sampler’’ processed product, and the container means any person who is authorized by thereof, the quality and condition, or the Secretary to draw samples of proc- any part thereof, of the product and essed products for inspection service, may include a description of the condi- to inspect for identification and condi- tions under which the product is tion of containers in a lot, and may, stored. when authorized by the Secretary, per- Inspection service. ‘‘Inspection serv- form related services under the act and ice’’ means: the regulations in this part. (1) The sampling pursuant to the reg- Lot. ‘‘Lot’’ has the following mean- ulations in this part; ings: (2) The determination pursuant to the regulations in this part of: (1) For the purpose of charging fees (i) Essential characteristics such as and issuing certificates, ‘‘Lot’’ means style, type, size, or identity of any any number of containers of the same processed product which differentiates size and type which contain a processed between major groups of the same product of the same type and style lo- kind; cated in the same or adjacent ware- (ii) The class, quality, and condition houses and which are available for in- of any processed product, including the spection at any one time: Provided, condition of the container thereof by That: the examination of appropriate sam- (i) Processed products in separate ples; piles which differ from each other as to (3) The issuance of any certificate of grade or other factors may be deemed sampling, inspection certificates, or to be separate lots; certificates of loading of a processed (ii) Containers in a pile bearing an product, or any report relative to any identification mark different from of the foregoing; or other containers of such processed (4) Performance by an inspector of product in that pile, if determined to any related services such as to observe be of lower grade or deficient in other the preparation of the product from its factors, may be deemed to be a sepa- raw state through each step in the en- rate lot; and tire process; or observe conditions (iii) If the applicant requests more under which the product is being har- than one inspection certificate cov- vested, prepared, handled, stored, proc- ering different portions of such proc- essed, packed, preserved, transported, essed product, the quantity of the prod- or held; or observe sanitation as a pre- uct covered by each certificate shall be requisite to the inspection of the proc- deemed to be a separate lot. essed product, either on a contract (2) For the purpose of sampling and basis or periodic basis; or checkload determining the grade or compliance the inspected processed product in con- with a specification, ‘‘Lot’’ means each nection with the marketing of the pile of containers of the same size and product, or any other type of service of type containing a processed product of a consultative or advisory nature re- the same type and style which is sepa- lated herewith. rated from other piles in the same Inspector. ‘‘Inspector’’ means any em- warehouse, but containers in the same ployee of the Department authorized pile bearing an identification mark dif- by the Secretary or any other person ferent from other containers in that
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pile may be deemed to be a separate portion of the contents of a container lot. or other unit of commodity, or a com- Official establishment. ‘‘Official estab- posite mixture of a product to be used lishment’’ means any establishment for inspection. which has been approved by National Sampling. ‘‘Sampling’’ means the act Marine Fisheries Service, and utilizes of selecting samples of processed prod- inspection service on a contract basis. ucts for the purpose of inspection Officially drawn sample. under the regulations in this part. ‘‘Officiallydrawn sample’’ means any Secretary. ‘‘Secretary’’ means the sample that has been selected from a Secretary of the Department or any particular lot by an inspector, licensed other officer or employee of the De- sampler, or by any other person au- partment authorized to exercise the thorized by the Secretary pursuant to powers and to perform the duties of the the regulations in this part. Secretary in respect to the matters Person. ‘‘Person’’ means any indi- covered by the regulations in this part. vidual, partnership, association, busi- Shipping container. ‘‘Shipping con- ness trust, corporation, any organized tainer’’ means an individual container group of persons (whether incorporated designed for shipping a number of or not), the United States (including, packages or cans ordinarily packed in a but not limited to, any corporate agen- container for shipping or designed for cies thereof), any State, county, or mu- packing unpackaged processed prod- nicipal government, any common car- ucts for shipping. rier, and any authorized agent of any of the foregoing. Unofficially drawn sample. ‘‘Unoffi- Plant. ‘‘Plant’’ means the premises, cially drawn sample’’ means any sam- buildings, structures, and equipment ple that has been selected by any per- (including, but not being limited to, son other than an inspector or licensed machines, utensils, and fixtures) em- sampler, or by any other person not au- ployed or used with respect to the man- thorized by the Director pursuant to ufacture or production of processed the regulations in this part. products. Wholesome. ‘‘Wholesome’’ means the Processed product. ‘‘Processed prod- minimum basis of acceptability for uct’’ means any fishery product or human food purposes, of any fish or other food product covered under the fishery product as defined in section regulations in this part which has been 402 of the Federal Food, Drug, and Cos- preserved by any recognized commer- metic Act, as amended. cial process, including, but not limited [31 FR 16052, Dec. 15, 1966, as amended at 36 to, canning, freezing, dehydrating, dry- FR 21037, Nov. 3, 1971] ing, the addition of chemical sub- stances, or by fermentation. § 260.7 Designation of official certifi- Quality. ‘‘Quality’’ means the inher- cates, memoranda, marks, other ent properties of any processed product identifications, and devices for pur- which determine the relative degree of poses of the Agricultural Marketing excellence of such product, and in- Act. cludes the effects of preparation and Subsection 203(h) of the Agricultural processing, and may or may not in- Marketing Act of 1946 provides crimi- clude the effects of packing media, or nal penalties for various specified of- added ingredients. fenses relating to official certificates, Rejection number. ‘‘Rejection num- memoranda, marks or other identifica- ber’’ means the number in a sampling tions and devices for making such plan that indicates the minimum num- marks or identifications, issued or au- ber of deviants in a sample that will thorized under section 203 of said act, cause a lot to fail a specific require- and certain misrepresentations con- ment. cerning the inspection or grading of ag- Sample. ‘‘Sample’’ means any number ricultural products under said section. of sample units to be used for inspec- For the purposes of said subsection and tion. the provisions in this part, the terms Sample unit. ‘‘Sample unit’’ means a listed below shall have the respective container and/or its entire contents, a meanings specified:
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Official certificate. ‘‘Official certifi- INSPECTION SERVICE cate’’ means any form of certification, either written or printed, including § 260.12 Where inspection service is of- those defined in § 260.6, used under this fered. part to certify with respect to the in- Inspection service may be furnished spection, class, grade, quality, size, wherever an inspector or licensed sam- quantity, or condition of products (in- pler is available and the facilities and cluding the compliance of products conditions are satisfactory for the con- with applicable specifications). duct of such service. Official device. ‘‘Official device’’ means a stamping appliance, branding § 260.13 Who may obtain inspection device, stencil, printed label, or any service. other mechanically or manually oper- An application for inspection service ated tool that is approved by the Direc- may be made by any interested party, tor for the purpose of applying any offi- including, but not limited to, the cial mark or other identification to United States and any instrumentality any product or the packaging material or agency thereof, any State, county, thereof. municipality, or common carrier, and Official identification. ‘‘Official identi- any authorized agent in behalf of the fication’’ means any United States foregoing. (U.S.) standard designation of class, grade, quality, size, quantity, or condi- § 260.14 How to make application. tion specified in this part or any sym- An application for inspection service bol, stamp, label, or seal indicating may be made to the officer of inspec- that the product has been graded or in- tion or to any inspector, at or nearest spected and/or indicating the class, the place where the service is desired. grade, quality, size, quantity, or condi- An up-to-date list of the Inspection tion of the product approved by the Di- Field Offices of the Department may be rector and authorized to be affixed to obtained upon request to the Director. any product, or affixed to or printed on Satisfactory proof that the applicant is the packaging material of any product. an interested party shall be furnished. Official mark. ‘‘Official mark’’ means the grade mark, inspection mark, com- § 260.15 Information required in con- bined form of inspection and grade nection with application. mark, and any other mark, or any vari- Application for inspection service ations in such marks, including those shall be made in the English language prescribed in § 260.86, approved by the and may be made orally (in person or Secretary and authorized to be affixed by telephone), in writing, or by tele- to any product, or affixed to or printed graph. If an application for inspection on the packaging material of any prod- service is made orally, such application uct, stating that the product was grad- shall be confirmed promptly in writing. ed or inspected or both, or indicating In connection with each application for the appropriate U.S. Grade or condi- inspection service, there shall be fur- tion of the product, or for the purpose nished such information as may be nec- of maintaining the identity of products essary to perform an inspection on the graded or inspected or both under this processed product for which applica- part. tion for inspection is made, including Official memorandum. ‘‘Official memo- but not limited to, the name of the randum’’ means any initial record of product, name and address of the pack- findings made by an authorized person er or plant where such product was in the process of grading, inspecting, or packed, the location of the product, its sampling pursuant to this part, any lot or car number, codes or other iden- processing or plant-operation report tification marks, the number of con- made by an authorized person in con- tainers, the type and size of the con- nection with grading, inspecting, or tainers, the interest of the applicant in sampling under this part, and any re- the product, whether the lot has been port made by an authorized person of inspected previously to the application services performed pursuant to this by any Federal agency and the purpose part. for which inspection is desired.
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§ 260.16 Filing of application. U.S. standards for grades of processed An application for inspection service products, Federal, Military, Veterans shall be regarded as filed only when Administration or other government made in accordance with the regula- agency specifications, written contract tions in this part. specification, or any written specifica- tion or instruction which is approved § 260.17 Record of filing time. by the Secretary. A record showing the date and hour (b) Unless otherwise approved by the when each application for inspection or Director compliance with such grade for an appeal inspection is received standards, specifications, or instruc- shall be maintained. tions shall be determined by evaluating the product, or sample, in accordance § 260.18 When application may be re- with the requirements of such stand- jected. ards, specifications, or instructions: An application for inspection service Provided, That when inspection for may be rejected by the Secretary (a) quality is based on any U.S. grade for noncompliance by the applicant standard which contains a scoring sys- with the regulations in this part, (b) tem the grade to be assigned to a lot is for nonpayment for previous inspection the grade indicated by the average of services rendered, (c) when the product the total scores of the sample units: is not properly identifiable by code or Provided further, That: other marks, or (d) when it appears (1) Such sample complies with the ap- that to perform the inspection service plicable standards of quality promul- would not be to the best interests of gated under the Federal Food, Drug, the Government. Such applicant shall and Cosmetic Act; be promptly notified of the reason for (2) Such sample complies with the such rejection. product description; (3) Such sample meets the indicated § 260.19 When application may be grade with respect to factors of quality withdrawn. which are not rated by score points; An application for inspection service and may be withdrawn by the applicant at (4) With respect to those factors of any time before the inspection is per- quality which are rated by score formed: Provided, That, the applicant points, each of the following require- shall pay at the hourly rate prescribed ments is met: in § 260.70 for the time incurred by the (i) None of the sample units falls inspector in connection with such ap- more than one grade below the indi- plication, any travel expenses, tele- cated grade because of any quality fac- phone, telegraph or other expenses tor to which a limiting rule applies; which have been incurred by the in- (ii) None of the sample units falls spection service in connection with more than 4 score points below the such application. minimum total score for the indicated [31 FR 16052, Dec. 15, 1966, as amended at 36 grade; and FR 18738, Sept. 21, 1971] (iii) The number of sample units classed as deviants does not exceed the § 260.20 Disposition of inspected sam- applicable acceptance number indi- ple. cated in the sampling plans contained Any sample of a processed product in § 260.61. A ‘‘deviant,’’ as used in this that has been used for inspection may paragraph, means a sample unit that be returned to the applicant, at his re- falls into the next grade below the indi- quest and expense; otherwise it shall be cated grade but does not score more destroyed, or disposed of to a chari- than 4 points below the minimum total table institution. score for the indicated grade. (5) If any of the provisions contained § 260.21 Basis of inspection and grade in paragraphs (b)(3) and (4) of this sec- or compliance determination. tion are not met the grade is deter- (a) Inspection service shall be per- mined by considering such provisions formed on the basis of the appropriate in connection with succeedingly lower
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grades until the grade of the lot, if as- essed products: Provided, That, another signable, is established. employee of the inspection service may sign such certificate of loading cov- § 260.22 Order of inspection service. ering any processed product Inspection service shall be per- checkloaded by an inspector or li- formed, insofar as practicable, in the censed sampler when given power of at- order in which applications therefor torney by such inspector or licensed are made except that precedence may sampler and authorized by the Sec- be given to any such applications retary to affix the inspector’s or li- which are made by the United States censed sampler’s signature to a certifi- (including, but not being limited to, cate of loading which has been pre- any instrumentality or agency thereof) pared in accordance with the facts set and to any application for an appeal in- forth in the notes made by the inspec- spection. tor or licensed sampler in connection § 260.23 Postponing inspection service. with the checkloading of a specific lot of processed products. If the inspector determines that it is not possible to accurately ascertain § 260.27 Issuance of corrected certifi- the quality or condition of a processed cates. product immediately after processing because the product has not reached A corrected inspection certificate equilibrium in color, or drained weight, may be issued by the inspector who or for any other substantial reason, he issued the original certificate after dis- may postpone inspection service for tribution of a certificate if errors, such such period as may be necessary. as incorrect dates, code marks, grade statements, lot or car numbers, con- § 260.24 Financial interest of inspec- tainer sizes, net or drained weights, tor. quantities, or errors in any other perti- No inspector shall inspect any proc- nent information require the issuance essed product in which he is directly or of a corrected certificate. Whenever a indirectly financially interested. corrected certificate is issued, such certificate shall supersede the inspec- § 260.25 Forms of certificates. tion certificate which was issued in Inspection certificates, certificates of error and the superseded certificate sampling or loading, and other memo- shall become null and void after the randa concerning inspection service issuance of the corrected certificate. shall be issued on forms approved by the Secretary. § 260.28 Issuance of an inspection re- port in lieu of an inspection certifi- § 260.26 Issuance of certificates. cate. (a) An inspection certificate may be A letter report in lieu of an inspec- issued only by an inspector: Provided, tion certificate may be issued by an in- That, another employee of the inspec- spector when such action appears to be tion service may sign any such certifi- more suitable than an inspection cer- cate covering any processed product in- tificate: Provided, That, the issuance of spected by an inspector when given such report is approved by the Sec- power of attorney by such inspector and authorized by the Secretary, to retary. affix the inspector’s signature to an in- § 260.29 Disposition of inspection cer- spection certificate which has been tificates. prepared in accordance with the facts set forth in the notes, made by the in- The original of any inspection cer- spector, in connection with the inspec- tificate, issued under the regulations in tion. this part, and not to exceed four copies (b) A certificate of loading shall be thereof, if requested prior to issuance, issued and signed by the inspector or shall be delivered or mailed promptly licensed sampler authorized to check to the applicant, or person designated the loading of a specific lot of proc- by the applicant. All other copies shall
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be filed in such manner as the Sec- or by telephone), in writing, or by tele- retary may designate. Additional cop- graph. If made orally, written con- ies of any such certificates may be sup- firmation shall be made promptly. plied to any interested party as pro- vided in § 260.78. § 260.38 When an application for an appeal inspection may be with- § 260.30 Report of inspection results drawn. prior to issuance of formal report. An application for appeal inspection Upon request of any interested party, may be withdrawn by the applicant at the results of an inspection may be any time before the appeal inspection telegraphed or telephoned to him, or to is performed: Provided, That the appli- any other person designated by him, at cant shall pay at the hourly rate pre- his expense. scribed in § 260.70, for the time incurred by the inspector in connection with APPEAL INSPECTION such application, any travel expenses, telephone, telegraph, or other expenses § 260.36 When appeal inspection may which have been incurred by the in- be requested. spection service in connection with An application for an appeal inspec- such application. tion may be made by any interested [31 FR 16052, Dec. 15, 1966, as amended at 36 party who is dissatisfied with the re- FR 18738, Sept. 21, 1971] sults of an inspection as stated in an inspection certificate, if the lot of § 260.39 When appeal inspection may processed products can be positively be refused. identified by the inspection service as An application for an appeal inspec- the lot from which officially drawn tion may be refused if: samples were previously inspected. (a) The reasons for the appeal inspec- Such application shall be made within tion are frivolous or not substantial; thirty (30) days following the day on (b) The quality or condition of the which the previous inspection was per- processed product has undergone a ma- formed, except upon approval by the terial change since the inspection cov- Secretary the time within which an ap- ering the processed product on which plication for appeal inspection may be the appeal inspection is requested; made, may be extended. (c) The lot in question is not, or can- not be made accessible for the selec- § 260.37 Where to file for an appeal in- tion of officially drawn samples; spection and information required. (d) The lot relative to which appeal (a) Application for an appeal inspec- inspection is requested cannot be posi- tion may be filed with: tively identified by the inspector as the (1) The inspector who issued the in- lot from which officially drawn sam- spection certificate on which the ap- ples were previously inspected; or peal covering the processed product is (e) There is noncompliance with the requested; or regulations in this part. Such applicant (2) The inspector in charge of the of- shall be notified promptly of the reason fice of inspection at or nearest the for such refusal. place where the processed product is lo- cated. § 260.40 Who shall perform appeal in- (b) The application for appeal inspec- spection. tion shall state the location of the lot An appeal inspection shall be per- of processed products and the reasons formed by an inspector or inspectors for the appeal; and date and serial (other than the one from whose inspec- number of the certificate covering in- tion the appeal is requested) authorized spection of the processed product on for this purpose by the Secretary and, which the appeal is requested, and such whenever practical, such appeal inspec- application may be accompanied by a tion shall be conducted jointly by two copy of the previous inspection certifi- such inspectors: Provided, That the in- cate and any other information that spector who made the inspection on may facilitate inspection. Such appli- which the appeal is requested may be cation may be made orally (in person authorized to draw the samples when
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another inspector or licensed sampler pursuant to the regulations in this part is not available in the area where the as directed by the Director. product is located. § 260.48 Application to become a li- § 260.41 Appeal inspection certificate. censed sampler. After an appeal inspection has been Application to become a licensed completed, an appeal inspection certifi- sampler shall be made to the Secretary cate shall be issued showing the results on forms furnished for that purpose. of such appeal inspection; and such cer- Each such application shall be signed tificate shall supersede the inspection by the applicant in his own hand- certificate previously issued for the writing, and the information contained processed product involved. Each ap- therein shall be certified by him to be peal inspection certificate shall clearly true, complete, and correct to the best identify the number and date of the in- of his knowledge and belief, and the ap- spection certificate which it super- plication shall contain or be accom- sedes. The superseded certificate shall panied by: become null and void upon the issuance (a) A statement showing his present of the appeal inspection certificate and and previous occupations, together shall no longer represent the quality or with names of all employers for whom condition of the processed product de- he has worked, with periods of service, scribed therein. The inspector or in- during the 10 years previous to the date spectors issuing an appeal inspection of his application; certificate shall forward notice of such (b) A statement that, in his capacity issuance to such persons as he con- as a licensed sampler, he will not draw siders necessary to prevent misuse of samples from any lot of processed prod- the superseded certificate if the origi- ucts with respect to which he or his nal and all copies of such superseded employer is an interested party; certificate have not previously been de- (c) A statement that he agrees to livered to the inspector or inspectors comply with all terms and conditions issuing the appeal inspection certifi- of the regulations in this part relating cate. The provisions in the regulations to duties of licensed samplers; and in this part concerning forms of certifi- cates, issuance of certificates, and dis- (d) Such other information as may be position of certificates shall apply to requested. appeal inspection certificates, except § 260.49 Inspectors. that copies of such appeal inspection certificates shall be furnished all inter- Inspections will ordinarily be per- ested parties who received copies of the formed by employees under the Sec- superseded certificate. retary who are employed as Federal Government employees for that pur- LICENSING OF SAMPLERS AND pose. However, any person employed INSPECTORS under any joint Federal-State inspec- tion service arrangement may be li- § 260.47 Who may become licensed censed, if otherwise qualified, by the sampler. Secretary to make inspections in ac- Any person deemed to have the nec- cordance with this part on such proc- essary qualifications may be licensed essed products as may be specified in as a licensed sampler to draw samples his license. Such license shall be issued for the purpose of inspection under the only in a case where the Secretary is regulations in this part. Such a license satisfied that the particular person is shall bear the printed signature of the qualified to perform adequately the in- Secretary, and shall be countersigned spection service for which such person by an authorized employee of the De- is to be licensed. Each such license partment. Licensed samplers shall have shall bear the printed signature of the no authority to inspect processed prod- Secretary and shall be countersigned ucts under the regulations in this part by an authorized employee of the De- except as to identification and condi- partment. An inspector shall perform tion of the containers in a lot. A li- his duties pursuant to the regulations censed sampler shall perform his duties in this part as directed by the Director.
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§ 260.50 Suspension or revocation of li- § 260.58 Accessibility for sampling. cense of licensed sampler or li- Each applicant shall cause the proc- censed inspector. essed products for which inspection is Pending final action by the Sec- requested to be made accessible for retary, the Director may, whenever he proper sampling. Failure to make any deems such action necessary, suspend lot accessible for proper sampling shall the license of any licensed sampler, or be sufficient cause for postponing in- licensed inspector, issued pursuant to spection service until such time as the regulations in this part, by giving such lot is made accessible for proper notice of such suspension to the respec- sampling. tive licensee, accompanied by a state- § 260.59 How officially drawn samples ment of the reasons therefor. Within 7 are to be identified. days after the receipt of the aforesaid notice and statement of reasons by Officially drawn samples shall be marked by the inspector or licensed such licensee, he may file an appeal, in sampler so such samples can be prop- writing, with the Secretary supported erly identified for inspection. by any argument or evidence that he may wish to offer as to why his license § 260.60 How samples are to be should not be suspended or revoked. shipped. After the expiration of the aforesaid 7 Unless otherwise directed by the Sec- day period and consideration of such retary, samples which are to be shipped argument and evidence, the Secretary to any office of inspection shall be for- shall take such action as he deems ap- warded to the office of inspection serv- propriate with respect to such suspen- ing the area in which the processed sion or revocation. prodcuts from which the samples were drawn is located. Such samples shall be § 260.51 Surrender of license. shipped in a manner to avoid, if pos- Upon termination of his services as a sible, any material change in the qual- licensed sampler or licensed inspector, ity or condition of the sample of the or suspension or revocation of his li- processed product. All transportation cense, such licensee shall surrender his charges in connection with such ship- license immediately to the office of in- ments of samples shall be at the ex- spection serving the area in which he is pense of the applicant and wherever located. These same provisions shall practicable, such charges shall be pre- apply in a case of an expired license. paid by him. § 260.61 Sampling plans and proce- SAMPLING dures for determining lot compli- ance. § 260.57 How samples are drawn by in- spectors or licensed samplers. (a) Except as otherwise provided for in this section in connection with in- An inspector or a licensed sampler plant inspection and unless otherwise shall select samples, upon request, approved by the Secretary, samples from designated lots of processed prod- shall be selected from each lot in the ucts which are so placed as to permit exact number of sample units indicated thorough and proper sampling in ac- for the lot size in the applicable single cordance with the regulations in this sampling plan or, at the discretion of part. Such person shall, unless other- the inspection service, any comparable wise directed by the Secretary, select multiple sampling plan: Provided, That sample units of such products at ran- at the discretion of the inspection serv- dom, and from various locations in ice the number of sample units selected each lot in such manner and number, may be increased to the exact number not inconsistent with the regulations of sample units indicated for any one of in this part, as to secure a representa- the larger sample sizes provided for in tive sample of the lot. Samples drawn the appropriate plans. for inspection shall be furnished by the (b) Under the single sampling plans applicant at no cost to the Depart- with respect to any specified require- ment. ment:
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(1) If the number of deviants (as de- ined before the lot size is known and fined in connection with the specific the number of sample units exceeds the requirements) in the sample does not prescribed sample size for such lot but exceed the acceptance number pre- does not equal any of the prescribed scribed for the sample size the lot larger sample sizes the lot may be meets the requirement; deemed to meet or fail a specific re- (2) If the number of deviants (as de- quirement in accordance with the fol- fined in connection with the specific lowing procedure: requirement) in the sample exceeds the (1) If the number of deviants (as de- acceptance number prescribed for the fined in connection with the specific sample size the lot fails the require- requirement) in the nonprescribed sam- ment. ple does not exceed the acceptance (c) Under the multiple sampling number of the next smaller sample size plans inspection commences with the the lot meets the requirements; smallest sample size indicated under (2) If the number of deviants (as de- the appropriate plan and with respect fined in connection with the specific to any specified requirement: requirement) in the nonprescribed sam- (1) If the number of deviants (as de- ple equals the acceptance number pre- fined in connection with the specific scribed for the next larger sample size requirement) in the sample being con- additional sample units shall be se- sidered does not exceed the acceptance lected to increase the sample to the number prescribed for that sample size next larger prescribed sample size; the lot meets the requirement; (3) If the number of deviants (as de- (2) If the number of deviants (as de- fined in connection with the specific fined in connection with the specific requirement) in the nonprescribed sam- requirement) in the sample being con- ple exceeds the acceptance number pre- sidered equals or exceeds the rejection scribed for the next larger sample size number prescribed for that sample size the lot fails the requirement. the lot fails the requirement; or (e) In the event that the lot compli- (3) If the number of deviants (as de- ance determination provisions of a fined in connection with the specific standard or specification are based on requirement) in the sample being con- the number of specified deviations in- sidered falls between the acceptance stead of deviants the procedures set and rejection numbers of the plan, ad- forth in this section may be applied by ditional sample units are added to the substituting the word ‘‘deviation’’ for sample so that the sample thus cumu- the word ‘‘deviant’’ wherever it ap- lated equals the next larger cumulative pears. sample size in the plan. It may then be (f) Sampling plans referred to in this determined that the lot meets or fails section are those contained in Tables I, the specific requirement by considering II, III, IV, V, and VI which follow or the cumulative sample and applying any other plans which are applicable. the procedures outlined in paragraphs For processed products not included in (c)(1) and (2) of this section or by con- these tables, the minimum sample size sidering successively larger samples shall be the exact number of sample cumulated in the same manner until units prescribed in the table, container the lot meets or fails the specific re- group, and lot size that, as determined quirement. by the inspector, most closely resem- (d) If in the conduct of any type of in- bles the product, type, container size plant inspection the sample is exam- and amount of product to be samples.
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c .... 3 6 13 21 29 38 48 60 72 2 ...... 84 96 108 120 132 144 156 168 180 192 204 216 230 244 258 272 286 300 314 328 342 356 370 384 400 1 2 3 4 5 n GROUP GROUP GROUP GROUP GROUP For extension of the single sample sizes beyond 72 units, refer to table V this section; for multiple sampling plans The sample units for the various container size groups are as follows: Group 1Ð1 and its entire contents. Groups 2, 3 of 1 pound or less net weight ...... 1,800 or lessover 1 pound but 1,801±8,400not over 6 pounds 8,401±18,000net weight ...... 18,001±36,000 36,001±60,000 900 or lessover 6 pounds but 60,001±96,000not over 20 pounds 901±3,600net weight 96,001±132,000 ...... 3,601±10,800 132,001±168,0 10,801±18,000 200 or lessover 20 pounds but 18,001±36,000not over 100 pounds net weight 36,001±60,000 201±800 .. 60,001±84,000 801±1,600 48 or less 84,001±120,000over 100 pounds net weight 1,601±3,200 Over ...... 49±400 3,201±8,000 16 or less 401±1,200 8,001±16,000of sample units) 1,201±2,000 16,001±24,000 17±80 24,001±32,000 2,001±2,800 Over 32,000 81±200 2,801±6,000 201±400 6,001±9,600 9,601±15,000 401±800 Over 15,000 801±1,200 1,201±2,000 2,001±3,200 Over 3,200 1 2 Container size group Any type of container Any type of container Any type of container Any type of container Any type of container Sample size (number Acceptance number ... Sample size, Acceptance numbers, table VI of this section. er sample unit when determined by the inspector to be adequate.
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cr c
crn c LANS P
crn c AMPLING S
INGLE crn 5678 S c NDICATED 1 I
crn LANS P c 3236 3 5 6 6 44 6 7 56 7 8 68 8 9 72 6 10 82 9 10 AMPLING
crn S OMPARABLE TO THE c C 26 4 5 28 3 6 38 3 7 48 4 8 58 4 8 62 5 10 ULTIPLE M LANS P
crn c 14 2 3 22 2 5 24 2 5 32 2 6 40 3 8 48 3 8 52 3 9 AMPLING S 2803100312041404160418052205
crn ULTIPLE c 1034 1040 2158 317 6321 5281 8 5241 7422 4200 6382 6 4160 6322 0 3141 5261 2100 8 4201 1 3181 2121 VIÐM for
r, ABLE T ...... 1 2 3 4 , and accept- c
c ...... n 6 13 21 29 38 48 60 72
n
c, n multiple sampling. 4 0 and rejection numbers, Single sample size, Acceptance numbers, These multiple sampling plans may be used in lieu of the single listed at heading each column. ance numbers, 1 Indicated single sampling plan: Cumulative sample sizes,
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§ 260.62 Issuance of certificate of sam- § 260.70 Schedule of fees. pling. (a) Unless otherwise provided in a Each inspector and each licensed written agreement between the appli- sampler shall prepare and sign a cer- cant and the Secretary, the fees to be tificate of sampling to cover the sam- charged and collected for any inspec- ples drawn by the respective person, tion service performed under the regu- except that an inspector who inspects lations in this part at the request of the samples which he has drawn need the United States, or any other agency not prepare a certificate of sampling. or instrumentality thereof, will be pub- One copy of each certificate of sam- lished as a notice in the FEDERAL REG- pling prepared shall be retained by the ISTER and will be in accordance with inspector or licensed sampler (as the § 260.81. case may be) and the original and all (b) Fees are reviewed annually to as- other copies thereof shall be disposed certain that the hourly fees charged of in accordance with the instructions are adequate to recover the costs of the of the Secretary. services rendered. (1) The TYPE I (Contract Inspection) § 260.63 Identification of lots sampled. hourly fee is determined by dividing Each lot from which officially drawn the estimated annual costs by the esti- samples are selected shall be marked in mated annual billable hours. such manner as may be prescribed by (2) The TYPE II (Lot Inspection) the Secretary, if such lots do not oth- hourly fee is determined by adding a erwise possess suitable identification. factor of 50 percent to the TYPE I fee, to cover additional costs (down-time, FEES AND CHARGES etc.) associated with conducting lot in- spection services. § 260.69 Payment fees and charges. (3) The TYPE III (Miscellaneous and Fees and charges for any inspection Consulting) hourly fee is determined by service shall be paid by the interested adding a factor of 25 percent to the party making the application for such TYPE I fee, to cover the additional service, in accordance with the applica- costs (down-time, etc.) associated with ble provisions of the regulations in this conducting miscellaneous inspection part, and, if so required by the person services. in charge of the office of inspection serving the area where the services are [48 FR 24901, June 3, 1983] to be performed, an advance of funds § 260.71 [Reserved] prior to rendering inspection service in an amount suitable to the Secretary, § 260.72 Fees for inspection service or a surety bond suitable to the Sec- performed under cooperative agree- retary, may be required as a guarantee ment. of payment for the services rendered. The fees to be charged and collected All fees and charges for any inspection for any inspection or similar service service, performed pursuant to the reg- performed under cooperative agree- ulations in this part shall be paid by ment shall be those provided for by check, draft, or money order made pay- such agreement. able to the National Marine Fisheries Service. Such check, draft, or money § 260.73 Disposition of fees for inspec- order shall be remitted to the appro- tions made under cooperative priate regional or area office serving agreement. the geographical area in which the Fees for inspection under a coopera- services are performed, within ten (10) tive agreement with any State or per- days from the date of billing, unless son shall be disposed of in accordance otherwise specified in a contract be- with the terms of such agreement. tween the applicant and the Secretary, Such portion of the fees collected in which latter event the contract pro- under a cooperative agreement as may visions shall apply. be due the United States shall be re- [36 FR 21038, Nov. 3, 1971] mitted in accordance with § 260.69.
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§ 260.74 Fee for appeal inspection. § 260.80 Charges for inspection service on a contract basis. The fee to be charged for an appeal inspection shall be at the rates pre- Irrespective of fees and charges pre- scribed in this part for other inspection scribed in the foregoing sections, the services: Provided, That, if the result of Secretary may enter into a written any appeal inspection made for any ap- memorandum of understanding or con- plicant, other than the United States tract, whichever may be appropriate, or any agency or instrumentality with any administrative agency thereof, discloses that a material error charged with the administration of a was made in the inspection on which marketing order effective pursuant to the appeal is made, no inspection fee the Agricultural Marketing Agreement Act of 1937, as revised (16 U.S.C. 661 et shall be assessed. seq.) for the making of inspections pur- § 260.76 [Reserved] suant to said agreement or order on such basis as will reimburse the Na- § 260.77 Fees for score sheets. tional Marine Fisheries Service of the Department for the full cost of ren- If the applicant for inspection service dering such inspection service as may requests score sheets showing in detail be determined by the Secretary. Like- the inspection of each container or wise, the Secretary may enter into a sample inspected and listed thereon, written memorandum of understanding such score sheets may be furnished by or contract, whichever may be appro- the inspector in charge of the office of priate, with an administrative agency inspection serving the area where the charged with the administration of a inspection was performed; and such ap- similar program operated pursuant to plicant shall be changed at the rate of the laws of any State. $2.75 for each 12 sampled units, or frac- [36 FR 21038, Nov. 3, 1971] tion thereof, inspected and listed on such score sheets. § 260.81 Readjustment and increase in hourly rates of fees. § 260.78 Fees for additional copies of inspection certificates. (a) When Federal Pay Act increases occur, the hourly rates for inspection Additional copies of any inspection fees will automatically be increased on certificate other than those provided the effective date of the pay act by an for in § 260.29, may be supplied to any amount equal to the increase received interested party upon payment of a fee by the average GS grade level of fish- of $2.75 for each set of five (5) or fewer ery product inspectors receiving such copies. pay increases. (b) The hourly rates of fees to be § 260.79 Travel and other expenses. charged for inspection services will be Charges may be made to cover the subject to review and reevaluation for cost of travel and other expenses in- possible readjustment not less than curred in connection with the perform- every 3 years: Provided, That, the hour- ance of any inspection service, includ- ly rates of fees to be charged for in- ing appeal inspections: Provided, That, spection services will be immediately if charges for sampling or inspection reevaluated as to need for readjust- are based on an hourly rate, an addi- ment with each Federal Pay Act in- tional hourly charge may be made for crease. travel time including time spent wait- [35 FR 15925, Oct. 9, 1970] ing for transportation as well as time spent traveling, but not to exceed 8 MISCELLANEOUS hours of travel time for any one person for any one day: And provided further, § 260.84 Policies and procedures. That, if travel is by common carrier, The policies and procedures per- no hourly charge may be made for taining to any of the inspection serv- travel time outside the employee’s offi- ices are contained within the NMFS cial work hours. Fishery Products Inspection Manual.
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The policies and procedures are avail- Shield with plain background. able from the Secretary to any inter- ested party by writing to Document Approval and Supply Services Branch, Inspection Services Division, P.O. Drawer 1207, 3207 Frederic St., Pascagoula, MS 39568–1207. [61 FR 9369, Mar. 8, 1996]
§ 260.86 Approved identification. (a) Grade marks: The approved grade mark or identification may be used on containers, labels, or otherwise indi- cated for any processed product that: FIGURE 2. (1) Has been packed under inspection as provided in this part to assure com- pliance with the requirements for wholesomeness established for the raw product and of sanitation established for the preparation and processing op- FIGURE 3. erations, and (2) has been certified by an inspector as meeting the require- ments of such grade, quality or classi- fication. The grade marks approved for use shall be similar in form and design to the ex- amples of Figures 1 to 5 of this section.
Shield using red, white, and blue back- ground or other colors appropriate for label. FIGURE 4.
FIGURE 5. FIGURE 1. (b) Inspection marks: The approved in- spection marks may be used on con- tainers, labels, or otherwise indicated for any processed product that: (1) Has been packed under inspection as provided in this part to assure com- pliance with the requirements for wholesomeness established for the raw product and of sanitation established for the preparation and processing op- erations, and (2) has been certified by
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an inspector as meeting the require- inspection marks, Figures 7 and 8, set ments of such quality or grade classi- forth in paragraph (b) of this section, fication as may be approved by the may be combined into a consolidated Secretary. grade and inspection mark for use on The inspection marks approved for use processed products that have been shall be similar in form and design to packed under inspection as provided in the examples in Figures 6, 7, and 8 of this part. this section. (d) Products not eligible for approved identification: Processed products which Statement enclosed within a circle. have not been packed under inspection as provided in this part shall not be identified by approved grade or inspec- tion marks, but such products may be inspected on a lot inspection basis as provided in this part and identified by an authorized representative of the De- partment by stamping the shipping cases and inspection certificate(s) cov- ering such lot(s) as appropriate, with marks similar in form and design to the examples in Figures 9 and 10 of this section.
FIGURE 6. Statement without the use of the circle.
FIGURE 7. FIGURE 9. Statement without the use of the circle.
FIGURE 8. (c) Combined grade and inspection marks: The grade marks set forth in paragraph (a) of this section, and the
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censes, to take an active part in polit- ical management or in political cam- paigns. Political activities in city, county, State, or national elections, whether primary or regular, or in be- half of any party or candidate, or any measure to be voted upon, are prohib- ited. This applies to all appointees or licensees, including, but not limited to, temporary and cooperative employees and employees on leave of absence with or without pay. Willful violation of this section will constitute grounds for dismissal in the case of appointees and revocation of licenses in the case of li- censees.
§ 260.90 Compliance with other laws. None of the requirements in the regu- lations in this part shall excuse failure to comply with any Federal, State, FIGURE 10. county, or municipal laws applicable to (e) Removal of labels bearing inspection the operation of food processing estab- marks: At the time a lot of fishery lishments and to processed food prod- products is found to be mislabeled and ucts. the labels on the packages are not re- moved within ten (10) consecutive cal- § 260.91 Identification. endar days, the following procedure Each inspector and licensed sampler shall be applicable: shall have in his possession at all times (1) The processor, under the super- and present upon request, while on vision of the inspector, shall clearly duty, the means of identification fur- and conspicuously mark all master nished by the Department to such per- cases in the lot by means of a ‘‘rejected son. by USDC Inspector’’ stamp provided by the Department. § 260.93 Debarment and suspension. (2) The processor shall be held ac- (a) Debarment. Any person may be countable to the Department for all debarred from using or benefiting from mislabeled products until the products the inspection service provided under are properly labeled. the regulations of this subchapter or (3) Clearance for the release of the re- under the terms of any inspection con- labeled products shall be obtained by tract, and such debarment may apply the processor from the inspector. to one or more plants under his con- (f) Users of inspection services having trol, if such person engages in one or an inventory of labels which bear offi- more of the following acts or activi- cial approved identification marks ties: stating ‘‘U.S. Department of the Inte- (1) Misrepresenting, misstating, or rior’’ or otherwise referencing the Inte- withholding any material or relevant rior Department, will be permitted to facts or information in conjunction use such marks until December 31, 1971, with any application or request for an except that upon written request the inspection contract, inspection service, Director, National Marine Fisheries inspection appeal, lot inspection, or Service, may extend such period for the other service provided for under the use of specific labels. regulations of this subchapter. [36 FR 4609, Mar. 10, 1971] (2) Using on a processed product any label which displays any official identi- § 260.88 Political activity. fication, official device, or official All inspectors and licensed samplers mark, when the label is not currently are forbidden, during the period of approved for use by the Director or his their respective appointments or li- delegate.
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(3) Using on a processed product any provisions of the regulations of this label which displays the words ‘‘Packed subchapter. Under Federal Inspection, U.S. Depart- (10) Engaging in acts or activities ment of Commerce’’, or which displays which destroy or interfere with the any official mark, official device, or of- purposes of the inspection program or ficial identification, or which displays which have the effect of undermining a facsimile of the foregoing, when such the integrity of the inspection pro- product has not been inspected under gram. the regulations of this subchapter. (b) Temporary suspension. (1) When- (4) Making any statement or ref- ever the Director has reasonable cause erence to the U.S. Grade of any proc- to believe that any person has engaged essed product or any inspection service in any act or activity described in provided under the regulations of this paragraph (a) of this section, and in subchapter on the label or in the adver- such act or activity, in the judgment of tising of any processed product, when the Director, would cause serious and such product has not been inspected irreparable injury to the inspection under the regulations of this sub- program and services provided under chapter. the regulations of this subchapter, the (5) Making, using, issuing or at- Director may, without a hearing, tem- tempting to issue or use in conjunction porarily suspend, either before or after with the sale, shipment, transfer or ad- the institution of a debarment hearing, vertisement of a processed product any the inspection service provided under certificate of loading, certificate of the regulations of this subchapter or sampling, inspection certificate, offi- under any inspection contract for one cial device, official identification, offi- cial mark, official document, or score or more plants under the control of sheet which has not been issued, ap- such person. Notice of suspension shall proved, or authorized for use with such be served by registered or certified product by an inspector. mail, return receipt requested, and the (6) Using any of the terms ‘‘United notice shall specifically state those States’’, ‘‘Officially graded’’, ‘‘Offi- acts or activities of such person which cially inspected’’, ‘‘Government in- are the bases for the suspension. The spected’’, ‘‘Federally inspected’’, ‘‘Offi- suspension shall become effective five cially sampled’’, or words of similar (5) days after receipt of the notice. import or meanings, or using any offi- (2) Once a person has received a no- cial device, official identification, or tice of a temporary suspension, a de- official mark on the label, on the ship- barment hearing will be set for 30 days ping container, or in the advertising of after the effective date of the suspen- any processed product, when such prod- sion. Within 60 days after the comple- uct has not been inspected under the tion of the debarment hearing, the regulations of this subchapter. Hearing Examiner shall determine, (7) Using, attempting to use, altering based upon evidence of record, whether or reproducing any certificate, certifi- the temporary suspension shall be con- cate form, design, insignia, mark, tinued or terminated. A temporary sus- shield, device, or figure which simu- pension shall be terminated by the lates in whole or in part any official Hearing Examiner if he determines mark, official device, official identi- that the acts or activities, which were fication, certificate of loading, certifi- the bases for the suspension, did not cate of sampling, inspection certificate occur or will not cause serious and ir- or other official certificate issued pur- reparable injury to the inspection pro- suant to the regulations of this sub- gram and services provided under the chapter. regulations of this subchapter. This de- (8) Assaulting, harassing, interfering, termination of the Hearing Examiner obstructing or attempting to interfere on the continuation or termination of or obstruct any inspector or sampler in the temporary suspension shall be final the performance of his duties under the and there shall be no appeal of this de- regulations of this subchapter. termination. The initial decision by (9) Violating any one or more of the the Hearing Examiner on the debar- terms of any inspection contract or the ment shall be made in accordance with
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paragraph (b)(1), Decisions, of this sec- (f) Time and place of hearing. The tion. hearing shall be held at a time and (3) After a debarment hearing has place fixed by the Director: Provided, been instituted against any person by a however, The Hearing Examiner may, suspension, such suspension will re- upon a proper showing of inconven- main in effect until a final decision is ience, change the time and place of the rendered on the debarment in accord- hearing. Motions for change of time or ance with the regulations of this sec- place of the hearing must be mailed to tion or the temporary suspension is or served upon the Hearing Examiner terminated by the Hearing Examiner. no later than 10 days before the hear- (4) When a debarment hearing has ing. been instituted against any person not (g) Right to counsel. In all proceedings under suspension, the Director may, in under this section, all persons and the accordance with the regulations of this Department of Commerce shall have paragraph (b) temporarily suspend such the right to be represented by counsel, person, and the suspension will remain in effect until a final decision on the in accordance with the rules and regu- debarment is rendered in accordance lations set forth in title 43, Code of with the regulations of this section or Federal Regulations, part 1. the temporary suspension is termi- (h) Form, execution, and service of doc- nated by the Hearing Examiner. uments. (1) All papers to be filed under (c) Hearing Examiner. All hearing the regulations in this section shall be shall be held before a Hearing Exam- clear and legible; and shall be dated, iner appointed by the Secretary or the signed in ink, contain the docket de- Director. scription and title of the proceeding, if (d) Hearing. If one or more of the acts any, and the address of the signatory. or activities described in paragraph (a) Five copies of all papers are required to of this section have occurred, the Di- be filed. Documents filed shall be exe- rector may institute a hearing to de- cuted by: termine the length of time during (i) The person or persons filing same, which the person shall be debarred and (ii) by an authorized officer thereof if those plants to which the debarment it be a corporation or, shall apply. No person may be debarred (iii) by an attorney or other person unless there is a hearing, as prescribed having authority with respect thereto. in this section, and it has been deter- (2) All documents, when filed, shall mined by the Hearing Examiner, based show that service has been made upon on evidence of record, that the one or all parties to the proceeding. Such more of the activities described in service shall be made by delivering one paragraph (a) of this section have oc- copy to each party in person or by curred. Any debarment or suspension mailing by first-class mail, properly must be instituted within two (2) years addressed with postage prepaid. When a of the time when such acts or activities party has appeared by attorney or described in paragraph (a) of this sec- other representative, service on such tion have occurred. attorney or other representative will (e) Notice of hearing. The Director shall notify such person of the debar- be deemed service upon the party. The ment hearing by registered or certified date of service of document shall be mail, return receipt requested. The no- the day when the matter served is de- tice shall set forth the time and place posited in the U.S. mail, shown by the of the hearing, the specific acts or ac- postmark thereon, or is delivered in tivities which are the basis for the de- person, as the case may be. barment hearing, the time period of de- (3) A person is deemed to have ap- barment being sought, and those plants peared in a hearing by the filing with to which the debarment shall apply. the Director a written notice of his ap- Except for the debarment hearing pro- pearance or his authority in writing to vided for in paragraph (b) of this sec- appear on behalf of one of the persons tion the hearing will be set for a time to the hearing. not longer than 120 days after receipt (4) The original of every document of the notice of hearing. filed under this section and required to
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be served upon all parties to a pro- (11) Issue the initial decision and dis- ceeding shall be accompanied by a cer- pose of any other pertinent matters tificate of service signed by the party that normally and properly arise in the making service, stating that such serv- course of proceedings. ice has been made upon each party to (12) Do all other things necessary for the proceeding. Certificates of service an orderly and impartial hearing. may be in substantially the following (k) The record. (1) The Director will form: designate an official reporter for all hearings. The official transcript of I hereby certify that I have this day served the foregoing document upon all parties of testimony taken, together with any record in this proceeding by: (1) Mailing exhibits and briefs filed therewith, postage prepaid, (2) delivering in person, a shall be filed with the Director. Trans- copy to each party. cripts of testimony will be available in Dated at llll this llll day of any proceeding under the regulations lllll, 19l of this section, at rates fixed by the llllllll Signature contract between the United States of (i) Procedures and evidence. (1) All America and the reporter. If the re- parties to a hearing shall be entitled to porter is an employee of the introduce all relevant evidence on the Department of Commerce, the rate will issues as stated in the notice for hear- be fixed by the Director. ing or as determined by the Hearing (2) The transcript of testimony and Examiner at the outset of or during the exhibits, together with all briefs, pa- hearing. pers, and all rulings by the Hearing Ex- (2) Technical rules of evidence shall aminer shall constitute the record. The not apply to hearings conducted pursu- initial decision will be predicated on ant to this section, but rules or prin- the same record, as will be final deci- ciples designed to assure production of sion. the most credible evidence available (l) Decisions. (1) The Hearing Exam- and to subject testimony to test by iner shall render the initial decision in cross-examination shall be applied all debarment proceedings before him. where reasonably necessary. The same Hearing Examiner who pre- (j) Duties of Hearing Examiner. The sides at the hearing shall render the Hearing Examiner shall have the au- initial decision except when such Ex- thority and duty to: aminer becomes unavailable to the De- (1) Take or cause depositions to be partment of Commerce. In such case, taken. another Hearing Examiner will be des- (2) Regulate the course of the hear- ignated by the Secretary or Director to ings. render the initial decision. Briefs, or (3) Prescribe the order in which evi- other documents, to be submitted after dence shall be presented. the hearing must be received not later (4) Dispose of procedural requests or than twenty (20) days after the hearing, similar matters. unless otherwise extended by the Hear- (5) Hear and initially rule upon all ing Examiner upon motion by a party. motions and petitions before him. The initial decision shall be made (6) Administer oaths and affirma- within sixty (60) days after the receipt tions. of all briefs. If no appeals from the ini- (7) Rule upon offers of proof and re- tial decision is served upon the Direc- ceive competent, relevant, material, tor within ten (10) days of the date of reliable, and probative evidence. the initial decision, it will become the (8) Control the admission of irrele- final decision on the 20th day following vant, immaterial, incompetent, unreli- the date of the initial decision. If an able, repetitious, or cumulative evi- appeal is received, the appeal will be dence. transmitted to the Secretary who will (9) Hear oral arguments if the Hear- render the final decision after ing Examiner determined such require- considering the record and the appeal. ment is necessary. (2) All initial and final decisions (10) Fix the time for filing briefs, mo- shall include a statement of findings tions, and other documents to be filed and conclusions, as well as the reasons in connection with hearings. or bases therefore, upon the material
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issues presented. A copy of each deci- ance with the approved drawings and sion shall be served on the parties to the regulations in this part. the proceeding, and furnished to inter- (c) Drawings and specifications of ested persons upon request. new construction or proposed alter- (3) It shall be the duty of the Hearing ations of existing official establish- Examiner, and the Secretary where ments shall be furnished to the Direc- there is an appeal, to determine tor in advance of actual construction whether the person has engaged in one for prior approval with regard to com- or more of the acts or activities de- pliance with requirements for facili- scribed in paragraph (a) of this section, ties. and, if there is a finding that the per- son has engaged in such acts or activ- [36 FR 21039, Nov. 3, 1971] ities, the length of time the person shall be debarred, and the plants to § 260.97 Conditions for providing fish- which the debarment shall apply. ery products inspection service at official establishments. [31 FR 16052, Dec. 15, 1966, as amended at 36 (a) The determination as to the in- FR 18738, Sept. 21, 1971] spection effort required to adequately REQUIREMENTS FOR PLANTS OPERATING provide inspection service at any estab- UNDER CONTINUOUS INSPECTION ON A lishment will be made by NMFS. The CONTRACT BASIS 1 man-hours required may vary at dif- ferent official establishments due to § 260.96 Application for fishery prod- factors such as, but not limited to, size ucts inspection service on a con- and complexity of operations, volume tract basis at official establish- and variety of products produced, and ments. adequacy of control systems and co- Any person desiring to process and operation. The inspection effort re- pack products in an establishment quirement may be reevaluated when under fishery products inspection serv- the contracting party or NMFS deems ice on a contract basis, must receive there is sufficient change in produc- approval of such buildings and facili- tion, equipment and change of quality ties as an official establishment prior control input to warrant reevaluation. to the inauguration of such service. An Inspectors will not be available to per- application for inspection service to be form any of employee or management rendered in an establishment shall be duties, however, they will be available approved according to the following for consultation purposes. NMFS re- procedure: serves the right to reassign inspectors (a) Initial survey: When application as it deems necessary. has been filed for inspection service as (b) NMFS shall not be held respon- aforesaid, NMFS inspector(s) shall ex- sible: amine the buildings, premises, and fa- (1) For damages occurring through cilities according to the requirements any act of commission or omission on of the fishery products inspection serv- the part of its inspectors when engaged ice and shall specify any additional fa- in performing services; or cilities required for the service. (2) For production errors, such as (b) Final survey and establishment processing temperatures, length of approval: Prior to the inauguration of process, or misbranding of products; or the fishery products inspection service, (3) For failure to supply enough in- a final survey of the buildings, prem- spection effort during any period of ises, and facilities shall be made to service. verify that the buildings are con- structed and facilities are in accord- (c) The contracting party will: (1) Use only wholesome raw material which has been handled or stored under 1 Compliance with the above requirements sanitary conditions and is suitable for does not excuse failure to comply with all applicable sanitary rules and regulations of processings; maintain the official es- city, county, State, Federal, or other agen- tablishment(s), designated on the con- cies having jursidiction over such establish- tract in such sanitary condition and to ments and operations. employ such methods of handling raw
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materials for processing as may be nec- analyses, and output of products in- essary to conform to the sanitary re- spected, processed, and packaged at the quirements precribed or approved by designated official establish-ment(s) as NMFS; may be requested by NMFS, subject to (2) Adequately code each primary the approval of the Bureau of the Budg- container and master case of products et in accordance with the Federal Re- sold or otherwise distributed from a ports Act of 1942; manufacturing, processing, packing, or (8) Make available for use by inspec- repackaging activity to enable positive tors, adequate office space in the des- lot identification to facilitate, where ignated official establishment(s) and necessary, the segregation of specific furnish suitable desks, office equip- food lots that may have become con- ment, and files for the proper care and taminated or otherwise unfit for their storage of inspection records; intended use; (9) Make laboratory facilities and (3) Not permit any labels on which necessary equipment available for the reference is made to Federal inspec- use of inspectors to inspect samples of tion, to be used on any product which processed foods and/or components is not packed under fishery products thereof; inspection service nor permit any la- (10) Furnish and provide laundry bels on which reference is made to any service, as required by NMFS, for U.S. Grade to be used on any product coats, trousers, smocks, and towels which has not been officially certified used by inspectors during performance as meeting the requirements of such of duty in official establishment(s); grade; nor supply labels bearing ref- (11) Furnish stenographic and clerical erence to Federal inspection to another assistance as may be necessary in the establishment unless the products to typing of certificates and reports and which such labels are to be applied the handling of official correspondence, have been packed under Federal inspec- as well as furnish the labor incident to tion at an official establishment; the drawing and grading of samples and (4) Not affix any label on which ref- other work required to facilitate ade- erence is made to Federal inspection to quate inspection procedures whenever any container of processed foods, pro- necessary; duced in any designated official estab- (12) Submit to NMFS, three (3) copies lishment, with respect to which the of new product specifications in a man- grade of such product is not certified ner prescribed by NMFS, and three (3) because of adulteration due to the pres- end-product samples for evaluation ence of contaminants in excess of lim- and/or laboratory analysis on all prod- its established in accordance with the ucts for approval, for which U.S. Grade regulations or guidelines issued pursu- Standards are not available, when in- ant to the Food, Drug, and Cosmetic spection is to be applied to such prod- Act, as amended; ucts. If requested of NMFS, such new (5) Not, with respect to any product specifications and end-product samples for which U.S. Grade Standards are in shall be considered confidential; effect, affix any label on which ref- (13) Submit, as required by NMFS, erence is made to Federal inspection to for approval, proofs prior to printing any container of processed food which and thereafter four (4) copies of any is substandard: Provided, That such finished label which may or may not label may be affixed to any container bear official identification marks, of such substandard quality product if when such products are packed under such label bears a statement to indi- Federal inspection on a contract basis; cate the substandard quality; (14) Not make deceptive, fraudulent, (6) Not, with respect to any product or unauthorized use in advertising, or for which U.S. Grade Standard are not otherwise, of the fishery products in- in effect, affix any label on which ref- spection service, the inspection certifi- erence is made to the Federal inspec- cates or reports issued, or the con- tion to containers of processed foods, tainers on which official identification except with the approval of NMFS; marks are embossed or otherwise iden- (7) Furnish such reports of proc- tified, in connection with the sale of essing, packaging, grading, laboratory any processed products;
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(15) Submit to NMFS, four (4) copies possession of his supplier bearing offi- of each label which may or may not cial identification marks, or reference bear official identification marks, to fishery products inspection service when such labels are to be withdrawn have been used, or said containers, la- from inspection or when approved la- bels, and advertising material must be bels are disapproved for further use destroyed, or official identification under inspection; marks, and all other reference to the (16) Notify NMFS in advance of the fishery products inspection service on proposed use of any labels which re- said containers, labels, advertising ma- quire obliteration of any official iden- terial must be obliterated, or assurance tification marks, and all reference to satisfactory to NMFS must be fur- the inspection service on approved la- nished that such containers, labels, and bels which have been withdrawn or dis- advertising material will not be used in approved for use; violation of any of the provisions of the (17) Accord representatives of NMFS regulations in the part. at all reasonable times free and imme- (3) In case the fishery products in- diate access to establishment(s) and of- spection service is terminated for ficial establishment(s) under appli- cause by NMFS under the terms of cant’s control for the purpose of check- paragraph (d)(1)(iii) of this section, or ing codes, coded products, coding de- in case of automatic termination under vices, coding procedures, official iden- terms of paragraph (d)(1)(iv) of this tification marks obliteration, and use section, the contracting party must de- of withdrawn or disapproved labels. stroy all unused containers, labels, and (d) Termination of inspection serv- advertising material on hand bearing ices: official identification marks, or ref- (1) The fishery products inspection erence to fishery products inspection service, including the issuance of in- service, or must obliterate official spection reports, shall be rendered identification marks, and all reference from the date of the commencement to the fishery products inspection serv- specified in the contract and continue ice on said containers, labels and ad- until suspended or terminated: vertising material. (i) By mutual consent; After termination of the fishery prod- (ii) by either party giving the other ucts inspection service, NMFS may, at party sixty (60) days’ written notice such time or times as it may determine specifying the date of suspension or to be necessary, during regular busi- termination; ness hours, enter the establishment(s) (iii) by one (1) day’s written notice by or other facilities in order to ascertain NMFS in the event the applicant fails that the containers, labels, and adver- to honor any invoice within ten (10) tising material have been altered or days after date of receipt of such in- disposed of in the manner provided voice covering the full costs of the in- herein, to the satisfaction of NMFS. spection service provided, or in the [36 FR 21039, Nov. 3, 1971] event the applicant fails to maintain its designated plants in a sanitary con- § 260.98 Premises. dition or to use wholesome raw mate- The premises about an official estab- rials for processing as required by lishment shall be free from conditions NMFS, or in the event the applicant which may result in the contamination fails to comply with any provisions of of food including, but not limited to, the regulations contained in this part; the following: (iv) by automatic termination in case (a) Strong offensive odors; of bankruptcy, closing out of business, (b) Improperly stored equipment, lit- or change in controlling ownership. ter, waste, refuse, and uncut weeds or (2) In case the contracting party grass within the immediate vicinity of wishes to terminate the fishery prod- the buildings or structures that may ucts inspection service under the terms constitute an attractant, breeding of paragraph (d)(1)(i) or (ii) of this sec- place, or harborage for rodents, insects, tion, either the service must be contin- and other pests; ued until all unused containers, labels, (c) Excessively dusty roads, yards, or and advertising material on hand or in parking lots that may constitute a
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source of contamination in areas where quick runoff of all water from official food is exposed; establishment buildings, and surface (d) Inadequately drained areas that water around buildings and on the may contribute contamination to food premises; and all such water shall be products through seepage or foot-borne disposed of in such a manner as to pre- filth and by providing a breeding place vent a nuisance or health hazard. for insects or micro-organisms; Tanks or other equipment whose drains If the grounds of an official establish- are connected to the waste system ment are bordered by grounds not must have such screens and vacuum under the official establishment opera- breaking devices affixed so as to pre- tor’s control of the kind described in vent the entrance of waste water, ma- paragraphs (b) through (d) of this sec- terial, and the entrance of vermin to tion, care must be exercised in the offi- the processing tanks or equipment. cial establishment by inspection, ex- (d) Water supply. There shall be ample termination, or other means to effect supply of both hot and cold water; and exclusion of pests, dirt, and other filth the water shall be of safe and sanitary that may be a source of food contami- quality with adequate facilities for its nation. (1) distribution throughout buildings, and (2) protection against contamina- [36 FR 21040, Nov. 3, 1971] tion and pollution. § 260.99 Buildings and structures. Sea water of safe suitable and sanitary The buildings and structures shall be quality may be used in the processing properly constructed and maintained of various fishery products when ap- in a sanitary condition, including, but proved by NMFS prior to use. not limited to the following require- (e) Construction. Roofs shall be weath- ments: ertight. The walls, ceilings, partitions, (a) Lighting. There shall be sufficient posts, doors, and other parts of all light (1) consistent with the use to buildings and structures shall be of which the particular portion of the such materials, construction, and fin- building is devoted, and (2) to provide ish as to permit their efficient and for efficient cleaning. Belts and tables thorough cleaning. The floors shall be on which picking, sorting, or trimming constructed of tile, cement, or other operations are carried on shall be pro- equally impervious material, shall vided with sufficient nonglaring light have good surface drainage, and shall to insure adequacy of the respective be free from openings or rough surfaces operation. Light bulbs, fixtures, sky- which would interfere with maintain- lights, or other glass suspended over ing the floors in a clean condition. exposed food in any step of preparation (f) Processing rooms. Each room and shall be of the safety type or otherwise each compartment in which any proc- protected to prevent food contamina- essed products are handled, processed, tion in case of breakage. or stored (1) shall be so designed and (b) Ventilation. There shall be suffi- constructed as to insure processing and cient ventilation in each room and operating conditions of a clean and or- compartment thereof to prevent exces- derly character; (2) shall be free from sive condensation of moisture and to objectional odors and vapors; and (3) insure sanitary and suitable processing shall be maintained in a clean and san- and operating conditions. If such ven- itary condition. tilation does not prevent excessive con- (g) Prevention of animals and insects in densation, the Director may require official establishment(s). Dogs, cats, that suitable facilities be provided to birds, and other animals (including, prevent the condensate from coming in but not being limited to rodents and contact with equipment used in proc- insects) shall be excluded from the essing operations and with any ingre- rooms from which processed products dient used in the manufacture or pro- are being prepared, handled, or stored duction of a processed product. and from any rooms from which ingre- (c) Drains and gutters. All drains and dients (including, but not being limited gutters shall be properly installed with to salt, sugar, spices, flour, batter, approved traps and vents. The drainage breading, and fishery products) are and plumbing system must permit the handled and stored. Screens, or other
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devices, adequate to prevent the pas- § 260.101 Lavatory accommodations. sage of insects shall, where practical, Modern lavatory accommodations, be provided for all outside doors and and properly located facilities for openings. The use of chemical com- cleaning and sanitizing utensils and pounds such as cleaning agents, insec- hands, shall be provided. ticides, bactericides, or rodent poisons shall not be permitted except under (a) Adequate lavatory and toilet ac- such precautions and restrictions as commodations, including, but not being limited to, running hot water will prevent any possibility of their ° contamination of the processed prod- (135 F. or more) and cold water, soap, uct. The use of such compounds shall and single service towels, shall be pro- be limited to those circumstances and vided. Such accommodations shall be conditions as approved by NMFS. in or near toilet and locker rooms and (h) Inspector’s office. Furnished suit- also at such other places as may be es- able and adequate office space, includ- sential to the cleanliness of all per- ing, but not being limited to, light, sonnel handling products. heat, and janitor service shall be pro- (b) Sufficient containers with covers vided rent free in official establish- shall be provided for used towels and ments for use for official purposes by other wastes. the inspector and NMFS representa- (c) An adequate number of hand tives. The room or rooms designated washing facilities serving areas where for this purpose shall meet with the ap- edible products are prepared shall be proval of NMFS and shall be conven- operated by other than hand-operated iently located, properly ventilated, and controls, or shall be of a continuous provided with lockers or cabinets suit- flow type which provides an adequate able for the protection and storage of flow of water for washing hands. inspection equipment and supplies and (d) Durable signs shall be posted con- with facilities suitable for inspectors spicuously in each toilet room and to change clothing. locker room directing employees to (i) Adequate parking space, conven- wash hands before returning to work. iently located, for private or official (e) Toilet facilities shall be provided vehicles used in connection with pro- according to the following formula: viding inspection services shall be pro- Toilet vided. Number of persons bowls re- quired [36 FR 21040, Nov. 3, 1971] 1 to 15, inclusive ...... 1 § 260.100 Facilities. 16 to 35, inclusive ...... 2 36 to 55, inclusive ...... 1 3 Each official establishment shall be 56 to 80, inclusive ...... 1 4 equipped with adequate sanitary facili- For each additional 30 persons in excess of 80 1 1 ties and accommodations, including, 1 Urinals may be substituted for toilet bowls but only to the but not being limited to, the following: extent of one-third of the total number of bowls required. (a) Containers approved for use as containers for processed products shall All toilet equipment shall be kept op- not be used for any other purpose. erative, in good repair, and in a sani- (b) No product or material not in- tary condition. tended for human food or which creates [36 FR 21041, Nov. 3, 1971] an objectionable condition shall be processed, handled, or stored in any § 260.102 Equipment. room, compartment, or place where All equipment used for receiving, any fishery product is manufactured, washing, segregating, picking, proc- processed, handled, or stored. essing, packaging, or storing any proc- (c) Suitable facilities for cleaning essed products or any ingredients used and sanitizing equipment (e.g., brooms, in the manufacture or production brushes, mops, clean cloths, hose, noz- thereof, shall be of such design, mate- zles, soaps, detergent, sprayers) shall rial, and construction as will: be provided at convenient locations (a) Enable the examination, segrega- throughout the plant. tion, preparation, packaging, and other [36 FR 21040, Nov. 3, 1971] processing operations applicable to
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processed products, in an efficient, prior to any further processing oper- clean, and sanitary manner, and ation. (b) Permit easy access to all parts to (c) Official establishments operating insure thorough cleaning and effective under Federal inspection should have bactericidal treatment. Insofar as is an effective quality control program as practicable, all such equipment shall appropriate for the nature of the prod- be made of smooth impermeable corro- ucts and processing operations. sion-resistant material that will not (d) All ingredients used in the manu- adversely affect the processed product facture or processing of any processed by chemical action or physical contact. product shall be wholesome and fit for Such equipment shall be kept in good human food. repair and sanitary condition. Such (e) The methods and procedures em- equipment shall be cleaned and sani- ployed in the receiving, segregating, tized at a frequency as is necessary or handling, transporting, and processing required in accordance with Good Man- of ingredients in official estab ufacturing Practice Regulations, 21 lishment(s) shall be adequate to result CFR part 128. in a satisfactory processed product. Such methods and procedures include, [36 FR 21041, Nov. 3, 1971] but are not limited to, the following re- quirements: § 260.103 Operations and operating (1) Containers, utensils, pans, and procedures shall be in accordance buckets used for the storage or trans- with an effective sanitation pro- gram. porting of partially processed food in- gredients shall not be nested unless re- (a) All operators in the receiving washed and sanitized before each use; transporting, holdings, segregating, (2) Containers which are used for preparing, processing, packaging, and holding partially processed food ingre- storing of processed products and in- dients shall not be stacked in such gredients, used as aforesaid, shall be manner as to permit contamination of strictly in accord with clean and sani- the partially processed food ingredi- tary methods and shall be conducted as ents; rapidly as possible and at temperatures (3) Packages or containers for proc- that will inhibit and retard the growth essed products shall be clean when of bacterial and other micro-organisms being filled with such products; and all and prevent any deterioration or con- reasonable precautions shall be taken tamination of such processed products to avoid soiling or contaminating the or ingredients thereof. Mechanical ad- surface of any package or container justments or practices which may liner which is, or will be, in direct con- cause contamination of foods by oil, tact with such products. dust, paint, scale, fumes, grinding ma- (f) Retention tags: (1) Any equipment terials, decomposed food, filth, chemi- such as, but not limited to, conveyors, cals, or other foreign materials shall tillers, sorters, choppers, and con- not be conducted during any manufac- tainers which fail to meet appropriate turing or processing operation. and adequate sanitation requirements (b) All processed products, raw mate- will be identified by the inspector in an rials, ingredients, and components appropriate and conspicuous manner thereof shall be subject to inspection with the word ‘‘RETAINED.’’ Fol- during each manufacturing or proc- lowing such identification, the equip- essing operation. To assure a safe, ment shall not be used until the dis- wholesome finished product, changes in crepancy has been resolved, the equip- processing methods and procedures as ment reinspected and approved by the may be required by the Director shall inspector and the ‘‘RETAINED’’ identi- be effectuated as soon as practicable. fication removed by the inspector. All processed products which are not (2) Lot(s) of processed products that manufactured or prepared in accord- may be considered to be mislabeled ance with the requirements contained and/or unwholesome by reason of con- in § 260.96 to § 260.104 or are unwhole- taminants or which may otherwise be some or otherwise not fit for human in such condition as to require further food shall be removed and segregated evaluation or testing to determine that
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the product properly labeled and/or persons that may incidentally enter wholesome will be identified by the in- the processing areas shall comply with spector in an appropriate and con- this requirement. spicuous manner with the word ‘‘RE- (6) Not store clothing or other per- TAINED.’’ Such lot(s) of product shall sonal belongings, eat food, drink bev- be held for reinspection or testing. erages, chew gum, or use tobacco in Final disposition of the lot(s) shall be any form in areas where food or food determined by NMFS and the removal ingredients are exposed or in areas of the ‘‘RETAINED’’ identification used for washing equipment or uten- shall be performed by the inspector. sils. [36 FR 21041, Nov. 3, 1971] (7) Take any other necessary pre- cautions to prevent contamination of § 260.104 Personnel. foods with microorganisms or foreign The establishment management shall substances including, but not limited be responsible for taking all pre- to perspiration, hair, cosmetics, to- cautions to assure the following: bacco, chemicals, and medicants. (a) Disease control. No person affected (c) Education and training. Personnel by disease in a communicable form, or responsible for identifying sanitation while a carrier of such disease, or while failures or food contamination should affected with boils, sores, infected have a background of education or ex- wounds, or other abnormal sources of perience, or a combination thereof, to microbiological contamination, shall provide a level of competency nec- work in a food plant in any capacity in essary for production of clean whole- which there is a reasonable possibility some food. Food handlers and super- of food ingredients becoming contami- visors should receive appropriate train- nated by such person, or of disease ing in proper food-handling techniques being transmitted by such person to and food-protection principles and other individuals. should be cognizant of the danger of (b) Cleanliness. All persons, while poor personal hygiene and unsanitary working in direct contact with food practices, and other vectors of con- preparation, food ingredients, or sur- tamination. faces coming into contact therewith [36 FR 21041, Nov. 3, 1971] shall: (1) Wear clean outer garments, main- LABELING REQUIREMENTS tain a high degree of personal cleanli- ness, and conform to hygenic practices §§ 260.200–260.201 [Reserved] while on duty, to the extent necessary to prevent contamination of food prod- PART 261—UNITED STATES ucts. (2) Wash and sanitize their hands STANDARDS FOR GRADES thoroughly to prevent contamination by undesirable microorganisms before Sec. 261.101 Standard description. starting work, after each absence from 261.102 Publication and removal of U.S. the work station, and at any other Grade Standards. time when the hands may have become 261.103 Basis for determination of a U.S. soiled or contaminated. Standard for Grades. (3) Remove all insecure jewelry and, when food is being manipulated by AUTHORITY: 7 U.S.C. 1621–1630. hand, remove from hands any jewelry SOURCE: 61 FR 9369, Mar. 8, 1996, unless oth- that cannot be adequately sanitized. erwise noted. (4) If gloves are used in food han- dling, maintain them in an intact, § 261.101 Standard description. clean, and sanitary condition. Such A U.S. Standard for Grades author- gloves shall be of an impermeable ma- ized under this part is a standard for a terial except where their usage would fish or fishery product that has been be inappropriate or incompatible with developed and adopted by the vol- the work involved. untary seafood inspection program pur- (5) Wear hair nets, caps, masks, or suant to the Agricultural Marketing other effective hair restraints. Other Act of 1946 (7 U.S.C. 1621 et seq.) and
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other authorities delegated to the U.S. (3) Grade and inspection marks, which Department of Commerce. describe the grades and inspection mark criteria for each grade category § 261.102 Publication and removal of (e.g., Grade A ≤ 15 points). U.S. Grade Standards. (4) Grade determination, which de- (a) The voluntary U.S. Standards for scribes the means by which the grade is Grades adopted pursuant to this part determined (i.e., the factors rated by shall be issued as Program policies and score points and those that are not). contained within the NMFS Fishery Standards may contain defect grouping Products Inspection Manual. Compli- limiting rules that contain additional ance with voluntary standards issued provisions that must be met. as Program policies within the manual (5) Sampling, which describes the shall satisfy the requirements of this method of sampling and sample unit part. Compliance with a voluntary sizes (e.g., 10 portions, 8 ounces, etc.). standard issued as a Program policy (6) Procedures that describe the proc- does not relieve any party from the re- ess used to determine the product sponsibility to comply with the provi- grade (e.g., label declarations, sensory sions of the Federal Food, Drug, and Cosmetic Act; or other Federal laws evaluation). and regulations. (7) Definitions of defects, which outline (b) Notification of an application for the defects associated with the prod- a new grade standard shall be published ucts covered by the standard, defines in the FEDERAL REGISTER. If adopted, them, and describes the method of the grade standard shall be issued as a counting or measuring the defects. Program policy and contained in the This section may provide associated NMFS Fishery Products Inspection defect points or reference a defect table Manual. (e.g., bruises, blood spots, bones, black (c) Recision and revision of a U.S. spots, coating defects, 1–inch squares, Standard for Grades will be made a percent by weight, ratios). Program policy amendment and con- (8) Defect point assessment, which de- tained in the NMFS Fishery Products scribes how to assess points and pro- Inspection Manual. vides any special guidance that may be (d) The NMFS Fishery Products In- necessary to the particular standard spection Manual is available to inter- (e.g., defect points for certain cat- ested parties. egories are added together and divided by the weight of the sample unit; the § 261.103 Basis for determination of a number of instances are counted to de- U.S. Standard for Grades. termine if it is slight, moderate, or ex- (a) To address the inherently distinct cessive defect). and dissimilar attributes found in the (9) Tolerances for lot certification, fishery product groups, each standard which provide the sections from Title for grades should have a different scope 50 CFR that regulate lot certification. and product description, product forms, (10) Hygiene, which specifies the sec- sample sizes, definition of defects, etc. tions of applicable Federal regulations The Secretary will make the final de- regulating the safe, wholesome produc- termination regarding the content of a tion of food for human consumption. U.S. Standard for Grades. (11) Methods of analysis, which de- (b) A proposal for a new or revised U.S. grade standard may include the scribe the methods of analysis that will following: be used in the evaluation of the prod- (1) Scope and product description, ucts covered by the standard for grades which describes the products that are (e.g., net weight, deglazing, eligible for grading using the standard debreading). (e.g., fish portion, fish fillet). (12) Defect table, which is the table of (2) Product forms, which describe the defects and associated points to be as- types, styles and market forms covered sessed for each defect. by the standard (e.g., skin-off, tail-on, headless).
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PART 296—FISHERMEN’S Chief, FSD means Chief, Financial CONTINGENCY FUND Services Division, National Marine Fisheries Service, 1315 East-West High- Sec. way, Silver Spring, MD 20910; tele- 296.1 Purpose. phone: (301) 713–2396. 296.2 Definitions. Citizen of the United States means any 296.3 Fishermen’s contingency fund. person who is a United States citizen, 296.4 Claims eligible for compensation. any State, or any corporation, partner- 296.5 Instructions for filing claims. ship, or association organized under 296.6 NMFS processing of claims. the laws of any state which meets the 296.7 Burden of proof and presumption of requirements for documenting vessels causation. 296.8 Amount of award. in the U.S. coastwise trade. 296.9 Initial determination. Commercial fisherman means any cit- 296.10 Agency review. izen of the United States who owns, op- 296.11 Final determination. erates, or is employed on a commercial 296.12 Payment of costs. fishing vessel. 296.13 Payment of award for claim. Commercial fishing vessel means any 296.14 Subrogation. marine craft which is documented 296.15 Judicial review. under the laws of the United States or, AUTHORITY: Pub. L. 97–212 (43 U.S.C. 1841 et if under five net tons, registered under seq.). the laws of any State, and used for SOURCE: 47 FR 49600, Nov. 1, 1982, unless commercial fishing or activities di- otherwise noted. rectly related to commercial fishing. Easement means a right of use or § 296.1 Purpose. easement granted under 30 CFR 250.18. These regulations implement title IV Fish means all forms of marine ani- of the Outer Continental Shelf Lands mal and plant life other than marine Act Amendments of 1978, as amended mammals, birds, and highly migratory (title IV). Title IV establishes a Fisher- species. men’s Contingency Fund to com- Fishing gear means any commercial pensate commercial fishermen for dam- fishing vessel, and any equipment of age or loss caused by obstructions asso- such vessel. ciated with oil and gas activities on Fund means the Fishermen’s Contin- the Outer Continental Shelf. gency Fund established by title IV of the Outer Continental Shelf Lands Act § 296.2 Definitions. Amendments of 1978. Area affected by Outer Continental Holder means the owner of record of Shelf activities means the area within a each lease, prelease exploratory drill- 3-mile radius of any casualty site ing permit, easement, or right-of-way which: or any agent or assignee of an owner. (1) Includes any portion of a leased Lease means any authority under sec- block, pipeline, easement, right of way, tion 8 or section 6 of the OCS Lands or other OCS oil and gas exploration, Act to develop and produce or explore development, or production activity; or for oil or gas. (2) Is otherwise associated (as deter- Negligence or fault includes, but is not mined by the Chief, Financial Services limited to, failure to: Division) with OCS oil and gas activi- (1) Remain outside of any navigation ties, such as, for example, expired lease safety zone established around oil and areas, relinquished rights-of-way or gas rigs and platforms by any respon- easements, and areas used extensively sible Federal agency; by surface vessels supporting OCS oil (2) Avoid obstructions recorded on and gas activities (areas landward of nautical charts or in the Notice to the OCS are included when such areas Mariners or marked by a buoy or other meet this criterion). surface marker (casualties occurring
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within a one-quarter mile radius of ob- exploration drilling permit issued or structions so recorded or marked are maintained under the Outer Conti- presumed to involve negligence or fault nental Shelf Lands Act, in effect on or of the claimant); after June 30, 1982, shall pay assess- (3) Abide by established rules of the ments to the Fund. All pipeline right- road; of-way and easements are to be in- (4) Use proper care; or cluded for assessment except those con- (5) Use due care and diligence to structed and operated lines within the mitigate the damage or loss. confines of a single lease or group of Outer Continental Shelf means all sub- contiguous leases under unitized oper- merged lands lying seaward and out- ation or single operator. Payments will side of the area of lands beneath navi- not be required for geological or geo- gable waters as defined in 43 U.S.C. sec- physical permits, other than prelease tion 1301, and of which the subsoil and exploratory drilling permits issued seabed appertain to the United States under section 11 of the Outer Conti- and are subject to its jurisdiction and nental Shelf Lands Act (43 U.S.C. 1340). control. Generally, but not in all cases, (1) Assessments to maintain the fund. this includes all submerged lands lying When the total amount in the Fund is seaward of the territorial sea (3 miles less than the Chief, FSD, determines is from a State’s coastline, or 9 miles from the coast of Texas or Florida). needed to pay Fund claims and ex- Person means an individual, partner- penses, the Chief, FSD, will notify the ship, corporation, association, public Secretary of the Interior that addi- or private organization, government, tional assessments are needed. or other entity. (2) Billing and collections. The Sec- Resulting Economic Loss means the retary of the Interior will calculate the gross income, as estimated by the amounts to be paid by each Holder and Chief, FSD, that a claimant will lose shall notify each Holder of the dollar because of not being able to fish, or amount and the time and place for all having to reduce fishing effort, during payments. Each assessment shall be the period before the damaged or lost paid to the Secretary of the Interior no fishing gear concerned is repaired or later than 45 days after the Secretary replaced and available for use. This pe- of the Interior sends notice of the as- riod must be reasonable. This period sessment. begins on the date of the casualty and (3) Annual assessment limits. No Holder stops on the date the damage could shall be required to pay in excess of reasonably have been remedied by re- $5,000 for any lease, permit, easement pair or replacement. or right-of-way in any calendar year. Right-of-way means any right-of-way (c) Moneys recovered through subroga- granted under section 5(e) of the OCS tion. Any moneys recovered by the Sec- Lands Act or under 43 CFR 3340.0–5. retary through the subrogation of a Secretary means the Secretary of claimant’s rights shall be deposited Commerce or his designee. into the Fund. (d) Investments of the fund. Excess [47 FR 49600, Nov. 1, 1982, as amended at 61 FR 6322, Feb. 20, 1996] sums in the Fund will be invested in obligations of, or guaranteed by, the § 296.3 Fishermen’s contingency fund. United States. Revenue from such in- (a) General. There is established in vestments shall be deposited in the the Treasury of the United States the Fund. Fishermen’s Contingency Fund. The (e) Litigation. The Fund may sue and Fund is available without fiscal year be sued in its own name. limitation as a revolving fund to carry out the purposes of title IV of the § 296.4 Claims eligible for compensa- tion. Outer Continental Shelf Lands Act Amendments of 1978, as amended. (a) Claimants. Damage or loss eligible (b) Payments into the fund. Each Hold- for Fund compensation must be suf- er of an exploration permit, lease, ease- fered by a commercial fisherman. ment, or rights-of-way for the con- (b) Damage or loss of fishing gear. struction of a pipeline, or a prelease Damage or loss is eligible for Fund
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compensation if it was caused by mate- teen-day requirement is determined by rials, equipment, tools, containers, or the postmark, if the report is mailed; other items associated with OCS oil by the date of a call, if the report is and gas exploration, development, or telephoned or radiotelephoned; or, by production activities. Damage or loss the date of appearance, if the report is may be eligible for compensation even made in person. The fifteen-day report though it did not occur in OCS waters must be made to the Chief, Financial if the item causing the damage or loss Services Division, National Marine was associated with oil and gas explo- Fisheries Service, 1315 East-West High- ration, development, or production ac- way, Silver Spring, MD 20910; tele- tivities in OCS waters. phone: (301) 713–2396. (c) Exceptions. Damage or loss is not (3) Contents of fifteen-day report. Each eligible for Fund compensation: fifteen-day report must include the fol- (1) If the damage or loss was caused lowing information: by the negligence or fault of the claim- (i) The claimant’s name and address; ant; (2) If the damage or loss occurred (ii) The name of the commercial fish- prior to September 18, 1978; ing vessel involved; (3) To the extent that damage or loss (iii) The location of the obstruction exceeds the replacement value of the which caused the damage or loss; fishing gear involved; (iv) A description of the nature of the (4) For any portion of the damage or damage or loss; loss which can be compensated by in- (v) The date such damage or loss was surance; discovered; (5) If the claim is not filed within 90 (vi) If the fifteen-day report is made calendar days of the date the claimant after the vessel returns to port, the or the claimant’s agent first became date on which the vessel first returned aware of the damage or loss (or such to port after discovering the damage. longer period as the Secretary may (b) Form of claim. Claims must be in allow under unusual and extenuating writing. Claims may be submitted on circumstances); or NOAA form 88–164. This form may be (6) If the damage or loss was caused obtained from any NMFS regional of- by an obstruction unrelated to OCS oil fice or from the Chief, FSD. Although and gas exploration, development, or claimants are not required to use this production activities. claim form, it will probably be to their [47 FR 49600, Nov. 1, 1982, as amended at 50 benefit to do so. FR 13796, Apr. 8, 1985; 61 FR 6322, Feb. 20, (c) Who must file and when and where 1996] to file claims. All claimants (including those who filed 15-day reports to gain § 296.5 Instructions for filing claims. the presumption of causation) must (a) Fifteen-day report required to gain submit a claim application to the presumption of causation—(1) General. Chief, Financial Services Division, Damages or losses are presumed to be within 90 calendar days of the date the qualified for compensation if certain claimant or the claimant’s agent first requirements are satisfied. One re- became aware of the damage or loss. quirement is that a report must be The Chief, FSD, may allow a longer pe- made to NMFS within fifteen (15) days riod for filing claims if, in his discre- after the date on which the vessel first tion, unusual and extenuating cir- returns to a port after discovering the cumstances justify a longer period. The damage or loss. Filing of a fifteen-day term ‘‘filed’’ means delivered in person, report must be followed up by filing a or mailed (as determined by the date of detailed claim. the postmark) to the Chief, Financial (2) When and how to file a fifteen-day Services Division, National Marine report. To qualify for the presumption Fisheries Service, 1825 Connecticut Av- of causation, a fifteen-day report must enue, NW., Washington, DC 20235. The be made to NMFS within fifteen days Chief, FSD, suggests that mailed after the date on which the vessel first claims be sent by registered or cer- returns to a port after discovering the tified mail, return receipt requested, so damage or loss. Satisfaction of the fif- the claimant will have a record that
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the claim was received by the Chief, the type and extent of damage or loss FSD. including: (d) Aggregating claims. If more than (i) An inventory of all components of one commercial fisherman suffers loss fishing gear damaged or lost, or damage from the same incident (for (ii) The date, place, and cost of acqui- example, when several members of the sition of all fishing gear damaged or crew lost income due to loss of fishing lost and proof of its purchase (sales re- time), all claims should be submitted ceipts, affidavits, or other evidence), on their behalf by the owner or oper- (iii) One estimate from a commercial ator of the commercial fishing vessel fishing gear repair or supply company involved. of the present replacement or repair (e) Contents of claim. Each claim must (whichever applies) cost of the dam- be signed by the claimant and must ac- aged or lost fishing gear. If the gear curately and completely provide the will be repaired by the claimant him- following information: self, a detailed estimate by the claim- (1) The name, mailing address, tele- ant identifying the repair cost. phone number, citizenship, and occupa- (6) The amount claimed for economic tional status (for example, vessel loss and the basis for that amount with owner, operator, or crew member) of supporting documentation, as follows: each claimant; (i) Trip tickets for the three vessel (2) The name and Coast Guard docu- trips immediately before the trip dur- mentation number or State registra- ing which the casualty was discovered tion number of the commercial fishing and for the vessel trip immediately fol- vessel involved in the damage or loss; lowing the trip during which the cas- (3) The home port, type, and size of ualty occurred. the vessel involved in the casualty; (ii) A statement of the amount of (4) A full statement of the cir- time involved on each of the vessel cumstances of the damage or loss in- trips above (or if the casualty involves cluding: fixed gear, a statement of the number (i) The date when the casualty was of gear units deployed on each of these first discovered by the claimant, trips). (ii) The water depth (if known) and (iii) A statement of the amount of visibility at the time and location time lost from fishing because of the where the casualty occurred, damage or loss and a full explanation (iii) The direction, speed, and activi- of why this time period is reasonable. ties of the claimant’s vessel imme- (iv) Documentation of the date re- diately before, during, and after the placement gear was ordered and re- casualty (including a full description of ceived or the date gear repair began both the deployment of any fishing and ended. This documentation may gear which is the subject of the claim consist of purchase orders, bills of lad- and all attempts at retrieval of the ing, or statements from sellers or re- gear), pairers. (iv) The names and addresses of all (7) The amount claimed for other witnesses to the casualty, consequential loss or costs (including (v) The location where the casualty fees for claim preparation, etc.) with occurred in Loran C coordinates or the suitable documentation of the amounts next most accurate method of position claimed (such as invoices, receipts, fixing available to the claimant, etc.). (vi) A description of the item or ob- [47 FR 49600, Nov. 1, 1982, as amended at 50 struction (if sighted or recovered) FR 13796, Apr. 8, 1985; 53 FR 24645, June 29, which caused the casualty, and wheth- 1988; 61 FR 6322, Feb. 20, 1996] er or not any surface markers were at- tached to or near the obstruction. Sub- § 296.6 NMFS processing of claims. mit any available photographs of the (a) Action by NMFS. Upon receipt of a item or obstruction. State reasons for claim, the Chief, FSD, will: believing the obstruction is associated (1) Send an abstract of the claim to with OCS oil and gas activities. the Secretary of the Interior; (5) The amount claimed for property (2) Send the reported location of any damage or loss and a full statement of obstruction which was not recovered
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and retained to the National Ocean the United States judicial district in Survey, which will inform the Defense which the claimant’s home port is lo- Mapping Agency Hydrographic/Topo- cated. graphic Center. (2) Powers. For purposes of any pro- (b) Actions by the Interior Department. ceeding, the Assistant Administrator, Upon receipt of an abstract of a claim, NMFS, or his designee, shall have the the Interior Department will imme- power to administer oaths and sub- diately: poena witnesses and the production of (1) Plot the casualty site, and advise books, records, and other evidence rel- NMFS whether the site is in an area af- ative to the issues involved. fected by OCS activities; (3) Amendments to claims. A claimant (2) make reasonable efforts to notify may amend the claim at any time be- all persons known to have engaged in fore the Chief, FSD, issues an initial activities associated with OCS energy determination. activity in the vicinity where the dam- (4) Criminal penalty for fraudulent age or loss occurred. claims. Any person who files a fraudu- (c) Responses to notice of claim. (1) lent claim is subject to prosecution Each person notified by the Interior under 18 U.S.C. sections 287 and 1001, Department will, within thirty days each of which, upon conviction, im- after receipt of the notice, advise the poses a penalty of not more than a Chief, FSD, and the Interior Depart- $10,000 fine and 5 years’ imprisonment, ment whether he admits or denies re- or both. sponsibility for the damages claimed. [47 FR 49600, Nov. 1, 1982, as amended at 61 (2) Each person notified by the Inte- FR 6322, Feb. 20, 1996] rior Department who fails to give time- ly and proper advice of admission or § 296.7 Burden of proof and presump- denial of responsibility shall be pre- tion of causation. sumed to deny responsibility for the (a) Burden of proof. The claimant has damages claimed. the burden to establish, by a prepon- (3) If any person admits responsi- derance of the evidence, all facts nec- bility, the Chief, FSD, will initiate ac- essary to qualify his claim, including: tion to recover from that party any (1) The identity or nature of the item sums paid or to be paid for the claimed which caused the damage or loss; and damages. (2) That the item is associated with (4) Any person referred to in this sec- oil and gas exploration, development, tion, including lessees or permittees or or production activities on the Outer their contractors or subcontractors, Continental Shelf. may submit evidence about any claim (b) Presumption of causation. Notwith- to the Chief, FSD. standing the above, damages or losses (d) Failure to meet filing requirements. are presumed to be caused by items as- The Chief, FSD, may reject any claim sociated with oil and gas exploration, that does not meet the filing require- development, or production activities ments. The Chief, FSD, will give a on the OCS if the claimant establishes claimant whose claim is rejected writ- that: ten notice of the reasons for rejection (1) The claimant’s commercial fish- within 30 days after the date on which ing vessel was being used for commer- the claim was filed. If the claimant cial fishing and was located in an area does not refile an acceptable claim affected by OCS oil and gas explo- within 30 days after the date of this ration, development, or production ac- written notice, the claimant is not eli- tivities; gible for Fund compensation unless (2) A report on the location of the ob- there are extenuating circumstances. struction which caused such damage or (e) Proceedings—(1) Location. Any re- loss, and the nature of such damage or quired proceeding will be conducted loss, was made within fifteen days after within such United States judicial dis- the date on which the vessel first re- trict as may be mutually agreeable to turned to a port after discovering such the claimant and the Assistant Admin- damage; istrator, NMFS, or his designee, or if (3) There was no record on the most no agreement can be reached, within recent nautical charts issued by the
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National Ocean Survey, NOAA, or in (2) Negligence of the owner or oper- any weekly Notice to Mariners issued ator of the fishing vessel or gear will by the Defense Mapping Agency Hydro- reduce crewmember awards to the graphic/Topographic Center, in effect same extent that it reduces an award at least 15 days before the date the to the vessel’s owner or operator. damage or loss occurred, then an ob- (f) Insurance proceeds. An award will struction existed in the immediate vi- be reduced by the amount the claimant cinity where the damage or loss oc- has, or reasonably would have, received curred. In the case of damages caused under a commercial policy of full hull by a pipeline, the presumption will be and machinery and protection and in- available regardless of whether the demnity insurance, whether or not pipeline was recorded on charts or in such insurance was in effect at the the Notice to Mariners; and time the casualty occurred. (4) There was no proper surface [47 FR 49600, Nov. 1, 1982, as amended at 50 marker or lighted buoy attached, or FR 13796, Apr. 8, 1985] closely anchored, to such obstruction. (c) Geographic exclusion from presump- § 296.9 Initial determination. tion of causation. Damage or loss occur- The Chief, FSD will make an initial ring within a one-quarter mile radius determination on a claim within 60 of obstructions recorded on charts or in days after the day on which the claim a Notice to Mariners, or properly is accepted for filing. The initial deter- marked, is presumed to involve the re- mination will state: corded or marked obstruction. (a) If the claim is disapproved, the reason for disapproval, or § 296.8 Amount of award. (b) If the claim is approved, the (a) Actual damages. The award for amount of compensation and the basis damaged fishing gear will be the lesser on which the amount was determined. of the gear’s repair cost or replacement cost. The award for lost fishing gear § 296.10 Agency review. will be the gear’s replacement cost. (a) Within 30 days after the Chief, (b) Consequential damages. An award FDS, issues an initial determination, may also include compensation for any the claimant, or any other interested damage or loss (except personal injury) person who submitted evidence relat- that is incurred as a consequence of the ing to the initial determination, may fishing gear damage or loss. ask the Assistant Administrator, (c) Resulting economic loss. An award NMFS, or his designee, for a review of may also include 50 percent of the re- the initial determination. sulting economic loss from damage to (b) The petitioner may submit writ- or loss of fishing vessels and gear. ten or oral evidence within 30 days of (d) Attorney, CPA, consultant fees. An filing the petition for review. award may also include compensation for reasonable fees paid by the claim- § 296.11 Final determination. ant to an attorney, CPA, or other con- (a) If a petition for review of an ini- sultant for the preparation or prosecu- tial determination is filed within 30 tion of a claim. days after the date the Chief, FSD, (e) Negligence of claimant. (1) An issues an initial determination, the As- award will be reduced to the extent sistant Administrator, NMFS, or his that the loss or damage was caused by designee will conduct a review of the the negligence or fault of the claimant. initial determination, and will issue a (For example, a claimant who sus- final determination no later than 60 tained $10,000 in damages and whose days after receipt of the request for re- negligence or fault was found to be re- view of the initial determination. sponsible for 40% of the damage would (b) If a petition for review of an ini- receive $6,000 in compensation. If the tial determination is not filed within 30 same claimant were responsible for 99% days after the day on which the Chief, of the negligence or fault that caused FSD, issues an initial determination, the damage, the claimant would re- the initial determination will become a ceive $100 in compensation). final determination.
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§ 296.12 Payment of costs. § 296.14 Subrogation. (a) By person denying responsibility for (a) The claim application will con- damage. Any person who is notified by tain a subrogation statement signed by the Interior Department and fails to the claimant as a condition of payment respond or denies responsibility for the of the claim which: damages claimed will pay the costs of (1) Assigns to the Fund the claim- the proceedings if such person is subse- ant’s rights against third parties; and quently found to be responsible for the (2) Provides that the claimant will damage claimed. assist the Fund in any reasonable way to pursue those rights. (b) By the claimant. Any claimant (b) Collection of subrogated rights. If who files a claim will pay the cost of a reasonable chance of successful col- the proceedings if such person is subse- lection exists, NMFS will refer any quently found to be responsible for the subrogated rights to the Justice De- damage claimed. partment for collection. (c) By person denying responsibility for (c) Any moneys recovered through damage and the claimant. If more than subrogation shall be deposited into the one party is found to have responsi- Fund. bility for the damage claimed, then the cost of the proceedings will be appor- [47 FR 49600, Nov. 1, 1982, as amended at 61 FR 6323, Feb. 20, 1996] tioned between them. § 296.15 Judicial review. § 296.13 Payment of award for claim. Any claimant or other person who is (a) Upon an initial determination, aggrieved by a final determination the Chief, Financial Services Division, may, no later than 30 days after the de- shall immediately disburse the claim termination, seek judicial review of awarded if the claimant signed as part the determination in the United States of his/her application a statement District Court for such judicial district agreeing to repay all or any part of the as may be mutually agreeable to the award if the award should for any rea- parties concerned or, if no agreement son be subsequently reduced. can be reached, in the United States (b) [Reserved] District Court for the judicial district in which the claimant’s home port is [61 FR 6322, Feb. 20, 1996] located.
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Part Page 300 International fisheries regulations ...... 277
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300.126 Prohibitions. § 300.2 Definitions. 300.127 Facilitation of enforcement. 300.128 Penalties. In addition to the definitions in each 300.129 Fishing year. act, agreement, convention, or treaty 300.130 Vessel and gear restrictions. specified in subparts B through K of 300.131 Conch harvest limitations. this part, the terms used in this part 300.132 Lobster harvest limitations. have the following meanings: Assistant Administrator means the As- Subpart I—United States-Canada Fisheries sistant Administrator for Fisheries, Enforcement National Oceanic and Atmospheric Ad- 300.140 Purpose and scope. ministration, Department of Com- 300.141 Definitions. merce, or a designee. Address: Room 300.142 Prohibitions. 14555, 1315 East-West Highway, Silver 300.143 Facilitation of enforcement. Spring, MD 20910. 300.144 Penalties and sanctions. Authorized officer means: (1) Any commissioned, warrant, or Subpart J—U.S. Nationals Fishing in Russian petty officer of the U.S. Coast Guard; Fisheries or any U.S. Coast Guard personnel ac- 300.150 Purpose. companying and acting under the di- 300.151 Definitions. rection of a commissioned, warrant, or 300.152 Procedures. petty officer of the U.S. Coast Guard; 300.153 Permit issuance. (2) Any special agent or fisheries en- 300.154 Recordkeeping and reporting. forcement officer of NMFS; or 300.155 Requirements. (3) Any person designated by the 300.156 Prohibited acts. 300.157 Penalties. head of any Federal or state agency that has entered into an agreement Subpart K—Transportation and Labeling of with the Secretary of Commerce or the Fish or Wildlife Commandant of the U.S. Coast Guard to enforce the provisions of any statute 300.160 Requirement for marking of con- administered by the Secretary. tainers or packages. CCAMLR inspector means a person 300.161 Alternatives and exceptions. designated by a member of the Com- SOURCE: 61 FR 35550, July 5, 1996, unless mission for the Conservation of Ant- otherwise noted. arctic Marine Living Resources as an EDITORIAL NOTE: Nomenclature changes to inspector under Article XXIV of the part 300 appear at 64 FR 44431, Aug. 16, 1999. Convention on the Conservation of Antarctic Marine Living Resources to Subpart A—General verify compliance with measures in ef- fect under the Convention. Director, Alaska Region, means Direc- AUTHORITY: 16 U.S.C. 773 et seq.; 16 U.S.C. 951–961 and 971 et seq.; 16 U.S.C. 973–973r; 16 tor, Alaska Region, NMFS, 709 West U.S.C. 2431 et seq.; 16 U.S.C. 3371–3378; 16 Ninth Street, Suite 401, P.O. Box 21668, U.S.C. 3636(b); 16 U.S.C. 5501 et seq.; and 16 Juneau, AK 99802, or a designee. U.S.C. 1801 et seq. Director, Northeast Region, means Director, Northeast Region, NMFS, § 300.1 Purpose and scope. One Blackburn Drive, Gloucester, MA The purpose of this part is to imple- 01930–2298, or a designee. ment the fishery conservation and Director, Northwest Region, means Di- management measures provided for in rector, Northwest Region, NMFS, 7600 the international treaties, conventions, Sand Point Way, N.E., BIN C15700, or agreements specified in each sub- Bldg. 1, Seattle, WA 98115, or a des- part, as well as certain provisions of ignee. the Lacey Act Amendments of 1981. Director, Southeast Fisheries Science The regulations in this part apply, ex- Center, means Director, Science and cept where otherwise specified in this Research, Southeast Fisheries Science part, to all persons and all places sub- Center, NMFS, 75 Virginia Beach ject to the jurisdiction of the United Drive, Miami, FL 33149, or a designee. States under the acts implemented Director, Southeast Region, means Di- under each subpart. rector, Southeast Region, NMFS, 9721
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Executive Center Drive, N., St. Peters- NMFS Headquarters means NMFS, burg, FL 33702, or a designee. 1315 East-West Highway, Silver Spring, Director, Southwest Region, means Di- MD 20910. Attention: Office of Fisheries rector, Southwest Region, NMFS, 501 Conservation and Management. West Ocean Boulevard, Suite 4200, Long Official number means the docu- Beach, CA 90802–4213, or a designee. mentation number issued by the USCG Exclusive Economic Zone or EEZ or the certificate number issued by a means the zone established by Presi- state or the USCG for an undocu- dential Proclamation 5030, dated March mented vessel, or any equivalent num- 10, 1983, as defined in 16 U.S.C. 1802(6). ber if the vessel is registered in a for- Fishing or to fish means: eign nation. (1) The catching or taking of fish; Operator means, with respect to any (2) The attempted catching or taking vessel, the master or other individual of fish; aboard and in charge of that vessel. (3) Any other activity that can rea- Owner means, with respect to any sonably be expected to result in the vessel: catching or taking of fish; or (1) Any person who owns that vessel (4) Any operations at sea in support in whole or part (whether or not the of, or in preparation for, any activity vessel is leased or chartered); described in paragraphs (1) through (3) (2) Any charterer of the vessel, of this definition. whether bareboat, time, or voyage; Fishing vessel means any vessel, boat, (3) Any person who acts in the capac- ship, or other craft that is used for, ity of a charterer, including but not equipped to be used for, or of a type limited to parties to a management normally used for fishing. agreement, operating agreement, or IATTC means the Inter-American any similar agreement that bestows Tropical Tuna Commission, established control over the destination, function, pursuant to the Convention for the Es- or operation of the vessel; or tablishment of an Inter-American (4) Any agent designated as such by a Tropical Tuna Commission. person described in this definition. Import means to land on, bring into, Person means any individual (wheth- or introduce into, or attempt to land er or not a citizen or national of the on, bring into, or introduce into, any United States), any corporation, part- place subject to the jurisdiction of the nership, association, or other entity United States, whether or not such (whether or not organized, or existing landing, bringing, or introduction, con- under the laws of any state), and any stitutes an importation within the Federal, state, local, or foreign govern- meaning of the customs laws of the ment or any entity of any such govern- United States. ment. IRCS means International Radio Call Secretary means the Secretary of Sign. Commerce or a designee. Magnuson Act means the Magnuson USCG means the United States Coast Fishery Conservation and Management Guard. Act, 16 U.S.C. 1801 et seq. Yellowfin tuna means any fish of the National of the United States or U.S. species Thunnus albacares (synonomy: national means any person subject to Neothunnus macropterus). the jurisdiction of the United States, including, but not limited to, a citizen § 300.3 Relation to other laws. or resident of the United States, or a person employed on a vessel of the Other laws that may apply to fishing United States. In the case of a corpora- activities addressed herein are set tion, partnership or other non- natural forth in § 600.705 of chapter VI of this person, this includes, but is not limited title. to, any entity that is the owner of a vessel of the United States. § 300.4 General prohibitions. NMFS means the National Marine It is unlawful for any person subject Fisheries Service, NOAA, Department to the jurisdiction of the United States of Commerce. to:
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(a) Violate the conditions or restric- (j) Intentionally destroy evidence tions of a permit issued under this that could be used to determine if a part. violation of this part has occurred. (b) Fail to submit information, fail (k) Assault, resist, oppose, impede, to submit information in a timely intimidate, threaten, obstruct, delay, manner, or submit false or inaccurate prevent, or interfere, in any manner, information, with respect to any infor- with an authorized officer in the con- mation required to be submitted, re- duct of any boarding, inspection, ported, communicated, or recorded pur- search, seizure, investigation, or arrest suant to this part. in connection with enforcement of this (c) Make any false statement, oral or part. written, to an authorized officer con- (l) Resist a lawful arrest or detention cerning the catching, taking, har- for any act prohibited by this part. vesting, possession, landing, purchase, (m) Interfere with, delay, or prevent, sale, or transfer of fish, or concerning by any means, the apprehension, ar- any other matter subject to investiga- rest, or detection of another person, tion by that officer under this part. knowing that such person has com- mitted any act prohibited by this part. (d) Conceal any material fact (includ- ing by omission), concerning any mat- (n) Interfere with, obstruct, delay, or prevent, by any means, an investiga- ter subject to investigation by an au- tion, search, seizure, or disposition of thorized officer under this part. seized property in connection with en- (e) Refuse to allow an authorized offi- forcement of this part. cer to inspect any report or record re- (o) Ship, transport, offer for sale, quired to be made or kept under this sell, purchase, import, export, or have part. custody, control, or possession of, any (f) Falsify, cover, or otherwise ob- living marine resource taken or re- scure, the name, home port, official tained in violation of this part. number (if any), or any other similar (p) Violate any provision of any stat- marking or identification of any fish- ute implemented by this part. ing vessel subject to this part such (q) Attempt to do any of the fore- that the vessel cannot be readily iden- going. tified from an enforcement vessel or aircraft. § 300.5 Facilitation of enforcement. (g) Fail to comply immediately with (a) Compliance. The operator of, or any of the enforcement and boarding any other person aboard, any fishing procedures specified in this part. vessel subject to this part must imme- (h) Refuse to allow an authorized of- diately comply with instructions and ficer to board a fishing vessel, or enter signals issued by an authorized officer any other area of custody (i.e., any ves- or CCAMLR inspector to stop the ves- sel, building, vehicle, live car, pound, sel, and with instructions to facilitate pier, or dock facility where fish might safe boarding and inspection of the ves- be found) subject to such person’s con- sel, its gear, equipment, fishing record trol, for the purpose of conducting any (where applicable), and catch for pur- inspection, search, seizure, investiga- poses of enforcing this part. tion, or arrest in connection with the (b) Communications. (1) Upon being enforcement of this part or any other approached by a USCG vessel or air- applicable law. craft, or other vessel or aircraft with (i) Destroy, stave, or dispose of in an authorized officer or CCAMLR in- any manner, any fish, gear, cargo, or spector aboard, the operator of a fish- other matter, upon any communication ing vessel must be alert for commu- or signal from an authorized officer of nications conveying enforcement in- the United States, or upon the ap- structions. proach of such an officer, enforcement (2) VHF–FM radiotelephone is the vessel, or aircraft, before the officer preferred method of communicating be- has had the opportunity to inspect tween vessels. If the size of the vessel same, or in contravention of directions and the wind, sea, and visibility condi- from such an officer. tions allow, a loudhailer may be used
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instead of the radio. Hand signals, plac- (d) Signals. The following signals, ex- ards, high frequency radiotelephone, tracted from the International Code of voice, flags, whistle or horn may be Signals, may be sent by flashing light employed by an authorized officer or by an enforcement unit when condi- CCAMLR inspector, and message tions do not allow communications by blocks may be dropped from an air- loudhailer or radiotelephone. Knowl- craft. edge of these signals by vessel opera- (3) If other communications are not tors is not required. However, knowl- practicable, visual signals may be edge of these signals and appropriate transmitted by flashing light directed action by a vessel operator may pre- at the vessel signaled. USCG units will clude the necessity of sending the sig- normally use the flashing light signal nal ‘‘L’’ and the necessity for the ves- ‘‘L’’ which, in the International Code sel to stop instantly. of Signals, means ‘‘you should stop (1) ‘‘AA’’ repeated (.- .-) is the call to your vessel instantly.’’ an unknown station. The operator of (4) Failure of a vessel’s operator the signaled vessel should respond by promptly to stop the vessel when di- identifying the vessel by radio- rected to do so by an authorized officer telephone or by illuminating the ves- or CCAMLR inspector, or by an en- sel’s identification. forcement vessel or aircraft, using (2) ‘‘RY–CY’’ (.-. -.-- -.-. -.--) means loudhailer, radiotelephone, flashing ‘‘you should proceed at slow speed, a light, flags, whistle, horn or other boat is coming to you.’’ This signal is means constitutes prima facie evidence normally employed when conditions of the offense of refusal to allow an au- allow an enforcement boarding without thorized officer or CCAMLR inspector the necessity of the vessel being to board. boarded coming to a complete stop, or, (5) A person aboard a vessel who does in some cases, without retrieval of fish- not understand a signal from an en- ing gear that may be in the water. forcement unit and who is unable to (3) ‘‘SQ3’’ (... --.- ...--) means ‘‘you obtain clarification by loudhailer or should stop or heave to; I am going to radiotelephone must consider the sig- board you.’’ nal to be a command to stop the vessel immediately. Subpart B—High Seas Fisheries (c) Boarding. The operator of a vessel directed to stop must: (1) Monitor Channel 16, VHF–FM, if AUTHORITY: 16 U.S.C. 5501 et seq. so equipped. § 300.10 Purpose. (2) Stop immediately and lay to or, if appropriate and/or directed to do so by This subpart implements the High the authorized officer or CCAMLR in- Seas Fishing Compliance Act of 1995 spector, maneuver in such a way as to (Act), which requires the Secretary to allow the safe boarding of the vessel by license U.S. vessels fishing on the high the authorized officer or CCAMLR in- seas. spector and the boarding party. (3) Except for those vessels with a § 300.11 Definitions. freeboard of 4 ft (1.25 m) or less, provide In addition to the terms defined in a safe ladder, if needed, for the author- section 300.2 and those in the Act and ized officer or CCAMLR inspector and the Agreement to Promote Compliance boarding party to come aboard. with International Conservation and (4) When necessary to facilitate the Management Measures by Fishing Ves- boarding or when requested by an au- sels on the High Seas, adopted by the thorized officer or CCAMLR inspector, Conference of the Food and Agriculture provide a manrope or safety line, and Organization of the United Nations on illumination for the ladder. November 24, 1993 (Agreement), the (5) Take such other actions as nec- terms used in this subpart have the fol- essary to facilitate boarding and to en- lowing meanings. If a term is defined sure the safety of the authorized officer differently in § 300.2, the Act, or the or CCAMLR inspector and the boarding Agreement, the definition in this sec- party. tion shall apply.
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High seas means the waters beyond dermined the effectiveness of inter- the territorial sea or exclusive eco- national conservation and management nomic zone (or the equivalent) of any measures. Nation, to the extent that such terri- (2) The restrictions in paragraphs torial sea or exclusive economic zone (a)(1) (i) and (ii) of this section do not (or the equivalent) is recognized by the apply if ownership of the vessel has United States. changed since the vessel undermined High seas fishing vessel means any ves- the effectiveness of international con- sel of the United States used or in- servation and management measures, tended for use on the high seas for the and the new owner has provided suffi- purpose of the commercial exploitation cient evidence to the Regional Admin- of living marine resources as a har- istrator demonstrating that the owner vesting vessel, mothership, or any and operator at the time the vessel un- other support vessel directly engaged dermined the effectiveness of such in a fishing operation. measures has no further legal, bene- International conservation and manage- ficial, or financial interest in, or con- ment measures means measures to con- trol of, the vessel. serve or manage one or more species of (3) The restrictions in paragraphs living marine resources that are adopt- (a)(1) (i) and (ii) of this section do not ed and applied in accordance with the apply if it is determined by the Re- relevant rules of international law, as gional Administrator that issuing a reflected in the 1982 United Nations permit would not subvert the purposes Convention on the Law of the Sea, and of the Agreement. that are recognized by the United (b) Application forms. The owner or States. operator of a high seas fishing vessel Regional Administrator means any one may apply for a permit under this sub- of the Directors of the five NMFS re- part by completing an application gional offices, defined under § 300.2, form. Applicants may obtain an appli- serving as the issuing office. cation form from a Regional Adminis- trator. § 300.12 Issuing offices. (c) Application information. An appli- Any Regional Administrator may cant must submit a complete and accu- issue permits required under this sub- rate permit application, signed by the part. While applicants for permits may owner or operator, to the appropriate submit an application to any Regional Regional Administrator. Administrator, applicants are encour- (d) Fees. NMFS will charge a fee to aged to submit their applications (with recover the administrative expenses of envelopes marked ‘‘Attn: HSFCA Per- permit issuance. The amount of the fee mits’’) to the Regional Administrator will be determined in accordance with with whom they normally interact on the procedures of the NOAA Finance fisheries matters. Handbook, available from a Regional Administrator, for determining admin- § 300.13 Vessel permits. istrative costs of each special product (a) Eligibility. (1) Any high seas fish- or service. The fee is specified with the ing vessel of the United States is eligi- application form. The appropriate fee ble to receive a permit under this sub- must accompany each application. part, unless the vessel was previously Failure to pay the fee will preclude authorized to be used for fishing on the issuance of the permit. Payment by a high seas by a foreign nation, and — commercial instrument later deter- (i) The foreign nation suspended such mined to be insufficiently funded will authorization, because the vessel un- invalidate any permit. dermined the effectiveness of inter- (e) Issuance. (1) Except as provided in national conservation and management subpart D of 15 CFR part 904, the Re- measures, and the suspension has not gional Administrator will issue a per- expired; or mit, which will include appropriate (ii) The foreign nation, within the 3 conditions or restrictions, within 30 years preceding application for a per- days of receipt of a completed applica- mit under this section, withdrew such tion and payment of the appropriate authorization, because the vessel un- fee.
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(2) The Regional Administrator will tion number appearing on its high seas notify the applicant of any deficiency fishing permit; in the application. (ii) The markings must be displayed (f) Validity. Permits issued under this at all times on the vessel’s side or su- subpart are valid for 5 years from the perstructure, port and starboard, as date of issuance. Renewal of a permit well as on a deck; prior to its expiration is the responsi- (iii) The markings must be placed so bility of the permit holder. For a per- that they do not extend below the wa- mit to remain valid to its expiration terline, are not obscured by fishing date, the vessel’s USCG documentation gear, whether stowed or in use, and are or state registration must be kept cur- clear of flow from scuppers or over- rent. A permit issued under this sub- board discharges that might damage or part is void when the name of the owner or vessel changes, or in the discolor the markings; event the vessel is no longer eligible (iv) Block lettering and numbering for U.S. documentation, such docu- must be used; mentation is revoked or denied, or the (v) The height of the letters and vessel is removed from such docu- numbers must be in proportion to the mentation. size of the vessel as follows: for vessels (g) Change in application information. 25 meters (m) and over in length, the Any changes in vessel documentation height of letters and numbers must be status or other permit application in- no less than 1.0 m; for vessels 20 m but formation must be reported to the Re- less than 25 m in length, the height of gional Administrator in writing within letters and numbers must be no less 15 days of such changes. than 0.8 m; for vessels 15 m but less (h) Transfer. A permit issued under than 20 m in length, the height of let- this subpart is not transferable or as- ters and numbers must be no less than signable to another vessel or owner; it 0.6 m; for vessels 12 m but less than 15 is valid only for the vessel and owner m in length, the height of letters and to which it is issued. numbers must be no less than 0.4 m; for (i) Display. A valid permit, or a copy vessels 5 m but less than 12 m in thereof, issued under this subpart must length, the height of letters and num- be on board the vessel while operating bers must be no less than 0.3 m; and for on the high seas and available for in- vessels under 5 m in length, the height spection by an authorized officer. of letters and numbers must be no less Faxed copies of permits are acceptable. than 0.1 m; [61 FR 35550, July 5, 1996, as amended at 64 (vi) The height of the letters and FR 15, Jan. 4, 1999] numbers to be placed on decks must be no less than 0.3 m; § 300.14 Vessel identification. (vii) The length of the hyphen(s), if (a) General. A vessel permitted under any, must be half the height (h) of the this subpart must be marked for identi- letters and numbers; fication purposes in accordance with (viii) The width of the stroke for all this section. letters, numbers, and hyphens must be (b) Marking. Vessels must be marked h/6; either: (ix) The space between letters and/or (1) In accordance with vessel identi- numbers must not exceed h/4 nor be fication requirements specified in Fed- less than h/6; eral fishery regulations issued under the Magnuson-Stevens Act or under (x) The space between adjacent let- other Federal fishery management ters having sloping sides must not ex- statutes; or ceed h/8 nor be less than h/10; (2) In accordance with the following (xi) The marks must be white on a identification requirements: black background, or black on a white (i) A vessel must be marked with its background; IRCS, or, if not assigned an IRCS, must (xii) The background must extend to be marked (in order of priority) with provide a border around the mark of no its Federal, state, or other documenta- less than h/6; and
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(xiii) The marks and the background this section. Reports must include: must be maintained in good condition identification information for vessel at all times. and operator; operator signature; crew [64 FR 15, Jan. 4, 1999] size; whether an observer is aboard; target species; gear used; dates, times, § 300.15 Prohibitions. locations, and conditions under which In addition to the prohibitions in sec- fishing was conducted; species and tion 300.4, it is unlawful for any person amounts of fish retained and discarded; to: and details of any interactions with sea (a) Use a high seas fishing vessel on turtles or birds. the high seas in contravention of inter- (b) Reporting options. (1) For the fol- national conservation and management lowing fisheries, a permit holder must measures. maintain and submit the listed report- (b) Use a high seas fishing vessel on ing forms to the appropriate address the high seas, unless the vessel has on and in accordance with the time limits board a valid permit issued under sec- required by the relevant regulations: tion 300.13. (i) Antarctic—CCAMLR Logbook (50 (c) Use a high seas fishing vessel on CFR 300.107); the high seas that is not marked in ac- cordance with § 300.14. (ii) Atlantic—Fishing Vessel Log Re- ports (50 CFR 648.7(b)); [61 FR 35550, July 5, 1996, as amended at 64 (iii) Atlantic Pelagic Longline— FR 15, Jan. 4, 1999] Longline Logbook (50 CFR 630.5); § 300.16 Penalties. (iv) Atlantic Purse Seine—Purse (a) Any person, any high seas fishing Seine Logbook (50 CFR 285.54); vessel, the owner or operator of such (v) Pacific Pelagic Longline— vessel, or any person who has been Longline Logbook (50 CFR 660.14(a)); issued or has applied for a permit, (vi) Eastern Pacific Purse Seine— found to be in violation of the Act, this IATTC Logbook (50 CFR 300.22); or subpart, or any permit issued under (vii) Western Pacific Purse Seine— this subpart will be subject to the civil South Pacific Tuna Treaty Logbook (50 and criminal penalty provisions, per- CFR 300.34). mit sanctions, and forfeiture provisions (2) For the albacore troll fisheries in prescribed by the Act, 15 CFR part 904 the North and South Pacific, a permit (Civil Procedures), and other applicable holder must report high seas catch and laws. effort by maintaining and submitting (b) Permits under this subpart may the log provided by the Regional Ad- be subject to permit sanctions pre- ministrator, Southwest Region, NMFS. scribed by the Act, 15 CFR part 904 (Civil Procedures), and other applicable (3) For other fisheries, a permit hold- laws if any amount in settlement of a er must report high seas catch and ef- civil forfeiture imposed on a high seas fort by maintaining and submitting fishing vessel or other property, or any records, specific to the fishing gear civil penalty or criminal fine imposed being used, on forms provided by the on a high seas fishing vessel or on an Regional Administrator of the NMFS owner or operator of such a vessel or Region which issued the permit hold- on any other person who has been er’s HSFCA permit. issued or has applied for a permit under (c) Confidentiality of statistics. Infor- any fishery resource statute enforced mation submitted pursuant to this sub- by the Secretary, has not been paid and part will be treated in accordance with is overdue. the provisions of 50 CFR part 600 of this [64 FR 15, Jan. 4, 1999] title. [64 FR 15, Jan. 4, 1999] § 300.17 Reporting. (a) General. The operator of any ves- sel permitted under this subpart must Subpart C—Pacific Tuna Fisheries report high seas catch and effort infor- mation to NMFS in a manner set by AUTHORITY: 16 U.S.C. 951–961 and 971 et seq.
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§ 300.20 Purpose and scope. Americas along the 40° N. lat. and 40° ° The regulations in this subpart im- S. lat., and 150 W. long. plement the Tuna Conventions Act of Fish aggregating device (FAD) means a 1950 (Act) and the Atlantic Tunas Con- manmade raft or other floating object vention Act of 1975. The regulations used to attract tuna and make them provide a mechanism to carry out the available to fishing vessels. recommendations of the Inter-Amer- Fishing trip means a period of time ican Tropical Tuna Commission between landings when fishing is con- (IATTC) for the conservation and man- ducted. agement of highly migratory fish re- Fishing vessel means any vessel, boat, sources in the Eastern Tropical Pacific ship, or other craft that is used for, Ocean so far as they affect vessels and equipped to be used for, or of a type persons subject to the jurisdiction of that is normally used for fishing or for the United States. They also carry out assisting or supporting a vessel en- the recommendations of the Inter- gaged in fishing, except purse seine national Commission for the Conserva- skiffs. tion of Atlantic Tunas for the con- Floating object means any natural ob- servation of bluefin tuna, so far as they ject or FAD around which fishing ves- affect vessels and persons subject to sels may catch tuna. the jurisdiction of the United States. Incidental catch or incidental species [64 FR 44430, Aug. 16, 1999] means species caught while fishing with the primary purpose of catching a § 300.21 Definitions. different species. An incidental catch is In addition to the terms defined in expressed as a percentage of the weight § 300.2, in the Act, the Convention for of the total fish on board. the Establishment of an Inter-Amer- Land or Landing means to begin ican Tropical Tuna Commission, and transfer of fish from a fishing vessel. the International Convention for the Once transfer begins, all fish on board Conservation of Atlantic Tunas, the the vessel are counted as part of the terms used in this subpart have the fol- landing. lowing meanings. If a term is defined Observer means an individual placed differently in § 300.2, the Act, or the aboard a fishing vessel under the Conventions, the definition in this sec- IATTC observer program or any other tion shall apply. international observer program in Bigeye tuna means the species which the United States may partici- Thunnus obesus. pate. Bluefin tuna means the fish species Pacific bluefin tuna means the sub- Thunnus thynnus that is found in any species of bluefin tuna Thunnus ocean area. thynnus orientalis that is found in the Commission’s Yellowfin Regulatory Pacific Ocean. Area (CYRA) means the waters bounded Regional Administrator means the Ad- by a line extending westward from the ministrator, Southwest Region, NMFS, mainland of North America along the or his designee. 40° N. latitude parallel, and connecting the following coordinates: Tag means the dealer tag, a flexible 40° N. lat., 125° W. long.; self-locking ribbon issued by NMFS for 20° N. lat., 125° W. long.; the identification of bluefin tuna under 20° N. lat., 120° W. long.; § 300.26, or the BSD tag specified under 5° N. lat., 120° W. long.; § 635.42 (a)(2) of this title. 5° N. lat., 110° W. long.; Tender vessel means a vessel that does 10° S. lat., 110° W. long.; not engage in purse seine fishing but ° ° 10 S. lat., 90 W. long.; tends to FADs in support of tuna fish- 30° S. lat., 90° W. long.; and then eastward along the 30° S. latitude parallel to the coast ing operations. of South America. Transship means to unload fish from Convention Area means the waters a vessel that caught fish to another within the area bounded by the main- vessel. land of the Americas, lines extending Transshipment receiving vessel means westward from the mainland of the any vessel, boat, ship, or other craft
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that is used to receive fish from a fish- (c) Issuance. (1) Except as provided in ing vessel. subpart D of 15 CFR part 904, NMFS will issue a permit within 30 days of re- [61 FR 35550, July 5, 1996, as amended at 64 ceipt of a completed application. FR 29133, May 28, 1999; 64 FR 44430, Aug. 16, 1999] (2) NMFS will notify the applicant of any deficiency in the application. If § 300.22 Yellowfin tuna—Record- the applicant fails to correct the defi- keeping and written reports. ciency within 15 days following the date of notification, the application The master or other person in charge will be considered abandoned. of a fishing vessel, or a person author- (d) Duration. Any permit issued under ized in writing to serve as the agent for this section is valid until December 31 either person, must keep an accurate of the year for which it is issued, un- log of all operations conducted from less suspended or revoked. the fishing vessel, entering for each (e) Alteration. Any permit that is sub- day the date, noon position (stated in stantially altered, erased, or mutilated latitude and longitude or in relation to is invalid. known physical features), and the ton- (f) Replacement. NMFS may issue re- nage of fish on board, by species. The placement permits. An application for record and bridge log maintained at a replacement permit is not considered the request of the IATTC shall be suffi- a new application. cient to comply with this paragraph, (g) Transfer. A permit issued under provided the items of information spec- this section is not transferable or as- ified are accurately entered in the log. signable; it is valid only for the dealer § 300.23 Yellowfin tuna—Persons and to whom it is issued. vessels exempted. (h) Inspection. The dealer must keep the permit issued under this section at This subpart does not apply to: his/her principal place of business. The (a) Any person or vessel authorized permit must be displayed for inspec- by the IATTC, the Assistant Adminis- tion upon request of any authorized of- trator, or any state of the United ficer, or any employee of NMFS des- States to engage in fishing for research ignated by NMFS for such purpose. purposes. (i) Sanctions. The Assistant Adminis- (b) Any person or vessel engaged in trator may suspend, revoke, modify, or sport fishing for personal use. deny a permit issued or sought under this section. Procedures governing per- § 300.24 Pacific bluefin tuna—Dealer mit sanctions and denials are found at permits. subpart D of 15 CFR part 904. (a) General. A dealer importing Pa- (j) Fees. NMFS may charge a fee to cific bluefin tuna, or purchasing or re- recover the administrative expenses of ceiving for export Pacific bluefin tuna permit issuance. The amount of the fee first landed in the United States, must is calculated, at least annually, in ac- have a valid permit issued under this cordance with the procedures of the section. NOAA Finance Handbook, available (b) Application. A dealer must apply from NMFS, for determining adminis- for a permit in writing on an appro- trative costs of each special product or priate form obtained from NMFS. The service. The fee may not exceed such application must be signed by the deal- costs and is specified on each applica- er and be submitted to NMFS at least tion form. The appropriate fee must ac- 30 days before the date upon which the company each application. Failure to dealer desires to have the permit made pay the fee will preclude issuance of effective. The application must contain the permit. Payment by a commercial the following information: Company instrument later determined to be in- name, principal place of business, own- sufficiently funded shall invalidate any er’s or owners’ names, applicant’s permit. name (if different from owner or own- (k) Change in application information. ers) and mailing address and telephone Within 15 days after any change in the number, and any other information re- information contained in an applica- quired by NMFS. tion submitted under this section, the
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dealer issued a permit must report the are usable only by the permitted dealer change to NMFS in writing. The per- to whom they are issued. mit is void if any change in informa- (c) Affixing tags. At the discretion of tion is not reported within 15 days. dealers permitted under § 300.24, a tag [61 FR 35550, July 5, 1996, as amended at 64 issued under paragraph (a) of this sec- FR 29133, May 28, 1999] tion may be affixed to each Pacific bluefin tuna purchased or received by § 300.25 Pacific bluefin tuna—Dealer the dealer. If so tagged, the tag must recordkeeping and reporting. be affixed to the tuna between the fifth Any person issued a dealer permit dorsal finlet and the keel and tag num- under § 300.24: bers must be recorded on NMFS reports (a) Must submit to NMFS a biweekly required by § 300.25(a) and any docu- report on bluefin imports and exports ments accompanying the shipment of on forms supplied by NMFS. Pacific bluefin tuna for domestic com- (1) The report required to be sub- mercial use or export. mitted under this paragraph (a) must (d) Removal. A NMFS-issued num- be postmarked within 10 days after the bered tag affixed to any Pacific bluefin end of each 2-week reporting period in tuna at the option of any permitted which Pacific bluefin tuna were ex- dealer under paragraph (c) of this sec- ported. The bi-weekly reporting periods tion or any tag affixed to any Pacific are defined as the first day to the 15th bluefin tuna to meet the requirements day of each month and the 16th day to of § 635.42(a)(2) of this title must remain the last day of the month. on the tuna until the tuna is cut into (2) Each report must specify accu- portions. If the tuna or tuna parts sub- rately and completely for each tuna or sequently are packaged for transport each shipment of bulk-frozen tuna ex- for domestic commercial use or for ex- ported: Date of landing or import; any port, the number on each tag attached tag number (if so tagged); weight in to each tuna or its parts must be writ- kilograms (specify if round or dressed); and any other information required by ten legibly and indelibly on the outside NMFS. At the top of each form, the of any package or container. company’s name, license number, and (e) Reuse. Tags issued under this sec- the name of the person filling out the tion are separately numbered and may report must be specified. In addition, be used only once, one tail tag per fish, the beginning and ending dates of the to distinguish the purchase of one Pa- 2-week reporting period must be speci- cific bluefin tuna. Once affixed to a fied by the dealer and noted at the top tuna or recorded on any package, con- of the form. tainer or report, a tail tag and associ- (b) Must allow an authorized officer, ated number may not be reused. or any employee of NMFS designated [61 FR 35550, July 5, 1996, as amended at 64 by NMFS for this purpose, to inspect FR 29133, May 28, 1999] and copy any records of transfers, pur- chases, or receipts of Pacific bluefin § 300.27 Pacific bluefin tuna—Docu- tuna. mentation requirements. (c) Must retain at his/her principal Bluefin tuna imported into, or ex- place of business a copy of each bi- ported or re-exported from the customs weekly report for a period of 2 years territory of the United States is sub- from the date on which it was sub- mitted to NMFS. ject to the documentation require- ments specified in §§ 635.41 through [61 FR 35550, July 5, 1996, as amended at 64 635.44 of this title. FR 29133, May 28, 1999] [64 FR 29133, May 28, 1999] § 300.26 Pacific bluefin tuna—Tags. (a) Issuance. NMFS will issue num- § 300.28 Prohibitions. bered tags to each person receiving a In addition to the prohibitions in dealer’s permit under § 300.24. § 300.4, it is unlawful for any person or (b) Transfer. Tail tags issued under vessel subject to the jurisdiction of the this section are not transferable and United States to:
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(a) Land any species of tuna during and end either on December 31 or when the closed season for that species in ex- NMFS closes the fishery for a specific cess of the amount allowed by the Re- species. gional Administrator. (2) The Regional Administrator may (b) Fish on floating objects in the close the U.S. fishery for yellowfin, Convention Area using any gear type bigeye, or skipjack tuna or any other specified by the Regional Administra- tuna species in the Convention Area or tor’s notification of closure issued portion of the Convention Area when under § 300.29. advised by the Director of Investiga- (c) Use tender vessels in the Conven- tions of the IATTC that the associated tion Area. quota has been or is projected to be (d) Transship purse seine-caught tuna reached. Any such closure may include: at sea within the Convention Area. (i) An allowance for an incidental (e) Import Pacific bluefin tuna or catch that may be landed while fishing purchase or receive for export Pacific for other tuna species; bluefin tuna first landed in the United (ii) A prohibition on the further set- States without a valid dealer permit ting of specified gear types on floating issued under § 300.24. objects by U.S. vessels in the Conven- (f) Remove any NMFS-issued num- tion Area; bered tag affixed to any Pacific bluefin (iii) Provisions for vessels that are at tuna at the option of any permitted sea during an announced closure to fish dealer or any tag affixed to a Pacific unrestricted until the fishing trip is bluefin tuna to meet the requirements completed; of § 635.42(a)(2) of this title, before re- (iv) Provisions for vessels at sea with moval is allowed under § 300.26, or fail an observer on board during any clo- to write the tag number on the ship- sure to land fish unrestricted if the ping package or container as specified landing occurs after December 31; or in § 300.26. (v) Other measures to ensure that the (g) Reuse any NMFS-issued numbered conservation and management meas- tag affixed to a Pacific bluefin tuna at ures of the IATTC are achieved. the option of a permitted dealer or any (3) The Regional Administrator will tag affixed to a Pacific bluefin tuna to announce any such closures directly to meet the requirements of § 635.42(a)(2) the owners or agents of U.S. vessels of this title or reuse any tag number who are fishing in or are eligible to fish previously written on a shipping pack- in the Convention Area. age or container as prescribed by (4) As soon as practicable after being § 300.26. advised of the quota attainment or pro- jection under paragraph (b)(2) of this [61 FR 35550, July 5, 1996, as amended at 64 section, the Regional Administrator FR 29133, May 28, 1999; 64 FR 44430, Aug. 16, will publish an announcement of the 1999] closure in the FEDERAL REGISTER. § 300.29 Eastern Pacific fisheries man- (c) Use of tender vessels. No person agement. subject to these regulations may use a tender vessel in the Convention Area. (a) Notification of IATTC recommenda- (d) Transshipments at sea. No person tions. The Regional Administrator will subject to these regulations may trans- directly notify owners or agents of U.S. ship purse seine-caught tuna from one tuna vessels of any fishery manage- vessel to another vessel at sea within ment recommendations made by the the Convention Area. IATTC and approved by the Depart- ment of State that will affect fishing [64 FR 44431, Aug. 16, 1999] or other activities by U.S. parties with fishery interests in the Convention Subpart D—South Pacific Tuna Area. As soon as practicable after such Fisheries notification, the Regional Adminis- trator will announce approved IATTC AUTHORITY: 16 U.S.C. 973–973r. recommendations in the FEDERAL REG- ISTER. § 300.30 Purpose and scope. (b) Tuna quotas. (1) Fishing seasons This subpart implements the South for all tuna species begin on January 1 Pacific Tuna Act of 1988 (Act) and the
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Treaty on Fisheries Between the Gov- scribed in this paragraph; or aircraft ernments of Certain Pacific Island use, relating to the activities described States and the Government of the in this definition, except for flights in United States of America (Treaty) and emergencies involving the health or applies to persons and vessels subject safety of crew members or the safety of to the jurisdiction of the United a vessel. States. Fishing arrangement means an ar- rangement between a Pacific Island § 300.31 Definitions. Party and the owner of a U.S. fishing In addition to the terms defined in vessel that complies with section 6(b) § 300.2, in the Act, and in the Treaty, of the Act. and unless the context requires other- Fishing vessel or vessel means any wise, the terms used in this subpart boat, ship, or other craft that is used have the following meanings. If a term for, equipped to be used for, or of a is defined differently in § 300.2, the Act, type normally used for commercial or the Treaty, the definition in this fishing, and that is documented under section shall apply. the laws of the United States. Administrator means the individual or Licensing Area means all waters in organization designated by the Pacific the Treaty Area except for: Island Parties to act on their behalf (1) Those waters subject to the juris- under the Treaty and notified to the diction of the United States in accord- United States. ance with international law. Applicable national law means any (2) Those waters within closed areas. provision of law of a Pacific Island (3) Those waters within limited areas Party that is described in paragraph closed to fishing. 1(a) of Annex I of the Treaty. Licensing period means the period of Authorized inspector means any indi- validity of licenses issued in accord- vidual authorized by a Pacific Island ance with the Treaty. Party or the Secretary to conduct in- Limited area(s) means those areas so spections, to remove samples of fish, identified in Schedule 3 of Annex I of and to gather any other information the Treaty. relating to fisheries in the Licensing Operator means any person who is in Area. charge of, directs or controls a vessel, Authorized officer means any officer including the owner, charterer and who is authorized by the Secretary, or master. the Secretary of Transportation, or the Pacific Island Party means a Pacific head of any Federal or state agency island nation that is a party to the that has entered into an enforcement Treaty. agreement with the Secretary under Regional Administrator means the Di- section 10(a) of the Act. rector, Southwest Region, or a des- Authorized party officer means any of- ignee. ficer authorized by a Pacific Island Transship means to unload any or all Party to enforce the provisions of the of the fish on board a licensed vessel ei- Treaty. ther ashore or onto another vessel. Closed area means any of the closed Treaty Area means the area described areas identified in Schedule 2 of Annex in paragraph 1(k) of Article I of the I of the Treaty. Treaty. Fishing means searching for, catch- ing, taking, or harvesting fish; at- § 300.32 Vessel licenses. tempting to search for, catch, take, or (a) Each vessel fishing in the Licens- harvest fish; engaging in any other ac- ing Area must have a license issued by tivity that can reasonably be expected the Administrator for the licensing pe- to result in the locating, catching, tak- riod being fished, unless excepted by ing, or harvesting of fish; placing, § 300.39. Each licensing period begins on searching for, or recovering fish aggre- June 15 and ends on June 14 of the fol- gating devices or associated electronic lowing year. equipment such as radio beacons; any (b) Upon receipt, the license or a duly operations at sea directly in support of, certified copy, facsimile or telex con- or in preparation for, any activity de- firmation must be carried on board the
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vessel when in the Licensing Area or reasonable financial assurances have Closed Areas and must be produced at not been provided to the Secretary the request of authorized officers, au- that the owner or charterer will be fi- thorized party officers, or authorized nancially able to fulfill any and all re- inspectors. Prior to receipt of the li- sponsibilities under the Treaty, Act, cense, but after issuance, a vessel may and regulations, including the payment be used to fish, provided the number of of any penalties or fines; the issued license is available on board. (3) The owner or charterer has not es- (c) Application forms for licenses to tablished to the satisfaction of the Sec- use a vessel to fish in the Licensing retary that the vessel will be fully in- Area may be requested from, and upon sured for the licensing period against completion, must be returned to, the all risks and liabilities normally cov- Regional Administrator. All of the in- formation requested on the form and ered by maritime liability insurance; the following must be supplied before or the application will be considered com- (4) The owner or charterer has not plete: paid any final penalty assessed by the (1) The licensing period for which the Secretary in accordance with the Act. license is requested. (g) An applicant will be promptly no- (2) The name of an agent, located in tified if that applicant’s license appli- Port Moresby, Papua New Guinea, who, cation will not be forwarded to the Ad- on behalf of the license holder, will re- ministrator, and of the reasons there- ceive and respond to any legal process for. Within 15 days of notification by issued in accordance with the Treaty. the Regional Administrator that the (3) Documentation from an insurance application will not be forwarded, an company showing that the vessel will applicant may request reconsideration be fully insured for the licensing period by providing a petition for reconsider- against all risks and liabilities nor- ation accompanied by new or addi- mally covered by maritime liability in- tional information. surance. (4) If the owner or charterer is the § 300.33 Compliance with applicable subject of proceedings under the bank- national laws. ruptcy laws of the United States, rea- The operator of the vessel shall com- sonable assurances that the owner of charterer will be financially able to ply with each of the applicable na- fulfill any and all responsibilities tional laws, and the operator of the under the Treaty, Act, and regulations, vessel shall be responsible for the com- including the payment of any penalties pliance by the vessel and its crew with or fines. each of the applicable national laws, (5) A copy of the vessel’s USCG Cer- and the vessel shall be operated in ac- tificate of Documentation. cordance with those laws. (d) The number of available licenses are set forth in Schedule 2 of Annex II § 300.34 Reporting requirements. of the Treaty. (a) License holders shall comply with (e) Applications for vessels may be the reporting requirements of parts 4 submitted at any time; complete appli- and 5 of Annex I to the Treaty. cations will be forwarded to the Sec- (b) Information provided by license retary of State for transmittal to the holders under Schedule 5 of Annex I of Administrator. the Treaty shall be provided on the (f) The Secretary, in consultation designated Forum Fisheries Agency with the Secretary of State, may deter- form(s) to the Regional Administrator mine that a license application for a within 2 days of reaching port. vessel should not be forwarded to the Administrator if: (c) Information provided by license (1) The application is not in accord holders under Schedule 6 of Annex I of with the Treaty, Act, or regulations; the Treaty shall be provided on the (2) The owner or charterer is the sub- designated Forum Fisheries Agency ject of proceedings under the bank- form(s) to the Regional Administrator ruptcy laws of the United States, and within 2 days of completing unloading.
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(d) Any information required to be ered as far as possible so that the ves- recorded, or to be notified, commu- sel cannot be used for fishing, but so nicated or reported pursuant to a re- that the skiff is accessible for use in quirement of these regulations, the emergency situations; the helicopter, if Act, or the Treaty shall be true, com- any shall be tied down; and launches plete and correct. Any change in cir- shall be secured. cumstances that has the effect of ren- dering any of the information provided § 300.37 Radio monitoring. false, incomplete or misleading shall be The international distress frequency, communicated immediately to the Re- 2.182 mHz, and 156.8 mHz (Channel 16, gional Administrator. VHF) shall be monitored continuously from the vessel for the purpose of fa- § 300.35 Vessel and gear identification. cilitating communication with the While a vessel is in the Licensing fisheries management, surveillance and Area, a Limited Area closed to fishing, enforcement authorities of the Parties. or a Closed Area, a recent and up-to- date copy of the International Code of § 300.38 Prohibitions. Signals (INTERCO) shall be on board (a) Except as provided for in § 300.39, and accessible at all times. The oper- in addition to the prohibitions in ator shall comply with the 1989 Food § 300.4, it is unlawful for any person and Agricultural Organization stand- subject to the jurisdiction of the ard specifications for the marking and United States to do any of the fol- identification of fishing vessels. The lowing: international radio call sign of the ves- (1) To violate the Act or any provi- sel shall be painted in white on a black sion of any regulation or order issued background, or in black on a white pursuant to Act. background, and be clear, distinct, and (2) To use a vessel for fishing in vio- uncovered, in the following manner: lation of an applicable national law. (a) On both sides of the vessel’s hull (3) To violate the terms and condi- or superstructure, with each letter and tions of any fishing arrangement to number being at least 1 m high and which that person is a party. having a stroke width of 16.7 cm, with (4) To use a vessel for fishing in a the background extending to provide a Limited Area in violation of the re- border around the mark of not less quirements set forth in Schedule 3 of than 16.7 cm. Annex I of the Treaty on ‘‘Limited (b) On the vessel’s deck, on the body Areas’’. of any helicopter and on the hull of any (5) To use a vessel for fishing in any skiff, with each letter and number Closed Area. being at least 30 cm high, and having a (6) To refuse to permit any author- stroke width of 5 cm with the back- ized officer or authorized party officer ground extending to provide a border to board a fishing vessel for purpose of around the mark of not less than 5 cm. conducting a search or inspection in (c) On any other equipment being connection with the enforcement of the carried by and intended to be separated Act or the Treaty. from the vessel during normal fishing (7) To refuse to comply with the in- operations, with each letter and num- structions of an authorized officer or ber being at least 10 cm high and hav- authorized party officer relating to ing a stroke width of 1.7 cm, with the fishing activities under the Treaty. background extending to provide a bor- (8) To refuse to permit an authorized der around the mark of not less than inspector full access to any place where 1.7 cm. fish taken in the Licensing Area is un- loaded. § 300.36 Closed area stowage require- (9) To refuse to allow an authorized ments. inspector to remove samples of fish At all times while a vessel is in a from a vessel that fished in the Licens- Closed Area, the fishing gear of the ing Area. vessel shall be stowed in a manner as (10) To forcibly assault, resist, op- not to be readily available for fishing. pose, impede, intimidate, or interfere In particular, the boom shall be low- with:
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(i) Any authorized officer, authorized under the terms and conditions of a party officer or authorized inspector in fishing arrangement. the conduct of a search or inspection in connection with the enforcement of § 300.40 Civil penalties. these regulations, the Act or the Trea- The procedures of 15 CFR part 904 ty; or apply to the assessment of civil pen- (ii) An observer in the conduct of ob- alties, except as modified by the re- server duties under the Treaty. quirements of section 8 of the Act. (11) To transship fish on board a ves- sel that fished in the Licensing Area, § 300.41 Investigation notification. except in accordance with the condi- Upon commencement of an investiga- tions set out in parts 3 and 4 of Annex tion under section 10(b)(1) of the Act, I to the Treaty. (b) Except as provided for in § 300.39, the operator of any vessel concerned it is unlawful for any person subject to shall have 30 days after receipt of noti- the jurisdiction of the United States fication of the investigation and the when in the Licensing Area: operator’s rights under section 10(b)(1) (1) To use a vessel to fish unless val- to submit comments, information, or idly licensed as required by the Admin- evidence bearing on the investigation, istrator. and to request in writing that the Sec- (2) To use a vessel for directed fishing retary provide the operator an oppor- for southern bluefin tuna or for fishing tunity to present the comments, infor- for any kinds of fish other than tunas, mation, or evidence orally to the Sec- except that fish may be caught as a in- retary or the Secretary’s representa- cidental bycatch. tive. (3) To use a vessel for fishing by any § 300.42 Findings leading to removal method, except the purse-seine method. from fishing area. (4) To use any vessel to engage in fishing after the revocation of its li- (a) Following an investigation con- cense, or during the period of suspen- ducted under section 10(b) of the Act, sion of an applicable license. the Secretary, with the concurrence of (5) To operate a vessel in such a way the Secretary of State, and upon the as to disrupt or in any other way ad- request of the Pacific Island Party con- versely affect the activities of tradi- cerned, may order a fishing vessel that tional and locally based fishermen and has not submitted to the jurisdiction of fishing vessels. that Pacific Island Party to leave im- (6) To use a vessel to fish in a manner mediately the Licensing Area, all Lim- inconsistent with an order issued by ited Areas, and all Closed Areas upon the Secretary under § 300.42 (section 11 making a finding that: of the Act). (1) The fishing vessel— (7) Except for circumstances involv- (i) While fishing in the Licensing ing force majeure and other emer- Area did not have a license under the gencies involving the health or safety Treaty to fish in the Licensing Area, of crew members or the safety of the and that under paragraph 2 of Article 3 vessel, to use aircraft in association of the Treaty, the fishing is not au- with fishing activities of a vessel, un- thorized to be conducted in the Licens- less it is identified on the license appli- ing Area without a license; cation for the vessel, or any amend- (ii) Was involved in any incident in ment thereto. which an authorized officer, authorized party officer, or observer was allegedly § 300.39 Exceptions. assaulted with resultant bodily harm, (a) The prohibitions of § 300.38 and the physically threatened, forcibly re- licensing requirements of § 300.32 do not sisted, refused boarding or subjected to apply to fishing for albacore tuna by physical intimidation or physical in- vessels using the trolling method out- terference in the performance of duties side of the 200 nautical mile fisheries as authorized by the Act or the Treaty; zones of the Pacific Island Parties. (iii) Has not made full payment with- (b) The prohibitions of § 300.38(a)(4), in 60 days of any amount due as a re- (a)(5), and (b)(3) do not apply to fishing sult of a final judgement or other final
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determination deriving from a viola- sel’s records, including its log and doc- tion in waters within the Treaty Area umentation for the purpose of inspec- of a Pacific Island Party; or tion and copying; have reasonable ac- (iv) Was not represented by an agent cess to navigation equipment, charts, for service of process in accordance and radios, and gather any other infor- with the Treaty; or mation relating to fisheries in the Li- (2) There is probable cause to believe censing Area. that the fishing vessel— (3) To disembark at the point and (i) Was used in violation of section time notified by the Pacific Island Par- 5(a)(4), (a)(5), (b)(2), or (b)(3) of the Act; ties to the Secretary. (ii) Used an aircraft in violation of (4) To carry out observer duties safe- section 5(b)(7) of the Act; or ly. (iii) Was involved in an incident in (b) The operator shall provide the ob- which section 5(a)(7) of the Act was server, while on board the vessel, at no violated. (b) Upon being advised by the Sec- expense to the Pacific Island Parties, retary of State that proper notification with food, accommodation and medical to Parties has been made under para- facilities of reasonable standard as graph 7 of Article 5 of the Treaty that may be acceptable to the Pacific Island a Pacific Island Party is investigating Party whose representative is serving an alleged infringement of the Treaty as the observer. by a vessel in waters under the juris- diction of that Pacific Island Party, § 300.44 Other inspections. the Secretary shall order the vessel to The operator and each member of the leave those waters until the Secretary crew of any vessel from which any fish of State notifies the Secretary that the taken in the Licensing Area is un- order is no longer necessary. loaded or transshipped shall allow, or (c) The Secretary shall rescind any arrange for, and assist any authorized order issued on the basis of a finding inspector, authorized party officer, or under paragraphs (a)(1) (iii) or (iv) of authorized officer to have full access to this section (subsections 11(a)(1) (C) or any place where the fish is unloaded or (D) of the Act) as soon as the Secretary transshipped, to remove samples, to determines that the facts underlying have full access to the vessel’s records, the finding do not apply. including its log and documentation (d) An order issued in accordance for the purpose of inspection and with this section is not subject to judi- photocopying, and to gather any other cial review. information relating to fisheries in the Licensing Area without interfering un- § 300.43 Observers. duly with the lawful operation of the (a) The operator and each member of vessel. the crew of a vessel shall allow and as- sist any person identified as an ob- server under the Treaty by the Pacific Subpart E—Pacific Halibut Island Parties: Fisheries (1) To board the vessel for scientific, compliance, monitoring and other AUTHORITY: 16 U.S.C. 773–773k. functions at the point and time noti- § 300.60 Purpose and scope. fied by the Pacific Island Parties to the Secretary. This subpart implements the North (2) Without interfering unduly with Pacific Halibut Act of 1982 (Act) and is the lawful operation of the vessel, to intended to supplement, not conflict have full access to and use of facilities with, the annual fishery management and equipment on board the vessel that measures adopted by the International the observer may determine are nec- Pacific Halibut Commission (Commis- essary to carry out observer duties; sion) under the Convention between have full access to the bridge, fish on the United States and Canada for the board, and areas that may be used to Preservation of the Halibut Fishery of hold, process, weigh and store fish; re- the Northern Pacific Ocean and Bering move samples; have full access to ves- Sea (Convention).
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§ 300.61 Definitions. 125°44′00″ W. long., and all inland ma- In addition to the terms defined in rine waters of Washington. § 300.2 and those in the Act and the Treaty Indian tribes means the Hoh, Convention, the terms used in this sub- Jamestown S’Klallam, Lower Elwha part have the following meanings. If a S’Klallam, Lummi, Makah, Port Gam- term is defined differently in § 300.2, the ble S’Klallam, Quileute, Quinault, Act, or the Convention, the definition Skokomish, Suquamish, Swinomish, in this section shall apply. and Tulalip tribes. Area 2A includes all waters off the [61 FR 35550, July 5, 1996, as amended at 64 States of California, Oregon, and Wash- FR 52469, Sept. 29, 1999] ington. Charter vessel means a vessel used for EFFECTIVE DATE NOTE: At 64 FR 52469, hire in sport fishing for halibut, but Sept. 29, 1999, § 300.61 was amended by adding not including a vessel without a hired the definitions for ‘‘Charter vessel’’, ‘‘Fish- ing’’, ‘‘Individual Fishing Quota’’, ‘‘IFQ fish- operator. ing trip’’, ‘‘IFQ halibut’’, ‘‘Overall length’’, Commercial fishing means fishing, the ‘‘Setline gear’’, and ‘‘Sport fishing’’, effec- resulting catch of which either is, or is tive Oct. 29, 1999. intended to be, sold or bartered. Fishing means the taking, harvesting, § 300.62 Annual management meas- or catching of fish, or any activity that ures. can reasonably be expected to result in Annual management measures may the taking, harvesting, or catching of be added and modified through adop- fish, including specifically the deploy- tion by the Commission and publica- ment of any amount or component part tion in the FEDERAL REGISTER by the of setline gear anywhere in the mari- Assistant Administrator, with imme- time area. diate regulatory effect. Such measures Individual Fishing Quota (IFQ), for may include, inter alia, provisions gov- purposes of this subpart, means the an- erning: Licensing of vessels, inseason nual catch limit of halibut that may be actions, regulatory areas, fishing peri- harvested by a person who is lawfully ods, closed periods, closed areas, catch allocated a harvest privilege for a spe- cific portion of the TAC of halibut. limits (quotas), fishing period limits, IFQ fishing trip, for purposes of the size limits, careful release of halibut, subpart, means the period beginning vessel clearances, logs, receipt and pos- when a vessel operator commences har- session of halibut, fishing gear, reten- vesting IFQ halibut and ending when tion of tagged halibut, supervision of the vessel operator lands any species. unloading and weighing, and sport fish- IFQ halibut means any halibut that is ing for halibut. The Assistant Adminis- harvested with fixed gear in any IFQ trator will publish the Commission’s regulatory area. regulations setting forth annual man- Overall length of a vessel means the agement measures in the FEDERAL horizontal distance, rounded to the REGISTER by March 15 each year. An- nearest ft/meter, between the foremost nual management measures may be ad- part of the stem and the aftermost part justed inseason by the Commission. of the stern (excluding bowsprits, rud- ders, outboard motor brackets, and § 300.63 Catch sharing plans, local similar fittings or attachments). area management plans, and do- mestic management measures. Person includes an individual, cor- poration, firm, or association. Catch sharing plans (CSP) and local Setline gear means one or more sta- area management plans (LAMP) may tionary, buoyed, and anchored lines be developed by the appropriate re- with hooks attached. gional fishery management council, Sport fishing means all fishing other and approved by NMFS, for portions of than commercial fishing and treaty In- the fishery. Any approved CSP or dian ceremonial and subsistence fish- LAMP may be obtained from the Ad- ing. ministrator, Northwest Region, or the Subarea 2A–1 includes all U.S. waters Administrator, Alaska Region. off the coast of Washington that are (a) The catch sharing plan for area north of 46°53′18″ N. lat. and east of 2A provides a framework that shall be
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applied to the annual Area 2A total al- ures published pursuant to § 300.62, pro- lowable catch (TAC) adopted by the vided that no person may sell or barter Commission, and shall be implemented such halibut. through domestic and Commission reg- (d) The LAMP for Sitka Sound pro- ulations, which will be published in the vides guidelines for participation in FEDERAL REGISTER each year before the halibut fishery in Sitka Sound. March 15. The Area 2A CSP allocates (1) For purposes of § 300.63(d), Sitka halibut among the treaty Indian fish- Sound means (See Figure 1) to subpart ery, segments of the non-Indian com- E of the part: mercial fishery, and segments of the (i) With respect to § 300.63(d)(2), that recreational fishery. part of the Commission regulatory area (1) Each year, before January 1, 2C that is enclosed on the north and NMFS will publish a proposal to govern east by a line from Kruzof Island at the recreational fishery under the CSP 57°20’30’’ N. lat., 135°45’10’’ W. long. to for the following year and will seek Chichagof Island at 57°22’03’’ N. lat., public comment. The comment period 135°43’00’’ W. long., and a line from will extend until after the Commis- Chichagof Island at 57°22’35’’ N. lat., sion’s annual meeting, so the public 135°41’18’’ W. long. to Baranof Island at will have the opportunity to consider 57°22’17’’ N. lat., 135°40’57’’ W. long.; and the final area 2A total allowable catch is enclosed on the south and west by a (TAC) before submitting comments. line from Cape Edgecumbe at 57°59’54’’ After the Commission’s annual meet- N. lat., 135°51’27’’ W. long. to Vasilief ing and review of public comments, Rock at 56°48’56’’ N. lat., 135°32’30’’ W. NMFS will publish in the FEDERAL long. to the green day marker in Doro- REGISTER the final rule governing sport thy Narrows at 56°49’17’’ N. lat., fishing in area 2A. Annual management 135°22’45’’ W. long. to Baranof Island at measures may be adjusted inseason by 56°49’17’’ N. lat., 135°22’36’’ W. long. NMFS. (ii) With respect to § 300.63(d)(3) and (2) A portion of the commercial TAC (4), that part of the Commission regu- is allocated as incidental catch in the latory area 2C that is enclosed on the salmon troll fishery in Area 2A. Each north and east by a line from Kruzof Is- year the landing restrictions necessary land at 57°20’30’’ N. lat., 135°45’10’’ W. to keep the fishery within its alloca- long. to Chichagof Island at 57°22’03’’ N. tion will be recommended by the Pa- lat., 135°43’00’’ W. long., and a line from cific Fishery Management Council at Chichagof Island at 57°22’35’’ N. lat., its spring meetings, and will be pub- 135°41’18’’ W. long. to Baranof Island at lished in the FEDERAL REGISTER along 57°22’17’’ N. lat., 135°40’57’’ W. lat.; and with the annual salmon management is enclosed on the south and west by a measures. line running from Sitka Point at (3) The commercial longline fishery 56°59’23’’ N. lat., 135°49’34’’ W. long., to in area 2A is governed by the annual Hanus Point at 56°51’55’’ N. lat., management measures published pur- 135°30’30’’ W. long., to the green day suant to §§ 300.62 and 300.63. marker in Dorothy Narrows at 56°49’17’’ (4) The treaty Indian fishery is gov- N. lat., 135°22’45’’ W. long. to Baranof erned by § 300.64 and tribal regulations. Island at 56°49’17’’ N. lat., 135°22’36’’ W. The annual quota for the fishery will long. be announced with the Commission (2) A person using a vessel greater regulations under § 300.62 than 35 ft (10.7 m) in overall length, as (b) The catch sharing plan for area 4 defined in § 300.61, is prohibited from allocates the annual TAC among Areas fishing for IFQ halibut with setline 4C, 4D, and 4E, and will be imple- gear, as defined in § 300.61, within Sitka mented by the Commission in annual Sound as defined in paragraph (d)(1)(i) management measures published pur- of this section. suant to § 300.62. (3) A person using a vessel less than (c) (Applicable through December 31, or equal to 35 ft (10.7 m) in overall 1999). A person may retain halibut length, as defined in § 300.61: taken with setline gear in Area 4E that (i) Is prohibited from fishing for IFQ are smaller than the size limit speci- halibut with setline gear within Sitka fied in the annual management meas- Sound, as defined in paragraph (d)(1)(ii)
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of this section, from June 1 through located in the State of Washington is August 31; and governed by this section. (ii) Is prohibited, during the remain- (b) Commercial fishing for halibut by der of the designated IFQ season, from treaty Indians is permitted only in sub- retaining more than 2,000 lbs. (0.91 mt) area 2A–1 with hook-and-line gear in of IFQ halibut within Sitka Sound, as conformance with the season and quota defined in paragraph (d)(1)(ii) of this established annually by the Commis- section, per IFQ fishing trip, as defined sion. in 50 CFR 300.61. (c) Commercial fishing periods and (4) No charter vessel, as defined in management measures to implement § 300.61, shall engage in sport fishing, as paragraph (b) of this section will be es- defined in § 300.61, for halibut within tablished by treaty Indian tribal regu- Sitka Sound, as defined in paragraph lations. (d)(1)(ii) of this section, from June 1 (d) Commercial fishing for halibut by through August 31. treaty Indians shall comply with the (i) No charter vessel shall retain hal- Commission’s management measures ibut caught while engaged in sport governing size limits, careful release of fishing, as defined in § 300.61, for other halibut, logs, and fishing gear (pub- species, within Sitka Sound, as defined lished pursuant to § 300.62), except that in paragraph (d)(1)(ii) of this section, the 72-hour fishing restriction pre- from June 1 through August 31. ceding the opening of a halibut fishing (ii) Notwithstanding paragraphs period shall not apply to treaty Indian (d)(4) and (4)(i) of this section, halibut fishing. harvested outside Sitka Sound, as de- (e) Ceremonial and subsistence fish- fined in (d)(1)(ii) of this section, may be ing for halibut by treaty Indians in retained onboard a charter vessel en- subarea 2A–1 is permitted with hook- gaged in sport fishing, as defined in 50 and-line gear from January 1 to De- CFR 300.61, for other species within cember 31. Sitka Sound, as defined in paragraph (f) No size or bag limits shall apply to (d)(1)(ii) of this section, from June 1 the ceremonial and subsistence fishery, through August 31. except that when commercial halibut fishing is prohibited pursuant to para- [61 FR 35550, July 5, 1996, as amended at 63 FR 13009, Mar. 17, 1998; 63 FR 24752, May 5, graph (b) of this section, treaty Indians 1998; 64 FR 52469, Sept. 29, 1999] may take and retain not more than two halibut per person per day. EFFECTIVE DATE NOTE: At 64 FR 52469, (g) Halibut taken for ceremonial and Sept. 29, 1999, § 300.63 was amended by revis- ing the heading and the introductory text, subsistence purposes shall not be of- and by adding paragraph (d), effective Oct. fered for sale or sold. 29, 1999. For the convenience of the user, the (h) Any member of a U.S. treaty In- superseded text is set forth as follows: dian tribe who is engaged in commer- cial or ceremonial and subsistence fish- § 300.63 Catch sharing plans and domestic management measures. ing under this section must have on his or her person a valid treaty Indian Catch sharing plans (CSP) may be devel- oped by the appropriate regional fishery identification card issued pursuant to management council, and approved by 25 CFR part 249, subpart A, and must NMFS, for portions of the fishery. Any ap- comply with the treaty Indian vessel proved catch sharing plan may be obtained and gear identification requirements of from the Director, Northwest Region, or the Final Decision No. 1 and subsequent or- Director, Alaska Region. ders in United States v. Washington 384 F. Supp. 312 (W.D. Wash., 1974). * * * * * (i) The following table sets forth the fishing areas of each of the 12 treaty § 300.64 Fishing by U.S. treaty Indian Indian tribes fishing pursuant to this tribes. section. Within subarea 2A–1, bound- (a) Halibut fishing in subarea 2A–1 by aries of a tribe’s fishing area may be members of U.S. treaty Indian tribes revised as ordered by a Federal Court.
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Tribe Boundaries
HOH ...... Between 47°54′18″ N. lat. (Quillayute River) and 47°21′00″ N. lat. (Quinault River), and east of 125°44′00″ W. long. JAMESTOWN S'KLALLAM ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 626 F. Supp. 1486, to be places at which the Jamestown S'Klallam Tribe may fish under rights se- cured by treaties with the United States. LOWER ELWHA S'KLALLAM ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 459 F. Supp. 1049 and 1066 and 626 F. Supp. 1443, to be places at which the Lower Elwha S'Klallam Tribe may fish under rights secured by treaties with the United States. LUMMI ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 384 F. Supp. 360, as modified in Subproceeding No. 89±08 (W.D. Wash., February 13, 1990) (deci- sion and order re: cross-motions for summary judgement), to be places at which the Lummi Tribe may fish under rights secured by treaties with the United States. MAKAH ...... North of 48°02′15″ N. lat. (Norwegian Memorial), west of 123°42′30″ W. long., and east of 125°44′00″ W. long. PORT GAMBLE S'KLALLAM ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 626 F. Supp. 1442, to be places at which the Port Gamble S'Klallam Tribe may fish under rights se- cured by treaties with the United States. QUILEUTE ...... Between 48°07′36″ N. lat. (Sand Point) and 47°31′42″ N. lat. (Queets River), and east of 125°44′00″ W. long. QUINAULT ...... Between 47°40′06″ N. lat. (Destruction Island) and 46°53′18″ N. lat. (Point Chehalis), and east of 125°44′00″ W. long. SKOKOMISH ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 384 F. Supp. 377, to be places at which the Skokomish Tribe may fish under rights secured by trea- ties with the United States. SUQUAMISH ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 459 F. Supp. 1049, to be places at which the Suquamish Tribe may fish under rights secured by treaties with the United States. SWINOMISH ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 459 F. Supp. 1049, to be places at which the Swinomish Tribe may fish under rights secured by treaties with the United States. TULALIP ...... Those locations in the Strait of Juan de Fuca and Puget Sound as determined in or in accordance with Final Decision No. 1 and subsequent orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974), and particularly at 626 F. Supp. 1531±1532, to be places at which the Tulalip Tribe may fish under rights secured by treaties with the United States.
§ 300.65 Prohibitions. (a) The management measures pub- In addition to the prohibitions in lished under § 300.62. § 300.4, the following prohibitions apply (b) The catch sharing plans and man- within this subpart. It is unlawful for agement measures implemented under any person to fish for halibut except in § 300.63. accordance with:
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FIGURE 1 TO SUBPART E—SITKA LOCAL AREA MANAGEMENT PLAN
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[64 FR 52471, Sept. 29, 1999]
EFFECTIVE DATE NOTE: At 64 FR 52470, Sept. 29, 1999, subpart E of part 300 was amended by adding figure 1, effective Oct. 29, 1999.
Subpart F—Fraser River Sockeye is defined differently in § 300.2, the Act, and Pink Salmon Fisheries or the Treaty, the definition in this section shall apply. All-citizen means any person who is AUTHORITY: Pacific Salmon Treaty Act, 16 not a treaty Indian fishing in that U.S.C. 3636(b). treaty Indian’s tribal treaty fishing § 300.90 Purpose and scope. places pursuant to treaty Indian tribal fishing regulations (whether in compli- This subpart implements the Pacific ance with such regulations or not). Salmon Treaty Act of 1985 (16 U.S.C. Authorized officer means, in addition 3631–3644) (Act) and is intended to sup- to those individuals identified under plement, not conflict with, the fishery authorized officer at § 300.2, any state, regimes and Fraser River Panel regula- Federal, or other officer as may be au- tions adopted under the Treaty be- thorized by the Secretary in writing, tween the Government of the United including any treaty Indian tribal en- States of America and the Government forcement officer authorized to enforce of Canada Concerning Pacific Salmon, tribal fishing regulations. signed at Ottawa, January 28, 1985 Commission means the Pacific Salmon (Treaty). Commission established by the Pacific Salmon Treaty. § 300.91 Definitions. Consistent regulation or consistent In addition to the terms defined in order means any Federal, state, or trea- § 300.2 and those in the Act and the ty Indian tribal regulation or order Treaty, the terms used in this subpart that is in addition to and not in con- have the following meanings. If a term flict with (at least as restrictive as)
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any regime of the Commission, Fraser (2) The waters included within the River Panel regulation, inseason order following boundaries: Beginning at of the Secretary, or these regulations. Bonilla Point, Vancouver Island, Fishing gear— thence along the aforesaid direct line (1) Gill net means a fishing net of sin- drawn from Bonilla Point to Tatoosh gle web construction, not anchored, Lighthouse, Washington, described in tied, staked, placed, or weighted in paragraph (1) of this definition, thence such a manner that it cannot drift. to the nearest point of Cape Flattery, (2) Purse seine means all types of fish- thence following the southerly shore of ing gear consisting of a lead line, cork Juan de Fuca Strait to Point Wilson, line, auxiliary lines, purse line and on Whidbey Island, thence following purse rings and of mesh net webbing the western shore of the said Whidbey fashioned in such a manner that it is Island, to the entrance to Deception used to encircle fish, and in addition Pass, thence across said entrance to prevent their escape under the bottom the southern side of Reservation Bay, or lead line of the net by drawing in on Fidalgo Island, thence following the the bottom of the net by means of the western and northern shore line of the purse line so that it forms a closed bag. said Fidalgo Island to Swinomish Slough, crossing the said Swinomish (3) Reef net means a non-self-fishing Slough, in line with the track of the open bunt square or rectangular sec- Great Northern Railway (Burlington tion of mesh netting suspended be- Northern Railroad), thence northerly tween two anchored boats fashioned in following the shoreline of the mainland such a manner that to impound salmon to Atkinson Point at the northerly en- passing over the net, the net must be trance to Burrard Inlet, British Colum- raised to the surface. bia, thence in a straight line to the (4) Troll fishing gear means one or southern end of Bowen Island, then more lines that drag hooks with bait or westerly following the southern shore lures behind a moving fishing vessel. of Bowen Island to Cape Roger Curtis, (5) Treaty Indian fishing gear means thence in a straight line to Gower fishing gear defined authorized, and Point, thence westerly following the identified under treaty Indian tribal shoreline to Welcome Point on Sechelt laws and regulations in accordance Peninsula, thence in a straight line to with the requirements of Final Deci- Point Young on Lasqueti Island, sion No. 1 and subsequent orders in thence in a straight line to Dorcas United States v. Washington, 384 F. Point on Vancouver Island, thence fol- Supp. 312 (W.D. Wash., 1974). lowing the eastern and southern shores Fraser River Panel means the Fraser of the said Vancouver Island, to the River Panel established by the Pacific starting point at Bonilla Point, as Salmon Treaty. shown on the British Admiralty Chart Fraser River Panel Area (U.S.) means Number 579, and on the U.S. Coast and the United States’ portion of the Fra- Geodetic Survey Chart Number 6300, as ser River Panel Area specified in Annex corrected to March 14, 1930, copies of II of the Treaty as follows: which are annexed to the 1930 Conven- (1) The territorial water and the high tion between Canada and the United seas westward from the western coast States of America for Protection, Pres- of Canada and the United States of ervation, and Extension of the Sockeye America and from a direct line drawn Salmon Fishery in the Fraser River from Bonilla Point, Vancouver Island, System as amended, signed May 26, to the lighthouse of Tatoosh Island, 1930. [Note: U.S. Coast and Geodetic Washington—which line marks the en- Survey Chart Number 6300 has been re- trance of Juan de Fuca Strait—and em- placed and updated by NOAA Chart braced between 48° and 49° N. lat., ex- Number 18400.] cepting therefrom, however, all the wa- (3) The Fraser River and the streams ters of Barkley Sound, eastward of a and lakes tributary thereto. straight line drawn from Amphitrite (4) The Fraser River Panel Area Point to Cape Beale and all the waters (U.S.) includes Puget Sound Manage- of Nitinat Lake and the entrance ment and Catch Reporting Areas 4B, 5, thereto. 6, 6A, 6B, 6C, 6D, 7, 7A, 7B, 7C, 7D, and
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7E as defined in the Washington State Fraser River Panel Area (U.S.) with re- Administrative Code at Chapter 220–22 spect to fishing activities addressed as of June 27, 1986. herein. Fraser River Panel regulations means (b) Any person fishing subject to this regulations applicable to the Fraser subpart is bound by the international River Panel Area that are rec- boundaries now recognized by the ommended by the Commission (on the United States within the Fraser River basis of proposals made by the Fraser Panel Area (U.S.) described in § 300.91, River Panel) and approved by the Sec- notwithstanding any dispute or nego- retary of State. tiation between the United States and Mesh size means the distance between Canada regarding their respective ju- the inside of one knot to the outside of risdictions, until such time as different the opposite (vertical) knot in one boundaries are published by the United mesh of a net. States. Pink salmon means Oncorhynchus (c) Any person fishing in the Fraser gorbuscha. River Panel Area (U.S.) who also fishes Sockeye salmon means the anad- for groundfish in the EEZ should con- romous form of Oncorhynchus nerka. sult Federal regulations at part 663 of Treaty fishing places (of an Indian this title for applicable requirements, tribe) means locations within the Fra- including the requirement that vessels ser River Panel Area (U.S.) as deter- engaged in commercial fishing for mined in or in accordance with Final groundfish (except commercial pas- Decision No. 1 and subsequent orders in senger vessels) have vessel identifica- United States v. Washington, 384 F. tion in accordance with § 663.6. Federal Supp. 312 (W.D. Wash. 1974), to be regulations governing salmon fishing places at which that treaty Indian in the EEZ, which includes a portion of tribe may take fish under rights se- the Fraser River Panel Area (U.S.), are cured by treaty with the United States. at part 661 of this title. Annual regu- Treaty Indian means any member of a latory modifications are published in treaty Indian tribe whose treaty fish- ing place is in the Fraser River Panel the FEDERAL REGISTER. Area (U.S.) or any assistant to a treaty (d) Except as otherwise provided in Indian authorized to assist in accord- this subpart, general provisions gov- ance with § 300.95(d). erning off-reservation fishing by treaty Treaty Indian tribe means any of the Indians are found at 25 CFR part 249, federally recognized Indian tribes of subpart A. Additional general and spe- the State of Washington having fishing cific provisions governing treaty In- rights secured by treaty with the dian fisheries are found in regulations United States to fish for salmon stocks and laws promulgated by each treaty subject to the Pacific Salmon Treaty Indian tribe for fishermen fishing pur- in treaty fishing places within the Fra- suant to tribal authorization. ser River Panel Area (U.S.). Currently (e) Nothing in this subpart relieves a these tribes are the Makah, Tribe, person from any other applicable re- Lower Elwha Klallam Tribe, Port Gam- quirements lawfully imposed by the ble Klallam Tribe, Jamestown Klallam United States, the State of Wash- Tribe, Suquamish Tribe, Lummi Tribe, ington, or a treaty Indian tribe. Nooksack Tribe, the Swinomish Indian Tribal Community, and the Tulalip § 300.93 Reporting requirements. Tribe. Any person fishing for sockeye or pink salmon within the Fraser River § 300.92 Relation to other laws. Panel Area (U.S.) and any person re- (a) Insofar as they are consistent ceiving or purchasing fish caught by with this part, any other applicable such persons are subject to State of Federal law or regulation, or any appli- Washington reporting requirements at cable law and regulations of the State Washington Administrative Code, of Washington or of a treaty Indian Chapter 220–69. Treaty Indian fisher- tribe with treaty fishing rights in the men are subject also to tribal reporting Fraser River Panel Area (U.S.) will requirements. No separate Federal re- continue to have force and effect in the ports are required.
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§ 300.94 Prohibitions and restrictions. quired by the State of Washington or treaty Indian tribal authority. In addition to the prohibitions in § 300.4, the following prohibitions and (c) Notwithstanding paragraph (a) of restrictions apply. this section, nothing in this subpart (a) In addition to the prohibited acts will be construed to prohibit the reten- set forth in the Act at 16 U.S.C. 3637(a), tion of sockeye or pink salmon caught the following restrictions apply to by any person while lawfully engaged sockeye and pink salmon fishing in the in a fishery for subsistence or ceremo- Fraser River Panel Area (U.S.): nial purposes pursuant to treaty Indian (1) The Fraser River Panel Area tribal regulations, for recreational pur- (U.S.) is closed to sockeye and pink poses pursuant to recreational fishing salmon fishing, unless opened by Fra- regulations promulgated by the State ser River Panel regulations or by of Washington, or as otherwise author- inseason orders of the Secretary issued ized by treaty Indian tribal or State of under § 300.97 that give effect to orders Washington law or regulation, provided of the Fraser River Panel, unless such that such treaty Indian tribal or State orders are determined not to be con- regulation is consistent with U.S.-ap- sistent with domestic legal obligations. proved Commission fishery regimes, Such regulations and inseason orders Fraser River Panel regulations, or may be further implemented by regula- inseason orders of the Secretary appli- tions promulgated by the United cable to fishing in the Fraser River States, the State of Washington, or Panel Area (U.S.). any treaty Indian tribe, which are also (d) The following types of fishing consistent with domestic legal obliga- gear are authorized, subject to the re- tions. strictions set forth in this subpart and (2) It is unlawful for any person or according to the times and areas estab- fishing vessel subject to the jurisdic- lished by Fraser River Panel regula- tion of the United States to fish for, or tions or inseason orders of the Sec- take and retain, any sockeye or pink retary: salmon: (1) All citizens: Gill net, purse seine, (i) Except during times or in areas reef net, and troll fishing gear. Specific that are opened by Fraser River Panel restrictions on all citizens gear are regulations or by inseason order, ex- contained in the Washington State Ad- cept that this provision will not pro- ministrative Code of Chapter 220–47. hibit the direct transport of legally (2) Treaty Indians: Treaty Indian caught sockeye or pink salmon to off- fishing gear. loading areas. (ii) By means of gear or methods not (e) Geographic descriptions of Puget authorized by Fraser River Panel regu- Sound Salmon Management and Catch lations, inseason orders, or other appli- Reporting Areas, which are referenced cable Federal, state, or treaty Indian in the Commission’s regimes, Fraser tribal law. River Panel regulations, and in (iii) In violation of any applicable inseason orders of the Secretary, are area, season, species, zone, gear, or found in the Washington State Admin- mesh size restriction. istrative Code at Chapter 220–22. (b) It is unlawful for any person or § 300.95 Treaty Indian fisheries. fishing vessel subject to the jurisdic- tion of the United States to— (a) Any treaty Indian must comply (1) Remove the head of any sockeye with this section when fishing for sock- or pink salmon caught in the Fraser eye and pink salmon at the treaty In- River Panel Area (U.S.), or possess a dian tribe’s treaty fishing places in the salmon with the head removed, if that Fraser River Panel Area (U.S.) during salmon has been marked by removal of the time the Commission or the Sec- the adipose fin to indicate that a coded retary exercises jurisdiction over these wire tag has been implanted in the fisheries. Fishing by a treaty Indian head of the fish. outside the applicable Indian tribe’s (2) Fail to permit an authorized offi- treaty fishing places will be subject to cer to inspect a record or report re- the Fraser River Panel regulations and
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inseason orders applicable to all citi- 1974). For purposes of this section, the zens, as well as to the restrictions set treaty Indian tribal member whom the forth in this section. assistant is authorized to assist must (b) Nothing in this section will re- be present aboard the fishing vessel at lieve a treaty Indian from any applica- all times while engaged in the exercise ble law or regulation imposed by a of treaty Indian fishing rights subject treaty Indian tribe, or from require- to this subpart. ments lawfully imposed by the United (2) No treaty Indian may, while fish- States or the State of Washington in ing at a treaty fishing place in accord- accordance with the requirements of ance with treaty-secured fishing rights, Final Decision No. 1 and subsequent or- permit any person 16 years of age or ders in United States v. Washington, 384 older other than the authorized holder F. Supp. 312 (W.D. Wash., 1974). of a currently valid identification card (c) Identification. (1) Any treaty In- issued in accordance with the require- dian fishing under the authority of this ments of paragraphs (c) (1) and (2) of subpart must have in his or her posses- this section to fish for said treaty In- sion at all times while fishing or en- dian, assist said treaty Indian in fish- gaged in any activity related to fishing ing, or use any gear or fishing location the treaty Indian identification re- identified as said treaty Indian’s gear quired by 25 CFR 249.3 or by applicable or location. tribal law. (3) Treaty Indians are prohibited (2) Any person assisting a treaty In- from participating in a treaty Indian dian under the authority of paragraph fishery under this section at any time (d) of this section must have in his or persons who are not treaty Indians are her possession at all such times a valid aboard the fishing vessel or in contact identification card issued by the Bu- with fishing gear operated from the reau of Indian Affairs or by a treaty In- fishing vessel, unless such persons are dian tribe, identifying the holder as a authorized employees or officers of a person qualified to assist a treaty In- treaty Indian tribe or tribal fisheries dian. The identification card must in- management organization, the North- clude the name of the issuing tribe, the west Indian Fisheries Commission, the name, address, date of birth, and pho- Commission, or a fisheries manage- tograph of the assistant, and the name ment agency of the United States or and identification number of the treaty the State of Washington. Indian whom the assistant is author- ized to assist. § 300.96 Penalties. (3) Identification described in para- graph (c) (1) or (2) of this section must Any treaty Indian who commits any be shown on demand to an authorized act that is unlawful under this subpart officer by the treaty Indian or author- normally will be referred to the appli- ized assistant. cable tribe for prosecution and punish- (4) Any treaty Indian fishing under ment. If such tribe fails to prosecute this subpart must comply with the such persons in a diligent manner for treaty Indian vessel and gear identi- the offense(s) referred to the tribe, or if fication requirements of Final Decision other good cause exists, such treaty In- No. 1 and subsequent orders in United dian may be subject to the penalties States v. Washington, 384 F. Supp. 312 and procedures described in the Magnu- (W.D. Wash., 1974). son Act. (d) Fishing assistance. (1) Any member of a treaty Indian tribe fishing under § 300.97 Inseason orders. this subpart may, if authorized by the (a) During the fishing season, the treaty Indian’s tribe, receive fishing Secretary may issue orders that estab- assistance from, and only from, the lish fishing times and areas consistent treaty Indian tribal member’s spouse, with the annual Commission regime forebears, children, grandchildren, and and inseason orders of the Fraser River siblings, as authorized by the U.S. Dis- Panel. Inseason orders will be con- trict Court for the Western District of sistent with domestic legal obligations. Washington in United States v. Wash- Violation of such inseason orders is ington, 384 F. Supp. 312 (W.D. Wash., violation of this subpart.
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(b) Notice of inseason orders. (1) Offi- the definition in this section shall cial notice of such inseason orders is apply. available from NMFS (for orders appli- ACA means the Antarctic Conserva- cable to all-citizen fisheries) and from tion Act of 1978 (16 U.S.C. 2401 et seq.). the Northwest Indian Fisheries Com- Antarctic convergence means a line mission (for orders applicable to treaty joining the following points along the Indian fisheries) through the following parallels of latitude and meridians of Area Code 206 toll-free telephone hot- longitude: lines: All-citizen fisheries: 1–800–562– Lat. Long. 6513; Treaty Indian fisheries: 1–800–562– 50° S. 0. 6142. 50° S. 30° E. (2) Notice of inseason orders of the 45° S. 30° E. Secretary and other applicable tribal 45° S. 80° E. regulations may be published and re- 55° S. 80° E. ° ° leased according to tribal procedures in 55 S. 150 E. 60° S. 150° E. accordance with Final Decision No. 1 60° S. 50° W. and subsequent orders in United States 50° S. 50° W. v. Washington, 384 F. Supp. 312 (W.D. 50° S. 0. Wash., 1974). (3) Inseason orders may also be com- Antarctic finfishes include the fol- municated through news releases to lowing: radio and television stations and news- Scientific name Common name papers in the Fraser River Panel Area (U.S.). Gobionotothen gibberifrons ... Humped rockcod. Notothenia rossii ...... Marbled rockcod. (4) Inseason orders of the Secretary Lepidorhirus squamifrons ...... Grey rockcod. will also be published in the FEDERAL Dissostichus eleginoides ...... Patagonian toothfish. REGISTER as soon as practicable after Patagonothen brevicauda Patagonian rockcod. they are issued. guntheri. Pleuragramma antarcticum ... Antarctic silverfish. Trematomus spp...... Antarctic cods. Subpart G—Antarctic Marine Chaenocephalus aceratus ..... Blackfin icefish. Chaenodraco wilsoni ...... Spiny icefish. Living Resources Champsocephalus gunnari .... Mackerel icefish. Chionodraco rastrospinosus .. Ocellated icefish. Pseudochaenichthys South Georgia icefish. AUTHORITY: 16 U.S.C. 2431 et seq. georgianus.
§ 300.100 Purpose and scope. Antarctic marine living resources or (a) This subpart implements the Ant- AMLR(s) means the populations of arctic Marine Living Resources Con- finfish, mollusks, crustaceans, and all vention Act of 1984 (Act). other species of living organisms, in- (b) This subpart regulates— cluding birds, found south of the Ant- (1) The harvesting of Antarctic ma- arctic Convergence, and their parts or rine living resources or other associ- products. ated activities by any person subject to Commission means the Commission the jurisdiction of the United States or for the Conservation of Antarctic Ma- by any vessel of the United States. rine Living Resources established (2) The importation into the United under Article VII of the Convention. States of any Antarctic marine living Convention waters means all waters resource. south of the Antarctic Convergence. Directed fishing, with respect to any § 300.101 Definitions. species or stock of fish, means any fish- In addition to the terms defined in ing that results in such fish comprising § 300.2, in the Act, and in the Conven- more than 1 percent by weight, at any tion on the Conservation of Antarctic time, of the catch on board the vessel. Marine Living Resources, done at Can- Fish means finfish, mollusks, and berra, Australia, May 7, 1980 (Conven- crustaceans. tion). Convention, the terms used in Fishery means: this subpart have the following mean- (1) One or more stocks of fish that ings. If a term is defined differently in can be treated as a unit for purposes of § 300.2, such Act, or such Convention, conservation and management and
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that are identified on the basis of geo- Flora (12 U.S.T. 794). The ACA and its graphical, scientific, technical, rec- implementing regulations (45 CFR part reational, and economic characteris- 670) apply to certain defined activities tics. of U.S. citizens south of 60° S. lat. (2) Any fishing for such stocks. (c) The Marine Mammal Protection Harvesting vessel means any vessel of Act of 1972 (16 U.S.C. 1361 et seq.), the the United States (this includes any Endangered Species Act of 1973 (16 boat, ship, or other craft), that is used U.S.C. 1531 et seq.), the Migratory Bird for, equipped to be used for, or of a Treaty Act (16 U.S.C. 701 et seq.), and type that is normally used for har- their implementing regulations also vesting. apply to the harvesting and importa- Individual permit means an NSF per- tion of AMLRs. mit issued under 45 CFR part 670; or an NSF award letter (demonstrating that § 300.103 Procedure for according pro- the individual has received an award tection to CCAMLR Ecosystem Mon- from NSF to do research in the Ant- itoring Program Sites. arctic); or a marine mammal permit (a) General. (1) Any person subject to issued under § 216.31 of this chapter; or the jurisdiction of the United States an endangered species permit issued must apply for and be granted an entry under § 222.21 of this chapter. permit authorizing specific activities Inspection vessel means a vessel car- prior to entering a CCAMLR Eco- rying a CCAMLR inspector and dis- system Monitoring Program (CEMP) playing the pennant approved by the Protected Site designated in accord- Commission to identify such vessel. ance with the CCAMLR Conservation Land or landing means to begin off- Measure describing the Procedures for loading any fish, to arrive in port with According Protection for CEMP Sites. the intention of offloading any fish, or (2) If a CEMP Protected Site is also a to cause any fish to be offloaded. site specially protected under the Ant- NSF means National Science Founda- arctic Treaty (or the Protocol on Envi- tion, 4201 Wilson Boulevard, Arlington, ronmental Protection to the Antarctic VA 22230. Treaty and its Annexes, when it enters Recreational fishing means fishing into force), an applicant seeking to with hook and line for personal use and enter such a Protected Site must apply not for sale. to the Director of the NSF for a permit Scientific research activity means any under applicable provisions of the ACA activity for which a person has a per- or any superseding legislation. The per- mit from NMFS under § 216.31 of this mit granted by NSF shall constitute a title or an award letter from NSF or a joint CEMP/ACA Protected Site permit permit from the NSF under 45 CFR and any person holding such a permit part 670. Scientific research activities may also include harvesting or other must comply with the appropriate associated activities if such activities CEMP Protected Site Management are designated as scientific research Plan. In all other cases, an applicant activities by the Assistant Adminis- seeking a permit to enter a CEMP Pro- trator. tected Site must apply to the Assistant Administrator for a CEMP permit in § 300.102 Relationship to other trea- accordance with the provisions of this ties, conventions, laws, and regula- section. tions. (b) Responsibility of CEMP permit hold- (a) Other conventions and treaties to ers and persons designated as agents which the United States is a party and under a CEMP permit. (1) The CEMP other Federal statutes and imple- permit holder and person designated as menting regulations may impose addi- agents under a CEMP permit are joint- tional restrictions on the harvesting ly and severally responsible for compli- and importation into the United States ance with the Act, this subpart, and of AMLRs. any permit issued under this subpart. (b) The ACA implements the Ant- (2) The CEMP permit holder and arctic Treaty Agreed Measures for the agents designated under a CEMP per- Conservation of Antarctic Fauna and mit are responsible for the acts of their
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employees and agents constituting vio- (1) A detailed justification that the lations, regardless of whether the spe- scientific objectives of the applicant cific acts were authorized or forbidden cannot be accomplished elsewhere and by the CEMP permit holder or agents, a description of how said objectives and regardless of knowledge concerning will be accomplished within the terms their occurrence. of the Protected Site’s Management (c) Prohibitions regarding the Antarctic Plan. Treaty System and other applicable trea- (2) A statement signed by the appli- ties and statutes. Holders of permits to cant that the applicant has read and enter CEMP Protected Sites are not fully understands the provisions and permitted to undertake any activities prohibitions of the Protected Site’s within a CEMP Protected Site that are Management Plan. Prospective appli- not in compliance with the provisions cants may obtain copies of the relevant of: Management Plans and the CCAMLR (1) The Antarctic Treaty, including Conservation Measure describing the the Agreed Measures for the Conserva- Procedures for According Protection to tion of Antarctic Fauna and Flora (in- CEMP Sites by requesting them from cluding the Protocol on the Environ- the Assistant Administrator. mental Protection to the Antarctic (g) Conditions. CEMP permits issued Treaty and its Annexes when it enters under this section will contain special into force), as implemented under by and general conditions including a con- the ACA and any superseding legisla- dition that the permit holder shall sub- tion. (Persons interested in conducting mit a report describing the activities activities subject to the Antarctic conducted under the permit within 30 Treaty or the Protocol should contact days of the expiration of the CEMP the Office of Polar Programs, NSF). permit. (2) The Convention for the Conserva- (h) Duration. Permits issued under tion of Antarctic Seals. this section are valid for a period of 1 (3) The Convention and its Conserva- year. Applicants requesting a permit to tion Measures in force, implemented reenter a Protected Site must include under the Act. the report required by the general con- (d) Prohibitions on takings. Permits dition in the previously issued CEMP issued under this section do not au- permit describing the activities con- thorize any takings as defined in the ducted under authority of that permit. applicable statutes and implementing (i) Transfer. CEMP permits are not regulations governing the activities of transferable or assignable. A CEMP persons in Antarctica. permit is valid only for the person to (e) Issuance criteria. Permits des- whom it is issued. ignated in this section may be issued (j) Modification. (1) CEMP permits by the Assistant Administrator upon a can be modified by submitting a re- determination that: quest to the Assistant Administrator. (1) The specific activities meet the Such requests shall specify: requirements of the Act. (i) The action proposed to be taken (2) There is sufficient reason, estab- along with a summary of the reasons lished in the permit application, that therefore. the scientific purpose for the intended (ii) The steps that the permit holder entry cannot be served elsewhere. may take to demonstrate or achieve (3) The actions permitted will not compliance with all lawful require- violate any provisions or prohibitions ments. of the Protected Site’s Management (2) If a requested modification is not Plan submitted in compliance with the in compliance with the terms of the CCAMLR Conservation Measure de- Protected Site’s Management Plan, the scribing the Procedures for According Assistant Administrator will treat the Protection to CEMP Sites. requested modification as an applica- (f) Application process. An applicant tion for a new CEMP permit and so no- seeking a CEMP permit from the As- tify the holder. Modifications will be sistant Administrator to enter a CEMP acted upon within 30 days of receipt. Protected Site shall include the fol- The CEMP permit holder must report lowing in the application. to the Assistant Administrator any
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change in previously submitted infor- on Seal Island. Seal Island is situated mation within 10 days of the change. at 60°59′14″ S. lat., 55°23′04″ W. long. (3) Additional conditions and restric- (ii) Cape Shirreff and the San Telmo Is- tions. The Assistant Administrator lands. This designation takes effect on may revise the CEMP permit effective May 1, 1995. Cape Shirreff is a low, ice- upon notification of the permit holder, free peninsula towards the western end to impose additional conditions and re- of the north coast of Livingston Island, strictions as necessary to achieve the South Shetland Islands, situated at purposes of the Convention, the Act 62°29′ S. lat., 60°47′ W. long., between and the CEMP Management Plan. The Barclay Bay and Hero Bay. San Telmo CEMP permit holder must, as soon as Island is the largest of a small group of possible, notify any and all agents op- ice-free rock islets, approximately 2 erating under the permit of any and all km west of Cape Shirreff. The bound- revisions or modifications to the per- aries of the Cape Shirreff CEMP Pro- mit. tected Site are identical to the bound- (k) Revocation or suspension. CEMP aries of the Site of Special Scientific permits may be revoked or suspended Interest No. 32, as specified by ATCM based upon information received by the Recommendation XV–7. No manmade Assistant Administrator and such rev- boundary markers indicate the limits ocation or suspension shall be effective of the SSSI or protected site. The upon notification to the permit holder. boundaries are defined by natural fea- (1) A CEMP permit may be revoked tures and include the entire area of the or suspended based on a violation of Cape Shirreff peninsula north of the the permit, the Act, or this subpart. glacier ice tongue margin, and most of (2) Failure to report a change in the the San Telmo Island group. For the information submitted in a CEMP per- purposes of the protected site, the en- mit application within 10 days of the tire area of Cape Shirreff and the San change is a violation of this subpart Telmo Island group is defined as any and voids the application or permit, as land or rocks exposed at mean low tide applicable. Title 15 CFR part 904 gov- within the area delimited by the map erns permit sanctions under this sub- of SSSI No. 32 and available from the part. Assistant Administrator. (l) Exceptions. Entry into a Protected Site described in this section is lawful § 300.104 Scientific research. if committed under emergency condi- (a) The management measures issued tions to prevent the loss of human life, pursuant to the procedures at § 300.111 compromise human safety, prevent the do not apply to catches of less than 5 loss of vessels or aircraft, or to prevent tons taken by any vessel for research environmental damage. purposes, unless otherwise indicated. (m) Protected sites. (1) Sites protected (b) Catches taken by any vessel for by the Antarctic Treaty and regulated research purposes will be considered as under the ACA are listed at 45 CFR part of any catch limit. part 670 subparts G and H. (c) The catch reporting procedure (2) The following sites have been identified in management measures identified as CEMP Protected Sites issued pursuant to the procedures at subject to the regulatory authority of § 300.111 applies whenever the catch the Act: within any 5-day reporting period ex- (i) Seal Islands, South Shetland Is- ceeds 5 tons, unless more specific re- lands—The Seal Islands are composed porting requirements apply to the spe- of islands and skerries located approxi- cies being fished. mately 7 km north of the northwest (d) Any person, organization or insti- corner of Elephant Island, South Shet- tution planning to use a vessel for re- land Islands. The Seal Islands CEMP search purposes, when the estimated Protected Site includes the entire Seal catch is expected to be less than 50 Islands group, which is defined as Seal tons, must provide the following vessel Island plus any land or rocks exposed and research notification to the Assist- at mean low tide within a distance of ant Administrator at least 2 months in 5.5 km of the point of highest elevation advance of the planned research:
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(1) Name and registration number of search/surveys or exploratory fishing vessel. has not been submitted to CCAMLR; (2) Division and subarea in which re- (2) Catch and effort data have never search is to be carried out. been submitted to CCAMLR; or (3) Estimated dates of entering and (3) Catch and effort data from the leaving CCAMLR Convention Area. two most recent seasons in which fish- (4) Purposes of research. ing occurred have not been submitted (5) Fishing equipment to be used to CCAMLR. (bottom trawl, midwater trawl, (b) An individual subject to these longline, crab pots, other). regulations intending to develop a new (e) The following measures apply to fishery shall notify the Assistant Ad- any person planning to use any vessel ministrator no later than July 1 of the for research purposes, when the esti- year in which he or she intends to ini- mated catch is expected to be more tiate the fishery and shall not initiate than 50 tons: (1) The person must use the CCAMLR the fishery pending CCAMLR review. Format for Reporting Plans for Finfish (c) The notification shall be accom- Surveys in the Convention Area when panied by information on: the Total Catch is Expected to be More (1) The nature of the proposed fish- Than 50 Tons to report the details of ery, including target species, methods the research plan to the Assistant Ad- of fishing, proposed region and any ministrator at least 7 months in ad- minimum level of catches that would vance of the planned starting date for be required to develop a viable fishery. the research. A copy of the format is (2) Biological information from com- available from the Assistant Adminis- prehensive research/survey cruises, trator. such as distribution, abundance, demo- (2) The format requires: graphic data and information on stock (i) The name of the CCAMLR Mem- identity. ber. (3) Details of dependent and associ- (ii) Survey details. ated species and the likelihood of them (iii) Description of the vessel. being affected by the proposed fishery. (iv) Description of the fishing gear to (4) Information from other fisheries be used. in the region or similar fisheries else- (v) Description of acoustic gear to be where that may assist in the valuation used. of potential yield. (vi) Survey design and methods of data analyses. § 300.106 Exploratory fisheries. (vii) Data to be collected. (a) An exploratory fishery, for pur- (3) A summary of the results of any poses of this section, is a fishery that research fishing subject to these provi- was previously defined as a new fishery sions must be provided to the Assistant under § 300.105. Administrator within 150 days of the completion of the research fishing and (b) A fishery will continue to be clas- a full report must be provided within 11 sified as an exploratory fishery until months. sufficient information is available to: (4) Catch and effort data resulting (1) Evaluate the distribution, abun- from the research fishing must be re- dance, and demography of the target ported to the Assistant Administrator species, leading to an estimate of the using the CCAMLR C4 haul-by-haul re- fishery’s potential yield. porting format for research vessels. (2) Review the fishery’s potential im- pacts on dependent and related species. § 300.105 Initiating a new fishery. (3) Allow the CCAMLR Scientific (a) A new fishery, for purposes of this Committee to formulate and provide section, is a fishery on a species using advice to the Commission on appro- a particular method in a statistical priate harvest catch levels and fishing subarea for which: gear. (1) Information on distribution, abun- (c) Each vessel participating in an dance, demography, potential yield and exploratory fishery must carry a sci- stock identity from comprehensive re- entific observer.
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(d) The operator of any vessel engag- suffix specific for the non-assigned ves- ing in an exploratory fishery must sub- sel. mit, by the date specified in the opera- (3) The vessel identification must be tor’s harvesting permit, catch, effort, in a color in contrast to the back- and related biological, ecological, and ground and must be permanently af- environmental data as required by a fixed to the harvesting vessel in block data collection plan for the fishery for- roman alphabet letters and arabic nu- mulated by the CCAMLR Scientific merals at least 1 m in height for har- Committee. vesting vessels over 20 m in length, and (e) In addition to the requirements in at least 0.5 m in height for all other § 300.112, any individual planning to harvesting vessels. enter an exploratory fishery must no- (b) Navigational lights and shapes. tify the Assistant Administrator no Each harvesting vessel must display later than 4 months in advance of the the lights and shapes prescribed by the annual meeting of CCAMLR. The As- International Regulations for Pre- sistant Administrator will not issue a venting Collisions at Sea, 1972 (TIAS permit to enter an exploratory fishery 8587, and 1981 amendment TIAS 10672), until after the requirements of § 300.112 for the activity in which the har- have been met and the meeting of vesting vessel is engaged (as described CCAMLR, which receives and considers at 33 CFR part 81). the notice made to the Assistant Ad- (c) Gear identification. (1) The oper- ministrator, has been concluded. ator of each harvesting vessel must en- sure that all deployed fishing gear that § 300.107 Reporting and recordkeeping is not physically and continuously at- requirements. tached to a harvesting vessel is clearly marked at the surface with a buoy dis- The operator of any vessel required playing the vessel identification of the to have a permit under this subpart harvesting vessel (see paragraph (a) of must: this section) to which the gear belongs, (a) Accurately maintain on board the a light visible for 2 miles at night in vessel a fishing logbook and all other good visibility, and a radio buoy. Trawl reports and records required by its per- codends passed from one vessel to an- mit. other are considered continuously at- (b) Make such reports and records tached gear and do not have to be available for inspection upon the re- marked. quest of an authorized officer or (2) The operator of each harvesting CCAMLR inspector. vessel must ensure that deployed (c) Within the time specified in the longlines, strings of traps or pots, and permit, submit a copy of such reports gillnets are marked at the surface at and records to the Assistant Adminis- each terminal end with a buoy dis- trator. playing the vessel identification of the harvesting vessel to which the gear be- § 300.108 Vessel and gear identifica- longs (see paragraph (a) of this sec- tion. tion), a light visible for 2 miles at (a) Vessel identification. (1) The oper- night in good visibility, and a radio ator of each harvesting vessel assigned buoy. an IRCS must display that call sign (3) Unmarked or incorrectly identi- amidships on both the port and star- fied fishing gear may be considered board sides of the deckhouse or hull, so abandoned and may be disposed of in that it is visible from an enforcement accordance with applicable Federal or inspection vessel, and on an appro- regulations by any authorized officer priate weather deck so that it is visible or CCAMLR inspector. from the air. (d) Maintenance. The operator of each (2) The operator of each harvesting harvesting vessel must: vessel not assigned an IRCS, such as a (1) Keep the vessel and gear identi- small trawler associated with a fication clearly legible and in good re- mothership or one of a pair of trawlers, pair. must display the IRCS of the associ- (2) Ensure that nothing on the har- ated vessel, followed by a numerical vesting vessel obstructs the view of the
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markings from an enforcement or in- (b) Any means or device that would spection vessel or aircraft. reduce the size or obstruct the opening (3) Ensure that the proper naviga- of the meshes is prohibited. tional lights and shapes are displayed (c) The following procedure will be for the harvesting vessel’s activity and used for determining compliance with are properly functioning. mesh size requirements. (1) Description of gauges. (i) Gauges § 300.109 Gear disposal. for determining mesh sizes will be 2 (a) The operator of a harvesting ves- mm thick, flat, of durable material and sel may not dump overboard, jettison capable of retaining their shape. They or otherwise discard any article or sub- may have either a series of parallel- stance that may interfere with other edged sides connected by intermediate fishing vessels or gear, or that may tapering edges with a taper of one to catch fish or cause damage to any ma- eight on each side, or only tapering rine resource, including marine mam- edges with the taper defined above. mals and birds, except in cases of emer- They will have a hole at the narrowest gency involving the safety of the ship extremity. or crew, or as specifically authorized (ii) Each gauge will be inscribed on by communication from the appro- its face with the width in millimeters priate USCG commander or authorized both on the parallel-sided section, if officer. These articles and substances any, and on the tapering section. In the include, but are not limited to, fishing case of the latter, the width will be in- gear, net scraps, bale straps, plastic scribed every 1 mm interval, but the bags, oil drums, petroleum containers, indication of the width may appear at oil, toxic chemicals or any manmade regular intervals other than 1 mm. items retrieved in a harvesting vessel’s (2) Use of the gauge. (i) The net will be gear. stretched in the direction of the long (b) The operator of a harvesting ves- diagonal of the meshes. sel may not abandon fishing gear in (ii) A gauge as described in paragraph Convention waters. (c)(1) of this section will be inserted by its narrowest extremity into the mesh (c) The operator of a harvesting ves- opening in a direction perpendicular to sel must provide a copy of the the plane of the net. CCAMLR information brochure ‘‘Ma- (iii) The gauge may be inserted into rine Debris—A Potential Threat to the mesh opening either with a manual Antarctic Marine Mammals’’ to each force or using a weight or dynamom- member of the crew of the harvesting eter, until it is stopped at the tapering vessel and must display copies of the edges by the resistance of the mesh. CCAMLR placard ‘‘Avoidance of Inci- (3) Selection of meshes to be measured. dental Mortality of Antarctic Marine (i) Meshes to be measured will form a Mammals’’ in the wheelhouse and crew series of 20 consecutive meshes chosen quarters of the harvesting vessels. Cop- in the direction of the long axis of the ies of the brochure and placard will be net, except that the meshes to be meas- provided to each holder of a harvesting ured need not be consecutive if the ap- permit by NMFS when issuing the per- plication of paragraph (c)(3)(ii) of this mit. section prevents it. § 300.110 Mesh size. (ii) Meshes less than 50 cm from lacings, ropes, or codline will not be (a) The use of pelagic and bottom measured. This distance will be meas- trawls having the mesh size in any part ured perpendicular to the lacings, ropes of a trawl less than indicated is prohib- or codline with the net stretched in the ited for any directed fishing for the fol- direction of that measurement. No lowing Antarctic finfishes: mesh will be measured which has been (1) Notothenia rossii and Dissostichus mended or broken or has attachments eleginoides—120 mm. to the net fixed at that mesh. (2) Champsocephalus gunnari—90 mm. (iii) Nets will be measured only when (3) Gobionotothen gibberifrons, wet and unfrozen. Notothenia kempi and Lepidorhirus (4) The measurement of each mesh squamifrons—80 mm. will be the width of the gauge at the
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point where the gauge is stopped, when (D) For the purposes of determining using this gauge in accordance with the mesh size in accordance with para- paragraph (c)(2) of this section. graph (c)(5) of this section, when using (5) Determination of the mesh size of a weight or dynamometer, one series of the net will be the arithmetical mean 20 meshes only will be measured. in millimeters of the measurements of the total number of meshes selected § 300.111 Framework for annual man- and measured as provided for in para- agement measures. graphs (c) (3) and (4) of this section, the (a) Introduction. New management arithmetical mean being rounded up to measures may be added and others the next millimeter. modified through publication of a regu- (6) Inspection procedure. (i) One series latory action in the FEDERAL REG- of 20 meshes, selected in accordance ISTER. The following framework proc- with paragraph (c)(3) of this section, ess authorizes the implementation of will be measured by inserting the measures that may affect the operation gauge manually without using a weight of the commercial or exploratory fish- or dynamometer. The mesh size of the eries, gear, area restrictions, or net will then be determined in accord- changes in catch and/or effort. ance with paragraph (c)(5) of this sec- (b) Preliminary notice. The Secretary tion. If the calculation of the mesh size of State shall publish preliminary no- shows that the mesh size does not ap- tice in the FEDERAL REGISTER of the pear to comply with the rules in force, management measures adopted by the then two additional series of 20 meshes parties to the Convention. selected in accordance with paragraph (c)(3) of this section will be measured. (c) Procedure. At its annual meeting, The mesh size will then be recalculated usually in October or November, the in accordance with paragraph (c)(5) of Commission may recommend new this section, taking into account the 60 measures and that established meas- meshes already measured; this recal- ures be modified, removed, or re-insti- culation will be the mesh size of the tuted. After public notice of those rec- net. ommendations by the Secretary of (ii) If the captain of the vessel con- State and opportunity for public com- tests the mesh size determined in ac- ment, and after considering the impact cordance with paragraph (c)(6)(i) of of instituting the measures and any this section, such measurement will public comment received by the Sec- not be considered for the determina- retary of State, the Assistant Adminis- tion of the mesh size and the net will trator may implement the manage- be remeasured. ment measures by notice in the FED- (A) A weight or dynamometer at- ERAL REGISTER, with immediate force tached to the gauge will be used for re- and effect. The notification in the FED- measurement. The choice of weight or ERAL REGISTER will summarize new dynamometer is at the discretion of management measures, and respond to the inspectors. The weight will be fixed any public comments received by the to the hole in the narrowest extremity Secretary of State on the preliminary of the gauge using a hook. The dyna- notice. mometer may either be fixed to the (d) Types of management measures to be hole in the narrowest extremity of the frameworked. Management measures gauge or be applied at the largest ex- that may be implemented by regu- tremity of the gauge. latory notice rather than by codified (B) The accuracy of the weight or dy- regulation are those that generally will namometer must be certified by the ap- not remain in effect for more than 12 propriate national authority. months and include catch restrictions, (C) For nets of a mesh size of 35 mm time and area closures, and gear re- or less as determined in accordance strictions. with paragraph (c)(6)(i) of this section, a force of 19.61 newtons (equivalent to § 300.112 Harvesting permits. a mass of 2 kg) will be applied, and for (a) General. (1) Every vessel subject other nets, a force of 49.03 newtons to the jurisdiction of the United States (equivalent to a mass of 5 kg). that attempts to reduce or reduces any
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AMLR to possession must have a har- the requirements of the Act and will vesting permit authorizing the attempt not: or reduction, unless the attempt or re- (1) Decrease the size of any harvested duction occurs during recreational population to levels below those that fishing or is covered by an individual ensure its stable recruitment. For this permit. Boats launched from a vessel purpose, the Convention recommends issued a harvesting permit do not re- that its size not be allowed to fall quire a separate permit, but are cov- below a level close to that which en- ered by the permit issued the launch- sures the greatest net annual incre- ing vessel. Any enforcement action ment. that results from the activities of a (2) Upset the ecological relationships launched boat will be taken against the between harvested, dependent, and re- launching vessel. lated populations of AMLRs and the (2) Permits issued under this section restoration of depleted populations to do not authorize vessels or persons sub- levels that will ensure stable recruit- ject to the jurisdiction of the United ment. States to harass, capture, harm, kill, (3) Cause changes or increase the risk harvest, or import marine mammals. of changes in the marine ecosystem No marine mammals may be taken in that are not potentially reversible over the course of commercial fishing oper- 2 or 3 decades, taking into account the ations unless the taking is allowed state of available knowledge of the di- under the Marine Mammal Protection rect and indirect impact of harvesting, Act and/or the Endangered Species Act the effect of the introduction of alien pursuant to an exemption or permit species, the effects of associated activi- granted by the appropriate agency. ties on the marine ecosystem and of (b) Responsibility of owners and opera- the effects of environmental changes, tors. (1) The owners and operators of with the aim of making possible the each harvesting vessel are jointly and sustained conservation of AMLRs. severally responsible for compliance (4) Violate the management measures with the Act, this subpart, and any per- issued pursuant to § 300.111 of this sub- mit issued under the Act and this sub- part. part. (5) Violate any other conservation (2) The owners and operators of each measures in force with respect to the such vessel are responsible for the acts United States under the Convention or of their employees and agents consti- the Act. tuting violations, regardless of whether (e) Duration. A harvesting permit is the specific acts were authorized or for- valid from its date of issuance to its bidden by the owners or operators, and date of expiration unless it is revoked regardless of knowledge concerning or suspended. their occurrence. (f) Transfer. Permits are not transfer- (3) The owner of such vessel must re- able or assignable. A permit is valid port any sale, change in ownership, or only for the vessel to which it is issued. other disposition of the vessel to the (g) Display. Each harvesting vessel Assistant Administrator within 15 days when engaged in harvesting must ei- of the occurrence. ther have on board an up-to-date copy (c) Application. Application forms for of its harvesting permit or a fully com- harvesting permits are available from pleted and up-to-date harvesting vessel the Assistant Administrator (Attn: certificate and the vessel operator CCAMLR permits). A separate fully must produce it for inspection upon the completed and accurate application request of an authorized officer or must be submitted for each vessel for CCAMLR inspector. In order for the which a harvesting permit is requested certificate to be considered complete, at least 90 days before the date antici- the vessel owner or operator must pated for the beginning of harvesting. enter on it the name and IRCS of the (d) Issuance. The Assistant Adminis- vessel issued the harvesting permit, trator may issue a harvesting permit the number of the harvesting permit to a vessel if the Assistant Adminis- and its date of issuance and expiration, trator determines that the harvesting the harvesting authorized by the per- described in the application will meet mit, and all conditions and restrictions
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contained in the permit. Blank certifi- (j) Revision, suspension, or revocation cates are available from the Assistant for violations. A harvesting permit may Administrator. be revised, suspended, or revoked if the (h) Changes in information submitted harvesting vessel is involved in the by permit applicants or holders—(1) commission of any violation of its per- Changes in pending applications. Appli- mit, the Act, or this subpart. Failure cants for a harvesting permit must re- to report a change in the information port to the Assistant Administrator in contained in an application within 15 writing any change in the information days of the change is a violation of this contained in the application. The proc- subpart and voids the application or essing period for the application will be permit, as applicable. If a change in extended as necessary to review the vessel ownership is not reported, the change. violation is chargeable to the previous (2) Changes occurring after permit owner. Title 15 CFR part 904 governs issuance—(i) Changes other than in the permit sanctions under this subpart. manner and amount of harvesting. The owner or operator of a vessel that has § 300.113 Import permits. been issued a harvesting permit must (a) General. (1) Any AMLR may be report to the Assistant Administrator imported into the United States if its in writing any change in previously harvest is authorized by an individual submitted information other than a permit or a harvesting permit. The proposed change in the location, man- harvesting permit, the harvesting ves- ner, or amount of harvesting within 15 sel certificate, or the individual per- days of the change. Based on such re- mit, or a copy of any thereof, must ac- ported information, the Assistant Ad- company the import. AMLRs harvested ministrator may revise the permit ef- by entities not subject to U.S. jurisdic- fective upon notification to the permit tion and, thus, not harvested under a holder. As soon as possible, the vessel U.S. issued permit (i.e., a harvesting owner or operator must revise any har- permit or an individual permit), also vesting vessel certificate evidencing may be imported into the United the permit, accordingly. States if such harvesting will meet or (ii) Requested changes in the location, met the requirements of the Act and manner, or amount of harvesting. Any will not or did not violate any con- changes in the manner or amount of servation measure in force with respect harvesting must be proposed in writing to the United States under the Conven- to the Assistant Administrator and tion or the Act or violate any of the may not be undertaken unless author- regulations in this subpart, including ized by the Assistant Administrator resource management measures con- through a permit revision or issuance tained therein. A NMFS issued import of a new permit. If a requested change permit or copy thereof must accom- in the location, manner, or amount of pany such an import as proof that the harvesting could significantly affect foreign harvested resources met such the status of any Antarctic marine liv- requirements. Further, the importer is ing resource, the Assistant Adminis- required to complete and return to the trator will treat the requested change Assistant Administrator, no later than as an application for a new permit and 10 days after the date of the importa- so notify the holder. tion, an import ticket reporting the (i) Additional conditions and restric- importation. However, in no event may tions. The Assistant Administrator a marine mammal be imported into the may revise the harvesting permit, ef- United States unless authorized and fective upon notification to the permit accompanied by an import permit holder, to impose additional conditions issued under the Marine Mammal Pro- and restrictions on the harvesting ves- tection Act and/or the Endangered Spe- sel as necessary to achieve the pur- cies Act. poses of the Convention or the Act. The (2) A permit issued under this section permit holder must, as soon as pos- does not authorize the harvest of any sible, direct the vessel operator to re- AMLRs. vise the harvesting vessel certificate, if (b) Application. Application forms for any, accordingly. import permits are available from the
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Assistant Administrator (Attn: (g) Revision, suspension, or revocation. CCAMLR permits). A fully completed An import permit may be revised, sus- and accurate application must be sub- pended, or revoked based upon informa- mitted for each import permit re- tion subsequently reported, effective quested at least 30 days before the an- upon notification to the permit holder. ticipated date of the importation. An import permit may be revised, sus- (c) Issuance. The Assistant Adminis- pended, or revoked, based upon a viola- trator may issue an import permit if tion of the permit, the Act, or this sub- the Assistant Administrator deter- part. Failure to report a change in the mines that the importation meets the information contained in an import requirements of the Act and that the permit application is a violation of this resources were not or will not be har- subpart and voids the application or vested in violation of any conservation permit, as applicable. Title 15 CFR part measure in force with respect to the 904 governs permit sanctions under this United States or in violation of any subpart. regulation in this subpart. Blank im- (h) Disposition of resources not accom- port tickets will be attached to the panied by required documentation. (1) permit. Additional blank import tick- ets are available from the Assistant When AMLRs are imported into the Administrator. United States unaccompanied by a per- (d) Duration. An import permit is mit authorizing import, the importer valid from its date of issuance to its must either: date of expiration unless it is revoked (i) Abandon the resources; or suspended. (ii) Waive claim to the resources; or (e) Transfer. An import permit is not (iii) Place the resources into a bond- transferable or assignable. ed warehouse and attempt to obtain a (f) Changes in information submitted by permit authorizing their importation. permit applicants or holders—(1) Changes (2) If, within 60 days of such resources in pending applications. Applicants for being placed into a bonded warehouse, an import permit must report in writ- the District Director of the U.S. Cus- ing to the Assistant Administrator any toms Service receives documentation change in the information submitted in that import of the resources into the their import permit application. The United States is authorized by a per- processing period for the application mit, the resources will be allowed will be extended as necessary to review entry. If documentation of a permit is the change. not presented within 60 days, the im- (2) Changes occurring after permit porter’s claim to the resources will be issuance. Any entity issued an import deemed waived. permit must report in writing to the (3) When resources are abandoned or Assistant Administrator any changes claim to them waived, the resources in previously submitted information. will be delivered to the Administrator Any changes that would not result in a of NOAA, or a designee, for storage or change in the importation authorized disposal as authorized by law. by the permit must be reported on the import ticket required to be submitted § 300.114 Appointment of a designated to the Assistant Administrator no representative. later than 10 days after the date of im- portation. Any changes that would re- (a) All holders of permits authorizing sult in a change in the importation au- fishing in subarea 48.3 must appoint a thorized by the permit, such as country designated representative in the United of origin, type and quantity of the re- States. source to be imported, and Convention (b) The designated representative statistical subarea from which the re- will be notified of closures under source was harvested, must be proposed § 300.111 and must transmit this infor- in writing to the Assistant Adminis- mation to the vessel on the grounds. trator and may not be undertaken un- (c) The designated representative less authorized by the Assistant Ad- may receive catch reports from the ministrator by a permit revision or vessel and transmit the reports to new permit. NMFS in writing.
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§ 300.115 Prohibitions. sel or its gear as required by this sub- In addition to the prohibitions in part. § 300.4, it is unlawful for any person to: (k) Fish in a closed area. (a) Reduce to possession or attempt (l) Trawl with a mesh size in any part to reduce to possession any AMLRs of the trawl net smaller than that al- without a permit for such activity as lowed for any directed fishing for Ant- required by § 300.112. arctic finfishes as specified in manage- (b) Import into the United States any ment measures issued pursuant to AMLRs without either a permit to im- § 300.111. port those resources as required by (m) Use any means or device that § 300.113 or a permit to harvest those re- would reduce the size or obstruct the sources as required by § 300.112. opening of the trawl meshes specified (c) Engage in harvesting or other as- in management measures issued pursu- sociated activities in violation of the ant to § 300.111. provisions of the Convention or in vio- (n) Possess fish in violation of the lation of a conservation measure in catch limit specified in management force with respect to the United States measures issued pursuant to § 300.111. under Article IX of the Convention. (o) Discard netting or other sub- (d) Ship, transport, offer for sale, stances in the Convention Area in vio- sell, purchase, import, export or have lation of § 300.109. custody, control or possession of, any (p) Violate or attempt to violate any AMLR that he or she knows, or reason- provision of this subpart, the Act, any ably should have known, was harvested other regulation promulgated under in violation of a conservation measure the Act or any permit issued under the in force with respect to the United Act. States under article IX of the Conven- tion or in violation of any regulation § 300.116 Facilitation of enforcement promulgated under this subpart, with- and inspection. out regard to the citizenship of the per- In addition to the facilitation of en- son that harvested, or vessel that was forcement provisions of § 300.5, the fol- used in the harvesting of, the AMLR. lowing requirements apply to this sub- (e) Refuse to allow any CCAMLR in- part. spector to board a vessel of the United (a) Access and records. (1) The owners States or a vessel subject to the juris- and operator of each harvesting vessel diction of the United States for the must provide authorized officers and purpose of conducting an inspection CCAMLR inspectors access to all authorized by the Act, this subpart, or spaces where work is conducted or any permit issued under the Act. business papers and records are pre- (f) Refuse to provide appropriate as- pared or stored, including but not lim- sistance, including access as necessary ited to personal quarters and areas to communications equipment, to within personal quarters. If inspection CCAMLR inspectors. of a particular area would interfere (g) Refuse to sign a written notifica- with specific on-going scientific re- tion of alleged violations of Commis- search, and if the operator of the har- sion measures in effect prepared by a vesting vessel makes such assertion CCAMLR inspector. and produces an individual permit that (h) Assault, resist, oppose, impede, covers that specific research, the au- intimidate, or interfere with a thorized officer or CCAMLR inspector CCAMLR inspector in the conduct of will not disturb the area, but will any boarding or inspection authorized record the information pertaining to by the Act, this subpart, or any permit the denial of access. issued under the Act. (2) The owner and operator of each (i) Use any vessel to engage in har- harvesting vessel must provide to au- vesting after the revocation, or during thorized officers and CCAMLR inspec- the period of suspension, of an applica- tors all records and documents per- ble permit issued under the Act. taining to the harvesting activities of (j) Fail to identify, falsely identify, the vessel, including but not limited to fail to properly maintain, or obscure production records, fishing logs, navi- the identification of a harvesting ves- gation logs, transfer records, product
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receipts, cargo stowage plans or in a storage space on board the vessel records, draft or displacement calcula- must ensure that non-resource items tions, customs documents or records, are neither stowed beneath nor covered and an accurate hold plan reflecting by resource items, unless required to the current structure of the vessel’s maintain the stability and safety of storage and factory spaces. the vessel. Non-resource items include, (3) Before leaving vessels that have but are not limited to, portable con- been inspected, the CCAMLR inspector veyors, exhaust fans, ladders, nets, fuel will give the master of the vessel a Cer- bladders, extra bin boards, or other tificate of Inspection and a written no- moveable non-resource items. These tification of any alleged violations of Commission measures in effect and will non-resource items may be in a re- afford the master the opportunity to source storage space when necessary comment on it. The ship’s master must for the safety of the vessel or crew or sign the notification to acknowledge for the storage of the items. Lumber, receipt and the opportunity to com- bin boards, or other dunnage may be ment on it. used for shoring or bracing of product (b) Reports by non-inspectors. All sci- to ensure the safety of crew and to pre- entists, fishermen, and other non-in- vent shifting of cargo within the space. spectors present in the Convention area and subject to the jurisdiction of § 300.117 Penalties. the United States are encouraged to re- Any person or harvesting vessel port any violation of Commission con- found to be in violation of the Act, this servation and management measures subpart, or any permit issued under observed in the Convention area to the this subpart will be subject to the civil Office of Ocean Affairs (CCAMLR Vio- and criminal penalty provisions and lations), Department of State, Room 5801, Washington, DC 20520. forfeiture provisions prescribed in the (c) Storage of AMLRs. The operator of Act, 15 CFR part 904, and other applica- each harvesting vessel storing AMLRs ble laws.
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FIGURE 1 TO SUBPART G—BOUNDARIES OF THE STATISTICAL REPORTING AREA IN THE SOUTHERN OCEAN
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FIGURE 2 TO SUBPART G—THE USE OF STREAMER LINES TO MINIMIZE THE INCIDENTAL MORTALITY OF SEABIRDS IN THE COURSE OF LONGLINE FISH- ING OR LONGLINE FISHING RESEARCH OPERATIONS IN THE CONVENTION AREA
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Subpart H—Vessels of the United this title and paragraph (b) of this sec- States Fishing in Colombian tion. Particular note should be made to Treaty Waters the reference in § 600.705 to the applica- bility of title 46 U.S.C., under which a Certificate of Documentation is invalid AUTHORITY: 16 U.S.C. 1801 et seq. when the vessel is placed under the command of a person who is not a cit- § 300.120 Purpose. izen of the United States. This subpart implements fishery con- (b) Minimum size limitations for cer- servation and management measures tain species, such as reef fish in the as provided in fishery agreements pur- Gulf of Mexico, may apply to vessels suant to the Treaty Between the Gov- transiting the EEZ with such species ernment of the United States of Amer- aboard. ica and the Government of the Repub- lic of Colombia Concerning the Status § 300.123 Certificates and permits. of Quita Sueno, Roncador and Serrana (TIAS 10120) (Treaty). (a) Applicability. An owner of a vessel of the United States that fishes in trea- § 300.121 Definitions. ty waters is required to obtain an an- nual certificate issued by the Republic In addition to the terms defined in of Colombia and an annual vessel per- § 300.2, the Magnuson Act, and § 600.10 of mit issued by the Regional Adminis- this title, and in the Treaty, the terms trator. used in this subpart have the following (b) Application for certificate/permit. (1) meanings. If a term is defined dif- An application for a permit must be ferently in § 300.2, the Magnuson Act, or submitted and signed by the vessel’s the Treaty, the definition in this sec- owner. An application may be sub- tion shall apply. mitted at any time, but should be sub- Conch means Strombus gigas. mitted to the Regional Administrator Factory vessel means a vessel that not less than 90 days in advance of its processes, transforms, or packages need. Applications for the ensuing cal- aquatic biological resources on board. endar year should be submitted to the Lobster means one or both of the fol- Regional Administrator by October 1. lowing: (1) Smoothtail lobster, Panulirus (2) An applicant must provide the fol- laevicauda. lowing: (2) Spiny lobster, Panulirus argus. (i) A copy of the vessel’s valid USCG Regional Administrator means the Di- certificate of documentation or, if not rector, Southeast Region, or a des- documented, a copy of its valid state ignee. registration certificate. Science and Research Director means (ii) Vessel name and official number. the Director, Southeast Fisheries (iii) Name, address, telephone num- Science Center. ber, and other identifying information Treaty waters means the waters of one of the vessel owner or, if the owner is or more of the following: a corporation or partnership, of the re- (1) Quita Sueno, enclosed by latitudes sponsible corporate officer or general 13°55′N. and 14°43′N. between longitudes partner. 80°55′W. and 81°28′W. (iv) Principal port of landing of fish (2) Serrana, enclosed by arcs 12 nau- taken from treaty waters. tical miles from the low water line of (v) Type of fishing to be conducted in the cays and islands in the general area treaty waters. of 14°22′N. lat., 80°20′W. long. (vi) Any other information con- (3) Roncador, enclosed by arcs 12 nau- cerning the vessel, gear characteris- tical miles from the low water line of tics, principal fisheries engaged in, or Roncador Cay, in approximate position fishing areas, as specified on the appli- 13°35′N. lat., 80°05′W. long. cation form. (vii) Any other information that may § 300.122 Relation to other laws. be necessary for the issuance or admin- (a) The relation of this subpart to istration of the permit, as specified on other laws is set forth in § 600.705 of the application form.
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(c) Issuance. (1) The Regional Admin- in the application information required istrator will request a certificate from by paragraph (b)(2) of this section. The the Republic of Colombia if: permit is void if any change in the in- (i) The application is complete. formation is not reported within 30 (ii) The applicant has complied with days. all applicable reporting requirements of § 300.124 during the year immediately § 300.124 Recordkeeping and report- preceding the application. ing. (2) Upon receipt of an incomplete ap- (a) Arrival and departure reports. The plication, or an application from a per- operator of each vessel of the United son who has not complied with all ap- States for which a certificate and per- plicable reporting requirements of mit have been issued under § 300.123 § 300.124 during the year immediately must report by radio to the Port Cap- preceding the application, the Regional tain, San Andres Island, voice radio Administrator will notify the applicant call sign ‘‘Capitania de San Andres,’’ of the deficiency. If the applicant fails the vessel’s arrival in and departure to correct the deficiency within 30 days from treaty waters. Radio reports must of the Regional Administrator’s notifi- be made on 8222.0 kHz or 8276.5 kHz be- cation, the application will be consid- tween 8:00 a.m. and 12 noon, local time ered abandoned. (1300–1700, Greenwich mean time) Mon- (3) The Regional Administrator will day through Friday. issue a permit as soon as the certifi- (b) Catch and effort reports. Each ves- cate is received from the Republic of sel of the United States must report its Colombia. catch and effort on each trip into trea- (d) A certificate and permit Duration. ty waters to the Science and Research are valid for the calendar year for Director on a form available from the which they are issued, unless the per- Science and Research Director. These mit is revoked, suspended, or modified forms must be submitted to the under subpart D of 15 CFR part 904. Science and Research Director so as to (e) A certificate and permit Transfer. be received no later than 7 days after issued under this section are not trans- the end of each fishing trip. ferable or assignable. They are valid only for the fishing vessel and owner § 300.125 Vessel identification. for which they are issued. (f) Display. A certificate and permit (a) Official number. A vessel with a issued under this section must be car- permit issued pursuant to § 300.123, ried aboard the fishing vessel while it when in treaty waters, must display its is in treaty waters. The operator of a official number on the port and star- fishing vessel must present the certifi- board sides of the deckhouse or hull, cate and permit for inspection upon re- and on an appropriate weather deck, so quest of an authorized officer or an en- as to be clearly visible from an enforce- forcement officer of the Republic of Co- ment vessel or aircraft. The official lombia. number must be permanently affixed to (g) Sanctions and denials. Procedures or painted on the vessel and must be in governing enforcement-related permit block arabic numerals in contrasting sanctions and denials are found at sub- color to the background at least 18 part D of 15 CFR part 904. inches (45.7 cm) in height for fishing (h) Alteration. A certificate or permit vessels over 65 ft (19.8 m) in length, and that is altered, erased, or mutilated is at least 10 inches (25.4 cm) in height for invalid. all other vessel. (i) Replacement. A replacement cer- (b) Duties of operator. The operator of tificate or permit may be issued upon each fishing vessel must— request. Such request must clearly (1) Keep the official number clearly state the reason for a replacement cer- legible and in good repair. tificate or permit. (2) Ensure that no part of the fishing (j) Change in application information. vessel, its rigging, fishing gear, or any The owner of a vessel with a permit other material aboard obstructs the must notify the Regional Adminis- view of the official number from an en- trator within 30 days after any change forcement vessel or aircraft.
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§ 300.126 Prohibitions. (b) The operator of, or any other per- son aboard, any vessel of the United In addition to the general prohibi- States fishing in treaty waters must tions specified in § 600.725 of this title immediately comply with instructions and the prohibited acts specified in and signals issued by an enforcement § 300.4, it is unlawful for any person to officer of the Republic of Colombia to do any of the following: stop the vessel and with instructions to (a) Fish in treaty waters without the facilitate safe boarding and inspection certificate and permit aboard, or fail to of the vessel, its gear, equipment, fish- display the certificate and permit, as ing record, and catch for purposes of specified in § 300.123(a) and (f). enforcing this subpart. (b) Fail to notify the Regional Ad- ministrator of a change in application § 300.128 Penalties. information, as specified in § 300.123(j). (c) Fail to report a vessel’s arrival in Any person committing or fishing and departure from treaty waters, as vessel used in the commission of a vio- required by § 300.124(a). lation of the Magnuson Act or any reg- (d) Falsify or fail to display and ulation issued under the Magnuson maintain vessel identification, as re- Act, is subject to the civil and criminal quired by § 300.125. penalty provisions and civil forfeiture (e) Fail to comply immediately with provisions of the Magnuson Act, to instructions and signals issued by an part 600 of this title, to 15 CFR part 904, enforcement officer of the Republic of and to other applicable law. In addi- Colombia, as specified in § 300.127. tion, Colombian authorities may re- (f) Operate a factory vessel in treaty quire a vessel involved in a violation of waters, as specified in § 300.130(a). this subpart to leave treaty waters. (g) Use a monofilament gillnet in § 300.129 Fishing year. treaty waters, as specified in § 300.130(b). The fishing year for fishing in treaty (h) Use autonomous or semi-autono- waters begins on January 1 and ends on mous diving equipment in treaty wa- December 31. ters, as specified in § 300.130(c). (i) Use or possess in treaty waters a § 300.130 Vessel and gear restrictions. lobster trap or fish trap without a de- (a) Factory vessels. Factory vessels gradable panel, as specified in are prohibited from operating in treaty § 300.130(d). waters. (j) Possess conch smaller than the (b) Monofilament gillnets. A minimum size limit, as specified in monofilament gillnet made from nylon § 300.131(a). or similar synthetic material are pro- (k) Fish for or possess conch in the hibited from being used in treaty wa- closed area or during the closed season, ters. as specified in § 300.131(b) and (c). (c) Tanks and air hoses. Autonomous (l) Retain on board a berried lobster or semiautonomous diving equipment or strip eggs from or otherwise molest (tanks or air hoses) are prohibited from a berried lobster, as specified in being used to take aquatic biological § 300.132(a). resources in treaty waters. (m) Possess a lobster smaller than (d) Trap requirements. A lobster trap the minimum size, as specified in or fish trap used or possessed in treaty § 300.132(b). waters that is constructed of material (n) Fail to return immediately to the other than wood must have an escape water unharmed a berried or under- panel located in the upper half of the sized lobster, as specified in § 300.132(a) sides or on top of the trap that, when and (b). removed, will leave an opening no smaller than the throat or entrance of § 300.127 Facilitation of enforcement. the trap. Such escape panel must be (a) The provisions of § 600.730 of this constructed of or attached to the trap title and paragraph (b) of this section with wood, cotton, or other degradable apply to vessels of the United States material. fishing in treaty waters. (e) Poisons and explosives. [Reserved]
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§ 300.131 Conch harvest limitations. United States under the Magnuson Act. (a) Size limit. The minimum size limit This includes, but is not limited to, ac- for possession of conch in or from trea- tivities of nationals, residents and ves- ty waters is 7.94 oz (225 g) for an sels of the United States (including the uncleaned meat and 3.53 oz (100 g) for a owners and operators of such vessels) cleaned meat. within waters subject to the fisheries (b) Closed area. The treaty waters of jurisdiction of Canada as defined in Quita Sueno are closed to the harvest this subpart, as well as on the high seas or possession of conch. and in waters subject to the fisheries (c) Closed season. During the period jurisdiction of the United States. July 1 through September 30 of each year, the treaty waters of Serrana and § 300.141 Definitions. Roncador are closed to the harvest or In addition to the terms defined in possession of conch. § 300.2 and those in the Magnuson Act and the Agreement, the terms used in § 300.132 Lobster harvest limitations. this subpart have the following mean- (a) Berried lobsters. A berried (egg- ings. If a term is defined differently in bearing) lobster in treaty waters may § 300.2, the Magnuson Act, or the Agree- not be retained on board. A berried lob- ment, the definition in this section ap- ster must be returned immediately to plies. the water unharmed. A berried lobster Applicable Canadian fisheries law may not be stripped, scraped, shaved, means any Canadian law, regulation or clipped, or in any other manner mo- similar provision relating in any man- lested to remove the eggs. (b) Size limit. The minimum size limit ner to fishing by any fishing vessel for possession of lobster in or from other than a Canadian fishing vessel in treaty waters is 5.5 inches (13.97 cm), waters subject to the fisheries jurisdic- tail length. Tail length means the tion of Canada, including, but not lim- measurement, with the tail in a ited to, any provision relating to stow- straight, flat position, from the ante- age of fishing gear by vessels passing rior upper edge of the first abdominal through such waters, and to obstruc- (tail) segment to the tip of the closed tion or interference with enforcement tail. A lobster smaller than the min- of any such law or regulation. imum size limit must be returned im- Authorized officer of Canada means mediately to the water unharmed. any fishery officer, protection officer, officer of the Royal Canadian Mounted Subpart I—United States-Canada Police, or other employee authorized Fisheries Enforcement by the appropriate authority of any na- tional or provincial agency of Canada to enforce any applicable Canadian AUTHORITY: 16 U.S.C. 1801 et seq. fisheries law. § 300.140 Purpose and scope. Canadian fishing vessel means a fish- ing vessel: This subpart implements the Agree- ment Between the Government of the (1) That is registered or licensed in United States of America and the Gov- Canada under the Canada Shipping Act ernment of Canada on Fisheries En- and is owned by one or more persons forcement executed at Ottawa, Canada, each of whom is a Canadian citizen, a on September 26, 1990 (Agreement), al- person resident and domiciled in Can- lowing each party to the Agreement to ada, or a corporation incorporated take appropriate measures, consistent under the laws of Canada or of a prov- with international law, to prevent its ince, having its principal place of busi- nationals, residents and vessels from ness in Canada; or violating those national fisheries laws (2) That is not required by the Can- and regulations of the other party. ada Shipping Act to be registered or li- This subpart applies, except where oth- censed in Canada and is not registered erwise specified in this subpart, to all or licensed elsewhere but is owned as persons and all places (on water and on described in paragraph (1) of this defi- land) subject to the jurisdiction of the nition.
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Waters subject to the fisheries jurisdic- cense or any other authorization grant- tion of Canada means the internal wa- ed by Canada under any such law. ters, territorial sea, and the zone that (f) Fail to comply immediately with Canada has established, extending 200 any of the enforcement and boarding nautical miles from its coasts, in which procedures specified in § 300.143. it exercises sovereign rights for the (g) Destroy, stave, or dispose of in purpose of exploration, exploitation, any manner, any fish, gear, cargo or conservation and management of living other matter, upon any communication marine resources, to the extent recog- or signal from an authorized officer of nized by the United States. Canada, or upon the approach of such an officer, enforcement vessel or air- § 300.142 Prohibitions. craft, before the officer has had the op- The prohibitions in this section apply portunity to inspect same, or in con- within waters subject to the fisheries travention of directions from such an jurisdiction of Canada and during hot officer. pursuit therefrom by an authorized of- (h) Refuse to allow an authorized of- ficer of Canada. It is unlawful for any ficer of Canada to board a vessel for the national or resident of the United purpose of conducting any inspection, States, or any person on board a vessel search, seizure, investigation or arrest of the United States, or the owner or in connection with the enforcement of operator of any such vessel, to do any any applicable Canadian fisheries law. of the following: (i) Assault, resist, oppose, impede, in- timidate, threaten, obstruct, delay, (a) Engage in fishing in waters sub- prevent, or interfere, in any manner, ject to the fisheries jurisdiction of Can- with an authorized officer of Canada in ada without the express authorization the conduct of any boarding, inspec- of the Government of Canada. tion, search, seizure, investigation or (b) Take or retain fish in waters sub- arrest in connection with the enforce- ject to the fisheries jurisdiction of Can- ment of any applicable Canadian fish- ada without the express authorization eries law. of the Government of Canada. (j) Make any false statement, oral or (c) Be on board a fishing vessel in wa- written, to an authorized officer of ters subject to the fisheries jurisdic- Canada in response to any inquiry by tion of Canada, without stowing all that officer in connection with enforce- fishing gear on board either: ment of any applicable Canadian fish- (1) Below deck, or in an area where it eries law. is not normally used, such that the (k) Falsify, cover, or otherwise ob- gear is not readily available for fish- scure, the name, home port, official ing; or number (if any), or any other similar (2) If the gear cannot readily be marking or identification of any fish- moved, in a secured and covered man- ing vessel subject to this subpart such ner, detached from all towing lines, so that the vessel cannot be readily iden- that it is rendered unusable for fishing; tified from an enforcement vessel or unless the vessel has been authorized aircraft. by the Government of Canada to fish in (l) Attempt to do any of the fore- the particular location within waters going. subject to the fisheries jurisdiction of Canada in which it is operating. § 300.143 Facilitation of enforcement. (d) While on board a fishing vessel in (a) General. Persons aboard fishing waters subject to the fisheries jurisdic- vessels subject to this subpart must tion of Canada, fail to respond to any immediately comply with instructions inquiry from an authorized officer of and/or signals issued by an authorized Canada regarding the vessel’s name, officer of the United States or Canada, flag state, location, route or destina- or by an enforcement vessel or aircraft, tion, and/or the circumstances under to stop the vessel, and with instruc- which the vessel entered such waters. tions to facilitate safe boarding and in- (e) Violate the Agreement, any appli- spection for the purpose of enforcing cable Canadian fisheries law, or the any applicable Canadian fisheries law, terms or conditions of any permit, li- the Agreement, or this subpart. All of
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the provisions of § 300.5 regarding com- part 904 (Civil Procedures), and any munications, boarding, and signals other applicable law or regulation. apply to this subpart. For purposes of this subpart, authorized officer in § 305 Subpart J—U.S. Nationals Fishing means an authorized officer of the United States or Canada. (See para- in Russian Fisheries graph (b) of this section for specific re- quirements for complying with signals AUTHORITY: 16 U.S.C. 1801 et seq. and instructions issued by an author- ized officer of Canada.) § 300.150 Purpose. (b) Canadian signals. In addition to This subpart regulates U.S. nationals signals set forth in § 300.5, persons fishing in the Russian fisheries and im- aboard fishing vessels subject to this plements the Agreement between the subpart must immediately comply with Government of the United States of the following signals by an authorized America and the Government of the officer of Canada. Union of Soviet Socialist Republics on (1) Authorized officers of Canada use Mutual Fisheries Relations, signed the following signals to require fishing May 31, 1988. vessels to stop or heave to: (i) The hoisting of a rectangular flag, § 300.151 Definitions. known as the International Code Flag ‘‘L’’, which is divided vertically and In addition to the terms defined in horizontally into quarters and colored § 300.2 and those in the Magnuson Act, so that: the terms used in this subpart have the (A) The upper quarter next to the following meanings. If a term is de- staff and the lower quarter next to the fined differently in § 300.2 or the Mag- fly are yellow; and nuson Act, the definition in this sec- (B) The lower quarter next to the tion shall apply. staff and the upper quarter next to the Affiliates means two persons (includ- fly are black; ing individuals and entities) related in (ii) The flashing of a light to indicate such a way that— the International Morse Code letter (1) One indirectly or directly controls ‘‘L’’, consisting of one short flash, fol- or has power to control the other; or lowed by one long flash, followed by (2) A third party controls or has two short flashes (. — . .); or power to control both. Indicia of con- (iii) The sounding of a horn or whis- trol include, but are not limited to, tle to indicate the International Morse interlocking management or owner- Code letter ‘‘L’’, consisting of one ship, identity of interests among fam- short blast, followed by one long blast, ily members, shared facilities and followed by two short blasts (. — . .). equipment, common use of employees, (2) Authorized officers of Canada use or a reorganized entity having the the following signals to require a fish- same or similar management, owner- ing vessel to prepare to be boarded: ship, or employees as a former entity. (i) The hoisting of flags representing the International Code Flag ‘‘SQ3’’; or Agreement means the Agreement Be- (ii) The flashing of a light, or the tween the Government of the United sounding of a horn or whistle, to indi- States of America and the Government cate the International Morse Code Sig- of the Union of Soviet Socialist Repub- nal ‘‘SQ3’’ (. . .——.—. . .——). lics on Mutual Fisheries Relations, signed May 31, 1988. § 300.144 Penalties and sanctions. Embassy of the Russian Federation Any person, any fishing vessel, or the means the Fisheries Attache of the em- owner or operator of any such vessel, bassy located in Washington, D.C. who violates any provision of the Fishery resource means any fish, any Agreement or this subpart, is subject stock of fish, any species of fish, and to the civil and criminal fines, pen- any habitat of fish. alties, forfeitures, permit sanctions, or Fishing or to fish means any activity other sanctions provided in the Magnu- that does, is intended to, or can reason- son Act, part 600 of this title, 15 CFR ably be expected to result in catching
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or removing from the water fishery re- has sovereign rights over the fishery sources. Fishing also includes the acts resources. of scouting, processing, and support. Russian Federation or Russia means Operator, with respect to any vessel, the governing entity that succeeded means the master or other individual the Union of Soviet Socialist Repub- on board and in charge of either the lics, and that is the successor party to vessel, the vessel’s fishing operation, or the Agreement of May 31, 1988. both. Russian fisheries, Russian fishery re- Owner, with respect to any vessel, sources, or fishery resources over which means any person who owns that vessel Russia exercises sovereign rights or fish- in whole or in part, whether or not it is ery management authority means fishery leased or chartered to or managed by resources within the Russian EZ, fish- another person, or any charterer, ery resources of the Russian conti- whether bareboat, time, or voyage, and nental shelf, and anadromous species any person who acts in the capacity of that originate in the waters of Russia, a charterer, or manager, including but whether found in the Russian EZ or be- not limited to parties to a management yond any exclusive economic zone or agreement, operating agreement, or its equivalent. any similar agreement that bestows Scouting means any operation by a control over the destination, function, vessel exploring (on behalf of the vessel or operation of the vessel, any officer, or another vessel) for the presence of director, manager, controlling share- fish by any means that do not involve holder of any entity described in this the catching of fish. definition, any agent designated as Support means any operation by a such by any person described in this vessel assisting fishing by another ves- definition, and any affiliate of any per- sel, including— son described in this definition. (1) Transferring or transporting fish Processing means any operation by a or fish products; or vessel to receive fish from a fishing (2) Supplying a fishing vessel with vessel and/or the preparation of fish, water, fuel, provisions, fishing equip- including but not limited to cleaning, ment, fish processing equipment, or cooking, canning, smoking, salting, other supplies. drying, or freezing, either on the ves- sel’s behalf or to assist another vessel. § 300.152 Procedures. Regional Administrator means Direc- (a) Application for annual permits. U.S. tor, Alaska Region, or a designee. vessel owners and operators must have Relevant laws and regulations of the a valid permit issued by the Russian Russian Federation means those Rus- Federation obtained pursuant to a sian laws and regulations that concern complete application submitted fishing for fishery resources over which through NMFS before fishing in the Russia exercises sovereign rights or Russian EZ or for Russian fishery re- fishery management authority. sources. Application forms and copies Russian and Federation mean the Rus- of applicable laws and regulations of sian Federation, its government, or the Russian Federation may be ob- any organ or entity of its government. tained from NMFS Headquarters. Russian continental shelf or conti- (b) Other application information. Ap- nental shelf of Russia means the seabed plications for motherships, processing and subsoil of the submarine areas over or transport vessels must identify the which, consistent with international type of fishing gear to be employed or law, Russia exercises sovereign rights. the fishing quotas if the vessel has re- Russian Economic Zone or Russian EZ ceived or is requesting a quota. To fa- means a zone of waters off the coast of cilitate processing, NMFS requests Russia beyond and adjacent to the Rus- that permit applications for more than sian territorial sea extending a dis- 10 vessels be grouped by type and fish- tance of up to 200 nautical miles from ing area, and provide the name, ad- the baseline from which the territorial dress, telephone, and FAX number(s) of sea is measured, within which, con- an individual who will be the official sistent with international law, Russia point of contact for an application.
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(c) Review of Applications. NMFS will (2) Such application has been ap- review each application, and, if it is proved and a permit issued by the com- complete, forward it to the Department petent authorities of the Russian Fed- of State for submission to the com- eration as provided in paragraph (a) of petent authorities of the Russian Fed- this section. eration. NMFS will notify the permit (3) The U.S. Department of State has applicant when the permit is submitted notified the competent authorities of to the Russian Federation. NMFS will the Russian Federation that it has ac- return incomplete applications to the cepted the conditions and restrictions applicant. as provided in paragraph (a) of this sec- (d) Direct Communication. U.S. appli- tion. The permit will be rendered in- cants may communicate directly with valid by: The transfer or sale of the the Russian Federation with regard to permit specified in paragraph (a) of the status of their applications or per- this section; the failure to submit to mits and are encouraged to do so. Own- NMFS any changes in permit applica- ers and operators should make direct tion information as required by para- contact and work with Russian indus- graph (a) of this section; failure to sub- try and government authorities. mit to NMFS any permit copy required by paragraph (b) of this section or any § 300.153 Permit issuance. other information or report required by any other provision of this subpart; or (a) Once the Department Acceptance. the failure to pay required permit fees. of State has accepted the conditions (d) Russian-imposed sanctions. (1) The and restrictions proposed by the Rus- Russian Federation will impose appro- sian Federation and all fees have been priate fines, penalties, or forfeitures in paid, the competent authorities of the accordance with its laws, for violations Russian Federation will approve the of its relevant laws or regulations. application. The Russian Federation (2) In the case of arrest and seizure of will issue a permit to the vessel owner a U.S. vessel by Russian authorities, for each fishing vessel for which it has notification will be given promptly approved an application. That vessel through diplomatic channels informing will thereupon be authorized by the the United States of the facts and ac- Russian Federation to fish in accord- tions taken. ance with the Agreement and the (3) The Russian Federation will re- terms and conditions set forth in the lease U.S. vessels and their crews permit. The vessel owner is prohibited promptly, subject to the posting of rea- from transferring the permit to any sonable bond or other security. other vessel or person. Any such trans- (4) The sanctions for violations of fer, or the sale or other transfer of the limitations or restrictions on fishing vessel, will immediately invalidate the operations will be appropriate fines, permit. The vessel owner must notify penalties, forfeitures, or revocations or NMFS of any change in the permit ap- suspensions of fishing privileges. plication information submitted to NMFS Headquarters under § 300.152 § 300.154 Recordkeeping and report- within 7 calendar days of the change. ing. (b) Copies. The vessel owner and oper- (a) General. The owner and operator ator must mail a copy of each permit of a vessel subject to this subpart are and any conditions and restrictions responsible for complying with all rec- issued for that vessel by the Russian ordkeeping and reporting requirements Federation within 7 calendar days of in this part in a timely and accurate its receipt to NMFS Headquarters. manner. Reports and records required (c) Validity. Any permit issued by the by this subpart must be in English, in Russian Federation with respect to a the formats specified, and unless other- vessel subject to this subpart will be wise specified, based on Greenwich deemed to be a valid permit only if: mean time (GMT). (1) A completed permit application (b) Vessel permit abstract report. (1) has been forwarded to the competent The owner and operator of a vessel sub- authorities of the Russian Federation ject to this subpart must submit to as provided in § 300.152(b)(1). NMFS Headquarters a permit abstract
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report containing the following infor- the sender’s name and telephone num- mation: ber, and FAX, TELEX, and COMSAT (i) Vessel name. numbers; the date (month and day) and (ii) Russian Federation permit num- time (hour and minute GMT) that the ber. report is submitted to NMFS; and the (iii) Duration of permit (e.g., 1/1/91–12/ intended date and U.S. port of landing. 31/91). A list of species and product codes may (iv) Authorized areas of fishing oper- be obtained from the Regional Admin- ations in geographic coordinates. istrator. (v) Authorized catch quota in tons. (d) Recordkeeping. The owner and op- (vi) Authorized fishing gear. erator of a vessel subject to this sub- (vii) Type of permit (e.g., catcher). part must retain all copies of all re- (2) The report must be telefaxed to ports required by this subpart on board (301) 713–0596 within 5 calendar days of the vessel for 1 year after the end of receipt of the Russian permit. the calendar year in which the report (c) Activity reports. The owner and op- was generated. The owner and operator erator of a vessel subject to this sub- must retain and make such records part must submit to the Regional Ad- available for inspection upon the re- ministrator by telefax to (907) 586–7313, quest of an authorized officer at any the following reports: time for 3 years after the end of the (1) Depart Report (Action code DE- calendar year in which the report was PART). At least 24 hours before the generated, whether or not such records vessel departs from the EEZ for the on board the vessel. Russian EZ, NMFS must receive the following information: § 300.155 Requirements. (i) The date (month and day), and (a) Compliance with permit require- time (hour and minute GMT), and posi- ments. (1) U.S. nationals and vessels tion (latitude and longitude to the subject to this subpart must have a nearest degree and minute), at which valid permit, as specified in § 300.153(c) the vessel will depart the EEZ for the in order to fish for Russian fishery re- Russian EZ. sources. (ii) The weight in metric tons (to the (2) U.S. nationals and vessels subject nearest hundredth of a metric ton) of to this subpart that are fishing for Rus- all fish and fish product (listed by spe- sian fishery resources must comply cies and product codes) on board the with all provisions, conditions, and re- vessel at the time it will depart the strictions of any applicable permit. EEZ. (b) Compliance with Russian law. U.S. (2) Return Report (Action code RE- nationals and vessels fishing for Rus- TURN). At least 24 hours before a ves- sian fishery resources must comply sel that has been in the Russian EZ en- with the relevant laws and regulations ters the EEZ, NMFS must receive the of the Russian Federation. following information: (c) Protection of marine mammals. U.S. (i) The date (month and day), time nationals and vessels fishing for Rus- (hour and minute GMT), and position sian fishery resources may not harass, (latitude and longitude to the nearest hunt, capture, or kill any marine mam- degree and minute), at which the vessel mal within the Russian EZ, attempt to will enter the EEZ. do so, except as may be provided for by (ii) The weight in metric tons (to the an international agreement to which nearest hundredth of a metric ton) of both the United States and Russia are all fish and fish products (listed by spe- parties, or in accordance with specific cies and product codes) on board the authorization and controls established vessel at the time it will enter the by the Russian Federation. The provi- EEZ, and the areas (Russian EZ, U.S. sions of the Marine Mammal Protec- EEZ, or other) in which such fish prod- tion Act (MMPA), 16 U.S.C. 1361 et seq. ucts were harvested or received. also apply to any person or vessel sub- (3) All reports must specify: The ap- ject to the jurisdiction of the United propriate action code (‘‘DEPART’’ or States while in the Russian EZ, and it ‘‘RETURN’’); the vessel’s name and shall not be a defense to any violation international radio call sign (IRCS); of the MMPA that the person or vessel
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was acting in accordance with any per- § 300.156 Prohibited acts. mit or authorization issued by the Rus- In addition to the prohibited acts sian Federation. specified at § 300.4, it shall be unlawful (d) Cooperation with enforcement proce- for any U.S. national or vessel, or the dures. (1) The operator of, or any per- owner or operator of any such vessel: son aboard, any U.S. vessel subject to (a) To fish for Russian fishery re- this subpart must immediately comply sources without a valid permit issued with instructions and signals issued by by the competent authorities of the an authorized officer of the Russian Russian Federation. Federation to stop the vessel and with (b) To violate the provisions, condi- instructions to facilitate safe boarding tions, and restrictions of an applicable and inspection of the vessel, its gear, permit. equipment, fishing record, and catch (c) To violate the relevant laws and for purposes of enforcing the relevant regulations of Russia. laws and regulations of Russia. (d) To harass, hunt, capture, or kill (2) The operator of, and any person any marine mammal within the Rus- aboard, any U.S. vessel subject to this sian EZ, or while fishing for Russian subpart, must comply with directions fishery resources, except as provided in issued by authorized officers of the § 300.155 (c). Russian Federation in connection with (e) To fail to comply immediately the seizure of the vessel for violation of with enforcement and boarding proce- the relevant laws or regulations of the dures specified in § 300.155 (d). Russian Federation. (f) To refuse to allow an authorized (3) U.S. nationals and vessels subject officer of the Russian Federation to to this subpart must pay all fines and board and inspect a vessel subject to penalties and comply with forfeiture this subpart for purposes of conducting sanctions imposed by the Russian Fed- any search, inspection, arrest, or sei- eration for violations of its relevant zure in connection with the enforce- laws and regulations. ment of the relevant laws and regula- (4) The operator of, and any person tions of the Russian Federation. aboard, any U.S. vessel subject to this (g) To assault, resist, oppose, impede, subpart must immediately comply with intimidate, threaten, or interfere with, instructions and signals issued by an in any manner, any authorized officer authorized officer of the United States of the Russian Federation in the con- to stop the vessel and with instructions duct of any search, inspection, seizure, to facilitate safe boarding and inspec- or arrest in connection with enforce- tion of the vessel, its gear, equipment, ment of the relevant laws and regula- fishing records, and catch for purposes tions of the Russian Federation. of enforcing the Magnuson Act, the (h) To fail to pay fines or penalties or Agreement, and this subpart. comply with forfeitures imposed for a (e) Compliance with observer require- violation of the relevant laws and regu- ments. The owner of, operator of, and lations of the Russian Federation. any person aboard, any U.S. vessel fish- (i) To refuse or fail to allow a Rus- ing in the Russian EZ or for Russian sian observer to board a vessel subject fishery resources to which a Russian to this subpart while fishing in the observer is assigned must— Russian EZ, or for Russian fishery re- (1) Allow and facilitate, on request, sources. boarding of a U.S. vessel by the ob- (j) To fail to provide to a Russian ob- server. server aboard a vessel fishing in the (2) Provide to the observer, at no cost Russian EZ or for Russian fishery re- to the observer or the Russian Federa- sources, the courtesies and accom- tion, the courtesies and accommoda- modations provided to ship’s officers. tions provided to ship’s officers. (k) To assault, resist, oppose, impede, (3) Cooperate with the observer in the intimidate, threaten, interfere with, conduct of his or her official duties. harass, or fail to cooperate, in any (4) Reimburse the Russian Federation manner, with a Russian observer for the costs of providing an observer placed aboard a vessel subject to this aboard the vessel. subpart.
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(l) To fail to reimburse the Russian § 300.160 Requirement for marking of Federation for the costs incurred in the containers or packages. utilization of Russian observers placed Except as otherwise provided in this aboard such vessel. subpart, all persons are prohibited (m) To possess, have custody or con- from importing, exporting, or trans- trol of, ship, transport, offer for sale, porting in interstate commerce any sell, purchase, transship, import, ex- container or package containing any port, or traffic in any manner, any fish fish or wildlife (including shellfish) un- or parts thereof taken or retained, less each container or package is con- landed, purchased, sold, traded, ac- spicuously marked on the outside with quired, or possessed, in any manner, in both the name and address of the ship- violation of the relevant laws and regu- per and consignee and an accurate list lations of the Russian Federation, the of its contents by species and number Magnuson Act, or this subpart. of each species. (n) To enter the Russian EZ to fish § 300.161 Alternatives and exceptions. unless a permit application has been (a) The requirements of § 300.160 may submitted through NMFS to the com- be met by complying with one of the petent authorities of the Russian Fed- following alternatives to the marking eration by the U.S. Department of requirement: State for such vessel as provided in (1)(i) Conspicuously marking the out- this subpart. side of each container or package con- (o) To fish for Russian fisheries or to taining fish or wildlife with the word possess fish taken in Russian fisheries ‘‘fish’’ or ‘‘wildlife’’ as appropriate for on board a vessel subject to this sub- its contents, or with the common name part without a valid permit or other of its contents by species, and valid form of authorization issued by (ii) Including an invoice, packing the competent authorities of the Rus- list, bill of lading, or similar document sian Federation on board the vessel. to accompany the shipment that accu- (p) To falsify, or fail to report to rately states the name and address of NMFS, any change in the information the shipper and consignee, states the total number of packages or containers contained in a permit application sub- in the shipment, and for each species in ject to this subpart within 7 calendar the shipment specifies: The common days of such change. name that identifies the species (exam- (q) To attempt to do, cause to be ples include: chinook (or king) salmon; done, or aid and abet in doing, any of bluefin tuna; and whitetail deer); and the foregoing. the number of that species (or other (r) To violate any other provision of appropriate measure of quantity such this subpart. as gross or net weight). The invoice, packing list, bill of lading, or equiva- § 300.157 Penalties. lent document must be securely at- In addition to any fine, penalty, or tached to the outside of one container forfeiture imposed by the Russian Fed- or package in the shipment or other- eration, nationals and vessels of the wise physically accompany the ship- United States violating the prohibi- ment in a manner that makes it read- tions of § 300.156 are subject to the ily accessible for inspection; or fines, penalties, and forfeitures and the (2) Affixing the shipper’s wildlife im- port/export license number preceded by adjudicative procedures provided in the ‘‘FWS’’ on the outside of each con- Magnuson Act, 16 U.S.C. 1858, 1860, 1861, tainer or package containing fish or and any other applicable laws and reg- wildlife if the shipper has a valid wild- ulations of the United States. life import/export license issued under authority of part 14 of this title. For Subpart K—Transportation and each shipment marked in accordance Labeling of Fish or Wildlife with this paragraph (a)(2), the records maintained under § 14.93(d) of this title must include a copy of the invoice, AUTHORITY: 16 U.S.C. 3371–3378. packing list, bill of lading, or other
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similar document that accurately (ii) The fish or wildlife is otherwise states the information required by packaged and marked in accordance paragraph (a)(1)(ii) of this section. with this subpart. (3) In the case of subcontainers or (b) The requirements of § 300.160 of packages within a larger packing con- chapter III of this title do not apply to tainer, only the outermost container containers or packages containing— must be marked in accordance with (1) Fox, nutria, rabbit, mink, chin- this section, provided, that for live fish chilla, marten, fisher, muskrat, and or wildlife that are packed in subcon- karakul that have been bred and born tainers within a larger packing con- in captivity, or their products, if a tainer, if the subcontainers are num- signed statement certifying that the bered or labeled, the packing list, in- animals were bred and born in cap- voice, bill of lading, or other similar tivity accompanies the shipping docu- document, must reflect that number or ments; label. (2) Fish or shellfish contained in re- (4) A conveyance (truck, plane, boat, tail consumer packages labeled pursu- etc.) is not considered a container for ant to the Food, Drug and Cosmetic purposes of requiring specific marking Act, 21 U.S.C. 301 et seq.; or of the conveyance itself, provided that: (3) Fish or shellfish that are landed (i) The fish or wildlife within the con- by, and offloaded from, a fishing vessel veyance is carried loosely or is readily (whether or not the catch has been car- identifiable, and is accompanied by the ried by the fishing vessel interstate), as document required by paragraph long as the fish or shellfish remain at (a)(1)(ii) of this section; or the place where first offloaded.
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SUBCHAPTER A
Part Page 401 Anadromous fisheries conservation, development and enhancement ...... 333 402 Interagency cooperation—Endangered Species Act of 1973, as amended ...... 336 403 Transfer of marine mammal management author- ity to States ...... 347 424 Listing endangered and threatened species and des- ignating critical habitat ...... 355
SUBCHAPTER B [RESERVED]
SUBCHAPTER C—ENDANGERED SPECIES EXEMPTION PROCESS 450 General provisions ...... 364 451 Application procedure ...... 365 452 Consideration of application by the Secretary ...... 367 453 Endangered Species Committee ...... 370
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PART 401—ANADROMOUS FISH- official(s) of a State empowered under ERIES CONSERVATION, DEVELOP- its laws to regulate a commercial or MENT AND ENHANCEMENT sport fishery. (e) Non-Federal interest. Any organiza- Sec. tion, association, institution, business, 401.1 Administration. school, individual, or group of individ- 401.2 Definitions. uals, municipality and others outside 401.3 Submission of documents. the Federal Government, in addition to 401.4 Activities prohibited. State fishery agencies, which desire to 401.5 Coordination with States. cooperate within the terms of the Act. 401.6 Prosecution of work. 401.7 General information for the Secretary. (f) Cooperator. One or more States 401.8 Availability of funds. acting jointly or severally or other 401.9 Payments to cooperators. non-Federal interests, participating in 401.10 Request for payment. a project agreement or grant-in-aid 401.11 Property as matching funds. award with the Secretary. 401.12 Ownership of property. (g) Anadromous fish. Aquatic, gill 401.13 Personnel. 401.14 Inspection. breathing, vertebrate animals bearing 401.15 Record retention. paired fins which migrate to and spawn 401.16 Records and reporting. in fresh water, but which spend part of 401.17 Safety and accident prevention. their life in an oceanic environment; 401.18 Contracts. also fish in the Great Lakes that as- 401.19 Statements and payrolls. cend streams to spawn. 401.20 Officials not to benefit. 401.21 Patents and inventions. (h) Application for Federal assistance. 401.22 Civil rights. A description of work to be accom- 401.23 Audits. plished, including objectives and needs, expected results and benefits, ap- AUTHORITY: Anadromous Fish Conserva- tion Act (79 Stat. 1125, as amended, 84 Stat. proach, cost, location and time re- 214, 88 Stat. 398), 16 U.S.C. 757a–757f. quired for completion. (i) Project agreement. The formal doc- SOURCE: 40 FR 26678, June 25, 1975, unless otherwise noted. ument executed between the Secretary of the Interior and the Cooperator, § 401.1 Administration. committing the Cooperator to the per- The Director of the U.S. Fish and formance of described activities and Wildlife Service and the Director of the the Federal Government to participa- National Marine Fisheries Service tion in the financing of those activi- shall jointly administer the Anad- ties. romous Fish Conservation Act for the (j) Grant-in-Aid award. The formal Secretaries. document executed between the Sec- retary of Commerce and the Coop- § 401.2 Definitions. erator, committing the Cooperator to As used in this part, terms shall have the performance of described activities the meanings ascribed in this section. and the Federal Government to partici- (a) Secretary. The Secretary of Com- pation in the financing of those activi- merce, the Secretary of the Interior, or ties. their authorized representatives. (b) Act. The Anadromous Fish Con- § 401.3 Submission of documents. servation Act, 16 U.S.C. 757a through Applications for Federal assistance 757f. and other documents for projects relat- (c) Eligible states. Any coastal State ing generally to recreational fisheries of the United States, the State of shall be submitted to the concerned Vermont, and the States bordering the Regional Office of the U.S. Fish and Great Lakes. The area within the Co- Wildlife Service, or for projects relat- lumbia River basin is excluded. ing generally to commercial fisheries (d) State fishery agency. Any depart- of the concerned Regional Office of the ment(s), division(s), commis- sion(s), or National Marine Fisheries Service.
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§ 401.4 Activities prohibited. laws affecting anadromous fish and the authority of the applicant to Law enforcement, public relations, participate in the benefits of the Act. harvesting, marketing and processing (a) Document signature. Individuals activities, construction of fisherman authorized to sign project documents use facilities, and activities concerned under the Commercial Fisheries Re- with landlocked anadromous fish popu- search and Development Act of 1964 (78 lations (except fish in the Great Lakes Stat. 197, as amended), 16 U.S.C. 779 that ascend streams to spawn) may not through 779f, or the Federal Aid in be financed under the Act. Sport Fish Restoration Act (64 Stat. § 401.5 Coordination with States. 430, as amended), 16 U.S.C. 777 through 777f, may likewise sign project docu- The Secretary will approve an Appli- ments contemplated in this part. cation For Federal Assistance only (b) Program information. The Sec- after he has coordinated the applica- retary may, from time to time, re- tion with the State office established quest, and the Cooperators shall fur- to review applications under Executive nish, information relating to the ad- Order 12372 (if the State has established ministration and maintenance of any such an office and wishes to review project established under the Act. these applications) and other non-Fed- eral entities which have management § 401.8 Availability of funds. authority over the resource to be af- The period of availability of funds to fected. the States or other non-Federal inter- [48 FR 29137, June 24, 1983] ests for obligation shall be established by the administering Federal agency. § 401.6 Prosecution of work. (a) Project work shall be carried § 401.9 Payments to cooperators. through to a state of completion ac- Payments shall be made to Coopera- ceptable to the Secretary with reason- tors in accordance with provisions of able promptness. Failure to render sat- grant-in-aid awards or project agree- isfactory performance reports or fail- ments. ure to complete the project to the sat- isfaction of the Secretary shall be § 401.10 Request for payment. cause for suspension of Federal assist- Request for payment shall be on ance for the project until the project forms provided by the Secretary, cer- provisions are satisfactorily met. Fed- tified as therein prescribed, and sub- eral assistance may be terminated mitted to the Regional Director by the upon determination by the Secretary Cooperator. that satisfactory progress has not been maintained. The Secretary shall have § 401.11 Property as matching funds. the right to inspect and review work at The non-Federal share of the cost of any time. projects may be in the form of real or (b) Research and development work personal property. Specific procedures shall be continuously coordinated by to be used by grantees in placing the the Cooperator with studies conducted value on real or personal property for by others to avoid unnecessary duplica- matching funds are set forth in Attach- tion. ment F of Federal Management Cir- (c) All work shall be performed in ac- cular 74–7. cordance with applicable local laws, ex- cept when in conflict with Federal laws § 401.12 Ownership of property. or regulations, in which case Federal When real property is acquired pursu- laws or regulations shall prevail. ant to the provisions of the Act, title to such property, or interests therein, § 401.7 General information for the shall be vested in the United States, Secretary. and the conveying instrument shall re- Before any Federal funds may be ob- cite the United States of America as ligated for any project an applicant the grantee. However, if the Secretary shall furnish to the Secretary, upon his determines that under the terms of the request, information regarding the application for Federal assistance and
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grant-in-aid award or project agree- laws governing safety, health and sani- ment, the intent and purpose of the tation. Act may be better served by other own- ership of such property, an appropriate § 401.18 Contracts. transfer may be made. When real or A Cooperator may use its own regula- personal property is utilized as match- tions or guidelines in obtaining serv- ing funds, title to such property shall ices by contract or otherwise, provided be in the Cooperator unless otherwise that they adhere to applicable Federal specified in the grant-in-aid award or laws, regulations, policies, guidelines, project agreement. and requirements, as set forth in At- tachment 0 of Federal Management § 401.13 Personnel. Circular 74–7. However, the Cooperator The Cooperator shall maintain an is the responsible authority, without adequate and competent force of em- recourse to the Federal agency, regard- ployees to initiate and carry approved ing the settlement of such contractual work to satisfactory completion. issues.
§ 401.14 Inspection. § 401.19 Statements and payrolls. Cooperator supervision of each The regulations of the Secretary of project shall include adequate and con- Labor applicable to contractors and tinuous inspection. The project will be subcontractors (29 CFR part 3), made subject at all times to Federal inspec- pursuant to the Copeland ‘‘Anti-Kick- tion. back’’ Act (18 U.S.C. 874), as amended, are made a part of the regulations in § 401.15 Record retention. this part by reference. The Cooperator All records of accounts and reports will comply with the regulations in with supporting documentation there- this part and any amendments or modi- to, as set forth in Attachment C of fications thereof, and the Cooperator’s Federal Management Circular 74–7, will prime contractor will be responsible be retained by the Cooperator for a pe- for the submission of statements re- riod of 3 years after submission of the quired of subcontractors thereunder. final expenditure report on the project. The foregoing shall apply except as the Record retention for a period longer Secretary of Labor may specifically than 3 years is required if audit find- provide for reasonable limitation, vari- ings have not been resolved. ations, tolerances, and exemptions.
§ 401.16 Records and reporting. § 401.20 Officials not to benefit. Performance reports and other re- No Member of, or Delegate to, Con- ports shall be furnished as requested by gress, or resident Commissioner, shall the Secretary. Cost records shall be be admitted to any share or any part of maintained separately for each project. any project agreement made under the The accounts and records maintained Act, or to any benefit that may arise by the Cooperator, together with all therefrom. This provision shall not be supporting documents, shall be open at construed to extend to this agreement all times to the inspection of author- if made with a corporation for its gen- ized representatives of the United eral benefit. States, and copies thereof shall be fur- nished when requested. § 401.21 Patents and inventions. (Approved by the Office of Management and Determination of the patent rights in Budget under control number 0648–0102) any inventions or discoveries resulting [40 FR 26678, June 25, 1975, as amended at 48 from work under project agreements FR 57302, Dec. 29, 1983] entered into pursuant to the Act shall be consistent with the ‘‘Government § 401.17 Safety and accident preven- Patent Policy’’ (President’s memo- tion. randum for Heads of Executive Depart- In the performance of each project, ments and Agencies, August 23, 1971, the Cooperator shall comply with all and statement of Government Patent applicable Federal, State, and local Policy as printed in 36 FR 16889).
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§ 401.22 Civil rights. Subpart A—General Each application for Federal assist- ance, grant-in-aid award, or project § 402.01 Scope. agreement shall be supported by a (a) This part interprets and imple- statement of assurances executed by ments sections 7(a)–(d) [16 U.S.C. the Cooperator providing that the proj- 1536(a)–(d)] of the Endangered Species ect will be carried out in accordance Act of 1973, as amended (‘‘Act’’). Sec- with title VI, Nondiscrimination in fed- tion 7(a) grants authority to and im- erally Assisted Programs of the Civil poses requirements upon Federal agen- Rights Act of 1964 and with the Sec- cies regarding endangered or threat- retary’s regulations promulgated ened species of fish, wildlife, or plants thereunder. (‘‘listed species’’) and habitat of such species that has been designated as § 401.23 Audits. critical (‘‘critical habitat’’). Section The State is required to conduct an 7(a)(1) of the Act directs Federal agen- audit at least every two years in ac- cies, in consultation with and with the cordance with the provisions of Attach- assistance of the Secretary of the Inte- ment P OMB Circular A–102. Failure to rior or of Commerce, as appropriate, to conduct audits as required may result utilize their authorities to further the in withholding of grant payments or purposes of the Act by carrying out such other sanctions as the Secretary conservation programs for listed spe- may deem appropriate. cies. Such affirmative conservation programs must comply with applicable [49 FR 30074, July 26, 1984] permit requirements (50 CFR parts 17, 220, 222, and 227) for listed species and PART 402—INTERAGENCY CO- should be coordinated with the appro- OPERATION—ENDANGERED SPE- priate Secretary. Section 7(a)(2) of the CIES ACT OF 1973, AS AMENDED Act requires every Federal agency, in consultation with and with the assist- Subpart A—General ance of the Secretary, to insure that any action it authorizes, funds, or car- Sec. ries out, in the United States or upon 402.01 Scope. the high seas, is not likely to jeop- 402.02 Definitions. 402.03 Applicability. ardize the continued existence of any 402.04 Counterpart regulations. listed species or results in the destruc- 402.05 Emergencies. tion or adverse modification of critical 402.06 Coordination with other environ- habitat. Section 7(a)(3) of the Act au- mental reviews. thorizes a prospective permit or license 402.07 Designation of lead agency. applicant to request the issuing Fed- 402.08 Designation of non-Federal represent- eral agency to enter into early con- ative. sultation with the Service on a pro- 402.09 Irreversible or irretrievable commit- posed action to determine whether ment of resources. such action is likely to jeopardize the continued existence of listed species or Subpart B—Consultation Procedures result in the destruction or adverse 402.10 Conference on proposed species or modification of critical habitat. Sec- proposed critical habitat. tion 7(a)(4) of the Act requires Federal 402.11 Early consultation. agencies to confer with the Secretary 402.12 Biological assessments. on any action that is likely to jeop- 402.13 Informal consultation. ardize the continued existence of pro- 402.14 Formal consultation. posed species or result in the destruc- 402.15 Responsibilities of Federal agency tion or adverse modification of pro- following issuance of a biological opin- ion. posed critical habitat. Section 7(b) of 402.16 Reinitiation of formal consultation. the Act requires the Secretary, after the conclusion of early or formal con- AUTHORITY: 16 U.S.C. 1531 et seq. sultation, to issue a written statement SOURCE: 51 FR 19957, June 3, 1986, unless setting forth the Secretary’s opinion otherwise noted. detailing how the agency action affects
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listed species or critical habitat Bio- (d) actions directly or indirectly logical assessments are required under causing modifications to the land, section 7(c) of the Act if listed species water, or air. or critical habitat may be present in Action area means all areas to be af- the area affected by any major con- fected directly or indirectly by the struction activity as defined in § 404.02. Federal action and not merely the im- Section 7(d) of the Act prohibits Fed- mediate area involved in the action. eral agencies and applicants from mak- Applicant refers to any person, as de- ing any irreversible or irretrievable fined in section 3(13) of the Act, who re- commitment of resources which has quires formal approval or authoriza- the effect of foreclosing the formula- tion from a Federal agency as a pre- tion or implementation of reasonable requisite to conducting the action. and prudent alternatives which would Biological assessment refers to the in- avoid jeopardizing the continued exist- formation prepared by or under the di- ence of listed species or resulting in rection of the Federal agency con- the destruction or adverse modifica- cerning listed and proposed species and tion of critical habitat. Section 7(e)– designated and proposed critical habi- (o)(1) of the Act provide procedures for tat that may be present in the action granting exemptions from the require- area and the evaluation potential ef- ments of section 7(a)(2). Regulations fects of the action on such species and governing the submission of exemption habitat. applications are found at 50 CFR part Biological opinion is the document 451, and regulations governing the ex- that states the opinion of the Service emption process are found at 50 CFR as to whether or not the Federal action parts 450, 452, and 453. is likely to jeopardize the continued (b) The U.S. Fish and Wildlife Service existence of listed species or result in (FWS) and the National Marine Fish- the destruction or adverse modifica- eries Service (NMFS) share responsibil- tion of critical habitat. ities for administering the Act. The Conference is a process which involves Lists of Endangered and Threatened informal discussions between a Federal Wildlife and Plants are found in 50 CFR agency and the Service under section 17.11 and 17.12 and the designated crit- 7(a)(4) of the Act regarding the impact ical habitats are found in 50 CFR 17.95 of an action on proposed species or pro- and 17.96 and 50 CFR part 226. Endan- posed critical habitat and rec- gered or threatened species under the ommendations to minimize or avoid jurisdiction of the NMFS are located in the adverse effects. 50 CFR 222.23(a) and 227.4. If the subject Conservation recommendations are sug- species is cited in 50 CFR 222.23(a) or gestions of the Service regarding dis- 227.4, the Federal agency shall contact cretionary measures to minimize or the NMFS. For all other listed species avoid adverse effects of a proposed ac- the Federal Agency shall contact the tion on listed species or critical habi- FWS. tat or regarding the development of in- formation. § 402.02 Definitions. Critical habitat refers to an area des- Act means the Endangered Species ignated as critical habitat listed in 50 Act of 1973, as amended, 16 U.S.C. 1531 CFR parts 17 or 226. et seq. Cumulative effects are those effects of Action means all activities or pro- future State or private activities, not grams of any kind authorized, funded, involving Federal activities, that are or carried out, in whole or in part, by reasonably certain to occur within the Federal agencies in the United States action area of the Federal action sub- or upon the high seas. Examples in- ject to consultation. clude, but are not limited to: Designated non-Federal representative (a) actions intended to conserve list- refers to a person designated by the ed species or their habitat; Federal agency as its representative to (b) the promulgation of regulations; conduct informal consultation and/or (c) the granting of licenses, con- to prepare any biological assessment. tracts, leases, easements, rights-of- Destruction or adverse modification way, permits, or grants-in-aid; or means a direct or indirect alteration
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that appreciably diminishes the value ity conducted by the Federal agency or of critical habitat for both the survival applicant. and recovery of a listed species. Such Informal consultation is an optional alterations include, but are not limited process that includes all discussions, to, alterations adversely modifying any correspondence, etc., between the Serv- of those physical or biological features ice and the Federal agency or the des- that were the basis for determining the ignated non-Federal representative habitat to be critical. prior to formal consultation, if re- Director refers to the Assistant Ad- quired. ministrator for Fisheries for the Na- Jeopardize the continued existence of tional Oceanic and Atmospheric Ad- means to engage in an action that rea- ministration, or his authorized rep- sonably would be expected, directly or resentative; or the Fish and Wildlife indirectly, to reduce appreciably the Service regional director, or his au- likelihood of both the survival and re- thorized representative, for the region covery of a listed species in the wild by where the action would be carried out. reducing the reproduction, numbers, or Early consultation is a process re- distribution of that species. quested by a Federal agency on behalf Listed species means any species of of a prospective applicant under sec- fish, wildlife, or plant which has been tion 7(a)(3) of the Act. determined to be endangered or threat- ened under section 4 of the Act. Listed Effects of the action refers to the di- species are found in 50 CFR 17.11–17.12. rect and indirect effects of an action on Major construction activity is a con- the species or critical habitat, together struction project (or other undertaking with the effects of other activities that having similar physical impacts) which are interrelated or interdependent with is a major Federal action significantly that action, that will be added to the affecting the quality of the human en- environmental baseline. The environ- vironment as referred to in the Na- mental baseline includes the past and tional Environmental Policy Act present impacts of all Federal, State, [NEPA, 42 U.S.C. 4332(2)(C)]. or private actions and other human ac- Preliminary biological opinion refers to tivities in the action area, the antici- an opinion issued as a result of early pated impacts of all proposed Federal consultation. projects in the action area that have Proposed critical habitat means habi- already undergone formal or early sec- tat proposed in the FEDERAL REGISTER tion 7 consultation, and the impact of to be designated or revised as critical State or private actions which are con- habitat under section 4 of the Act for temporaneous with the consultation in any listed or proposed species. process. Indirect effects are those that Proposed species means any species of are caused by the proposed action and fish, wildlife, or plant that is proposed are later in time, but still are reason- in the FEDERAL REGISTER to be listed ably certain to occur. Interrelated ac- under section 4 of the Act. tions are those that are part of a larger Reasonable and prudent alternatives action and depend on the larger action refer to alternative actions identified for their justification. Interdependent during formal consultation that can be actions are those that have no inde- implemented in a manner consistent pendent utility apart from the action with the intended purpose of the ac- under consideration. tion, that can be implemented con- Formal consultation is a process be- sistent with the scope of the Federal tween the Service and the Federal agency’s legal authority and jurisdic- agency that commences with the Fed- tion, that is economically and techno- eral agency’s written request for con- logically feasible, and that the Direc- sultation under section 7(a)(2) of the tor believes would avoid the likelihood Act and concludes with the Service’s of jeopardizing the continued existence issuance of the biological opinion of listed species or resulting in the de- under section 7(b)(3) of the Act. struction or adverse modification of Incidental take refers to takings that critical habitat. result from, but are not the purpose of, Reasonable and prudent measures refer carrying out an otherwise lawful activ- to those actions the Director believes
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necessary or appropriate to minimize § 402.06 Coordination with other envi- the impacts, i.e., amount or extent, of ronmental reviews. incidental take. (a) Consultation, conference, and bio- Recovery means improvement in the logical assessment procedures under status of listed species to the point at section 7 may be consolidated with which listing is no longer appropriate interagency cooperation procedures re- under the criteria set out in section quired by other statutes, such as the 4(a)(1) of the Act. National Environmental Policy Act Service means the U.S. Fish and Wild- (NEPA) (42 U.S.C. 4321 et seq., imple- life Service or the National Marine mented at 40 CFR Parts 1500–1508) or Fisheries Service, as appropriate. the Fish and Wildlife Coordination Act (FWCA) (16 U.S.C. 661 et seq.). Satis- § 402.03 Applicability. fying the requirements of these other statutes, however, does not in itself re- Section 7 and the requirements of lieve a Federal agency of its obliga- this part apply to all actions in which tions to comply with the procedures there is discretionary Federal involve- set forth in this part or the substantive ment or control. requirements of section 7. The Service will attempt to provide a coordinated § 402.04 Counterpart regulations. review and analysis of all environ- The consultation procedures set forth mental requirements. in this part may be superseded for a (b) Where the consultation or con- particular Federal agency by joint ference has been consolidated with the counterpart regulations among that interagency cooperation procedures re- agency, the Fish and Wildlife Service, quired by other statutes such as NEPA and the National Marine Fisheries or FWCA, the results should be in- cluded in the documents required by Service. Such counterpart regulations those statutes. shall be published in the FEDERAL REG- ISTER in proposed form and shall be § 402.07 Designation of lead agency. subject to public comment for at least When a particular action involves 60 days before final rules are published. more than one Federal agency, the con- sultation and conference responsibil- § 402.05 Emergencies. ities may be fulfilled through a lead (a) Where emergency circumstances agency. Factors relevant in deter- mandate the need to consult in an ex- mining an appropriate lead agency in- pedited manner, consultation may be clude the time sequence in which the conducted informally through alter- agencies would become involved, the native procedures that the Director de- magnitude of their respective involve- termines to be consistent with the re- ment, and their relative expertise with quirements of sections 7(a)–(d) of the respect to the environmental effects of Act. This provision applies to situa- the action. The Director shall be noti- tions involving acts of God, disasters, fied of the designation in writing by casualties, national defense or security the lead agency. emergencies, etc. § 402.08 Designation of non-Federal (b) Formal consultation shall be ini- representative. tiated as soon as practicable after the A Federal agency may designate a emergency is under control. The Fed- non-Federal representative to conduct eral agency shall submit information informal consultation or prepare a bio- on the nature of the emergency ac- logical assessment by giving written tion(s), the justification for the expe- notice to the Director of such designa- dited consultation, and the impacts to tion. If a permit or license applicant is endangered or threatened species and involved and is not the designated non- their habitats. The Service will evalu- Federal representative, then the appli- ate such information and issue a bio- cant and Federal agency must agree on logical opinion including the informa- the choice of the designated non-Fed- tion and recommendations given dur- eral representative. If a biological as- ing the emergency consultation. sessment is prepared by the designated
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non-Federal representative, the Fed- critical habitat at issue. Applicants eral agency shall furnish guidance and may be involved in these informal dis- supervision and shall independently re- cussions to the greatest extent prac- view and evaluate the scope and con- ticable. During the conference, the tents of the biological assessment. The Service will make advisory rec- ultimate responsibility for compliance ommendations, if any, on ways to min- with section 7 remains with the Fed- imize or avoid adverse effects. If the eral agency. proposed species is subsequently listed or the proposed critical habitat is des- § 402.09 Irreversible or irretrievable ignated prior to completion of the ac- commitment of resources. tion, the Federal agency must review After initiation or reinitiation of the action to determine whether for- consultation required under section mal consultation is required. 7(a)(2) of the Act, the Federal agency (d) If requested by the Federal agen- and any applicant shall make no irre- cy and deemed appropriate by the Serv- versible or irretrievable commitment ice, the conference may be conducted of resources with respect to the agency in accordance with the procedures for action which has the effect of fore- formal consultation in § 402.14. An opin- closing the formulation or implemen- ion issued at the conclusion of the con- tation of any reasonable and prudent ference may be adopted as the biologi- alternatives which would avoid vio- cal opinion when the species is listed or lating section 7(a)(2). This prohibition critical habitat is designated, but only is in force during the consultation if no significant new information is de- process and continues until the re- veloped (including that developed dur- quirements of section 7(a)(2) are satis- ing the rulemaking process on the pro- fied. This provision does not apply to posed listing or critical habitat des- the conference requirement for pro- ignation) and no significant changes to posed species or proposed critical habi- the Federal action are made that would tat under section 7(a)(4) of the Act. alter the content of the opinion. An in- cidental take statement provided with Subpart B—Consultation a conference opinion does not become Procedures effective unless the Service adopts the opinion once the listing is final. § 402.10 Conference on proposed spe- (e) The conclusions reached during a cies or proposed critical habitat. conference and any recommendations (a) Each Federal agency shall confer shall be documented by the Service and with the Service on any action which is provided to the Federal agency and to likely to jeopardize the continued ex- any applicant. The style and mag- istence of any proposed species or re- nitude of this document will vary with sult in the destruction or adverse the complexity of the conference. If modification of proposed critical habi- formal consultation also is required for tat. The conference is designed to as- a particular action, then the Service sist the Federal agency and any appli- will provide the results of the con- cant in identifying and resolving po- ference with the biological opinion. tential conflicts at an early stage in the planning process. § 402.11 Early consultation. (b) The Federal agency shall initiate (a) Purpose. Early consultation is de- the conference with the Director. The signed to reduce the likelihood of con- Service may request a conference if, flicts between listed species or critical after a review of available information, habitat and proposed actions and oc- it determines that a conference is re- curs prior to the filing of an applica- quired for a particular action. tion for a Federal permit or license. Al- (c) A conference between a Federal though early consultation is conducted agency and the Service shall consist of between the Service and the Federal informal discussions concerning an ac- agency, the prospective applicant tion that is likely to jeopardize the should be involved throughout the con- continued existence of the proposed sultation process. species or result in the destruction or (b) Request by prospective applicant. If adverse modification of the proposed a prospective applicant has reason to
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believe that the prospective action agency’s request, the Service shall ei- may affect listed species or critical ther: habitat, it may request the Federal (1) Confirm that the preliminary bio- agency to enter into early consultation logical opinion stands as a final bio- with the Service. The prospective ap- logical opinion; or plicant must certify in writing to the (2) If the findings noted above cannot Federal agency that (1) it has a defini- be made, request that the Federal tive proposal outlining the action and agency initiate formal consultation. its effects and (2) it intends to imple- ment its proposal, if authorized. § 402.12 Biological assessments. (c) Initiation of early consultation. If (a) Purpose. A biological assessment the Federal agency receives the pro- shall evaluate the potential effects of spective applicant’s certification in the action on listed and proposed spe- paragraph (b) of this section, then the cies and designated and proposed crit- Federal agency shall initiate early con- ical habitat and determine whether sultation with the Service. This re- any such species or habitat are likely quest shall be in writing and contain to be adversely affected by the action the information outlined in § 402.14(c) and is used in determining whether for- and, if the action is a major construc- mal consultation or a conference is tion activity, the biological assessment necessary. as outlined in § 402.12. (b) Preparation requirement. (1) The (d) Procedures and responsibilities. The procedures of this section are required procedures and responsibilities for for Federal actions that are ‘‘major early consultation are the same as out- construction activities’’; provided that lined in § 402.14(c)–(j) for formal con- a contract for construction was not en- sultation, except that all references to tered into or actual construction was the ‘‘applicant’’ shall be treated as the not begun on or before November 10, ‘‘prospective applicant’’ and all ref- 1978. Any person, including those who erences to the ‘‘biological opinion’’ or may wish to apply for an exemption the ‘‘opinion’’ shall be treated as the from section 7(a)(2) of the Act, may ‘‘preliminary biological opinion’’ for prepare a biological assessment under the purpose of this section. the supervision of the Federal agency (e) Preliminary biological opinion. The and in cooperation with the Service contents and conclusions of a prelimi- consistent with the procedures and re- nary biological opinion are the same as quirements of this section. An exemp- for a biological opinion issued after tion from the requirements of section formal consultation except that the in- 7(a)(2) is not permanent unless a bio- cidental take statement provided with logical assessment has been prepared. a preliminary biological opinion does (2) The biological assessment shall be not constitute authority to take listed completed before any contract for con- species. struction is entered into and before (f) Confirmation of preliminary biologi- construction is begun. cal opinion as final biological opinion. A (c) Request for information. The Fed- preliminary biological opinion may be eral agency or the designated non-Fed- confirmed as a biological opinion eral representative shall convey to the issued after formal consultation if the Director either (1) a written request for Service reviews the proposed action a list of any listed or proposed species and finds that there have been no sig- or designated or proposed critical habi- nificant changes in the action as tat that may be present in the action planned or in the information used dur- area; or (2) a written notification of the ing the early consultation. A written species and critical habitat that are request for confirmation of the pre- being included in the biological assess- liminary biological opinion should be ment. submitted after the prospective appli- (d) Director’s response. Within 30 days cant applies to the Federal agency for of receipt of the notification of, or the a permit or license but prior to the request for, a species list, the Director issuance of such permit or license. shall either concur with or revise the Within 45 days of receipt of the Federal list or, in those cases where no list has
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been provided, advise the Federal agen- with the Service the current accuracy cy or the designated non-Federal rep- of the species list at the time the prep- resentative in writing whether, based aration of the assessment is begun. on the best scientific and commercial (f) Contents. The contents of a bio- data available, any listed or proposed logical assessment are at the discretion species or designated or proposed crit- of the Federal agency and will depend ical habitat may be present in the ac- on the nature of the Federal action. tion area. In addition to listed and pro- The following may be considered for in- posed species, the Director will provide clusion: a list of candidate species that may be (1) The results of an on-site inspec- present in the action area. Candidate tion of the area affected by the action species refers to any species being con- to determine if listed or proposed spe- sidered by the Service for listing as en- cies are present or occur seasonally. dangered or threatened species but not (2) The views of recognized experts on yet the subject of a proposed rule. Al- the species at issue. though candidate species have no legal (3) A review of the literature and status and are accorded no protection other information. under the Act, their inclusion will (4) An analysis of the effects of the alert the Federal agency of potential action on the species and habitat, in- proposals or listings. cluding consideration of cumulative ef- (1) If the Director advises that no fects, and the results of any related listed species or critical habitat may studies. be present, the Federal agency need not prepare a biological assessment (5) An analysis of alternate actions and further consultation is not re- considered by the Federal agency for quired. If only proposed species or pro- the proposed action. posed critical habitat may be present (g) Incorporation by reference. If a pro- in the action area, then the Federal posed action requiring the preparation agency must confer with the Service if of a biological assessment is identical, required under § 402.10, but preparation or very similar, to a previous action for of a biological assessment is not re- which a biological assessment was pre- quired unless the proposed listing and/ pared, the Federal agency may fulfill or designation becomes final. the biological assessment requirement (2) If a listed species or critical habi- for the proposed action by incor- tat may be present in the action area, porating by reference the earlier bio- the Director will provide a species list logical assessment, plus any supporting or concur with the species list pro- data from other documents that are vided. The Director also will provide pertinent to the consultation, into a available information (or references written certification that: thereto) regarding these species and (1) The proposed action involves critical habitat, and may recommend similar impacts to the same species in discretionary studies or surveys that the same geographic area; may provide a better information base (2) No new species have been listed or for the preparation of an assessment. proposed or no new critical habitat des- Any recommendation for studies or ignated or proposed for the action area; surveys is not to be construed as the and Service’s opinion that the Federal (3) The biological assessment has agency has failed to satisfy the infor- been supplemented with any relevant mation standard of section 7(a)(2) of changes in information. the Act. (h) Permit requirements. If conducting (e) Verification of current accuracy of a biological assessment will involve species list. If the Federal agency or the the taking of a listed species, a permit designated non-Federal representative under section 10 of the Act (16 U.S.C. does not begin preparation of the bio- 1539) and part 17 of this title (with re- logical assessment within 90 days of re- spect to species under the jurisdiction ceipt of (or concurrence with) the spe- of the FWS) or parts 220, 222, and 227 of cies list, the Federal agency or the des- this title (with respect to species under ignated non-Federal representative the jurisdiction of the NMFS) is re- must verify (formally or informally) quired.
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(i) Completion time. The Federal agen- sions, correspondence, etc., between cy or the designated non- Federal rep- the Service and the Federal agency or resentative shall complete the biologi- the designated non-Federal representa- cal assessment within 180 days after its tive, designed to assist the Federal initiation (receipt of or concurrence agency in determining whether formal with the species list) unless a different consultation or a conference is re- period of time is agreed to by the Di- quired. If during informal consultation rector and the Federal agency. If a per- it is determined by the Federal agency, mit or license applicant is involved, with the written concurrence of the the 180-day period may not be extended Service, that the action is not likely to unless the agency provides the appli- adversely affect listed species or crit- cant, before the close of the 180-day pe- ical habitat, the consultation process riod, with a written statement setting is terminated, and no further action is forth the estimated length of the pro- necessary. posed extension and the reasons why (b) During informal consultation, the such an extension is necessary. (j) Submission of biological assessment. Service may suggest modifications to The Federal agency shall submit the the action that the Federal agency and completed biological assessment to the any applicant could implement to Director for review. The Director will avoid the likelihood of adverse effects respond in writing within 30 days as to to listed species or critical habitat. whether or not he concurs with the findings of the biological assessment. § 402.14 Formal consultation. At the option of the Federal agency, (a) Requirement for formal consultation. formal consultation may be initiated Each Federal agency shall review its under § 402.14(c) concurrently with the actions at the earliest possible time to submission of the assessment. determine whether any action may af- (k) Use of the biological assessment. (1) fect listed species or critical habitat. If The Federal agency shall use the bio- such a determination is made, formal logical assessment in determining consultation is required, except as whether formal consultation or a con- noted in paragraph (b) of this section. ference is required under § 402.14 or The Director may request a Federal § 402.10, respectively. If the biological agency to enter into consultation if he assessment indicates that there are no identifies any action of that agency listed species or critical habitat that may affect listed species or crit- present that are likely to be adversely ical habitat and for which there has affected by the action and the Director been no consultation. When such a re- concurs as specified in paragraph (j) of quest is made, the Director shall for- this section, then formal consultation ward to the Federal agency a written is not required. If the biological assess- explanation of the basis for the re- ment indicates that the action is not quest. likely to jeopardize the continued ex- istence of proposed species or result in (b) Exceptions. (1) A Federal agency the destruction or adverse modifica- need not initiate formal consultation tion of proposed critical habitat, and if, as a result of the preparation of a bi- the Director concurs, then a conference ological assessment under § 402.12 or as is not required. a result of informal consultation with (2) The Director may use the results the Service under § 402.13, the Federal of the biological assessment in (i) de- agency determines, with the written termining whether to request the Fed- concurrence of the Director, that the eral agency to initiate formal con- proposed action is not likely to ad- sultation or a conference, (ii) formu- versely affect any listed species or crit- lating a biological opinion, or (iii) for- ical habitat. mulating a preliminary biological (2) A Federal agency need not ini- opinion. tiate formal consultation if a prelimi- nary biological opinion, issued after § 402.13 Informal consultation. early consultation under § 402.11, is (a) Informal consultation is an op- confirmed as the final biological opin- tional process that includes all discus- ion.
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(c) Initiation of formal consultation. A may mutually agree to extend the con- written request to initiate formal con- sultation for a specific time period. If sultation shall be submitted to the Di- an applicant is involved, the Service rector and shall include: and the Federal agency may mutually (1) A description of the action to be agree to extend the consultation pro- considered; vided that the Service submits to the (2) A description of the specific area applicant, before the close of the 90 that may be affected by the action; days, a written statement setting (3) A description of any listed species forth: or critical habitat that may be affected (1) The reasons why a longer period is by the action; required, (4) A description of the manner in (2) The information that is required which the action may affect any listed to complete the consultation, and species or critical habitat and an anal- (3) The estimated date on which the ysis of any cumulative effects; consultation will be completed. (5) Relevant reports, including any A consultation involving an applicant environmental impact statement, envi- cannot be extended for more than 60 ronmental assessment, or biological as- days without the consent of the appli- sessment prepared; and cant. Within 45 days after concluding (6) Any other relevant available in- formal consultation, the Service shall formation on the action, the affected deliver a biological opinion to the Fed- listed species, or critical habitat. eral agency and any applicant. Formal consultation shall not be initi- (f) Additional data. When the Service ated by the Federal agency until any determines that additional data would required biological assessment has provide a better information base from been completed and submitted to the which to formulate a biological opin- Director in accordance with § 402.12. ion, the Director may request an exten- Any request for formal consultation sion of formal consultation and request may encompass, subject to the ap- that the Federal agency obtain addi- proval of the Director, a number of tional data to determine how or to similar individual actions within a what extent the action may affect list- given geographical area or a segment ed species or critical habitat. If formal of a comprehensive plan. This does not consultation is extended by mutual relieve the Federal agency of the re- agreement according to § 402.14(e), the quirements for considering the effects Federal agency shall obtain, to the ex- of the action as a whole. tent practicable, that data which can (d) Responsibility to provide best sci- be developed within the scope of the entific and commercial data available. extension. The responsibility for con- The Federal agency requesting formal ducting and funding any studies be- consultation shall provide the Service longs to the Federal agency and the ap- with the best scientific and commer- plicant, not the Service. The Service’s cial data available or which can be ob- request for additional data is not to be tained during the consultation for an construed as the Service’s opinion that adequate review of the effects that an the Federal agency has failed to satisfy action may have upon listed species or the information standard of section critical habitat. This information may 7(a)(2) of the Act. If no extension of for- include the results of studies or sur- mal consultation is agreed to, the Di- veys conducted by the Federal agency rector will issue a biological opinion or the designated non-Federal rep- using the best scientific and commer- resentative. The Federal agency shall cial data available. provide any applicant with the oppor- (g) Service responsibilities. Service re- tunity to submit information for con- sponsibilities during formal consulta- sideration during the consultation. tion are as follows: (e) Duration and extension of formal (1) Review all relevant information consultation. Formal consultation con- provided by the Federal agency or oth- cludes within 90 days after its initi- erwise available. Such review may in- ation unless extended as provided clude an on-site inspection of the ac- below. If an applicant is not involved, tion area with representatives of the the Service and the Federal agency Federal agency and the applicant.
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(2) Evaluate the current status of the (7) Formulate a statement con- listed species or critical habitat. cerning incidental take, if such take (3) Evaluate the effects of the action may occur. and cumulative effects on the listed (8) In formulating its biological opin- species or critical habitat. ion, any reasonable and prudent alter- (4) Formulate its biological opinion natives, and any reasonable and pru- as to whether the action, taken to- dent measures, the Service will use the gether with cumulative effects, is like- best scientific and commercial data ly to jeopardize the continued exist- available and will give appropriate con- ence of listed species or result in the sideration to any beneficial actions destruction or adverse modification of taken by the Federal agency or appli- critical habitat. cant, including any actions taken prior (5) Discuss with the Federal agency to the initiation of consultation. and any applicant the Service’s review (h) Biological opinions. The biological and evaluation conducted under para- opinion shall include: graphs (g)(1) through (3) of this section, (1) A summary of the information on the basis for any finding in the biologi- which the opinion is based; cal opinion, and the availability of rea- (2) A detailed discussion of the ef- sonable and prudent alternatives (if a fects of the action on listed species or jeopardy opinion is to be issued) that critical habitat; and the agency and the applicant can take (3) The Service’s opinion on whether to avoid violation of section 7(a)(2). the action is likely to jeopardize the The Service will utilize the expertise of continued existence of a listed species the Federal agency and any applicant or result in the destruction or adverse in identifying these alternatives. If re- modification of critical habitat (a quested, the Service shall make avail- ‘‘jeopardy biological opinion’’); or, the able to the Federal agency the draft bi- action is not likely to jeopardize the ological opinion for the purpose of ana- continued existence of a listed species lyzing the reasonable and prudent al- or result in the destruction or adverse ternatives. The 45-day period in which modification of critical habitat (a ‘‘no the biological opinion must be deliv- jeopardy’’ biological opinion). A ‘‘jeop- ered will not be suspended unless the ardy’’ biological opinion shall include Federal agency secures the written reasonable and prudent alternatives, if consent of the applicant to an exten- any. If the Service is unable to develop sion to a specific date. The applicant such alternatives, it will indicate that may request a copy of the draft opinion to the best of its knowledge there are from the Federal agency. All com- no reasonable and prudent alter- ments on the draft biological opinion natives. must be submitted to the Service (i) Incidental take. (1) In those cases through the Federal agency, although where the Service concludes that an the applicant may send a copy of its action (or the implementation of any comments directly to the Service. The reasonable and prudent alternatives) Service will not issue its biological and the resultant incidental take of opinion prior to the 45-day or extended listed species will not violate section deadline while the draft is under review 7(a)(2), and, in the case of marine mam- by the Federal agency. However, if the mals, where the taking is authorized Federal agency submits comments to pursuant to section 101(a)(5) of the Ma- the Service regarding the draft biologi- rine Mammal Protection Act of 1972, cal opinion within 10 days of the dead- the Service will provide with the bio- line for issuing the opinion, the Service logical opinion a statement concerning is entitled to an automatic 10-day ex- incidental take that: tension on the deadline. (i) Specifies the impact, i.e., the (6) Formulate discretionary con- amount or extent, of such incidental servation recommendations, if any, taking on the species; which will assist the Federal agency in (ii) Specifies those reasonable and reducing or eliminating the impacts prudent measures that the Director that its proposed action may have on considers necessary or appropriate to listed species or critical habitat. minimize such impact;
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(iii) In the case of marine mammals, Federal agency, issue a biological opin- specifies those measures that are nec- ion on the incremental step being con- essary to comply with section 101(a)(5) sidered, including its views on the en- of the Marine Mammal Protection Act tire action. Upon the issuance of such a of 1972 and applicable regulations with biological opinion, the Federal agency regard to such taking; may proceed with or authorize the in- (iv) Sets forth the terms and condi- cremental steps of the action if: tions (including, but not limited to, re- (1) The biological opinion does not porting requirements) that must be conclude that the incremental step complied with by the Federal agency or would violate section 7(a)(2); any applicant to implement the meas- (2) The Federal agency continues ures specified under paragraphs (i)(1)(ii) and (i)(1)(iii) of this section; consultation with respect to the entire and action and obtains biological opinions, (v) Specifies the procedures to be as required, for each incremental step; used to handle or dispose of any indi- (3) The Federal agency fulfills its viduals of a species actually taken. continuing obligation to obtain suffi- (2) Reasonable and prudent measures, cient data upon which to base the final along with the terms and conditions biological opinion on the entire action; that implement them, cannot alter the (4) The incremental step does not vio- basic design, location, scope, duration, late section 7(d) of the Act concerning or timing of the action and may in- irreversible or irretrievable commit- volve only minor changes. ment of resources; and (3) In order to monitor the impacts of (5) There is a reasonable likelihood incidental take, the Federal agency or that the entire action will not violate any applicant must report the progress section 7(a)(2) of the Act. of the action and its impact on the spe- (l) Termination of consultation. (1) For- cies to the Service as specified in the mal consultation is terminated with incidental take statement. The report- the issuance of the biological opinion. ing requirements will be established in (2) If during any stage of consulta- accordance with 50 CFR 13.45 and 18.27 for FWS and 50 CFR 220.45 and 228.5 for tion a Federal agency determines that NMFS. its proposed action is not likely to (4) If during the course of the action occur, the consultation may be termi- the amount or extent of incidental tak- nated by written notice to the Service. ing, as specified under paragraph (3) If during any stage of consulta- (i)(1)(i) of this Section, is exceeded, the tion a Federal agency determines, with Federal agency must reinitiate con- the concurrence of the Director, that sultation immediately. its proposed action is not likely to ad- (5) Any taking which is subject to a versely affect any listed species or crit- statement as specified in paragraph ical habitat, the consultation is termi- (i)(1) of this section and which is in nated. compliance with the terms and condi- tions of that statement is not a prohib- [51 FR 19957, June 3, 1986, as amended at 54 FR 40350, Sept. 29, 1989] ited taking under the Act, and no other authorization or permit under the Act § 402.15 Responsibilities of Federal is required. agency following issuance of a bio- (j) Conservation recommendations. The logical opinion. Service may provide with the biologi- cal opinion a statement containing dis- (a) Following the issuance of a bio- cretionary conservation recommenda- logical opinion, the Federal agency tions. Conservation recommendations shall determine whether and in what are advisory and are not intended to manner to proceed with the action in carry any binding legal force. light of its section 7 obligations and (k) Incremental steps. When the action the Service’s biological opinion. is authorized by a statute that allows (b) If a jeopardy biological opinion is the agency to take incremental steps issued, the Federal agency shall notify toward the completion of the action, the Service of its final decision on the the Service shall, if requested by the action.
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(c) If the Federal agency determines § 403.01 Purpose and scope of regula- that it cannot comply with the require- tions. ments of section 7(a)(2) after consulta- The regulations contained in this tion with the Service, it may apply for part implement section 109 of the Act an exemption. Procedures for exemp- which, upon a finding by the Secretary tion applications by Federal agencies of compliance with certain require- and others are found in 50 CFR part 451. ments, provides for the transfer of ma- rine mammal management authority § 402.16 Reinitiation of formal con- to the states. sultation. (a) The regulations of this part apply Reinitiation of formal consultation is the procedures for the transfer of ma- required and shall be requested by the rine mammal management authority Federal agency or by the Service, to a state, the form and minimum re- where discretionary Federal involve- quirements of a state application for ment or control over the action has the transfer of management authority, been retained or is authorized by law the relationship between Federal and state wildlife agencies both prior and and: subsequent to the transfer of manage- (a) If the amount or extent of taking ment authority, and the revocation specified in the incidental take state- and return of management authority ment is exceeded; to the Federal Government. (b) If new information reveals effects (b) Nothing in this part shall prevent: of the action that may affect listed (1) The taking of a marine mammal species or critical habitat in a manner by or on behalf of a Federal, state or or to an extent not previously consid- local government official, in accord- ered; ance with § 18.22 or § 216.22 of this Title (c) If the identified action is subse- and section 109(h) of the Act, or (2) the quently modified in a manner that adoption or enforcement of any state causes an effect to the listed species or law or regulation relating to any ma- critical habitat that was not consid- rine mammal taken before December ered in the biological opinion; or 21, 1972. (d) If a new species is listed or crit- (c) The information collection re- ical habitat designated that may be af- quirements contained in §§ 403.03, 403.06, fected by the identified action. and 403.07 of this part do not require approval by the Office of Management and Budget under 44 U.S.C. 3501 et seq., PART 403—TRANSFER OF MARINE because there are fewer than 10 re- MAMMAL MANAGEMENT AU- spondents annually. THORITY TO STATES § 403.02 Definitions. Sec. The following definitions apply to 403.01 Purpose and scope of regulations. this part: 403.02 Definitions. (a) The term species includes any pop- 403.03 Review and approval of State request ulation stock. for management authority. (b) Optimum Sustainable Population or 403.04 Determinations and hearings under OSP means a population size which section 109(c) of the MMPA. falls within a range from the popu- 403.05 State and Federal responsibilities lation level of a given species or stock after transfer of management authority. which is the largest supportable within 403.06 Monitoring and review of State man- the ecosystem to the population level agement program. that results in maximum net produc- 403.07 Revocation and return of State man- tivity. Maximum net productivity is agement authority. 403.08 List of States to which management the greatest net annual increment in has been transferred. population numbers or biomass result- ing from additions to the population AUTHORITY: 16 U.S.C. 1361 et seq., as amend- due to reproduction and/or growth less ed by Pub. L. 97–58. losses due to natural mortality. SOURCE: 48 FR 22456, May 18, 1983, unless (c) State management program means otherwise noted. existing and proposed state statutes,
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regulations, policies and other authori- (1) Copies of existing and proposed ties which form the framework for the statutes, regulations, policies and conservation of a species of marine other authorities of state law which mammals. comprise those aspects of the state (d) State regulation means the whole management program outlined in para- or part of a state agency statement of graph (b) of this section, and, in the general or particular applicability and case of Alaska, paragraphs (d) (1) future effect designed to implement, through (3) of this section; interpret, or prescribe law or policy or (2) A narrative discussion of the stat- describing the organization, procedure, utes, regulations, policies and other or practice requirements of a state authorities which comprise those as- agency and which is duly promulgated pects of the state management pro- in accordance with established proce- gram outlined in paragraph (b) of this dure. section, and, in the case of Alaska, (e) The Act means the Marine Mam- paragraph (d) of this section, which ex- mal Protection Act (MMPA) of 1972, 16 plains the program in terms of the re- U.S.C. 1361 et seq., as amended by Pub. quirements of the Act and the regula- L. 97–58. tions of this part; and (f) The Secretary means the Secretary (3) Supplementary information as re- of the Interior or the Secretary of quired by paragraph (c) of this section. Commerce, depending on the species (b) A request for transfer of marine involved. Under section 3(11) of the mammal management authority will Act, the Secretary of Commerce has ju- not be approved unless it contains the risdiction over members of the order following: Cetacea and members, other than wal- (1) The scientific and common names ruses, of the order Pinnipedia; the Sec- and estimated range of the species of retary of the Interior has jurdisdiction marine mammals subject to the state over all other mammals. These secre- management program. tarial authorities have been delegated (2) Provisions of state law concerning to the National Marine Fisheries Serv- the take of marine mammals that— ice and the Fish and Wildlife Service, respectively. (i) Require that the taking of marine mammals be humane as defined by sec- (g) The Service or Services means the Fish and Wildlife Service (FWS) and tion 3(4) of the Act; the National Marine Fisheries Service (ii) Do not permit the taking of ma- (NMFS), as appropriate depending on rine mammals until the following have the species involved. Any determina- occurred: tion or finding required by this part to (A) The state, pursuant to the re- be made by the ‘‘Service’’ must be quirements of § 403.04 of this part, has made by the Director of the FWS or by determined that the species is at its the Assistant Administrator of the Optimum Sustainable Population NMFS, or their delegees, as appro- (OSP) and determined the maximum priate. number of animals that may be taken without reducing the species below its § 403.03 Review and approval of State OSP, and, in the case of Alaska, when request for management authority. a species is below OSP, the maximum (a) Any state may request the trans- numbers that can be taken for subsist- fer of management authority for a spe- ence uses while allowing the species to cies of marine mammals by submitting increase toward its OSP; a written request to the Director of the (B) The determination as to OSP and Fish and Wildlife Service (‘‘Director’’) maximum take are final and imple- for species of marine mammals under mented under state law; and the jurisdiction of the FWS, or to the (C) A cooperative allocation agree- Assistant Administrator for Fisheries ment, if required under § 403.05(a) of of the National Marine Fisheries Serv- this part, is implemented; ice (‘‘Assistant Administrator’’) for (iii) Do not permit take in excess of species of marine mammals under the the maximum number of animals that jurisdiction of the NMFS. The request may be taken as determined pursuant must include: to § 403.04 of this part; provided that for
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Alaska, subsistence take may be al- ministration and enforcement of the lowed in accordance with paragraph (d) state management program; of this section, and if the species is (2) Anticipated research and enforce- below OSP, any level of take allowed ment activities relating to conserva- for subsistence use shall permit the tion of the species for which manage- species to increase toward OSP; ment authority is sought; and (iv) Do not permit take that is for (3) Such other materials and informa- scientific research or public display tion as the Service may request or purposes except such take by or on be- which the state may deem necessary or half of the state, or pursuant to a Fed- advisable to demonstrate the compat- eral permit issued under § 18.31 or ibility of the state management pro- § 216.31 of this title; and gram with the policy and purposes of (v) Regulate the incidental taking of the Act and the rules and regulations the species in a manner consistent with issued under the Act. section 101(a) (2), (4) and (5) of the Act. (d) In addition to the requirements (3) Provisions for annually acquiring contained in paragraphs (b) and (c) of and evaluating data and other new evi- this section, a request for the transfer dence relating to OSP of the species of marine mammal management au- and the maximum allowable take, and thority by the State of Alaska must if warranted on the basis of such eval- contain the following concerning sub- uation, for requiring reevaluations of sistence use of the species— OSP and maximum allowable take de- (1) A statute and regulations con- terminations pursuant to § 403.04. cerning the take of marine mammals (4) Procedures for the resolution of that ensure that differences between the state and the (i) The taking of marine mammals appropriate Service that might arise species for subsistence uses will be the during the development of a coopera- priority consumptive uses of the spe- tive allocation agreement pursuant to cies; § 403.05(a) of this part. (ii) If restrictions on subsistence uses (5) Procedures for the submission of of the species are required, such re- an annual report meeting the require- strictions shall be based upon the cus- ments of § 403.06(b) of this part to the tomary and direct dependence upon the appropriate Service regarding the ad- species as the mainstay of livelihood, ministration of the state management local residency, and the availability of program during the reporting period. alternative resources; and (6) A description of— (iii) The taking of marine mammal (i) The organization of state offices species for subsistence uses is accom- involved in the administration and en- plished in a non-wasteful manner; forcement of the state management (2) Statutes or regulations that en- program; sure that the appropriate state agency (ii) Any permit system relating to will— the marine mammals, the laws that (i) Authorize nonsubsistence con- apply to such permits, and the proce- sumptive uses of a marine mammal dures to be used in granting or with- species only if such uses will have no holding such permits; significant adverse impact on subsist- (iii) State laws relating to judicial ence uses of the species; review of administrative decisions as (ii) Regulate nonsubsistence con- they relate to the state management sumptive uses in a manner which, to program; the maximum extent practicable, pro- (iv) State laws relating to adminis- vides economic opportunities, includ- trative rulemaking as they relate to ing, but not limited to, licensing of ma- the state management program; rine mammal hunting guides and the (c) In addition to the aspects of the assignment of guiding areas, for resi- state management program required to dents of rural coastal villages of Alas- be submitted by paragraph (b) of this ka who engage in subsistence uses of section, the state shall submit infor- the species; and mation, in summary form, relating to: (iii) Make written findings sup- (1) The anticipated staffing and fund- porting the authorizations and regula- ing of state offices involved in the ad- tions described in this paragraph based
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solely on the administrative record be- gram within 60 days of publication of fore the agency; the general notice. (3) A narrative discussion of the stat- (g) If requested, the Service may con- utes or regulations required under duct an informal public hearing after paragraph (d)(2) of this section, and publishing 30 days’ advance notice of any additional policies or procedures the date, location, and time of such concerning the regulation of non- hearing in the FEDERAL REGISTER. subsistence consumptive uses of ma- (h) After considering all comments rine mammals. This discussion must and other relevant information, the explain how the State’s program satis- Service shall publish in the FEDERAL fies the requirements of section 109(f) REGISTER its final determination on of the Act, namely that the regulation whether the state has developed and of nonsubsistence consumptive uses of will implement a management program marine mammals provides, to the max- that meets the requirement of the Act imum extent praticable, economic op- and these regulations. In the case of a portunities for the residents of rural positive final determination, the Serv- coastal villages of Alaska who engage ice shall publish with the notice a final in subsistence uses of the species. regulation transferring management (e) To assist states in preparing the authority for the species to the state state management program for submis- after the following requirements are sion, the Service will also, at the writ- satisfied: (1) The state’s determinations pursu- ten request of any state, make a pre- ant to § 403.04 of this part are final and liminary review of any aspects of the implemented under state law; state management program. This re- (2) Any cooperative allocation agree- view will be advisory in nature and ment required under § 403.05(a) of this shall not be binding upon the Services. part is implemented; and Notwithstanding preliminary review by (3) The state has enacted and sub- the Service, once any proposed aspect mitted to the Service laws and policies of the state management program has that are substantially the same as been prepared and submitted in final those provided pursuant to § 403.03(a) in form, it shall be subject to final review proposed form in the state’s manage- and approval under paragraphs (f) ment program. through (h) of this section. (f)(1) After receiving the state’s re- § 403.04 Determinations and hearings quest, for management authority, the under section 109(c) of the MMPA. Service shall make an initial deter- (a) Introduction. In order to gain ap- mination on whether the state’s man- proval of its marine mammal manage- agement program meets the require- ment program the state must provide ments of the Act and these regulations. for a process, consistent with section (2) Within 45 days after receiving the 109(c) of the Act, to determine the opti- state’s request, unless the state and mum sustainable population of the spe- the Service agree to another time pe- cies and the maximum number of ani- riod, the Service shall publish a gen- mals that may be taken from popu- eral notice of its initial determination lations it manages without reducing in the FEDERAL REGISTER together the species below OSP. The state proc- with, in the case of a positive deter- ess must be completed before the state mination, the text of a proposed rule to may exercise any management author- transfer management authority to the ity over the subject marine mammals, state. The general notice shall contain and it must include the elements set a summary of the major components of forth below. the state’s management program and (b) Basis, purpose, and scope. The shall indicate where the full text of the process set forth in this section is ap- management program may be in- plicable to and required for only the spected or copied. The public shall be determination of the OSP of the spe- allowed to submit written comments cies and maximum number that may be and to request an informal public hear- taken without reducing it below its ing on the Service’s initial determina- OSP and, in the case of Alaska if the tion and the state’s management pro- species is below OSP, the maximum
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number of animals that may be taken, available to interested persons for if any, for subsistence uses without their consideration. If a request for a preventing the species from increasing hearing is not made within the pre- toward its OSP. The state need not scribed time period, the initial deter- allow the maximum take, as deter- minations shall be treated as final. mined in accordance with this process, (e) Notice of hearing. If a request for a that is biologically permissible. The hearing is made within the prescribed state may change regulations estab- time period by any interested person, lishing bag limits, quotas, seasons, the state agency shall provide notice of areas, manner of take, etc. within the the hearing to the Service and the pub- maximum biologically permissible lic not less than 30 days in advance of take pursuant to its other rulemaking the scheduled date(s) of the hearing(s). criteria, authority, and procedures. The notice shall include the date(s), lo- Compliance with the process set forth cation(s), and purpose of the hearing, a in this section would not be required recitation of the initial determina- again unless the state proposes to mod- tions, the name(s) of the person(s) who ify its determinations of the status of will preside at the hearing, and the the species with respect to its OSP or manner and date by which interested the maximum permissible take from persons must notify the state agency that species. or presiding officer(s) of their desire to (c) Initial determination by the State. participate in the hearing. The state The state agency with responsibility shall also make available and dis- for managing the species in the event tribute upon request a list of witnesses management authority is transferred and description of the documentation to the state shall make initial deter- and other evidence that will be relied minations on the basis of the best sci- upon by the state’s witnesses in sup- entific evidence available of: port of its initial determinations suffi- (1) Whether or not it is at its OSP; (2) ciently in advance of the hearing date if so, the maximum number of that spe- so as to allow interested persons to cies that nay be taken without reduc- prepare questions and supporting or re- ing it below its OSP; and (3) if not, in buttal testimony for the hearing. the case of Alaska, the maximum num- (f) Conduct of the hearing. (1) The ber of animals that may be taken, if hearing shall be publicly conducted and any, for subsistence uses without pre- reported verbatim by an official re- venting the species from increasing to- porter. ward its OSP. (2) The state shall sponsor all written (d) Notice and review of initial deter- documentation in support of its deter- minations and request for hearing. The minations with witnesses who are able, state agency shall provide notice of its by virtue of training and experience, to initial determinations to the Service respond fully to cross-examination re- and the public and shall provide access garding the facts and conclusions con- to or copies of the documentation sup- tained therein provided that, except by porting its determinations to the Serv- agreement of the parties, the state ice and the public. The state agency agency may not call any witnesses or shall indicate, in the notice of its ini- introduce any documentation into the tial determinations, the location(s) and record unless the advance notice re- hours during which such documenta- quirements of paragraph (e) of this sec- tion may be inspected, and the costs, if tion are met with respect to such wit- any of copies of such documentation. nesses or documentation. The state agency shall also indicate in (3) Any interested person who has the notice that any interested person notificed the state agency of his desire may request a hearing regarding the to participate in the hearing pursuant initial determinations, and the state to paragraph (e) of this section may shall provide a reasonable time, not participate in the hearing by pre- less than 30 days, for making the re- senting oral or written testimony or quest, taking into account the time re- cross-examining the witnesses or other quired to advise the public of the ini- parties with respect to matters rel- tial determinations and to make the evant to the state’s initial determina- supporting documentation readily tions, provided that any such written
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documentation must be sponsored by a (3) The state agency shall advise the witness who is able, by virtue of train- Service and the public of its final de- ing and experience, to respond fully to terminations and shall provide access cross-examination regarding the facts to or copies of its decision document and conclusions contained therein. and Hearing Record. (4) The presiding officer(s) shall con- (h) Judicial review. The state agency’s duct the hearing in accordance with final determinations after a hearing such other rules of evidence, criteria, must be supported by substantial evi- and procedures as are necessary and dence in the record of the hearing. Op- appropriate for the expeditious and ef- portunity for judicial review of the fective determination of the issues. state agency’s final determinations The presiding officer(s) may provide for must be available under state law. The oral argument and/or written briefs at scope of judicial review shall be equiva- the end of the hearing. lent to that provided for in 5 U.S.C. (5) Final determinations on the 706(2) (A) through (E). issues specified in paragraph (c) of this section must be supported by the best § 403.05 State and Federal responsibil- available scientific information so as ities after transfer of management to insure that any taking will be con- authority. sistent with the maintenance of OSP. (a) After determinations required by (g) Review of the hearing record and section 403.04 of this part have been final determinations. (1) The state agen- made in respect to a species whose cy shall provide for either: range extends beyond the territorial (i) Review and evaluation of the hear- waters of the state, the state shall not ing record by the presiding officer(s) exercise management authority until a and transmittal by the presiding offi- cooperative allocation agreement with cer(s) of recommended final determina- the Secretary has been signed and the tions to the decision-maker(s) in the Service has transferred management state agency; or authority pursuant to § 403.03(h). The (ii) Review and evaluation of the cooperative allocation agreement shall hearing record and final determina- provide procedures for allocating, on a tions by the state agency without ben- timely basis, the maximum amount of efit of any recommendations by the take as determined by the state pursu- presiding officer(s). In any event, the ant to § 403.04 of this part. Such alloca- final determinations by the state agen- tion shall give first priority to inci- cy must be made solely on the basis of dental take within the zone described the record developed at the hearing. in section 3(14)(B) of the Act as pro- The state agency in making its final vided for under section 101(a) of the determinations, and/or presiding offi- Act, except that in the case of Alaska, cer(s) in making his (their) rec- first priority shall be given to subsist- ommended determinations, may not ence use. rely on oral or written evidence which (b) For those species to which para- was not presented at the hearing and graph (a) of this section applies, the made available to the parties for cross- state may request the Service to regu- examination and rebuttal testimony. late the taking of the species within Any such oral or written information the zone described in section 3(14)(B) of transmitted to the presiding officer(s) the Act for subsistence uses and/or or other members of the state agency hunting in a manner consistent with responsible for the final determina- the regulation by the state of such tak- tions shall be treated as ex parte com- ing within the state. If such a request munications and may not be considered is made, the Service shall adopt and part of the record for decision. enforce within such zone, such of the (2) The state agency shall make final state’s regulatory provisions as the determinations of the issues set forth Service considers to be consistent with in paragraph (c) of this section and the administration within such zone of shall include in its statement of final section 101(a) of the Act. determinations a statement of findings (c) If management authority for a and conclusions and the reasons or species has been transferred to a state basis therefor. pursuant to this subpart, the Service
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shall provide to the state an oppor- (4) A summary of state actions to tunity to review all requests for per- protect species’ habitat; mits to remove live animals from habi- (5) A summary of all state research tat within the state for scientific re- activity on the species; search or public display purposes. If (6) Any significant changes in the in- the state finds that issuance of the per- formation provided with the original mit would not be consistent with its request for transfer of management au- management program for the species: thority; (1) The state shall so inform the (7) A summary of enforcement activ- Service, together with the reasons for ity; such finding, within 30 days of its re- (8) A summary of budget and staffing ceipt of the application, and the Serv- levels for the marine mammal activi- ice shall not issue the permit; and ties in the categories of research, man- (2) The Service shall provide to the agement and enforcement; permit applicant and the state an op- (9) Any other information which the portunity to adjust the permit applica- Service may request, consistent with tion or otherwise reconcile it with the the Act as amended, or which the state state management program for the spe- deems necessary or advisable to facili- cies. tate review by the Service of state (d) After management of a species management of the species. has been transferred to the state, state (c) Each state having an approved and Federal authorities shall cooperate management program shall file a re- to the maximum extent practicable in port, in a timely manner, not to exceed conserving the species of marine mam- 45 days from the occurrence of any of mals. the following: (1) Any change in a relevant state § 403.06 Monitoring and review of law (amendments, repealers, or new State management program. legislation or regulations or judicial (a) The Service has responsibility to precedent) as submitted pursuant to monitor and review implementation of paragraphs (b)(2) through (b)(5), and in all state management programs ap- the case of Alaska, paragraph (d), of proved pursuant to this part. § 403.03 of this part that may impair the (b) In order to facilitate such review, State’s ability to implement the pro- each state to which management au- gram; thority has been transferred shall sub- (2) Any significant natural or man- mit an annual report, not later than made occurrence or any new scientific 120 days after the close of such state’s information that may warrant recon- first full fiscal or calendar year fol- sideration of the determinations made lowing the effective date of the Serv- pursuant to § 403.04 of this part. ice’s approval of the State manage- (d) All components of the state re- ment program, and at the same time quest for transfer of management au- each following year, or at such other thority, as well as annual reports sub- time as may be agreed upon. The repot mitted under paragraph (b) of this shall contain the following information section and any reports submitted current for each reporting period: under paragraph (c) of this section, (1) Any changes in the state laws shall be available for inspection and which comprise those aspects of the copying at the Office of the Chief, Divi- state management program submitted sion of Wildlife Management, U.S. Fish pursuant to § 403.03(b), and, in the case and Wildlife Service, Department of of Alaska, § 403.03(d), of this part; the Interior, Washington, DC 20240, or, (2) Pertinent new data on the marine as appropriate, at the Office of Pro- mammal species or the marine eco- tected Species and Habitat Conserva- systems in question including a sum- tion, National Marine Fisheries Serv- mary of the status, trend and general ice, National Oceanic and Atmospheric health of the species; Administration, Department of Com- (3) A summary of available informa- merce, Washington, DC 20235, and at tion relating to takings under the state the appropriate Service’s regional of- management program; fice.
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§ 403.07 Revocation and return of management program, the Service State management authority. shall revoke the transfer of manage- (a) Revocation of management. The ment authority by written notice to Service shall have responsibility to re- the state and publication in the FED- view management of a species trans- ERAL REGISTER. ferred to a state under this part and to (b) Voluntary return of management determine whether or not the imple- authority to the Service. (1) If a state de- mentation of the state management sires to return management of a spe- program continues to comply with the cies of marine mammals to the Serv- requirements of the Act, this part and ice, it shall provide the Service notice the state’s approved management pro- of intent to return management. The gram. Service shall accept the return of man- (1) Upon receipt of any substantial agement, and such return shall become factual information suggesting that effective, upon publication of a notice the state management program is not in the FEDERAL REGISTER to this effect being implemented or is being imple- no sooner than 30 days (except in an mented in a manner inconsistent with emergency as determined by the Serv- the Act, this part, or the state’s ap- ice) nor longer than 60 days after the proved management program, the state has provided notice of its intent Service shall, as soon as practicable to return management or unless other- but not later than 30 days after receipt, wise agreed upon. determine whether or not the state (2) If implementation of any aspect of continues to comply with the require- ments of the Act, this part and the the state management program is en- state’s approved management program. joined by court order, the state shall (2) Whenever pursuant to a review as advise the Service of such injunction specified in paragraph (a)(1) of this sec- and its effect on the state management tion, the Service determines that any program. If the state determines that substantial aspect of the state manage- the effect of the injunction is to pre- ment program is not in compliance clude effective conservation and man- with the requirements of the Act, this agement of the species under the terms part or the state’s approved manage- of the state management program, it ment program, it shall provide written shall so notify the Service and such no- notice to the state of its intent to re- tification shall be treated as a notice of voke management authority, together intent to return management as pro- with a statement, in detail, of those ac- vided in paragraph (b)(1) of this sec- tions or failures to act upon which tion. If the state determines that the such intent to revoke is based. The injunction does not preclude effective Service shall publish notice of such in- conservation and management of ma- tent to revoke in the FEDERAL REG- rine mammals under the terms of the ISTER and invite public comment there- state management program, it shall so on, and shall conduct an informal pub- notify the Service together with the lic hearing on the matter if requested basis for the state’s determination and by the state or if the Service otherwise such notice shall be treated as a report determines it to be necessary. The submitted pursuant to the terms of Service shall provide to the state an § 403.06(c)(1) of this part. In either case, opportunity for consultation between the state shall provide notice to the the Service and the state concerning Service as soon as practicable but not such actions or failures and necessary more than 30 days after issuance of the remedial actions to be taken by the injunction. Management authority re- state. turned to the Service pursuant to this (3) If within 90 days after notice is paragraph may be re-transferred to the provided under paragraph (a)(2) of this state, notwithstanding the require- section, the state has not taken such ments of § 403.03, when, in the judgment remedial measures as are necessary, in of the Service, the cause for return of the judgment of the Service, to bring management authority to the Service the state management program into has been alleviated in such a way as to compliance with the provision of the allow effective conservation and man- Act, this part and the state’s approved agement of the species consistent with
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the requirements of the Act and this Subpart A—General Provisions part. (c) When revocation of a manage- § 424.01 Scope and purpose. ment authority pursuant to paragraph (a) Part 424 provides rules for revis- (a) of this section becomes final, or ing the Lists of Endangered and when a state returns management pur- Threatened Wildlife and Plants and, suant to paragraph (b) of this section, where appropriate, designating or re- the Service shall resume such manage- vising their critical habitats. Criteria ment authority and provide for the are provided for determining species to conservation of the species within the be endangered or threatened and for state in accordance with the provisions designating critical habitats. Proce- of the Act. dures for receiving and considering pe- titions to revise the lists and for con- § 403.08 List of States to which man- ducting periodic reviews of listed spe- agement has been transferred. cies also are established. The following states have received (b) The purpose of these rules is to management authority pursuant to interpret and implement those portions this part for the species listed and, of the Endangered Species Act of 1973, where appropriate, cooperative alloca- as amended (16 U.S.C. 1531 et seq.), that tion agreements pursuant to § 403.05(c) pertain to the listing of species and the determination of critical habitats. are in force: [Reserved] § 424.02 Definitions. PART 424—LISTING ENDANGERED (a) The definitions of terms in 50 CFR AND THREATENED SPECIES AND 402.02 shall apply to this part 424, ex- DESIGNATING CRITICAL HABITAT cept as otherwise stated. (b) Candidate means any species being Subpart A—General Provisions considered by the Secretary for listing as an endangered or a threatened spe- Sec. cies, but not yet the subject of a pro- 424.01 Scope and purpose. posed rule. 424.02 Definitions. (c) Conservation, conserve, and con- Subpart B—Revision of the Lists serving mean to use and the use of all methods and procedures that are nec- 424.10 General. essary to bring any endangered or 424.11 Factors for listing, delisting, or re- threatened species to the point at classifying species. which the measures provided pursuant 424.12 Criteria for designating critical habi- to the Act are no longer necessary. tat. Such methods and procedures include, 424.13 Sources of information and relevant but are not limited to, all activities as- data. sociated with scientific resources man- 424.14 Petitions. agement such as research, census, law 424.15 Notices of review. enforcement, habitat acquisition and 424.16 Proposed rules. maintenance, propagation, live trap- 424.17 Time limits and required actions. ping, and transplantation, and, in the 424.18 Final rules—general. extraordinary case where population 424.19 Final rules—impact analysis of crit- pressures within a given ecosystem ical habitat. cannot be otherwise relieved, may in- 424.20 Emergency rules. clude regulated taking. 424.21 Periodic review. (d) Critical habitat means (1) the spe- AUTHORITY: Pub. L. 93–205, 87 Stat. 884; cific areas within the geographical Pub. L. 95–632, 92 Stat. 3751; Pub. L. 96–159, 93 area currently occupied by a species, at Stat. 1225; Pub. L. 97–304, 96 Stat. 1411 (16 the time it is listed in accordance with U.S.C. 1531 et seq.). the Act, on which are found those phys- SOURCE: 49 FR 38908, Oct. 1, 1984, unless ical or biological features (i) essential otherwise noted. to the conservation of the species and
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(ii) that may require special manage- vertebrate, mollusk, crustacean, ar- ment considerations or protection, and thropod, or other invertebrate, and in- (2) specific areas outside the geo- cludes any part, product, egg, or off- graphical area occupied by a species at spring thereof, or the dead body or the time it is listed upon a determina- parts thereof. tion by the Secretary that such areas are essential for the conservation of Subpart B—Revision of the Lists the species. (e) Endangered species means a species § 424.10 General. that is in danger of extinction through- The Secretary may add a species to out all or a significant portion of its the lists or designate critical habitat, range. delete a species or critical habitat, (f) List or lists means the Lists of En- change the listed status of a species, dangered and Threatened Wildlife and revise the boundary of an area des- Plants found at 50 CFR 17.11(h) or ignated as critical habitat, or adopt or 17.12(h). modify special rules (see 50 CFR 17.40– (g) Plant means any member of the 17.48 and parts 222 and 227) applied to a plant kingdom, including, without lim- threatened species only in accordance itation, seeds, roots, and other parts with the procedures of this part. thereof. (h) Public hearing means an informal § 424.11 Factors for listing, delisting, hearing to provide the public with the or reclassifying species. opportunity to give comments and to (a) Any species or taxonomic group of permit an exchange of information and species (e.g., genus, subgenus) as de- opinion on a proposed rule. fined in § 424.02(k) is eligible for listing (i) Secretary means the Secretary of under the Act. A taxon of higher rank the Interior or the Secretary of Com- than species may be listed only if all merce, as appropriate, or their author- included species are individually found ized representatives. to be endangered or threatened. In de- (j) Special management considerations termining whether a particular taxon or protection means any methods or pro- or population is a species for the pur- cedures useful in protecting physical poses of the Act, the Secretary shall and biological features of the environ- rely on standard taxonomic distinc- ment for the conservation of listed spe- tions and the biological expertise of cies. the Department and the scientific com- (k) Species includes any species or munity concerning the relevant taxo- subspecies of fish, wildlife, or plant, nomic group. and any distinct population segment of (b) The Secretary shall make any de- any vertebrate species that interbreeds termination required by paragraphs (c) when mature. Excluded is any species and (d) of this section solely on the of the Class Insecta determined by the basis of the best available scientific Secretary to constitute a pest whose and commercial information regarding protection under the provisions of the a species’ status, without reference to Act would present an overwhelming possible economic or other impacts of and overriding risk to man. such determination. (l) State agency means any State (c) A species shall be listed or reclas- agency, department, board, commis- sified if the Secretary determines, on sion, or other governmental entity the basis of the best scientific and com- that is responsible for the management mercial data available after conducting and conservation of fish, plant, or wild- a review of the species’ status, that the life resources within a State. species is endangered or threatened be- (m) Threatened species means any spe- cause of any one or a combination of cies that is likely to become an endan- the following factors: gered species within the foreseeable fu- (1) The present or threatened de- ture throughout all or a significant struction, modification, or curtailment portion of its range. of its habitat or range; (n) Wildlife or fish and wildlife means (2) Over utilization for commercial, any member of the animal kingdom, recreational, scientific, or educational including without limitation, any purposes;
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(3) Disease or predation; dence will vary depending on the inter- (4) The inadequacy of existing regu- national agreement in question, the latory mechanisms; or criteria pursuant to which the species (5) Other natural or manmade factors is eligible for protection under such au- affecting its continued existence. thorities, and the degree of protection (d) The factors considered in afforded the species. The Secretary delisting a species are those in para- shall give consideration to any species graph (c) of this section as they relate protected under such an international to the definitions of endangered or agreement, or by any State or foreign threatened species. Such removal must nation, to determine whether the spe- be supported by the best scientific and cies is endangered or threatened. commercial data available to the Sec- (f) The Secretary shall take into ac- retary after conducting a review of the count, in making determinations under status of the species. A species may be paragraph (c) or (d) of this section, delisted only if such data substantiate those efforts, if any, being made by any that it is neither endangered nor State or foreign nation, or any polit- threatened for one or more of the fol- ical subdivision of a State or foreign lowing reasons: nation, to protect such species, wheth- (1) Extinction. Unless all individuals er by predator control, protection of of the listed species had been pre- habitat and food supply, or other con- viously identified and located, and servation practices, within any area were later found to be extirpated from under its jurisdiction, or on the high their previous range, a sufficient period seas. of time must be allowed before delisting to indicate clearly that the § 424.12 Criteria for designating crit- species is extinct. ical habitat. (2) Recovery. The principal goal of the (a) Critical habitat shall be specified U.S. Fish and Wildlife Service and the to the maximum extent prudent and National Marine Fisheries Service is to determinable at the time a species is return listed species to a point at proposed for listing. If designation of which protection under the Act is no critical habitat is not prudent or if longer required. A species may be critical habitat is not determinable, delisted on the basis of recovery only if the reasons for not designating critical the best scientific and commercial data habitat will be stated in the publica- available indicate that it is no longer tion of proposed and final rules listing endangered or threatened. a species. A final designation of crit- (3) Original data for classification in ical habitat shall be made on the basis error. Subsequent investigations may of the best scientific data available, show that the best scientific or com- after taking into consideration the mercial data available when the spe- probable economic and other impacts cies was listed, or the interpretation of of making such a designation in ac- such data, were in error. cordance with § 424.19. (e) The fact that a species of fish, (1) A designation of critical habitat is wildlife, or plant is protected by the not prudent when one or both of the Convention on International Trade in following situations exist: Endangered Species of Wild Fauna and (i) The species is threatened by tak- Flora (see part 23 of this title 50) or a ing or other human activity, and iden- similar international agreement on tification of critical habitat can be ex- such species, or has been identified as pected to increase the degree of such requiring protection from unrestricted threat to the species, or commerce by any foreign nation, or to (ii) Such designation of critical habi- be in danger of extinction or likely to tat would not be beneficial to the spe- become so within the foreseeable fu- cies. ture by any State agency or by any (2) Critical habitat is not deter- agency of a foreign nation that is re- minable when one or both of the fol- sponsible for the conservation of fish, lowing situations exist: wildlife, or plants, may constitute evi- (i) Information sufficient to perform dence that the species is endangered or required analyses of the impacts of the threatened. The weight given such evi- designation is lacking, or
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(ii) The biological needs of the spe- trees, sand bars) shall not be used in cies are not sufficiently well known to defining critical habitat. permit identification of an area as crit- (d) When several habitats, each satis- ical habitat. fying the requirements for designation (b) In determining what areas are as critical habitat, are located in prox- critical habitat, the Secretary shall imity to one another, an inclusive area consider those physical and biological may be designated as critical habitat. features that are essential to the con- Example: Several dozen or more small servation of a given species and that ponds, lakes, and springs are found in a may require special management con- small local area. The entire area could be siderations or protection. Such require- designated critical habitat if it were con- ments include, but are not limited to cluded that the upland areas were essential the following: to the conservation of an aquatic species lo- (1) Space for individual and popu- cated in the ponds and lakes. lation growth, and for normal behav- (e) The Secretary shall designate as ior; critical habitat areas outside the geo- (2) Food, water, air, light, minerals, graphical area presently occupied by a or other nutritional or physiological species only when a designation lim- requirements; ited to its present range would be inad- (3) Cover or shelter; equate to ensure the conservation of (4) Sites for breeding, reproduction, the species. rearing of offspring, germination, or (f) Critical habitat may be designated seed dispersal; and generally; for those species listed as threatened or (5) Habitats that are protected from endangered but for which no critical disturbance or are representative of habitat has been previously designated. the historic geographical and ecologi- (g) Existing critical habitat may be cal distributions of a species. revised according to procedures in this When considering the designation of section as new data become available critical habitat, the Secretary shall to the Secretary. focus on the principal biological or (h) Critical habitat shall not be des- physical constituent elements within ignated within foreign countries or in the defined area that are essential to other areas outside of United States ju- the conservation of the species. Known risdiction. primary constituent elements shall be listed with the critical habitat descrip- § 424.13 Sources of information and tion. Primary constituent elements relevant data. may include, but are not limited to, When considering any revision of the the following: roost sites, nesting lists, the Secretary shall consult as ap- grounds, spawning sites, feeding sites, propriate with affected States, inter- seasonal wetland or dryland, water ested persons and organizations, other quality or quantity, host species or affected Federal agencies, and, in co- plant pollinator, geological formation, operation with the Secretary of State, vegetation type, tide, and specific soil with the country or countries in which types. the species concerned are normally (c) Each critical habitat will be de- found or whose citizens harvest such fined by specific limits using reference species from the high seas. Data re- points and lines as found on standard viewed by the Secretary may include, topographic maps of the area. Each but are not limited to scientific or area will be referenced to the State(s), commercial publications, administra- county(ies), or other local govern- tive reports, maps or other graphic ma- mental units within which all or part terials, information received from ex- of the critical habitat is located. Un- perts on the subject, and comments less otherwise indicated within the from interested parties. critical habitat descriptions, the names of the State(s) and county(ies) § 424.14 Petitions. are provided for information only and (a) General. Any interested person do not constitute the boundaries of the may submit a written petition to the area. Ephemeral reference points (e.g., Secretary requesting that one of the
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actions described in § 424.10 be taken. mination of the substantiality of a pe- Such a document must clearly identify tition. itself as a petition and be dated. It (3) Upon making a positive finding must contain the name, signature, ad- under paragraph (b)(1) of this section, dress, telephone number, if any, and the Secretary shall commence a review the association, institution, or busi- of the status of the species concerned ness affiliation, if any, of the peti- and shall make, within 12 months of re- tioner. The Secretary shall acknowl- ceipt of such petition, one of the fol- edge in writing receipt of such a peti- lowing findings: tion within 30 days. (i) The petitioned action is not war- (b) Petitions to list, delist, or reclassify ranted, in which case the Secretary species. (1) To the maximum extent shall promptly publish such finding in practicable, within 90 days of receiving the FEDERAL REGISTER and so notify a petition to list, delist, or reclassify a the petitioner. species, the Secretary shall make a (ii) The petitioned action is war- finding as to whether the petition pre- ranted, in which case the Secretary sents substantial scientific or commer- shall promptly publish in the FEDERAL cial information indicating that the REGISTER a proposed regulation to im- petitioned action may be warranted. plement the action pursuant to § 424.16 For the purposes of this section, ‘‘sub- of this part, or stantial information’’ is that amount (iii) The petitioned action is war- of information that would lead a rea- ranted, but that— sonable person to believe that the (A) The immediate proposal and measure proposed in the petition may timely promulgation of a regulation to be warranted. The Secretary shall implement the petitioned action is pre- promptly publish such finding in the cluded because of other pending pro- FEDERAL REGISTER and so notify the posals to list, delist, or reclassify spe- petitioner. cies, and (2) In making a finding under para- (B) Expeditious progress is being graph (b)(1) of this section, the Sec- made to list, delist, or reclassify quali- retary shall consider whether such pe- fied species, tition— in which case, such finding shall be (i) Clearly indicates the administra- promptly published in the FEDERAL tive measure recommended and gives REGISTER together with a description the scientific and any common name of and evaluation of the reasons and data the species involved; on which the finding is based. (ii) Contains detailed narrative jus- (4) If a finding is made under para- tification for the recommended meas- graph (b)(3)(iii) of this section with re- ure, describing, based on available in- gard to any petition, the Secretary formation, past and present numbers shall, within 12 months of such finding, and distribution of the species involved again make one of the findings de- and any threats faced by the species; scribed in paragraph (b)(3) with regard (iii) Provides information regarding to such petition, but no further finding the status of the species over all or a of substantial information will be re- significant portion of its range; and quired. (iv) Is accompanied by appropriate (c) Petitions to revise critical habitat. supporting documentation in the form (1) To the maximum extent prac- of bibliographic references, reprints of ticable, within 90 days of receiving a pertinent publications, copies of re- petition to revise a critical habitat ports or letters from authorities, and designation, the Secretary shall make maps. a finding as to whether the petition The petitioner may provide informa- presents substantial scienific informa- tion that describes any recommended tion indicating that the revision may critical habitat as to boundaries and be warranted. The Secretary shall physical features, and indicates any promptly publish such finding in the benefits and/or adverse effects on the FEDERAL REGISTER and so notify the species that would result from such petitioner. designation. Such information, how- (2) In making the finding required by ever, will not be a basis for the deter- paragraph (c)(1) of this section, the
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Secretary shall consider whether a pe- ed species being considered for tition contains— delisting or reclassification. However, (i) Information indicating that areas none of the substantive or procedural petitioned to be added to critical habi- provisions of the Act apply to a species tat contain physical and biological fea- that is designated as a candidate for tures essential to, and that may re- listing. quire special management to provide (c) Such notices of review will invite for, the conservation of the species in- comment from all interested parties volved; or regarding the status of the species (ii) Information indicating that areas named. At the time of publication of designated as critical habitat do not such a notice, notification in writing contain resources essential to, or do will be sent to State agencies in any af- not require special management to pro- fected States, known affected Federal vide for, the conservation of the species agencies, and, to the greatest extent involved. practicable, through the Secretary of (3) Within 12 months after receiving a State, to the governments of any for- petition found under paragraph (c)(1) of eign countries in which the subject spe- this section to present substantial in- cies normally occur. formation indicating that revision of a critical habitat may be warranted, the § 424.16 Proposed rules. Secretary shall determine how he in- (a) General. Based on the information tends to proceed with the requested re- received through §§ 424.13, 424.14, 424.15, vision, and shall promptly publish no- and 424.21, or through other available tice of such intention in the FEDERAL avenues, the Secretary may propose re- REGISTER. vising the lists as described in § 424.10. (d) Petitions to designate critical habi- (b) Contents. A notice of a proposed tat or adopt special rules. Upon receiving rule to carry out one of the actions de- a petition to designate critical habitat scribed in § 424.10 shall contain the or to adopt a special rule to provide for complete text of the proposed rule, a the conservation of a species, the Sec- summary of the data on which the pro- retary shall promptly conduct a review posal is based (including, as appro- in accordance with the Administrative priate, citation of pertinent informa- Procedure Act (5 U.S.C. 553) and appli- tion sources), and shall show the rela- cable Departmental regulations, and tionship of such data to the rule pro- take appropriate action. posed. If such a rule designates or re- vises critical habitat, such summary § 424.15 Notices of review. shall, to the maximum extent prac- (a) If the Secretary finds that one of ticable, include a brief description and the actions described in § 424.10 may be evaluation of those activities (whether warranted, but that the available evi- public or private) that, in the opinion dence is not sufficiently definitive to of the Secretary, if undertaken, may justify proposing the action at that adversely modify such habitat, or may time, a notice of review may be pub- be affected by such designation. Any lished in the FEDERAL REGISTER. The proposed rule to designate or revise notice will describe the measure under critical habitat shall contain a map of consideration, briefly explain the rea- such habitat. Any such notice pro- sons for considering the action, and so- posing the listing, delisting, or reclas- licit comments and additional informa- sification of a species or the designa- tion on the action under consideration. tion or revision of critical habitat shall (b) The Secretary from time to time also include a summary of factors af- also may publish notices of review con- fecting the species and/or critical habi- taining the names of species that are tat. considered to be candidates for listing (c) Procedures—(1) Notifications. In the under the Act and indicating whether case of any proposed rule to list, delist, sufficient scientific or commercial in- or reclassify a species, or to designate formation is then available to warrant or revise critical habitat, the Secretary proposing to list such species, the shall— names of species no longer being con- (i) Publish notice of the proposal in sidered for listing, or the names of list- the FEDERAL REGISTER;
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(ii) Give actual notice of the pro- less than 15 days before the hearing is posed regulation (including the com- held. plete text of the regulation) to the State agency in each State in which § 424.17 Time limits and required ac- the species is believed to occur, and to tions. each county or equivalent jurisdiction (a) General. (1) Within 1 year of the therein in which the species is believed publication of a rule proposing to de- to occur, and invite the comment of termine whether a species is an endan- each such agency and jurisdiction; gered or threatened species, or to des- (iii) Give notice of the proposed regu- ignate or revise critical habitat, the lation to any Federal agencies, local Secretary shall publish one of the fol- authorities, or private individuals or lowing in the FEDERAL REGISTER: organizations known to be affected by (i) A final rule to implement such de- the rule; termination or revision, (iv) Insofar as practical, and in co- (ii) A finding that such revision operation with the Secretary of State, should not be made, give notice of the proposed regulation (iii) A notice withdrawing the pro- to list, delist, or reclassify a species to posed rule upon a finding that avail- each foreign nation in which the spe- able evidence does not justify the ac- cies is believed to occur or whose citi- tion proposed by the rule, or zens harvest the species on the high (iv) A notice extending such 1-year seas, and invite the comment of such period by an additional period of not nation; more than 6 months because there is (v) Give notice of the proposed regu- substantial disagreement among sci- lation to such professional scientific entists knowledgeable about the spe- organizations as the Secretary deems cies concerned regarding the suffi- appropriate; and ciency or accuracy of the available (vi) Publish a summary of the pro- data relevant to the determination or posed regulation in a newspaper of gen- revision concerned. eral circulation in each area of the (2) If an extension is made under United States in which the species is paragraph (a)(1)(iv) of this section, the believed to occur. Secretary shall, within the extended (2) Period of public comments. At least period, take one of the actions de- 60 days shall be allowed for public com- scribed in paragraphs (a)(1) (i), (ii), or ment following publication in the FED- (iii) of this section. ERAL REGISTER of a rule proposing the (3) If a proposed rule is withdrawn listing, delisting, or reclassification of under paragraph (a)(1)(iii) of this sec- a species, or the designation or revision of critical habitat. All other proposed tion, the notice of withdrawal shall set rules shall be subject to a comment pe- forth the basis upon which the pro- riod of at least 30 days following publi- posed rule has been found not to be supported by available evidence. The cation in the FEDERAL REGISTER. The Secretary may extend or reopen the pe- Secretary shall not again propose a riod for public comment on a proposed rule withdrawn under such provision rule upon a finding that there is good except on the basis of sufficient new in- cause to do so. A notice of any such ex- formation that warrants a reproposal. tension or reopening shall be published (b) Critical habitat designations. A in the FEDERAL REGISTER, and shall final rule designating critical habitat specify the basis for so doing. of an endangered or a threatened spe- (3) Public hearings. The Secretary cies shall to the extent permissible shall promptly hold at least one public under § 424.12 be published concurrently hearing if any person so requests with- with the final rule listing such species, in 45 days of publication of a proposed unless the Secretary deems that— regulation to list, delist, or reclassify a (1) It is essential to the conservation species, or to designate or revise crit- of such species that it be listed prompt- ical habitat. Notice of the location and ly; or time of any such hearing shall be pub- (2) Critical habitat of such species is lished in the FEDERAL REGISTER not not then determinable,
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in which case, the Secretary, with re- agreeing in whole or in part with a pro- spect to the proposed regulation to des- posed rule, and the Secretary issues a ignate such habitat, may extend the 1- final rule that is in conflict with such year period specified in paragraph (a) comments, or if the Secretary fails to of this section by not more than one adopt a regulation for which a State additional year. Not later than the agency has made a petition in accord- close of such additional year the Sec- ance with § 424.14, the Secretary shall retary must publish a final regulation, provide such agency with a written jus- based on such data as may be available tification for the failure to adopt a rule at that time, designating, to the max- consistent with the agency’s comments imum extent prudent, such habitat. or petition.
§ 424.18 Final rules—general. § 424.19 Final rules—impact analysis (a) Contents. A final rule promulgated of critical habitat. to carry out the purposes of the Act The Secretary shall identify any sig- will be published in the FEDERAL REG- nificant activities that would either af- ISTER. This publication will contain the fect an area considered for designation complete text of the rule, a summary as critical habitat or be likely to be af- of the comments and recommendations fected by the designation, and shall, received in response to the proposal after proposing designation of such an (including applicable public hearings), area, consider the probable economic summaries of the data on which the and other impacts of the designation rule is based and the relationship of upon proposed or ongoing activities. such data to the final rule, and a de- The Secretary may exclude any portion scription of any conservation measures of such an area from the critical habi- available under the rule. Publication of tat if the benefits of such exclusion a final rule to list, delist, or reclassify outweigh the benefits of specifying the a species or designate or revise critical area as part of the critical habitat. The habitat shall also provide a summary Secretary shall not exclude any such of factors affecting the species. A rule area if, based on the best scientific and designating or revising critical habitat commercial data available, he deter- will also contain a description of the mines that the failure to designate boundaries and a map of such habitat that area as critical habitat will result and will, to the maximum extent prac- in the extinction of the species con- ticable, be accompanied by a brief de- cerned. scription and evaluation of those ac- tivities (whether public or private) § 424.20 Emergency rules. that might occur in the area and (a) Sections 424.16, 424.17, 424.18, and which, in the opinion of the Secretary, 424.19 notwithstanding, the Secretary may adversly modify such habitat or may at any time issue a regulation im- be affected by such designation. plementing any action described in (b) Effective date. A final rule shall § 424.10 in regard to any emergency pos- take effect— ing a significant risk to the well-being (1) Not less than 30 days after it is of a species of fish, wildlife, or plant. published in the FEDERAL REGISTER, Such rules shall, at the discretion of except as otherwise provided for good the Secretary, take effect immediately cause found and published with the on publication in the FEDERAL REG- rule; and ISTER. In the case of any such action (2) Not less than 90 days after (i) pub- that applies to a resident species, the lication in the FEDERAL REGISTER of Secretary shall give actual notice of the proposed rule, and (ii) actual noti- such regulation to the State agency in fication of any affected State agencies each State in which such species is be- and counties or equivalent jurisdic- lieved to occur. Publication in the FED- tions in accordance with ERAL REGISTER of such an emergency § 424.16(c)(1)(ii). rule shall provide detailed reasons why (c) Disagreement with State agency. If a the rule is necessary. An emergency State agency, given notice of a pro- rule shall cease to have force and effect posed rule in accordance with after 240 days unless the procedures de- § 424.16(c)(1)(ii), submits comments dis- scribed in §§ 424.16, 424.17, 424.18, and
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424.19 (as appropriate) have been com- listed species to determine whether it plied with during that period. should be delisted or reclassified. Each (b) If at any time after issuing an such determination shall be made in emergency rule, the Secretary deter- accordance with §§ 424.11, 424.16, and mines, on the basis of the best sci- 424.17 of this part, as appropriate. A no- entific and commercial data available, tice announcing those species under ac- that substantial evidence does not then tive review will be published in the exist to warrant such rule, it shall be FEDERAL REGISTER. Notwithstanding withdrawn. this section’s provisions, the Secretary may review the status of any species at § 424.21 Periodic review. any time based upon a petition (see At least once every 5 years, the Sec- § 424.14) or upon other data available to retary shall conduct a review of each the Service.
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PART 450—GENERAL PROVISIONS tation of any reasonable or prudent al- ternatives which would not violate sec- tion 7(a)(2) of the Act. AUTHORITY: Endangered Species Act of Jeopardize the continued existence of is 1973, 16 U.S.C. 1531, et seq., as amended. defined at 50 CFR 402.02. § 450.01 Definitions Mitigation and enhancement measures means measures, including live propa- The following definitions apply to gation, tranplantation, and habitat ac- terms used in this subchapter. quisition and improvement, necessary Act means the Endangered Species and appropriate (a) to minimize the ad- Act of 1973, as amended, 16 U.S.C. 1531, verse effects of a proposed action on et seq. listed species or their critical habitats Agency action means all actions of and/or (b) to improve the conservation any kind authorized, funded or carried status of the species beyond that which out, in whole or in part by Federal would occur without the action. The agencies, including, in the instance of measures must be likely to protect the an application for a permit or license, listed species or the critical habitat, the underlying activity for which the and be reasonable in their cost, the permit or license is sought. Alternative courses of action means all availability of the technology required reasonable and prudent alternatives, to make them effective, and other con- including both no action and alter- siderations deemed relevant by the natives extending beyond original Committee. project objectives and acting agency Permit or license applicant means any jurisidiction. person whose application to an agency Benefits means all benefits of an for a permit or license has been denied agency action, both tangible and intan- primarily because of the application of gible, including but not limited to eco- section 7(a)(2) of the Act, 16 U.S.C. nomic, environmental and cultural 1536(a)(2). benefits. Person means an individual, corpora- Biological assessment means the report tion, partnership, trust, association, or prepared pursuant to section 7(c) of the any other private entity, or any public Act, 16 U.S.C. 1536(c). body or officer, employee, agent, de- Biological opinion means the written partment, or instrumentality of the statement prepared pursuant to section Federal government, of any State or 7(b) of the Act, 16 U.S.C. 1536(b). political subdivision thereof, or of any Chairman means the Chairman of the foreign government. Endangered Species Committee, who is Proposed action means the action pro- the Secretary of the Interior. posed by the Federal agency or by a Committee means the Endangered Spe- permit or license applicant, for which cies Committee established pursuant to exemption is sought. section 7(e) of the Act, 16 U.S.C. 1536(e). Secretary means the Secretary of the Critical habitat refers to those areas Interior or the Secretary of Commerce, listed as Critical Habitat in 50 CFR or his or her delegate, depending upon parts 17 and 226. which Secretary has responsibility for Destruction or adverse modification is the affected species as determined pur- defined at 50 CFR 402.02. suant to 50 CFR 402.01. Federal agency means any depart- Service means the United States Fish ment, agency or instrumentality of the and Wildlife Service or the National United States. Marine Fisheries Service, as appro- Irreversible or irretrievable commitment priate. of resources means any commitment of To the extent that such information is resources which has the effect of fore- available to the applicant means all per- closing the formulation or implemen- tinent information the applicant has
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on the subject matter at the time the (2) In the case of agency action in- application is submitted, and all other volving a permit or license application, pertinent information obtainable from an application for an exemption may the appropriate Federal agency pursu- be submitted after the Federal agency ant to a Freedom of Information Act concerned formally denies the permit request. or license. An applicant denied a per- mit or license may not simultaneously [50 FR 8126, Feb. 28, 1985] seek administrative review within the permitting or licensing agency and PART 451—APPLICATION apply for an exemption. If administra- PROCEDURE tive review is sought, an application for an exemption may be submitted if Sec. that review results in a formal denial 451.01 Definitions. of the permit or license. For an exemp- 451.02 Applications for exemptions. 451.03 Endangered Species Committee. tion application to be considered, it must be submitted within 90 days after AUTHORITY: Endangered Species Act of the date of a formal denial of a permit 1973, 16 U.S.C. 1531 et seq., as amended. or license. SOURCE: 50 FR 8127, Feb. 28, 1985, unless (e) Contents of the application when otherwise noted. submitted. Exemption applicants must provide the following information at § 451.01 Definitions. the time the application is submitted. All definitions contained in 50 CFR (1) Name, mailing address, and phone 450.01 are applicable to this part. number, including the name and tele- phone number of an individual to be § 451.02 Applications for exemptions. contacted regarding the application. (a) Scope. This section prescribes the (2) If the applicant is a Federal agen- application procedures for applying for cy: an exemption from the requirements of (i) A comprehensive description of section 7(a)(2) of the Endangered Spe- the proposed agency action and if a li- cies Act, as amended. cense or permit denial is involved, a (b) Where to apply. Applications comprehensive description of the li- should be made to the appropriate Sec- cense or permit applicant’s proposed retary(ies) by writing: action. (1) The Secretary, Attention: Endan- (ii) In the case of a denial of a license gered Species Committee, Department or permit, a description of the permit of the Interior, 18th and C Street, NW., or license sought, including a state- Washington, DC 20240. ment of who in the Federal agency de- (2) The Secretary, Department of nied the permit or license, the grounds Commerce, 14th Street and Constitu- for the denial, and a copy of the permit tion Avenue NW., Washington, DC or license denial. 20030. (iii) A description of all permit(s), li- (c) Who may apply. (1) A Federal cense(s) or other legal requirements agency, (2) the Governor of the State in which have been satisfied or obtained, which an agency action will occur, if or which must still be satisfied or ob- any, or (3) a permit or license applicant tained, before the proposed action can may apply to the Secretary for an ex- proceed. emption for an agency action if, after (iv) A description of the consultation consultation under section 7(a)(2) of process carried out pursuant to section the Act, the Secretary’s opinion indi- 7(a) of the Act. cates that the agency action would vio- (v) A copy of the biological assess- late section 7(a)(2) of the Act. ment, if one was prepared. (d) When to apply. (1) Except in the (vi) A copy of the biological opinion. case of agency action involving a per- (vii) A description of each alternative mit or license application, an applica- to the proposed action considered by tion for an exemption must be sub- the Federal agency, by the licensing or mitted to the Secretary within 90 days permitting agency, and by the permit following the termination of the con- or license applicant, to the extent sultation process. known.
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(viii) A statement describing why the (ii) A description of the permit or li- proposed agency action cannot be al- cense, if any, sought from the Federal tered or modified to avoid violating agency, including a statement of who section 7(a)(2) of the Act. in that agency denied the permit or li- (ix) A description of resources com- cense and the grounds for the denial, to mitted by the Federal agency, or the the extent that such information is permit or license applicant, if any, to available to the Governor. the proposed action subsequent to the (iii) A description of all permit(s), li- initiation of consultation. cense(s) or other legal requirements (3) If the applicant is a permit or li- which have been satisfied or obtained, cense applicant other than a Federal or which must still be satisfied or ob- agency: tained before the agency can proceed (i) A comprehensive description of with the proposed action, to the extent the applicant’s proposed action. that such information is available to (ii) A description of the permit or li- the Governor. cense sought from the Federal agency, (iv) A copy of the biological assess- including a statement of who in that ment, if one was prepared. agency denied the permit or license (v) A copy of the biological opinion. and the grounds for the denial. (vi) A description of the consultation (iii) A description of all permit(s), li- process carried out pursuant to section cense(s) or other legal requirements 7(a) of the Act, to the extent that such which have been satisfied or obtained, information is available to the Gov- or which must still be satisfied or ob- ernor. tained, before it can proceed with the (vii) A description of all alternatives proposed action. considered by the Federal agency, by (iv) A copy of the permit or license the licensing or permitting agency, and denial. by the permit or license applicant, to (v) A copy of the biological assess- the extent that such information is ment, if one was prepared. available to the Governor. (vi) A copy of the biological opinion. (viii) A statement describing why the (vii) A description of the consulta- proposed agency action cannot be al- tion process carried out pursuant to tered or modified to avoid violating section 7(a) of the Act, to the extent section 7(a)(2) of the Act. that such information is available to (ix) A description of resources com- the applicant. mitted to the proposed action subse- (viii) A description of each alter- quent to the initiation of consultation, native to the proposed action consid- to the extent that such information is ered by the applicant, and to the ex- available to the Governor. tent that such information is available to the applicant, a description of each (5) Each applicant, whether a Federal alternative to the proposed action con- agency, a permit or license applicant, sidered by the Federal agency. or a Governor, must also submit the (ix) A statement describing why the following: applicant’s proposed action cannot be (i) A complete statement of the na- altered or modified to avoid violating ture and the extent of the benefits of section 7(a)(2) of the Act. the proposed action. (x) A description of resources com- (ii) A complete discussion of why the mitted to the proposed action by the benefits of the proposed action clearly permit or license applicant subsequent outweigh the benefits of each consid- to the initiation of consultation. ered alternative course of action. (4) If the applicant is the Governor of (iii) A complete discussion of why a State in which the proposed agency none of the considered alternatives are action may occur: reasonable and prudent. (i) A comprehensive description of (iv) A complete statement explaining the proposed agency action and if a li- why the proposed action is in the pub- cense or permit denial is involved, a lic interest. comprehensive description of the li- (v) A complete explanation of why cense or permit applicant’s proposed the action is of regional or national action. significance.
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(vi) A complete discussion of mitiga- require approval by the Office of Man- tion and enhancement measures pro- agement and Budget under 44 U.S.C. posed to be undertaken if an exemption 3501 et seq., because it is anticipated is granted. there will be fewer than ten respond- (6) When the exemption applicant is a ents annually. license or permit applicant or a Gov- ernor, a copy of the application shall § 451.03 Endangered Species Com- be provided by the exemption applicant mittee. at the time the application is filed, to (a) Scope. This section contains provi- the Federal agency which denied the li- sions governing the relationship be- cense or permit. tween the Secretary and the Endan- (f) Review of the application by the Sec- gered Species Committee. retary. (1) Upon receiving the applica- (b) Appointment of State member. (1) tion, the Secretary shall review the Upon receipt of an application for ex- contents thereof and consider whether emption, the Secretary shall promptly the application complies with the re- notify the Governors of each affected quirements set forth in paragraphs (c), State, if any, as determined by the Sec- (d) and (e) of this section. retary, and request the Governors to (2) The Secretary shall reject an ap- recommend individuals to be appointed plication within 10 days of receiving it to the Endangered Species Committee if he determines that it does not com- for consideration of the application. ply with paragraphs (c), (d) and (e) of Written recommendations of these this section. If the Secretary rejects an Governors must be received by the Sec- application because it does not contain retary within 10 days of receipt of noti- the information required by paragraph fication. The Secretary will transmit (e) of this section, the applicant may the Governors’ recommendations to resubmit a revised application so long the President and will request that the as the applicant does so during the 90 President appoint a State resident to day period specified in paragraph (d) of the Endangered Species Committee this section. from each affected State within 30 days (3) If the Secretary finds that the ap- after the application for exemption was plication meets the requirements of submitted. paragraphs (c), (d), and (e) of this sec- (2) When no State is affected, the tion, he will consider the application in Secretary will submit to the President accordance with part 452. a list of individuals with expertise rel- (g) Notification of the Secretary of evant to the application and will re- State. The Secretary will promptly quest the President to appoint, within transmit to the Secretary of State a 30 days after the application for exemp- copy of all applications submitted in tion was submitted, an individual to accordance with § 451.02. the Endangered Species Committee. (h) Public notification. Upon receipt of an application for exemption, the Sec- PART 452—CONSIDERATION OF retary shall promptly publish a notice APPLICATION BY THE SECRETARY in the FEDERAL REGISTER (1) announc- ing that an application has been filed, Sec. (2) stating the applicant’s name, (3) 452.01 Purpose and scope. briefly describing the proposed agency 452.02 Definitions. action and the result of the consulta- 452.03 Threshold review and determinations. tion process, (4) summarizing the infor- 452.04 Secretary’s report. mation contained in the application, 452.05 Hearings. (5) designating the place where copies 452.06 Parties and intervenors. of the application can be obtained and 452.07 Separation of functions and ex parte (6) specifying the name of the person to communications. contact for further information. The 452.08 Submission of Secretary’s report. Secretary will promptly notify each 452.09 Consolidated and joint proceedings. member of the Committee upon receipt AUTHORITY: Endangered Species Act of of an application for exemption. 1973, 16 U.S.C. 1531, et seq., as amended. (i) The information collection re- SOURCE: 50 FR 8129, Feb. 28, 1985, unless quirements contained in part 451 do not otherwise noted.
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§ 452.01 Purpose and scope. (e) Secretary of State opinion. The Sec- This part prescribes the procedures retary shall terminate the exemption to be used by the Secretary when ex- process immediately if the Secretary of amining applications for exemption State, pursuant to his obligations from section 7(a)(2) of the Endangered under section 7(i) of the Act, certifies Species Act. in writing to the Committee that granting an exemption and carrying § 452.02 Definitions. out the proposed action would violate an international treaty obligation or Definitions applicable to this part are contained in 50 CFR 450.01. other international obligation of the United States. § 452.03 Threshold review and deter- minations. § 452.04 Secretary’s report. (a) Threshold determinations. Within 20 (a) Contents of the report. If the Sec- days after receiving an exemption ap- retary has made a positive finding on plication, or a longer time agreed upon each of the threshold determinations, between the exemption applicant and he shall proceed to gather information the Secretary, the Secretary shall con- and prepare a report for the Endan- clude his review and determine: gered Species Committee: (1) Whether any required biological (1) Discussing the availability of rea- assessment was conducted; sonable and prudent alternatives to the (2) To the extent determinable within proposed action; the time period provided, whether the (2) Discussing the nature and extent Federal agency and permit or license of the benefits of the proposed action; applicant, if any, have refrained from (3) Discussing the nature and extent making any irreversible or irretriev- of the benefits of alternative courses of able commitment of resources; and action consistent with conserving the (3) Whether the Federal agency and species or the critical habitat; permit or license applicant, if any, (4) Summarizing the evidence con- have carried out consultation respon- cerning whether the proposed action is sibilities in good faith and have made a of national or regional significance; reasonable and responsible effort to de- (5) Summarizing the evidence con- velop and fairly consider modifications cerning whether the proposed action is or reasonable and prudent alternatives in the public interest; to the proposed action which would not (6) Discussing appropriate and rea- violate section 7(a)(2) of the Act. sonable mitigation and enhancement (b) Burden of proof. The exemption measures which should be considered applicant has the burden of proving by the Committee in granting an ex- that the requirements of § 452.03(a) emption; and have been met. (7) Discussing whether the Federal (c) Negative finding. If the Secretary agency and permit or license applicant, makes a negative finding on any if any, have refrained from making any threshold determination, the Secretary irreversible or irretrievable commit- shall deny the application and notify ment of resources. the exemption applicant in writing of (b) Preparation of the report. The re- his finding and grounds therefor. The port shall be prepared in accordance exemption process shall terminate with procedures set out in § 452.05 and when the applicant receives such writ- § 452.09. ten notice. The Secretary’s denial shall constitute final agency action for pur- § 452.05 Hearings. poses of judicial review under chapter 7 (a) Hearings. (1) To develop the record of title 5 of the United States Code. for the report under § 452.04, the Sec- (d) Positive finding. If the Secretary retary, in consultation with the mem- makes a positive finding on each of the bers of the Committee, shall hold a threshold determinations, he shall no- hearing in accordance with 5 U.S.C. 554, tify the exemption applicant in writing 555, and 556. that the application qualifies for con- (2) The Secretary shall designate an sideration by the Endangered Species Administrative Law Judge to conduct Committee. the hearing. The Secretary shall assign
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technical staff to assist the Adminis- may be submitted, and cross-examina- trative Law Judge. tion may be conducted, as required for (3) When the Secretary designates a full and true disclosure of the facts, the Administrative Law Judge, the by parties, witnesses under subpoena, Secretary may establish time periods and their respective counsel. for conducting the hearing and closing (i) Objections. Objections to evidence the record. shall be timely, and the party making (4) The Secretary may require the ap- them may be required to state briefly plicant to submit further discussions of the grounds relied upon. the information required by (ii) Offers of proof. When an objection § 451.02(e)(5). This information will be is sustained, the examining party may made part of the record. (b) Prehearing conferences. (1) The Ad- make a specific offer of proof and the ministrative Law Judge may, on his Administrative Law Judge may receive own motion or the motion of a party or the evidence in full. Such evidence, intervenor, hold a prehearing con- adequately marked for identification, ference to consider: shall be retained in the record for con- (i) The possibility of obtaining stipu- sideration by any reviewing authority. lations, admissions of fact or law and (iii) Motions. Motions and petitions agreement to the introduction of docu- shall state the relief sought, the basis ments; for relief and the authority relied upon. (ii) The limitation of the number of If made before or after the hearing witnesses; itself, these matters shall be in writing (iii) Questions of law which may bear and shall be filed and served on all par- upon the course of the hearings; ties. If made at the hearing, they may (iv) Prehearing motions, including be stated and responded to orally, but motions for discovery; and the Administrative Law Judge may re- (v) Any other matter which may aid quire that they be reduced to writing. in the disposition of the proceedings. Oral argument on motions and dead- (2) If time permits and if necessary to lines by which to file responses to writ- materially clarify the issues raised at ten motions will be at the discretion of the prehearing conference, the Admin- the Administrative Law Judge. istrative Law Judge shall issue a state- (e) In pro- ment of the actions taken at the con- Applicant responsibility. ference and the agreements made. Such ceedings conducted pursuant to this statement shall control the subsequent section, the exemption applicant has course of the hearing unless modified the burden of going forward with evi- for good cause by a subsequent state- dence concerning the criteria for ex- ment. emption. (c) Notice of hearings. Hearings and (f) Open meetings and record. All hear- prehearing conferences will be an- ings and all hearing records shall be nounced by a notice in the FEDERAL open to the public. REGISTER stating: (1) The time, place (g) Requests for information, subpoenas. and nature of the hearing or prehearing (1) The Administrative Law Judge is conference; and (2) the matters of fact authorized to exercise the authority of and law to be considered. Such notices the Committee to request, subject to will ordinarily be published at least 15 the Privacy Act of 1974, that any per- days before the scheduled hearings. son provide information necessary to (d) Conduct of hearings—(1) Admissi- enable the Committee to carry out its bility of evidence. Relevant, material, duties. Any Federal agency or the ex- and reliable evidence shall be admit- emption applicant shall furnish such ted. Immaterial, irrelevant, unreliable, information to the Administrative Law or unduly repetitious parts of an ad- Judge. (2) The Administrative Law missible document may be segregated Judge may exercise the authority of and excluded so far as practicable. (2) Motions, objections, rebuttal and the Committee to issue subpoenas for cross-examination. Motions and objec- the attendance and testimony of wit- tions may be filed with the Adminis- nesses and the production of relevant trative Law Judge, rebuttal evidence papers, books, and documents.
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(h) Information collection. The infor- § 452.08 Submission of Secretary’s re- mation collection requirements con- port. tained in § 452.05 do not require ap- (a) Upon closing of the record, the proval by the Office of Management Administrative Law Judge shall certify and Budget under 44 U.S.C. 3501 et seq., the record and transmit it to the Sec- because it is anticipated there will be retary for preparation of the Sec- fewer than ten respondents annually. retary’s report which shall be based on the record. The Secretary may direct § 452.06 Parties and intervenors. the Administrative Law Judge to re- (a) Parties. The parties shall consist open the record and obtain additional of the exemption applicant, the Fed- information if he determines that such eral agency responsible for the agency action is necessary. action in question, the Service, and in- (b) The Secretary shall submit his re- tervenors whose motions to intervene port and the record of the hearing to have been granted. the Committee within 140 days after making his threshold determinations (b) Intervenors. (1) The Administra- under § 452.03(a) or within such other tive Law Judge shall provide an oppor- period of time as is mutually agreeable tunity for intervention in the hearing. to the applicant and the Secretary. A motion to intervene must state the petitioner’s name and address, identify § 452.09 Consolidated and joint pro- its representative, if any, set forth the ceedings. interest of the petitioner in the pro- (a) When the Secretary is considering ceeding and show that the petitioner’s two or more related exemption applica- participation would assist in the deter- tions, the Secretary may consider mination of the issues in question. them jointly and prepare a joint report (2) The Administrative Law Judge if doing so would expedite or simplify shall grant leave to intervene if he de- consideration of the issues. termines that an intervenor’s partici- (b) When the Secretaries of the Inte- pation would contribute to the fair de- rior and Commerce are considering two termination of issues. In making this or more related exemption applica- determination, the Administrative Law tions, they may consider them jointly Judge may consider whether an inter- and prepare a joint report if doing so venor represents a point of view not would expedite or simplify consider- adequately represented by a party or ation of the issues. another intervenor. PART 453—ENDANGERED SPECIES § 452.07 Separation of functions and ex COMMITTEE parte communications. (a) Separation of functions. (1) The Ad- Sec. ministrative Law Judge and the tech- 453.01 Purpose. nical staff shall not be responsible for 453.02 Definitions. 453.03 Committee review and final deter- or subject to the supervision or direc- minations. tion of any person who participated in 453.04 Committee information gathering. the endangered species consultation at 453.05 Committee meetings. issue; 453.06 Additional Committee powers. (2) The Secretary shall not allow an AUTHORITY: Endangered Species Act of agency employee or agent who partici- 1973, 16 U.S.C. 1531, et seq., as amended. pated in the endangered species con- SOURCE: 50 FR 8130, Feb. 28, 1985, unless sultation at issue or a factually related otherwise noted. matter to participate or advise in a de- termination under this part except as a § 453.01 Purpose. witness or counsel in public pro- This part prescribes the procedures ceedings. to be used by the Endangered Species (b) Ex parte communications. The pro- Committee when examining applica- visions of 5 U.S.C. 557(d) apply to the tions for exemption from section 7(a)(2) hearing and the preparation of the re- of the Endangered Species Act of 1973, port. as amended.
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§ 453.02 Definitions. (c) Permanent exemptions. Under sec- tion 7(h)(2) of the Act, an exemption Definitions applicable to this part granted by the Committee shall con- are contained in 50 CFR 450.01. stitute a permanent exemption with re- § 453.03 Committee review and final spect to all endangered or threatened determinations. species for the purposes of completing such agency action— (a) Final determinations. Within 30 (1) Regardless of whether the species days of receiving the Secretary’s report was identified in the biological assess- and record, the Committee shall grant ment, and an exemption from the requirements of (2) Only if a biological assessment section 7(a)(2) of the Act for an agency has been conducted under section 7(c) action if, by a vote in which at least of the Act with respect to such agency five of its members concur: action. Notwithstanding the foregoing, (1) It determines that based on the an exemption shall not be permanent report to the Secretary, the record of if— the hearing held under § 452.05, and on (i) The Secretary finds, based on the such other testimony or evidence as it best scientific and commercial data may receive: available, that such exemption would (i) There are no reasonable and pru- result in the extinction of a species dent alternatives to the proposed ac- that was not the subject of consulta- tion; tion under section 7(a)(2) of the Act or (ii) The benefits of such action clear- was not identified in any biological as- ly outweigh the benefits of alternative sessment conducted under section 7(c) courses of action consistent with con- of the Act, and serving the species or its critical habi- (ii) The Committee determines with- tat, and such action is in the public in- in 60 days after the date of the Sec- terest; retary’s finding that the exemption (iii) The action is of regional or na- should not be permanent. tional significance; and If the Secretary makes a finding that (iv) Neither the Federal agency con- the exemption would result in the ex- cerned nor the exemption applicant tinction of a species, as specified made any irreversible or irretrievable above, the Committee shall meet with commitment of resources prohibited by respect to the matter within 30 days section 7(d) of the Act; and, after the date of the finding. During (2) It establishes such reasonable the 60 day period following the Sec- mitigation and enhancement measures, retary’s determination, the holder of including, but not limited to, live prop- the exemption shall refrain from any agation, transplantation, and habitat action which would result in extinction acquisition and improvement, as are of the species. necessary and appropriate to minimize (d) Finding by the Secretary of Defense. the adverse effects of the proposed ac- If the Secretary of Defense finds in tion upon the endangered species, writing that an exemption for the threatened species, or critical habitat agency action is necessary for reasons concerned. Any required mitigation of national security, the Committee and enhancement measures shall be shall grant the exemption notwith- carried out and paid for by the exemp- standing any other provision in this tion applicant. part. (b) Decision and order. The Commit- tee’s final determinations shall be doc- § 453.04 Committee information gath- umented in a written decision. If the ering. Committee determines that an exemp- (a) Written submissions. When the tion should be granted, the Committee Chairman or four Committee members shall issue an order granting the ex- decide that written submissions are emption and specifying required miti- necessary to enable the Committee to gation and enhancement measures. The make its final determinations, the Committee shall publish its decision Chairman shall publish a notice in the and order in the FEDERAL REGISTER as FEDERAL REGISTER inviting written soon as practicable. submissions from interested persons.
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The notice shall include: (1) The ad- existence of a quorum for the trans- dress to which such submissions are to action of a Committee function which be sent; (2) the deadline for such sub- involves a vote by the Committee on missions; and (3) a statement of the the Committee’s final determinations. type of information needed. (c) Only members of the Committee (b) Public hearing. (1) When the Chair- may cast votes. In no case shall any man or four Committee members de- representative cast a vote on behalf of cide that oral presentations are nec- a member. essary to enable the Committee to (d) Committee members appointed make its final determinations, a public from the affected States shall collec- hearing shall be held. tively have one vote. They shall deter- (2) The public hearing shall be con- mine among themselves how it will be ducted by (i) the Committee or (ii) a cast. member of the Committee or other per- (e) All meetings and records of the son, designated by the Chairman or by Committee shall be open to the public. four members of the Committee. (f) The Chairman shall publish a no- (3) Notice. The Chairman shall publish tice of all Committee meetings in the in the FEDERAL REGISTER a general no- FEDERAL REGISTER. The notice will or- tice of a public hearing, stating the dinarily be published at least 15 days time, place and nature of the public prior to the meeting. hearing. (4) Procedure. The public hearing § 453.06 Additional Committee powers. shall be open to the public and con- ducted in an informal manner. All in- (a) Secure information. Subject to the formation relevant to the Committee’s Privacy Act, the Committee may se- final determinations shall be admis- cure information directly from any sible, subject to the imposition of rea- Federal agency when necessary to en- sonable time limitations on oral testi- able it to carry out its duties. mony. (b) Subpoenas. For the purpose of ob- (5) Transcript. Public hearings will be taining information necessary for the recorded verbatim and a transcript consideration of an application for an thereof will be available for public in- exemption, the Committee may issue spection. subpoenas for the attendance and testi- mony of witnesses and the production § 453.05 Committee meetings. of relevant papers, books, and docu- (a) The committee shall meet at the ments. call of the Chairman or five of its (c) Rules and orders. The Committee members. may issue and amend such rules and (b) Five members of the Committee orders as are necessary to carry out its or their representatives shall con- duties. stitute a quorum for the transaction of (d) Delegate authority. The Committee any function of the Committee, except may delegate its authority under para- that in no case shall any representa- graphs (a) and (b) of this section to any tive be considered in determining the member.
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Part Page 501 Implementation of the Privacy Act of 1974 ...... 375 510 Implementation of the Federal Advisory Com- mittee Act ...... 379 520 Public availability of agency materials ...... 381 530 Compliance with the National Environmental Pol- icy Act...... 383 540 Information security ...... 384 550 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by Marine Mammal Commission ...... 386 560 Implementation of the Government in the Sun- shine Act ...... 392
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§ 501.3 Procedure for responding to re- tograph or signature. For requests quests regarding the existence of made by mail, identification of the in- records pertaining to an individual. dividual shall be adequate if estab- Any individual may submit a request lished by means of submitting a certifi- to be notified whether a system of cate of a notary public, or equivalent records, with respect to which the officer empowered to administer oaths, Commission has published a notice in substantially in accord with the fol- the FEDERAL REGISTER, contains a lowing: record pertaining to him or her. Re- City of llllll County of quests may be made in writing to the lllllll: ss (Name of individual) who Privacy Officer or by appearing in per- affixed (his) (her) signature below in my son at the Commission offices located presence, came before me, a (Title), in the at 1625 I Street, NW., Room 307, Wash- aforesaid County and State, this lll day lll l ington, DC 20006 between the hours of of , 19 , and established (his)(her) iden- tity to my satisfaction. 9:00 a.m. and 5:00 p.m. on any working My Commission expires lllllll. day. Systems of records that are the subject of a request should be identi- The certificate shall not be required, fied by reference to the system name however, for written requests per- designated in the Notice of Systems of taining to non-sensitive information or Records published in the FEDERAL REG- to information which would be required ISTER. In the event a system name is to be made available under the Free- not known to the individual, a general dom of Information Act. The Privacy request will suffice if it indicates rea- Officer shall determine the adequacy of sons for the belief that a record per- any proof of identity offered by an indi- taining to the named individual is vidual. maintained by the Commission. Re- [41 FR 5, Jan. 2, 1976] ceipt of inquiries submitted by mail will be acknowledged within 10 days of § 501.5 Disclosure of requested infor- receipt (excluding Saturdays, Sundays, mation. and legal public holidays) unless a re- (a) Upon request and satisfactory sponse can also be prepared and for- proof of identity, an individual appear- warded to the individual within that ing at the Commission offices shall be time. given immediate access to and permis- sion to review any record, contained in § 501.4 Requests for access—times, a system of records, pertaining to him places and requirements for identi- or her, shall be allowed to have a per- fication of individuals. son of his/her choosing accompany him/ Requests for access to a system of her, and shall be given a copy of all or records pertaining to any individual any portion of the record. The indi- may be made by that individual by vidual to which access is granted shall mail addressed to the Privacy Officer, be required to sign a written statement or by submitting a written request in authorizing the presence of the person person at the Commission offices lo- who accompanies him or her, and au- cated at 1625 I Street, NW., Room 307, thorizing discussion of his or her Washington, DC 20006, between the record in the presence of the accom- hours of 9 a.m. and 5 p.m. on any work- panying person. ing day. Assistance in gaining access (b) Requests made by mail to the Pri- under this section, securing an amend- vacy Officer at the Commission offices ment or correction under § 501.6, or pre- will be acknowledged within 10 days paring an appeal under §§ 501.5(d) and from date of receipt (excluding Satur- 501.8 shall be provided by the Privacy days, Sundays, and legal public holi- Officer on request directed to the Com- days). This acknowledgement shall ad- mission office. An individual appearing vise the individual whether access to in person at the Commission offices the record will be granted and, if access will be granted immediate access to is granted, copies of such records shall any records to which that individual is be enclosed. entitled under the Act upon satisfac- (c) If the Privacy Officer initially de- tory proof of identity by means of a termines to deny access to all or any document bearing the individual’s pho- portion of a record, notice of denial
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shall be given to the individual in writ- improperly maintained or incorrect is ing, within 30 days (excluding Satur- contained, and the precise information days, Sundays and holidays) after ac- that is the subject of the request (for knowledgement is given, and shall in- example, system name, description of clude the following: record, paragraph, sentence, line, (1) The precise record to which access words). Assistance in identifying a is being denied; record, and in otherwise preparing a re- (2) The reason for denial, including a quest, may be obtained by contacting citation to the appropriate provisions the Privacy Officer at the Commission of the Act and of these Rules; offices. (3) A statement that the denial may (b) A request should, in addition to be appealed to the Director; (4) A statement of what steps must identifying the individual and the be taken to perfect an appeal to the Di- record sought to be amended or cor- rector; and, rected, include: (5) A statement that the individual (1) The specific wording or other in- has a right to judicial review under 5 formation to be deleted, if any; U.S.C. 552a(g)(1) of any final denial (2) The specific wording or other in- issued by the Director. formation to be inserted, if any, and (d) Administrative appeal of an ini- the exact place in the record at which tial denial, in whole or in part, of any it is to be inserted, and, request for access to a record, shall be (3) A statement of the basis for the available. An individual may appeal by requested amendment or correction submitting to the Director a written (e.g. that the record is inaccurate, un- request for reconsideration stating necessary, irrelevant, untimely, or in- therein specific reasons for reversal complete), together with supporting which address directly the reasons for documents, if any, which substantiate denial stated in the initial notice of de- the statement. nial. If access is denied on appeal, a final notice of denial shall be sent to § 501.7 Agency review of requests for the individual within 30 days (exclud- amendment or correction of a ing Saturdays, Sundays and holidays), record. and shall state with particularity the (a) Where possible, each request for grounds for rejecting all reasons for re- amendment or correction shall be re- versal submitted by the individual. The denial shall then be deemed final for viewed, and a determination on the re- purposes of obtaining judicial review. quest made, by the Privacy Officer within 10 days of receipt (excluding [40 FR 49276, Oct. 21, 1975, as amended at 41 Saturdays, Sundays and holidays). Re- FR 5, Jan. 2, 1976] quests shall be acknowledged within § 501.6 Requests for correction or that period where insufficient informa- amendment of a record. tion has been provided to enable action to be taken. An acknowledgement shall (a) Any individual may request the correction or amendment of a record inform the individual making the re- pertaining to him or her in writing ad- quest of the estimated time within dressed to the Privacy Officer at the which a disposition of the request is ex- Commission offices. Verification of pected to be made, and shall prescribe identity required for such requests such further information as may be shall be the same as that specified in necessary to process the request. The § 501.4 of this part with respect to re- request shall be granted, or an initial quests for access. Records sought to be decision to deny shall be made, within amended must be identified with as ten days of receipt of all information much specificity as is practicable specified in the acknowledgement (ex- under the circumstances of the request, cluding Saturdays, Sundays and holi- and at a minimum, should refer to the days). system name designated in the Notice (b) Within 30 days (excluding Satur- of System Records published in the days, Sundays and holidays) after ar- FEDERAL REGISTER, the type of record riving at a decision on a request, the in which the information thought to be Privacy Officer shall either:
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(1) Make the requested amendment or § 501.8 Appeal of initial denial of a re- correction, in whole or in part, and ad- quest for amendment or correction. vise the individual in writing of such (a) The initial denial of a request for action; or, amendment or correction may be ap- (2) Advise the individual in writing pealed by submitting to the Director that the request has been initially de- the following appeal papers: nied, in whole or in part, stating, with (1) A copy of the original request for respect to those portions denied; amendment or correction; (i) The date of the denial; (2) A copy of the initial denial; and (ii) The reasons for the denial, in- (3) A precise statement of the reasons cluding a citation to an appropriate for the individual’s belief that the de- section of the Act and these Rules; and, nial is in error, referring specifically to (iii) The right of the individual to the criteria contained in § 501.7(c)(1) prosecute an appeal and to obtain judi- through (8). cial review should a final denial result The appeal must be signed by the indi- from the appeal. vidual. While these papers normally (c) In reviewing a request for amend- will constitute the entire Record on ment or correction of a record, the Pri- Appeal, the Director may add addi- vacy Officer shall consider the fol- tional information, from sources other lowing criteria: than the individual, where necessary to (1) The sufficiency of the evidence facilitate a final determination. Any submitted by the individual; such additional information added to the record shall promptly be disclosed (2) The factual accuracy of the infor- to the individual to the greatest extent mation sought to be amended or cor- possible, and an opportunity for com- rected; ment thereon shall be afforded prior to (3) The relevance and necessity of the the final determination. Appeals information sought to be amended or should be submitted to the Director corrected in terms of the purposes for within 90 days after the date of the ini- which it was collected; tial denial. (4) The timeliness and currency of (b) The Director shall issue a final the information sought to be amended determination on appeal within thirty or corrected in terms of the purposes days (excluding Saturdays, Sundays, for which it was collected; and legal public holidays) from the (5) The completeness of the informa- date on which a completed Record on tion sought to be amended or corrected Appeal (including any additional infor- in terms of the purposes for which it mation deemed necessary) is received. was collected; Review, and final determination by the (6) The degree of possibility that de- Director, shall be based upon the cri- nial of the request could unfairly result teria specified in § 501.7(c)(1) through in determinations adverse to the indi- (8). vidual; (c) If the appeal is resolved favorably (7) The character of the record to the individual, the final determina- sought to be corrected or amended; tion shall specify the amendments or and, corrections to be made. Copies of the final determination shall be trans- (8) The propriety and feasibility of mitted promptly to the individual and complying with the specific means of to the Privacy Officer. The Privacy Of- correction or amendment requested by ficer shall make the requested amend- the individual. If an amendment or cor- ment or correction and advise the indi- rection is otherwise permissible under vidual in writing of such action. the Act and other relevant statutes, a (d) If the appeal is denied, the final request shall be denied only if the indi- determination shall state, with par- vidual has failed to establish, by a pre- ticularity, the reasons for denial, in- ponderance of the evidence, the pro- cluding a citation to an appropriate priety of the amendment or correction section of the Act and of these Rules. in light of these criteria. The final determination shall be for- [40 FR 49276, Oct. 21, 1975, as amended at 41 warded promptly to the individual, to- FR 5, Jan. 2, 1976] gether with a notice which shall inform
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the individual of his or her right to U.S.C. appendix I. Guidelines and con- submit to the Privacy Officer, for in- trols are prescribed for calling of meet- clusion in the record, a concise state- ings, notice of meetings, public partici- ment of grounds for disagreement with pation, closing of meetings, keeping of the final determination. Receipt of any minutes, and compensation of com- such statement shall be acknowledged mittee members, their staff and con- by the Privacy Officer, and all subse- sultants. quent and prior users of the record shall be provided copies of the state- § 510.2 Scope. ment. The notice shall also inform the These regulations shall apply to the individual of his or her right, under 5 operation of advisory committees re- U.S.C. 552a(g)(1), to obtain judicial re- porting to the agency. view of the final determination. § 510.3 Definitions. [40 FR 49276, Oct. 21, 1975, as amended at 41 FR 5, Jan. 2, 1976] For the purposes of this part, (a) The term Act means the Federal § 501.9 Fees. Advisory Committee Act, 5 U.S.C. ap- A fee of $0.10 shall be charged for pendix I; (b) The term Chairperson means each each copy of each page of a record person selected to chair an advisory made, by photocopy or similar process, committee established by the Commis- at the request of an individual. No fee sion; shall be charged for copies made at the (c) The term Commission means the initiative of the Commission incident Marine Mammal Commission, estab- to granting access to a record. A total lished by 16 U.S.C. 1401(a); copying fee of $2.00 or less may be (d) The term committee means any ad- waived by the Privacy Officer, but fees visory committee reporting to the for all requests made contempora- Commission; and neously by an individual shall be ag- (e) The term Designee means the gregated to determine the total fee. agency official designated by the [41 FR 5, Jan. 2, 1976] Chairman of the Commission (1) to per- form those functions specified by sec- PART 510—IMPLEMENTATION OF tions 10(e) and (f) of the Act, and (2) to THE FEDERAL ADVISORY COM- perform such other responsibilities as MITTEE ACT are required by the Act and applicable regulations to be performed by the ‘‘agency head.’’ Sec. 510.1 Purpose. § 510.4 Calling of meetings. 510.2 Scope. 510.3 Definitions. (a) No committee shall hold any 510.4 Calling of meetings. meeting except with the advance ap- 510.5 Notice of meetings. proval of the Designee. Requests for ap- 510.6 Public participation. proval may be made, and approval to 510.7 Closed meetings. hold meetings may be given orally or 510.8 Minutes. in writing, but if approval is given 510.9 Uniform pay guidelines. orally, the fact that approval has been AUTHORITY: Sec. 8(a), Federal Advisory given shall be stated in the public no- Committee Act, 5 U.S.C. App. I. tice published pursuant to § 510.5 of SOURCE: 41 FR 3306, Jan. 22, 1976, unless these regulations. otherwise noted. (b) An agenda shall be submitted to, and must be approved by, the Designee § 510.1 Purpose. in advance of each committee meeting, The regulations prescribed in this and that meeting shall be conducted in part set forth the administrative guide- accordance with the approved agenda. lines and management controls for ad- The agenda shall list all matters to be visory committees reporting to the Ma- considered at the meeting, and shall in- rine Mammal Commission. These regu- dicate when any part of the meeting lations are authorized by section 8(a) of will be closed to the public on the au- the Federal Advisory Committee Act, 5 thority of exemptions contained in the
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Freedom of Information Act, 5 U.S.C. straints under which the meeting is to 552(b). be conducted, the number of persons [41 FR 3306, Jan. 22, 1976; 41 FR 4020, Jan. 28, who wish to speak during the meeting, 1976] and the extent to which the statement provides the committee with informa- § 510.5 Notice of meetings. tion which has not previously been (a) Notice of each committee meeting available and is relevant to its decision shall be timely published in the FED- or other action on that subject. Inter- ERAL REGISTER. Publication shall be ested persons may be required to serve considered timely if made at least 15 reasonable notice of their intentions to days before the date of the meeting, ex- speak so that the committee may as- cept that shorter notice may be pro- sess whether procedures and scheduling vided in emergency situations. for the meeting can be adjusted to ac- (b) The notice shall state the time, commodate large numbers of partici- place, schedule and purposes of the pants. committee meeting, and shall include, whenever it is available, a summary of § 510.7 Closed meetings. the agenda. The notice shall indicate (a) Whenever the committee seeks to the approximate times at which any have all or a portion of a meeting portion of the meeting will be closed to closed to the public on the basis of an the public and shall include an expla- exemption provided in 5 U.S.C. 552(b), nation for the closing of any portion of the Chairperson shall notify the Des- the meeting pursuant to § 510.7. ignee at least 30 days before the sched- uled date of the meeting. The notifica- § 510.6 Public participation. tion shall be in writing and shall speci- (a) All committee meetings, or por- fy all the reasons for closing any part tions of meetings, that are open to the of the meeting. public shall be held at a reasonable (b) If, after consultation with the time and at a place that is reasonably General Counsel of the Commission, accessible to the public. A meeting the Designee finds the request to be room shall be selected which, within warranted and in accordance with the the bounds of the resources and facili- policy of the Act, the request shall be ties available, affords space to accom- granted. The determination of the Des- modate all members of the public who reasonably could be expected to attend. ignee to grant any such request shall (b) Any member of the public shall be be in writing and shall state the spe- permitted to file a written statement cific reasons for closing all or a part of with the committee, either by person- the meeting. Copies of the determina- ally delivering a copy to the Chair- tion shall be made available to the pub- person, or by submitting the statement lic upon request. by mail to the Marine Mammal Com- mission Offices at the address indi- § 510.8 Minutes. cated in the notice of meeting. Such Detailed minutes shall be kept of statements should be received at least each portion of each committee meet- one week in advance of the scheduled ing. The minutes shall include: the meeting at which they are expected to time and place of the meeting; a list of be considered by the committee. the committee members and staff in (c) Opportunities will ordinarily be attendance; a complete summary of afforded to interested persons to speak matters discussed and conclusions to agenda items during that portion of reached; copies of all reports received, the open meeting during which that issued, or approved by the committee; item is to be considered by the com- a description of the extent to which the mittee, subject to such reasonable time meeting was open to the public; and a limits as the committee may establish, description of public participation, in- and consideration of the extent to cluding a list of members of the public which the committee has received the who presented oral or written state- benefit of comments by interested per- ments and an estimate of the number sons, the complexity and the impor- of members of the public who attended tance of the subject, the time con- the open sessions. The Chairperson
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shall certify to the accuracy of the istrative staff manuals and instruc- minutes. tions to staff that affect a member of the public; and to any other Commis- § 510.9 Uniform pay guidelines. sion records reasonably described and (a) Compensation of members and requested by a person in accordance staff of, and consultants to the Com- with these regulations—except to the mittee of Scientific Advisors on Marine extent that such material is exempt in Mammals is fixed in accordance with 16 accordance with paragraph (b) of this U.S.C. 1401(e), 1403(b), and 1406. section. (b) Compensation for members and (b) Requests for inspection and copies staff of, and consultants to all advisory shall not be granted with respect to committees reporting to the Commis- materials that are: sion except the Committee of Sci- (1)(i) Specifically authorized under entific Advisors on Marine Mammals criteria established by an Executive shall be fixed in accordance with guide- Order to be kept secret in the interest lines established by the Director of the of national defense or foreign policy, Office of Management and Budget pur- and suant to section 7(d) of the Act, 5 (ii) Are in fact properly classified U.S.C. appendix I. pursuant to such Executive order; (2) Related solely to the internal per- PART 520—PUBLIC AVAILABILITY sonnel rules and practices of the Com- OF AGENCY MATERIALS mission; (3) Specifically exempted from disclo- Sec. sure by statute; 520.1 Purpose. (4) Trade secrets and commercial or 520.2 Scope. financial information obtained from a 520.3 Definitions. person and privileged or confidential; 520.4 Availability of materials. (5) Inter-agency or intra-agency 520.5 Administrative appeal. memorandums or letters which would 520.6 Extensions of time. 520.7 Fees. not be available by law to a party other than an agency in litigation with AUTHORITY: 5 U.S.C. 552. the Commission; SOURCE: 41 FR 3307, Jan. 22, 1976, unless (6) Personnel and medical files and otherwise noted. similar files, the disclosure of which would constitute a clearly unwarranted § 520.1 Purpose. invasion of personal privacy; These regulations implement the pro- (7) Investigatory records compiled for visions of the ‘‘Freedom of Information law enforcement purposes, but only to Act,’’ 5 U.S.C. 552. They establish pro- the extent that the production of such cedures under which the public may in- records would: spect and obtain copies of nonexempt (i) Interfere with enforcement pro- material maintained by the Commis- ceedings, sion, provide for administrative appeal (ii) Deprive a person of a right to a of initial determinations to deny re- fair trial or an impartial adjudication, quests for material, and prescribe uni- (iii) Constitute an unwarranted inva- form fees to be charged by the Commis- sion of personal privacy, sion to recover direct search and dupli- (iv) Disclose the identity of a con- cation costs. fidential source and, in the case of a record compiled by a criminal law en- § 520.2 Scope. forcement authority in the course of a (a) These regulations shall apply to criminal investigation, or by an agency all final opinions, including concurring conducting a lawful national security and dissenting opinions, as well as or- intelligence investigation, confidential ders, made by the Commission in the information furnished only by the con- adjudication of cases; to all statements fidential source, of policy and interpretations which (v) Disclose investigative techniques have been adopted by the Commission and procedures, or and are not published in the FEDERAL (vi) Endanger the life or physical REGISTER; to the Commission’s admin- safety of law enforcement personnel;
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(8) Contained in or related to exam- request shall be notified immediately ination, operating, or condition reports of the determination made. In making prepared by, on behalf of, or for the use such determinations, it shall first be of an agency responsible for the regula- considered whether the material re- tion or supervision of financial institu- quested is of a type described in tions; or § 520.2(a); if it is, the request shall be (9) Geological and geophysical infor- granted unless the material is exempt- mation and data, including maps, con- ed by § 520.2(b). If the material re- cerning wells. quested is not of a type described in § 520.3 Definitions. § 520.2(a), or is the subject of one or more exemptions, the request shall be As used in these regulations: denied. (a) The term Commission means the (d) If a determination is made to Marine Mammal Commission; (b) The term Director means the Exec- grant a request, the relevant material utive Director of the Marine Mammal shall promptly be made available for Commission; inspection at the Commission offices. (c) The term exempt materials means Copies of the material disclosed shall those materials described in § 520.2(b); be furnished within a reasonable time (d) The term non-exempt materials re- after payment of the fee specified in fers to all materials described in § 520.7. Copies of less than 10 pages of § 520.2(a), but not included in § 520.2(b); material requested in person ordinarily and will be furnished immediately fol- (e) The term General Counsel means lowing the determination to grant the the General Counsel of the Marine request and payment of the fee. Larger Mammal Commission. numbers of copies may be furnished at the earliest convenience of the Com- § 520.4 Availability of materials. mission staff, but must be furnished (a) All non-exempt materials shall be within a reasonable time following available for inspection during normal payment of the fee. business hours at the Commission of- (e) Whenever required to prevent a fices, 1625 I Street, NW., Room 307, clearly unwarranted invasion of per- Washington, DC. Space shall be made sonal privacy, the General Counsel or available at that location for the use of his delegate shall determine that iden- any person who is granted permission tifying details shall be deleted from an to inspect such materials. (b) Requests to inspect, and obtain opinion, statement of policy, interpre- copies of, any material maintained by tation, or staff manual or instruction the Commission may be made in person to which access is granted or of which at the Commission offices, or sub- copies are furnished. Where portions of mitted in writing to the Executive Di- the requested material are exempt rector, Marine Mammal Commission, under § 520.2(b), and are reasonably seg- 1625 I St., NW., Room 307, Washington, regable from the remainder of the ma- DC 20006. Each request should include a terial, those portions shall be excised reasonable description of the material from the material disclosed. Whenever being sought, and should contain suffi- details are deleted or portions are cient detail to facilitate retrieval of excised and not disclosed, the notifica- the material without undue delay. The tion shall include the information Commission staff shall assist to the ex- specified in § 520.4(f). tent practicable in identifying mate- (f) If a determination is made to deny rial that is imprecisely described by a request, the notification shall include the person requesting such material. a statement of the reasons for such ac- (c) An initial determination whether, tion, shall set forth the name and posi- and to what extent, to grant each re- tion of the person responsible for the quest shall be made by the General denial, and shall advise the requester Counsel or his delegate within 10 days of the right, and the procedures re- (excepting Saturdays, Sundays, and quired under § 520.5, to appeal the de- legal public holidays) after receipt of that request. The person making the nial to the Director.
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§ 520.5 Administrative appeal. nous amount of separate and distinct (a) An appeal to the Director of any records which are the subject of a sin- denial, in whole or in part, of a request gle request; or (3) The need for consultation, which for access to and copies of material shall be conducted with all practicable may be made by submission of a writ- speed, with another agency having a ten request for reconsideration. Such substantial interest in the determina- requests must state specific reasons for tion of the request or among two or reconsideration that address directly more components of the agency having the grounds upon which the denial was substantial subject-matter interest based. Requests should be addressed to therein. the Director at the Commission offices. (b) The Director shall make a deter- § 520.7 Fees. mination with respect to any appeal within 20 days (excepting Saturdays, (a) The following standard charges Sundays, and legal public holidays) for document search and duplication, after receipt of the request for recon- based on the direct costs of such serv- sideration. The person making such a ices, must be paid before access to, or request shall immediately be notified copies of material will be granted by mail of the determination. under these regulations: (c) If the initial denial is reversed by (1) Search: $4.00 per person-hour for the Director, any material with which clerical time; $8.00 per person-hour for the reversal is concerned shall be made professional or supervisory time; available for inspection, and copies (2) Duplication: $0.10 per page of shall be furnished, in accordance with photocopied material. § 520.4(d). (b) The Commission shall furnish (d) If the denial is upheld, in whole or without charge, or at a reduced charge, in part, the Director shall include in copies of any material disclosed pursu- the notification a statement of the re- ant to these regulations, whenever the quester’s right of judicial review under General Counsel or the Director deter- 5 U.S.C. 552(a)(4), and the names and mines that waiver or reduction of the positions of the persons responsible for fee is in the public interest because fur- the denial. nishing the information can be consid- ered as primarily benefiting the gen- § 520.6 Extensions of time. eral public. (a) Whenever unusual circumstances [41 FR 3307, Jan. 22, 1976; 41 FR 4020, Jan. 28, exist, as set forth in § 520.6(b), the 1976] times within which determinations must be made by the General Counsel PART 530—COMPLIANCE WITH THE on requests for access (10 working NATIONAL ENVIRONMENTAL days), and by the Director on requests POLICY ACT for reconsideration (20 working days), may be extended by written notice to Sec. the requester. The notice shall set 530.1 Purpose. forth the reasons for such extension, 530.2 Ensuring that environmental docu- and the date on which a determination ments are actually considered in agency is expected to be made. The maximum decision-making. extension of time allowed under this 530.3 Typical classes of action. section shall be 10 working days, but 530.4 Environmental information. shall be utilized only to the extent rea- AUTHORITY: National Environmental Pol- sonably necessary to the proper proc- icy Act, Pub. L. 91–190; 42 U.S.C. 4321 et seq. essing of the particular request. SOURCE: 44 FR 52837, Sept. 11, 1979, unless (b) As used in this section, ‘‘unusual otherwise noted. circumstances’’ shall mean: (1) The need to search for and collect § 530.1 Purpose. the requested records from field facili- The purpose of this part is to estab- ties or other establishments that are lish procedures which supplement the separate from the Commission offices; National Environmental Policy Act (2) The need to search for, collect, (NEPA) regulations and provide for the and appropriately examine a volumi- implementation of those provisions
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identified in § 1507.3(b) of the regula- mammal protection and conservation tions which are applicable to the ac- for which an EIS or environmental as- tivities of the Commission in light of sessment is either not required by the its statutory functions and responsibil- NEPA regulations or for which an EIS ities. or environmental assessment is pre- pared by another Federal agency; and § 530.2 Ensuring that environmental (b) Research contracts relating to documents are actually considered policy issues, biological-ecological data in agency decision-making. needed to make sound management de- Section 1505.1 of the NEPA regula- cisions, and better methods for col- tions contains requirements to ensure lecting and analyzing data. These ac- adequate consideration of environ- tivities are not, by themselves, major mental documents in agency decision- Federal actions significantly affecting making. To implement these require- the quality of the human environment ments, Commission officials shall: and the Commission’s activities are (a) Consider all relevant environ- therefore categorically excluded from mental documents in evaluating pro- the requirement to prepare an EIS or posals for agency actions; environmental assessment except for (b) Ensure that all relevant environ- proposals for legislation which are ini- mental documents, comments, and tiated by the Commission, for which responses accompany the proposal the Commission shall develop environ- through existing agency review proc- mental assessments or EIS’s, as appro- esses; priate, in accordance with the NEPA (c) Consider only those alternatives regulations. The Commission shall encompassed by the range of alter- independently determine whether an natives discussed in the relevant envi- EIS or an environmental assessment is ronmental documents when evaluating required where: any proposal for action by the Commis- (1) A proposal for agency action is sion which is likely to significantly af- not covered by one of the typical class- fect the quality of the human environ- es of action above; or ment; and (2) For actions which are covered, the (d) Where an environmental impact presence of extraordinary circum- statement (EIS) has been prepared, stances indicates that some other level consider the specific alternatives ana- of environmental review may be appro- lyzed in the EIS when evaluating the priate. proposal which is the subject of the EIS. All Commission officials directly § 530.4 Environmental information. involved in developing, evaluating, Interested persons may contact the and/or reaching decisions on proposed Office of the General Counsel for infor- actions shall consider relevant environ- mation regarding the Commission’s mental documents and comply with the compliance with NEPA. applicable provisions of the NEPA process. PART 540—INFORMATION § 530.3 Typical classes of action. SECURITY Section 1507.3(b)(2), in conjunction Sec. with § 1508.4, requires agencies to 540.1 Policy. identify typical classes of action that 540.2 Program. warrant similar treatment under 540.3 Procedures. NEPA with respect to the preparation AUTHORITY: Executive Order 12356. of EIS’s or environmental assessments. As a general matter, the Commission’s § 540.1 Policy. activities do not include actions for which EIS’s or environmental assess- It is the policy of the Marine Mam- ments are required. Its activities in- mal Commission to act in accordance volve: with Executive Order 12356 in matters (a) Consultation with and rec- relating to national security informa- ommendations to other Federal agen- tion. cies for actions relating to marine [44 FR 55381, Sept. 26, 1979]
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§ 540.2 Program. agency exercising original classifica- The Executive Director is designated tion authority with respect to the as the Commission’s official respon- same subject, for review and disposi- sible for implementation and oversight tion in accordance with Executive of information security programs and Order 12356 and that agency’s regula- procedures. He acts as the recipient of tions and guidelines. questions, suggestions, and complaints (b) Exceptional cases. When an em- regarding all elements of this program, ployee or contractor of the Commission and is solely responsible for changes to originates information that is believed it and for insuring that it is at all to require classification, the Executive times consistent with Executive Order Director shall ensure that it is pro- 12356. The Executive Director also tected in accordance with Executive serves as the Commission’s official Order 12356 and shall promptly trans- contact for requests for declassifica- mit it under appropriate safeguards to tion of materials submitted under the the agency with appropriate subject provisions of Executive Order 12356, re- matter jurisdiction and classification gardless of the point of origin of such authority for review and action in ac- requests. He is responsible for assuring cordance with the Order and that agen- that requests submitted under the cy’s regulations and guidelines. Freedom of Information Act are han- (c) Derivative classification. Derivative dled in accordance with that Act and classification markings shall be ap- that declassification requests sub- plied to information that is in sub- mitted under the provisions of Execu- stance the same as information that is tive Order 12356 are acted upon within already classified, in accordance with 60 days of receipt. Executive Order 12356, Section 2–1, un- less it is determined through inquiries [44 FR 55381, Sept. 26, 1979] made to the originators of the classi- fied information or other appropriate § 540.3 Procedures. persons that the paraphrasing, restat- (a) Mandatory declassification review. ing, or summarizing of the classified All requests for mandatory review information obviates the need for its shall be handled by the Executive Di- classification, in which case the infor- rector or his designee. Under no cir- mation shall be issued as unclassified cumstances shall the Exective Director or shall be marked appropriately. After refuse to confirm the existence or non- verifying the current level of classi- existence of a document requested fication so far as practicable, paper under the Freedom of Information Act copies of such derivatively classified or the mandatory review provisions of information shall be marked so as to Executive Order 12356, unless the fact indicate: of its existence or non-existence would (1) The source of the original classi- itself be classified under Executive fication; Order 12356. Requests for declassifica- (2) The identity of the Commission tion shall be acted upon promptly pro- employee originating the derivatively viding that the request reasonably de- classified document; scribes the information which is the (3) The dates or events for declas- subject of the request for declassifica- sification or review for declassification tion. In light of the fact that the Com- indicated on the classified source ma- mission does not have original classi- terial; and fication authority and national secu- (4) Any additional authorized mark- rity information in its custody has ings appearing on the source material. been classified by another Federal (d) Handling. All classified documents agency, the Executive Director will shall be delivered to the Executive Di- refer all requests for national security rector or his designee immediately information in its custody to the Fed- upon receipt. All potential recipients eral agency that classified it or, if the of such documents shall be advised of agency that classified it has either the names of such designees and up- ceased to exist or transferred the infor- dated information as necessary. In the mation in conjunction with a transfer event that the Executive Director or of functions, to the appropriate federal his designee is not available to receive
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such documents, they shall be turned PART 550—ENFORCEMENT OF over to the Administrative Officer and NONDISCRIMINATION ON THE secured, unopened, in the combination BASIS OF HANDICAP IN PRO- safe located in the Commission offices GRAMS OR ACTIVITIES CON- until the Executive Director or his des- DUCTED BY MARINE MAMMAL ignee is available. Under no cir- cumstances shall classified materials COMMISSION that cannot be delivered to the Execu- Sec. tive Director or his designee be stored 550.101 Purpose. other than in the designated safe. 550.102 Application. (e) Reproduction. Reproduction of 550.103 Definitions. classified material shall take place 550.104–550.109 [Reserved] only in accordance with Executive 550.110 Self-evaluation. 550.111 Notice. Order 12356, its implementing direc- 550.112–550.129 [Reserved] tives, and any limitations imposed by 550.130 General prohibitions against dis- the originator. Should copies be made, crimination. they are subject to the same controls 550.131–550.139 [Reserved] as the original document. Records 550.140 Employment. 550.141–550.148 [Reserved] showing the number and distribution of 550.149 Program accessibility: Discrimina- copies shall be maintained, where re- tion prohibited. quired by the Executive Order, by the 550.150 Program accessibility: Existing fa- Administrative Officer and the log cilities. stored with the original documents. 550.151 Program accessibility: New con- These measures shall not restrict re- struction and alterations. 550.152–550.159 [Reserved] production for the purposes of manda- 550.160 Communications. tory review. 550.161–550.169 [Reserved] (f) Storage. All classified documents 550.170 Compliance procedures. shall be stored in the combination safe 550.171–550.999 [Reserved] located in the Commission’s offices. AUTHORITY: 29 U.S.C. 794. The combination shall be changed as SOURCE: 51 FR 4579, Feb. 5, 1986, unless oth- required by ISOO Directive No. 1, dated erwise noted. June 23, 1982. The combination shall be known only to the Executive Director § 550.101 Purpose. and his designees with the appropriate This part effectuates section 119 of security clearance. the Rehabilitation, Comprehensive (g) Employee education. All employees Services, and Developmental Disabil- who have been granted a security ities Amendments of 1978, which clearance and who have occasion to amended section 504 of the Rehabilita- handle classified materials shall be ad- tion Act of 1973 to prohibit discrimina- vised of handling, reproduction, and tion on the basis of handicap in pro- storage procedures and shall be re- grams or activities conducted by Exec- quired to review Executive Order 12356 utive agencies or the United States and appropriate ISOO directives. This Postal Service. shall be effected by a memorandum to § 550.102 Application. all affected employees at the time these procedures are implemented. New This part applies to all programs or employees will be instructed in proce- activities conducted by the agency. dures as they enter employment with § 550.103 Definitions. the Commission. (h) Agency terminology. The use of the For purposes of this part, the term— terms Top Secret, Secret, and Confiden- Assistant Attorney General means the Assistant Attorney General, Civil tial shall be limited to materials classi- Rights Division, United States Depart- fied for national security purposes. ment of Justice. [44 FR 55381, Sept. 26, 1979, as amended at 47 Auxiliary aids means services or de- FR 55489, Dec. 10, 1982; 48 FR 44834, Sept. 30, vices that enable persons with im- 1983] paired sensory, manual, or speaking
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skills to have an equal opportunity to tions as orthopedic, visual, speech, and participate in, and enjoy the benefits hearing impairments, cerebral palsy, of, programs or activities conducted by epilepsy, muscular dystrophy, multiple the agency. For example, auxiliary aids sclerosis, cancer, heart disease, diabe- useful for persons with impaired vision tes, mental retardation, emotional ill- include readers, Brailled materials, ness, and drug addition and alcholism. audio recordings, telecommunications (2) Major life activities includes func- devices and other similar services and tions such as caring for one’s self, per- devices. Auxiliary aids useful for per- forming manual tasks, walking, seeing, sons with impaired hearing include hearing, speaking, breathing, learning, telephone handset amplifiers, tele- and working. phones compatible with hearing aids, (3) Has a record of such an impairment telecommunication devices for deaf means has a history of, or has been persons (TDD’s), interpreters, misclassified as having, a mental or notetakers, written materials, and physical impairment that substantially other similar services and devices. limits one or more major life activi- Complete complaint means a written ties. statement that contains the complain- (4) Is regarded as having an impairment ant’s name and address and describes means— the agency’s alleged discriminatory ac- (i) Has a physical or mental impair- tion in sufficient detail to inform the ment that does not substantially limit agency of the nature and date of the al- major life activities but is treated by leged violation of section 504. It shall the agency as constituting such a limi- be signed by the complainant or by tation; someone authorized to do so on his or (ii) Has a physical or mental impair- her behalf. Complaints filed on behalf ment that substantially limits major of classes or third parties shall describe life activities only as a result of the at- or identify (by name, if possible) the titudes of others toward such impair- alleged victims of discrimination. ment; or Facility means all or any portion of (iii) Has none of the impairments de- buildings, structures, equipment, fined in subparagraph (1) of this defini- roads, walks, parking lots, rolling tion but is treated by the agency as stock or other conveyances, or other having such an impairment. real or personal property. Qualified handicapped person means— Handicapped person means any person (1) With respect to any agency pro- who has a physical or mental impair- gram or activity under which a person ment that substantially limits one or is required to perform services or to more major life activities, has a record achieve a level of accomplishment, a of such an impairment, or is regarded handicapped person who meets the es- as having such an impairment. sential eligibility requirements and As used in this definition, the phrase: who can achieve the purpose of the pro- (1) Physical or mental impairment in- gram or activity without modifications cludes— in the program or activity that the (i) Any physiological disorder or con- agency can demonstrate would result dition, cosmetic disfigurement, or ana- in a fundamental alteration in its na- tomical loss affecting one of more of ture; or the following body systems: Neuro- (2) With respect to any other pro- logical; musculoskeletal; special sense gram or activity, a handicapped person organs; respiratory, including speech who meets the essential eligibility re- organs; cardiovascular; reproductive; quirements for participation in, or re- digestive; genitourinary; hemic and ceipt of benefits from, that program or lymphatic; skin; and endocrine; or activity. (ii) Any mental or psychological dis- (3) Qualified handicapped person is de- order, such as mental retardation, or- fined for purposes of employment in 29 ganic brain syndrome, emotional or CFR 1613.702(f), which is made applica- mental illness, and specific learning ble to this part by § 550.140. disabilities. The term ‘‘physical or Section 504 means section 504 of the mental impairment’’ includes, but is Rehabilitation Act of 1973 (Pub. L. 93– not limited to, such diseases and condi- 112, 87 Stat. 394 (29 U.S.C. 794)), as
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amended by the Rehabilitation Act §§ 550.112–550.129 [Reserved] Amendments of 1974 (Pub. L. 93–516, 88 Stat. 1617), and the Rehabilitation, § 550.130 General prohibitions against Comprehensive Services, and Develop- discrimination. mental Disabilities Amendments of (a) No qualified handicapped person 1978 (Pub. L. 95–602, 92 Stat. 2955). As shall, on the basis of handicap, be ex- used in this part, section 504 applies cluded from participation in, be denied only to programs or activities con- the benefits of, or otherwise be sub- ducted by Executive agencies and not jected to discrimination under any pro- to federally assisted programs. gram or activity conducted by the agency. [51 FR 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, (b)(1) The agency, in providing any 1986] aid, benefit, or service, may not, di- rectly or through contractual, licens- §§ 550.104–550.109 [Reserved] ing, or other arrangements, on the basis of handicap— § 550.110 Self-evaluation. (i) Deny a qualified handicapped per- (a) The agency shall, by April 9, 1987, son the opportunity to participate in evaluate its current policies and prac- or benefit from the aid, benefit, or tices, and the effects thereof, that do service; not or may not meet the requirements (ii) Afford a qualfied handicapped of this part, and, to the extent modi- person an opportunity to participate in fication of any such policies and prac- or benefit from the aid, benefit, or tices is required, the agency shall pro- service that is not equal to that af- ceed to make the necessary modifica- forded others; tions. (iii) Provide a qualified handicapped (b) The agency shall provide an op- person with an aid, benefit, or service that is not as effective in affording portunity to interested persons, includ- equal opportunity to obtain the same ing handicapped persons or organiza- result, to gain the same benefit, or to tions representing handicapped per- reach the same level of achievement as sons, to participate in the self-evalua- that provided to others; tion process by submitting comments (iv) Provide different or separate aid, (both oral and written). benefits, or services to handicapped (c) The agency shall, until three persons or to any class of handicapped years following the completion of the persons than is provided to others un- self-evaluation, maintain on file and less such action is necessary to provide make available for public inspections: qualified handicapped persons with aid, (1) A description of areas examined benefits, or services that are as effec- and any problems identified, and tive as those provided to others; (2) A description of any modifications (v) Deny a qualified handicapped per- made. son the opportunity to participate as a member of planning or advisory boards; § 550.111 Notice. or (vi) Otherwise limit a qualified The agency shall make available to handicapped person in the enjoyment employees, applicants, participants, of any right, privilege, advantage, or beneficiaries, and other interested per- opportunity enjoyed by others receiv- sons such information regarding the ing the aid, benefit, or service. provisions of this part and its applica- (2) The agency may not deny a quali- bility to the programs or activities fied handicapped person the oppor- conducted by the agency, and make tunity to participate in programs or such information available to them in activities that are not separate or dif- such manner as the head of the agency ferent, despite the existence of permis- finds necessary to apprise such persons sibly separate or different programs or of the protections against discrimina- activities. tion assured them by section 504 and (3) The agency may not, directly or this regulation. through contractual or other arrange- ments, utilize criteria or methods of
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administration the purpose or effect of §§ 550.141–550.148 [Reserved] which would— (i) Subject qualified handicapped per- § 550.149 Program accessibility: Dis- sons to discrimination on the basis of crimination prohibited. handicap; or Except as otherwise provided in (ii) Defeat or substantially impair ac- § 550.150, no qualified handicapped per- complishment of the objectives of a son shall, because the agency’s facili- program or activity with respect to ties are inaccessible to or unusable by handicapped persons. handicapped persons, be denied the (4) The agency may not, in deter- benefits of, be excluded from participa- mining the site or location of a facil- tion in, or otherwise be subjected to discrimination under any program or ity, make selections the purpose or ef- activity conducted by the agency. fect of which would— (i) Exclude handicapped persons § 550.150 Program accessibility: Exist- from, deny them the benefits of, or oth- ing facilities. erwise subject them to discrimination (a) General. The agency shall operate under any program or activity con- each program or activity so that the ducted by the agency; or program or activity, when viewed in its (ii) Defeat or substantially impair entirety, is readily accessible to and the accomplishment of the objectives usable by handicapped persons. This of a program or activity with respect paragraph does not— to handicapped persons. (1) Necessarily require the agency to (5) The agency, in the selection of make each of its existing facilities ac- procurement contractors, may not use cessible to and usable by handicapped criteria that subject qualified handi- persons; or capped persons to discrimination on (2) Require the agency to take any the basis of handicap. action that it can demonstrate would (c) The exclusion of nonhandicapped result in a fundamental alteration in persons from the benefits of a program the nature of a program or activity or limited by Federal statute or Execu- in undue financial and administrative tive order to handicapped persons or burdens. In those circumstances where the exclusion of a specific class of agency personnel believe that the pro- handicapped persons from a program posed action would fundamentally limited by Federal statute or Execu- alter the program or activity or would tive order to a different class of handi- result in undue financial and adminis- capped persons is not prohibited by trative burdens, the agency has the this part. burden of proving that compliance with § 550.150(a) would result in such alter- (d) The agency shall administer pro- ation or burdens. The decision that grams and activities in the most inte- compliance would result in such alter- grated setting appropriate to the needs ation or burdens must be made by the of qualified handicapped persons. agency head or his or her designee after considering all agency resources §§ 550.131–550.139 [Reserved] available for use in the funding and op- § 550.140 Employment. eration of the conducted program or activity, and must be accompanied by No qualified handicapped person a written statement of the reasons for shall, on the basis of handicap, be sub- reaching that conclusion. If an action jected to discrimination in employ- would result in such an alteration or ment under any program or activity such burdens, the agency shall take conducted by the agency. The defini- any other action that would not result tions, requirements, and procedures of in such an alteration or such burdens section 501 of the Rehabilitation Act of but would nevertheless ensure that 1973 (29 U.S.C. 791), as established by handicapped persons receive the bene- the Equal Employment Opportunity fits and services of the program or ac- Commission in 29 CFR part 1613, shall tivity. apply to employment in federally con- (b) Methods. The agency may comply ducted programs or activities. with the requirements of this section
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through such means as redesign of (2) Describe in detail the methods equipment, reassignment of services to that will be used to make the facilities accessible buildings, assignment of accessible; aides to beneficiaries, home visits, de- (3) Specify the schedule for taking livery of services at alternate acces- the steps necessary to achieve compli- sible sites, alteration of existing facili- ance with this section and, if the time ties and construction of new facilities, period of the transition plan is longer use of accessible rolling stock, or any than one year, identify steps that will other methods that result in making be taken during each year of the tran- its programs or activities readily ac- sition period; and cessible to and usable by handicapped (4) Indicate the official responsible persons. The agency is nor required to for implementation of the plan. make structural changes in existing fa- [51 FR 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, cilities where other methods are effec- 1986] tive in achieving compliance with this section. The agency, in making alter- § 550.151 Program accessibility: New construction and alterations. ations to existing buildings, shall meet accessibility requirements to the ex- Each building or part of a building tent compelled by the Architectural that is constructed or altered by, on Barriers Act of 1968, as amended (42 behalf of, or for the use of the agency shall be designed, constructed, or al- U.S.C. 4151–4157), and any regulations tered so as to be readily accessible to implementing it. In choosing among and usable by handicapped persons. available methods for meeting the re- The definitions, requirements, and quirements of this section, the agency standards of the Architectural Barriers shall give priority to those methods Act (42 U.S.C. 4151–4157), as established that offer programs and activities to in 41 CFR 101–19.600 to 101–19.607, apply qualified handicapped persons in the to buildings covered by this section. most integrated setting appropriate. (c) Time period for compliance. The §§ 550.152–550.159 [Reserved] agency shall comply with the obliga- tions established under this section by § 550.160 Communications. June 6, 1986, except that where struc- (a) The agency shall take appropriate tural changes in facilities are under- steps to ensure effective communica- taken, such changes shall be made by tion with applicants, participants, per- April 7, 1989, but in any event as expe- sonnel of other Federal entities, and ditiously as possible. members of the public. (d) Transition plan. In the event that (1) The agency shall furnish appro- structural changes to facilities will be priate auxiliary aids where necessary undertaken to achieve program acces- to afford a handicapped person an equal sibility, the agency shall develop, by opportunity to participate in, and October 7, 1986, a transition plan set- enjoy the benefits of, a program or ac- ting forth the steps necessary to com- tivity conducted by the agency. (i) In determining what type of auxil- plete such changes. The agency shall iary aid is necessary, the agency shall provide an opportunity to interested give primary consideration to the re- persons, including handicapped persons quests of the handicapped person. or organizations representing handi- (ii) The agency need not provide indi- capped persons, to participate in the vidually prescribed devices, readers for development of the transition plan by personal use or study, or other devices submitting comments (both oral and of a personal nature. written). A copy of the transition plan (2) Where the agency communicates shall be made available for public in- with applicants and beneficiaries by spection. The plan shall, at a min- telephone, telecommunication devices imum— for deaf persons (TDD’s) or equally ef- (1) Identify physical obstacles in the fective telecommunication systems agency’s facilities that limit the acces- shall be used. sibility of its programs or activities to (b) The agency shall ensure that in- handicapped persons; terested persons, including persons
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with impaired vision or hearing, can Commission in 29 CFR part 1613 pursu- obtain information as to the existence ant to section 501 of the Rehabilitation and location of accessible services, ac- Act of 1973 (29 U.S.C. 791). tivities, and facilities. (c) The General Counsel for the Com- (c) The agency shall provide signage mission shall be responsible for coordi- at a primary entrance to each of its in- nating implementation of this section. accessible facilities, directing users to Complaints may be sent to the General a location at which they can obtain in- Counsel for the Commission, Marine formation about accessible facilities. Mammal Commission, Room 307, 1625–I The international symbol for accessi- Street, NW., Washington, DC 20006. bility shall be used at each primary en- (d) The agency shall accept and in- trance of an accessible facility. vestigate all complete complaints for (d) This section does not require the which it has jurisdiction. All complete agency to take any action that it can complaints must be filed within 180 demonstrate would result in a funda- days of the alleged act of discrimina- mental alteration in the nature of a tion. The agency may extend this time program or activity or in undue finan- period for good cause. cial and administrative burdens. In (e) If the agency receives a complaint those circumstances where agency per- over which it does not have jurisdic- sonnel believe that the proposed action tion, it shall promptly notify the com- would fundamentally alter the program plainant and shall make reasonable ef- or activity or would result in undue fi- forts to refer the complaint to the ap- nancial and administrative burdens, propriate government entity. the agency has the burden of proving (f) The agency shall notify the Archi- that compliance with § 550.160 would re- tectural and Transportation Barriers sult in such alteration or burdens. The Compliance Board upon receipt of any decision that compliance would result complaint alleging that a building or in such alteration or burdens must be facility that is subject to the Architec- made by the agency head or his or her tural Barriers Act of 1968, as amended designee after considering all agency (42 U.S.C. 4151–4157), or section 502 of resources available for use in the fund- the Rehabilitation Act of 1973, as ing and operation of the conducted pro- amended (29 U.S.C. 792), is not readily gram or activity, and must be accom- accessible to and usable by handi- panied by a written statement of the capped persons. reasons for reaching that conclusion. If (g) Within 180 days of the receipt of a an action required to comply with this complete complaint for which it has ju- section would result in such an alter- risdiction, the agency shall notify the ation or such burdens, the agency shall complainant of the results of the inves- take any other action that would not tigation in a letter containing— result in such an alteration or such (1) Findings of fact and conclusions burdens but would nevertheless ensure of law; that, to the maximum extent possible, (2) A description of a remedy for each handicapped persons receive the bene- violation found; fits and services of the program or ac- (3) A notice of the right to appeal. tivity. (h) Appeals of the findings of fact and conclusions of law or remedies must be §§ 550.161–550.169 [Reserved] filed by the complainant within 90 days of receipt from the agency of the letter § 550.170 Compliance procedures. required by § 550.170(g). The agency (a) Except as provided in paragraph may extend this time for good cause. (b) of this section, this section applies (i) Timely appeals shall be accepted to all allegations of discrimination on and processed by the head of the agen- the basis of handicap in programs or cy. activities conducted by the agency. (j) The head of the agency shall no- (b) The agency shall process com- tify the complainant of the results of plaints alleging violations of section the appeal within 60 days of the receipt 504 with respect to employment accord- of the request. If the head of the agen- ing to the procedures established by cy determines that additional informa- the Equal Employment Opportunity tion is needed from the complainant,
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he or she shall have 60 days from the § 560.2 Definitions. date of receipt of the additional infor- For purposes of this part, the term— mation to make his or her determina- Administrative Officer means the Ad- tion on the appeal. ministrative Officer of the Marine (k) The time limits cited in para- Mammal Commission. graphs (g) and (j) of this section may be Commission means the Marine Mam- extended with the permission of the mal Commission, a collegial body es- Assistant Attorney General. tablished under 16 U.S.C. 1401 that (l) The agency may delegate its au- functions as a unit and is composed of thority for conducting complaint in- three individual members, each of vestigations to other Federal agencies, whom is appointed by the President, by except that the authority for making and with the advice and consent of the the final determination may not be Senate. delegated to another agency. Commissioner means an individual [51 FR 4579, Feb. 5, 1986, as amended at 51 FR who is a member of the Marine Mam- 4579, Feb. 5, 1986] mal Commission. Executive Director means the Execu- §§ 550.171–550.999 [Reserved] tive Director of the Marine Mammal Commission. PART 560—IMPLEMENTATION OF General Counsel means the General THE GOVERNMENT IN THE SUN- Counsel of the Marine Mammal Com- SHINE ACT mission. Meeting means the deliberations of at Sec. least a majority of the members of the 560.1 Purpose and scope. Commission where such deliberations 560.2 Definitions. determine or result in the joint con- 560.3 Open meetings. duct or disposition of official Commis- 560.4 Notice of meetings. sion business, but does not include an 560.5 Closed meetings. individual Commissioner’s consider- 560.6 Procedures for closing meetings. ation of official Commission business 560.7 Recordkeeping requirements. circulated in writing for disposition ei- 560.8 Public availability of records. ther by notation or by separate, se- quential consideration, and delibera- AUTHORITY: 5 U.S.C. 552b(g). tions on whether to: SOURCE: 50 FR 2571, Jan. 17, 1985, unless (1) Hold a meeting with less than 7 otherwise noted. days notice, as provided in § 560.4(d) of this part; § 560.1 Purpose and scope. (2) Change the subject matter of a This part contains the regulations of publicly announced meeting or the de- the Marine Mammal Commission im- termination of the Commission to open plementing the Government in the or close a meeting or portions thereof Sunshine Act (5 U.S.C. 552b). Con- to public observation, as provided in sistent with the Act, it is the policy of § 560.4(e) of this part; the Marine Mammal Commission that (3) Change the time or place of an an- the public is entitled to the fullest nounced meeting, as provided in practicable information regarding its § 560.4(f) of this part; decision making processes. The provi- (4) Close a meeting or portions of a sions of this part set forth the basic re- meeting, as provided in § 560.5 of this sponsibilities of the Commission with part; or regard to this policy and offer guidance (5) Withhold from disclosure informa- to members of the public who wish to tion pertaining to a meeting or por- exercise the rights established by the tions of a meeting, as provided in § 560.5 Act. These regulations also fulfill the of this part. requirement of 5 U.S.C. 552b(g) that Public observation means attendance each agency subject to the Act promul- by one or more members of the public gate regulations to implement the open at a meeting of the Commission, but meeting requirements of subsections does not include participation in the (b) through (f) of section 552b. meeting.
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Public participation means the presen- (c) The public announcement require- tation or discussion of information, ment shall be implemented by: raising of questions, or other manner (1) Submitting the announcement for of involvement in a meeting of the publication in the FEDERAL REGISTER; Commission by one or more members (2) Distributing the announcement to of the public in a manner that contrib- affected governmental entities; utes to the disposition of Commission (3) Mailing the announcement to per- business. sons and organizations known to have an interest in the subject matter of the § 560.3 Open meetings. meeting; and (a) Except as otherwise provided in (4) Other means that the Executive this part, every portion of every meet- Director deems appropriate to inform ing of the Commission shall be open to interested parties. public observation. (d) A meeting may be held with less (b) Meetings of the Commission, or than 7 days notice if a majority of the portions thereof, shall be open to pub- members of the Commission determine lic participation only when an an- by recorded vote that the business of nouncement to that effect is issued the Commission so requires. The Com- under § 560.4(b)(4) of this part. Public mission shall make a public announce- participation shall be conducted in an ment to this effect at the earliest prac- orderly, nondisruptive manner and in ticable time. The announcement shall accordance with such procedures as the include the information required by chairperson of the meeting may estab- paragraph (b) of this section and shall lish. Public participation may be ter- be issued in accordance with those pro- minated at any time for any reason. cedures set forth in paragraph (c) of this section that are practicable given (c) When holding open meetings, the the available period of time. Commission shall make a diligent ef- (e) The subject matter of an an- fort to provide ample space, sufficient nounced meeting, or the determination visibility, and adequate acoustics to of the Commission to open or close a accommodate the public attendance meeting or portions thereof to public anticipated for the meeting. observation, may be changed if a ma- (d) Members of the public may record jority of the members of the Commis- open meetings of the Commission by sion determine by recorded vote that means of any mechanical or electronic Commission business so requires and device, unless the chairperson of the that no earlier announcement of the meeting determines that such record- change was possible. The Commission ing would disrupt the orderly conduct shall make a public announcement of of the meeting. the changes made and the vote of each § 560.4 Notice of meetings. member on each change at the earliest practicable time. The announcement (a) Except as otherwise provided in shall be issued in accordance with this section, the Commission shall those procedures set forth in paragraph make a public announcement at least 7 (c) of this section that are practicable days prior to a meeting. given the available period of time. (b) The public announcement shall (f) The time or place of an announced include: meeting may be changed only if a pub- (1) The time and place of the meet- lic announcement of the change is ing; made at the earliest practicable time. (2) The subject matter of the meet- The announcement shall be issued in ing; accordance with those procedures set (3) Whether the meeting is to be forth in paragraph (c) of this section open, closed, or portions thereof closed; that are practicable given the available (4) Whether public participation will period of time. be allowed; and (5) The name and telephone number § 560.5 Closed meetings. of the person who will respond to re- (a) A meeting or portions thereof quests for information about the meet- may be closed, and information per- ing. taining to such meeting or portions
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thereof may be withheld from the pub- tigation, confidential information fur- lic, only if the Commission determines nished only by the confidential source that such meeting or portions thereof, or sources, or the disclosure of such information, (v) Disclose investigative techniques is likely to: and procedures, or (1) Disclose matters that are (i) spe- (vi) Endanger the life or physical cifically authorized under criteria es- safety of law enforcement personnel; tablished by an Executive order to be (8) Disclose information contained in kept secret in the interest of national or related to examination, operating, defense or foreign policy and (ii) in fact or condition reports prepared by, on be- properly classified pursuant to that Ex- half of, or for the use of an agency re- ecutive order; sponsible for the regulation or super- (2) Relate solely to the internal per- vision of financial institutions; sonnel rules and practices of the Com- (9) Disclose information the pre- mission; mature disclosure of which would be (3) Disclose matters specifically ex- likely to significantly frustrate imple- empted from disclosure by statute mentation of a proposed action of the (other than the Freedom of Informa- Commission. This exception shall not tion Act, 5 U.S.C. 552), provided that apply in any instance where the Com- the statute: mission has already disclosed to the (i) Requires that the matters be with- public the content or nature of the pro- held from the public in such a manner posed action or where the Commission as to leave no discretion on the issue, is required by law to make such disclo- or sure on its own initiative prior to tak- (ii) Establishes particular criteria for ing final action on the proposal; or withholding or refers to particular (10) Specifically concern the issuance types of matters to be withheld; of a subpoena by the Commission, or (4) Disclose the trade secrets and the participation of the Commission in commercial or financial information a civil action or proceeding, an action obtained from a person and privileged in a foreign court or international tri- or confidential; bunal, or an arbitration, or the initi- (5) Involve either accusing any per- ation, conduct, or disposition by the son of a crime or formally censuring Commission of a particular case of for- any person; mal adjudication pursuant to the pro- (6) Disclose information of a personal cedures in 5 U.S.C. 554 or otherwise in- nature, if disclosure would constitute a volving a determination on the record clearly unwarranted invasion of per- after opportunity for a hearing. sonal privacy; (b) Before a meeting or portions (7) Disclose either investigatory thereof may be closed to public obser- records compiled for law enforcement vation, the Commission shall deter- purposes or information which if writ- mine, notwithstanding the exemptions ten would be contained in such records, set forth in paragraph (a) of this sec- but only to the extent that the produc- tion, whether or not the public interest tion of the records or information requires that the meeting or portions would: thereof be open. The Commission may (i) Interfere with enforcement pro- open a meeting or portions thereof that ceedings, could be closed under paragraph (a) of (ii) Deprive a person of a right to ei- this section if the Commission finds it ther a fair trial or an impartial to be in the public interest to do so. ajudication, (iii) Constitute an unwarranted inva- § 560.6 Procedures for closing meet- sion of personal privacy, ings. (iv) Disclose the identity of a con- (a) A meeting or portions thereof fidential source or sources and, in the may be closed and information per- case of a record compiled either by a taining to such meeting or portions criminal law enforcement authority in thereof may be withheld under § 560.5 of the course of a criminal investigation this part only when a majority of the or by an agency conducting a lawful members of the Commission vote to national security intelligence inves- take such action.
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(b) A separate vote of the members of public pursuant to § 560.5(a) (8) or (10) of the Commission shall be taken with re- this part, the Commission shall main- spect to each meeting or portion there- tain a complete transcript, an elec- of proposed to be closed and with re- tronic recording, or a set of minutes of spect to information which is proposed the proceedings. If minutes are main- to be withheld. A single vote may be tained, they shall fully and clearly de- taken with respect to a series of meet- scribe all matters discussed and shall ings or portions thereof which are pro- provide a full and accurate summary of posed to be closed, so long as each any actions taken and the reasons for meeting or portion thereof in such se- which such actions were taken, includ- ries involves the same particular mat- ing a description of the views expressed ter and is scheduled to be held no more on any item and a record reflecting the than thirty days after the initial meet- vote of each Commissioner. All docu- ing in such series. The vote of each par- ticipating Commission member shall ments considered in connection with be recorded, and no proxies shall be al- any action shall be identified in the lowed. minutes. (c) A person whose interests may be (c) The transcript, electronic record- directly affected by a portion of a ing, or copy of the minutes shall dis- meeting may request in writing that close the identity of each speaker. the Commission close that portion of (d) The Commission shall maintain a the meeting for any of the reasons re- complete verbatim copy of the tran- ferred to in § 560.5(a) (5), (6) or (7) of script, a complete electronic recording, this part. Upon the request of a Com- or a complete copy of the minutes of missioner, a recorded vote shall be the proceedings of each meeting for at taken whether to close such meeting or least two years, or for one year after a portion thereof. the conclusion of any Commission pro- (d) Before the Commission may hold ceeding with respect to which the a meeting that is closed, in whole or meeting was held, whichever occurs part, a certification shall be obtained later. from the General Counsel that, in his or her opinion, the meeting may prop- § 560.8 Public availability of records. erly be closed. The certification shall be in writing and shall state each ap- (a) The Commission shall make plicable exemptive provision from available to the public the transcript, § 560.5(a) of this part. electronic recording, or minutes of a (e) Within one day of a vote taken meeting, except for items of discussion pursuant to this section, the Commis- or testimony that relate to matters the sion shall make publicly available a Commission has determined to contain written copy of such vote reflecting the information which may be withheld vote of each Commissioner. under § 560.5 of this part. (f) In the case of the closure of a (b) The transcript, electronic record- meeting or portions thereof, the Com- ings or minutes of a meeting shall be mission shall make publicly available made available for public review as within one day of the vote on such ac- soon as practicable after each meeting tion a full written explanation of the at the Marine Mammal Commission, reasons for the closing together with a 1625 I Street NW., Washington, DC list of all persons expected to attend 20006. the meeting and their affiliation. (c) Copies of the transcript, a tran- § 560.7 Recordkeeping requirements. scription of the electronic recording, or the minutes of a meeting shall be fur- (a) Except as otherwise provided in nished at cost to any person upon writ- this section, the Commission shall ten request. Written requests should be maintain either a complete transcript or electronic recording of the pro- addressed to the Administrative Offi- ceedings of each meeting, whether cer, Marine Mammal Commission, 1625 opened or closed. I Street NW., Washington, DC 20006. (b) In the case of either a meeting or portions of a meeting closed to the
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A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabet- ical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published sepa- rately and revised annually. Material Approved for Incorporation by Reference Table of CFR Titles and Chapters Alphabetical List of Agencies Appearing in the CFR List of CFR Sections Affected
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The Director of the Federal Register has approved under 5 U.S.C. 552(a) and 1 CFR part 51 the incorporation by reference of the following publications. This list contains only those incorporations by reference effective as of the revision date of this volume. Incorporations by reference found within a regulation are effective upon the effective date of that regulation. For more information on incorporation by reference, see the preliminary pages of this volume.
50 CFR (PARTS 200–599) NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE 50 CFR AOAC International (Association of Official Analytical Chemists) 481 N. Frederick Ave., Suite 500, Gaithersburg, MD 20877-2407 Telephone: (301) 924-7077 Official Methods of Analysis sections 18.004 (p. 331), 32.059 and 264.107 32.060 (p. 613), Fourteenth Edition (1984). Official Methods of Analysis sections 18.003 (p. 285), 32.050 and 264.107 32.051 (p. 543), Thirteenth Edition (1980). United States Geological Survey Map Sales, Box 25286, Denver, CO 80225 Department of the Interior (DOI), U.S. Geological Survey (USGS), 226.22 ’’Hydrologic Unit Maps,’’ Water Supply Paper 2294, 1987; and DOI, USGS, 1974,1:500,000 Scale Hydrologic Unit Maps for the States of Oregon, Washington, and Idaho. Department of the Interior (DOI), U.S. Geological Survey (USGS), 226.205 ’’Hydrologic Unit Maps,’’ Water Supply Paper 2294, 1987; and DOI, USGS, 1:500,000 Scale Hydrologic Unit Maps for the State of Oregon, 1974, and the States of Washington and Idaho. Department of the Interior (DOI), U.S. Geological Survey (USGS), 226.210 ’’Hydrologic Unit Maps,’’ Water Supply Paper 2294, 1987; and DOI, USGS, 1:500,000 Scale Hydrologic Unit Maps for the State of Oregon, 1974, and the State of California.
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Title 1—General Provisions
I Administrative Committee of the Federal Register (Parts 1—49) II Office of the Federal Register (Parts 50—299) IV Miscellaneous Agencies (Parts 400—500)
Title 2—[Reserved]
Title 3—The President
I Executive Office of the President (Parts 100—199)
Title 4—Accounts
I General Accounting Office (Parts 1—99) II Federal Claims Collection Standards (General Accounting Of- fice—Department of Justice) (Parts 100—299)
Title 5—Administrative Personnel
I Office of Personnel Management (Parts 1—1199) II Merit Systems Protection Board (Parts 1200—1299) III Office of Management and Budget (Parts 1300—1399) V The International Organizations Employees Loyalty Board (Parts 1500—1599) VI Federal Retirement Thrift Investment Board (Parts 1600—1699) VII Advisory Commission on Intergovernmental Relations (Parts 1700—1799) VIII Office of Special Counsel (Parts 1800—1899) IX Appalachian Regional Commission (Parts 1900—1999) XI Armed Forces Retirement Home (Part 2100) XIV Federal Labor Relations Authority, General Counsel of the Fed- eral Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499) XV Office of Administration, Executive Office of the President (Parts 2500—2599) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199) XXII Federal Deposit Insurance Corporation (Part 3201)
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XXIII Department of Energy (Part 3301) XXIV Federal Energy Regulatory Commission (Part 3401) XXV Department of the Interior (Part 3501) XXVI Department of Defense (Part 3601) XXVIII Department of Justice (Part 3801) XXIX Federal Communications Commission (Parts 3900—3999) XXX Farm Credit System Insurance Corporation (Parts 4000—4099) XXXI Farm Credit Administration (Parts 4100—4199) XXXIII Overseas Private Investment Corporation (Part 4301) XXXV Office of Personnel Management (Part 4501) XL Interstate Commerce Commission (Part 5001) XLI Commodity Futures Trading Commission (Part 5101) XLII Department of Labor (Part 5201) XLIII National Science Foundation (Part 5301) XLV Department of Health and Human Services (Part 5501) XLVI Postal Rate Commission (Part 5601) XLVII Federal Trade Commission (Part 5701) XLVIII Nuclear Regulatory Commission (Part 5801) L Department of Transportation (Part 6001) LII Export-Import Bank of the United States (Part 6201) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Part 6401) LVII General Services Administration (Part 6701) LVIII Board of Governors of the Federal Reserve System (Part 6801) LIX National Aeronautics and Space Administration (Part 6901) LX United States Postal Service (Part 7001) LXI National Labor Relations Board (Part 7101) LXII Equal Employment Opportunity Commission (Part 7201) LXIII Inter-American Foundation (Part 7301) LXV Department of Housing and Urban Development (Part 7501) LXVI National Archives and Records Administration (Part 7601) LXIX Tennessee Valley Authority (Part 7901) LXXI Consumer Product Safety Commission (Part 8101) LXXIV Federal Mine Safety and Health Review Commission (Part 8401) LXXVI Federal Retirement Thrift Investment Board (Part 8601) LXXVII Office of Management and Budget (Part 8701)
Title 6—[Reserved]
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SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS 0—26) SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE I Agricultural Marketing Service (Standards, Inspections, Mar- keting Practices), Department of Agriculture (Parts 27—209) II Food and Nutrition Service, Department of Agriculture (Parts 210—299) III Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 300—399) IV Federal Crop Insurance Corporation, Department of Agriculture (Parts 400—499) V Agricultural Research Service, Department of Agriculture (Parts 500—599) VI Natural Resources Conservation Service, Department of Agri- culture (Parts 600—699) VII Farm Service Agency, Department of Agriculture (Parts 700— 799) VIII Grain Inspection, Packers and Stockyards Administration (Fed- eral Grain Inspection Service), Department of Agriculture (Parts 800—899) IX Agricultural Marketing Service (Marketing Agreements and Or- ders; Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900—999) X Agricultural Marketing Service (Marketing Agreements and Or- ders; Milk), Department of Agriculture (Parts 1000—1199) XI Agricultural Marketing Service (Marketing Agreements and Or- ders; Miscellaneous Commodities), Department of Agriculture (Parts 1200—1299) XIII Northeast Dairy Compact Commission (Parts 1300—1399) XIV Commodity Credit Corporation, Department of Agriculture (Parts 1400—1499) XV Foreign Agricultural Service, Department of Agriculture (Parts 1500—1599) XVI Rural Telephone Bank, Department of Agriculture (Parts 1600— 1699) XVII Rural Utilities Service, Department of Agriculture (Parts 1700— 1799) XVIII Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, Depart- ment of Agriculture (Parts 1800—2099) XXVI Office of Inspector General, Department of Agriculture (Parts 2600—2699) XXVII Office of Information Resources Management, Department of Agriculture (Parts 2700—2799) XXVIII Office of Operations, Department of Agriculture (Parts 2800— 2899) XXIX Office of Energy, Department of Agriculture (Parts 2900—2999) XXX Office of the Chief Financial Officer, Department of Agriculture (Parts 3000—3099) XXXI Office of Environmental Quality, Department of Agriculture (Parts 3100—3199)
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XXXII Office of Procurement and Property Management, Department of Agriculture (Parts 3200—3299) XXXIII Office of Transportation, Department of Agriculture (Parts 3300—3399) XXXIV Cooperative State Research, Education, and Extension Service, Department of Agriculture (Parts 3400—3499) XXXV Rural Housing Service, Department of Agriculture (Parts 3500— 3599) XXXVI National Agricultural Statistics Service, Department of Agri- culture (Parts 3600—3699) XXXVII Economic Research Service, Department of Agriculture (Parts 3700—3799) XXXVIII World Agricultural Outlook Board, Department of Agriculture (Parts 3800—3899) XLI [Reserved] XLII Rural Business-Cooperative Service and Rural Utilities Service, Department of Agriculture (Parts 4200—4299)
Title 8—Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice (Parts 1—599)
Title 9—Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 1—199) II Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs), Department of Agri- culture (Parts 200—299) III Food Safety and Inspection Service, Department of Agriculture (Parts 300—599)
Title 10—Energy
I Nuclear Regulatory Commission (Parts 0—199) II Department of Energy (Parts 200—699) III Department of Energy (Parts 700—999) X Department of Energy (General Provisions) (Parts 1000—1099) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799)
Title 11—Federal Elections
I Federal Election Commission (Parts 1—9099)
Title 12—Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1—199)
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II Federal Reserve System (Parts 200—299) III Federal Deposit Insurance Corporation (Parts 300—399) IV Export-Import Bank of the United States (Parts 400—499) V Office of Thrift Supervision, Department of the Treasury (Parts 500—599) VI Farm Credit Administration (Parts 600—699) VII National Credit Union Administration (Parts 700—799) VIII Federal Financing Bank (Parts 800—899) IX Federal Housing Finance Board (Parts 900—999) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XIV Farm Credit System Insurance Corporation (Parts 1400—1499) XV Department of the Treasury (Parts 1500—1599) XVII Office of Federal Housing Enterprise Oversight, Department of Housing and Urban Development (Parts 1700—1799) XVIII Community Development Financial Institutions Fund, Depart- ment of the Treasury (Parts 1800—1899)
Title 13—Business Credit and Assistance
I Small Business Administration (Parts 1—199) III Economic Development Administration, Department of Com- merce (Parts 300—399)
Title 14—Aeronautics and Space
I Federal Aviation Administration, Department of Transportation (Parts 1—199) II Office of the Secretary, Department of Transportation (Aviation Proceedings) (Parts 200—399) III Commercial Space Transportation, Federal Aviation Adminis- tration, Department of Transportation (Parts 400—499) V National Aeronautics and Space Administration (Parts 1200— 1299)
Title 15—Commerce and Foreign Trade
SUBTITLE A—OFFICE OF THE SECRETARY OF COMMERCE (PARTS 0— 29) SUBTITLE B—REGULATIONS RELATING TO COMMERCE AND FOREIGN TRADE I Bureau of the Census, Department of Commerce (Parts 30—199) II National Institute of Standards and Technology, Department of Commerce (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV Foreign-Trade Zones Board, Department of Commerce (Parts 400—499)
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VII Bureau of Export Administration, Department of Commerce (Parts 700—799) VIII Bureau of Economic Analysis, Department of Commerce (Parts 800—899) IX National Oceanic and Atmospheric Administration, Department of Commerce (Parts 900—999) XI Technology Administration, Department of Commerce (Parts 1100—1199) XIII East-West Foreign Trade Board (Parts 1300—1399) XIV Minority Business Development Agency (Parts 1400—1499) SUBTITLE C—REGULATIONS RELATING TO FOREIGN TRADE AGREE- MENTS XX Office of the United States Trade Representative (Parts 2000— 2099) SUBTITLE D—REGULATIONS RELATING TO TELECOMMUNICATIONS AND INFORMATION XXIII National Telecommunications and Information Administration, Department of Commerce (Parts 2300—2399)
Title 16—Commercial Practices
I Federal Trade Commission (Parts 0—999) II Consumer Product Safety Commission (Parts 1000—1799)
Title 17—Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1—199) II Securities and Exchange Commission (Parts 200—399) IV Department of the Treasury (Parts 400—499)
Title 18—Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1—399) III Delaware River Basin Commission (Parts 400—499) VI Water Resources Council (Parts 700—799) VIII Susquehanna River Basin Commission (Parts 800—899) XIII Tennessee Valley Authority (Parts 1300—1399)
Title 19—Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1—199) II United States International Trade Commission (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399)
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I Office of Workers’ Compensation Programs, Department of Labor (Parts 1—199) II Railroad Retirement Board (Parts 200—399) III Social Security Administration (Parts 400—499) IV Employees’ Compensation Appeals Board, Department of Labor (Parts 500—599) V Employment and Training Administration, Department of Labor (Parts 600—699) VI Employment Standards Administration, Department of Labor (Parts 700—799) VII Benefits Review Board, Department of Labor (Parts 800—899) VIII Joint Board for the Enrollment of Actuaries (Parts 900—999) IX Office of the Assistant Secretary for Veterans’ Employment and Training, Department of Labor (Parts 1000—1099)
Title 21—Food and Drugs
I Food and Drug Administration, Department of Health and Human Services (Parts 1—1299) II Drug Enforcement Administration, Department of Justice (Parts 1300—1399) III Office of National Drug Control Policy (Parts 1400—1499)
Title 22—Foreign Relations
I Department of State (Parts 1—199) II Agency for International Development (Parts 200—299) III Peace Corps (Parts 300—399) IV International Joint Commission, United States and Canada (Parts 400—499) V United States Information Agency (Parts 500—599) VII Overseas Private Investment Corporation (Parts 700—799) IX Foreign Service Grievance Board Regulations (Parts 900—999) X Inter-American Foundation (Parts 1000—1099) XI International Boundary and Water Commission, United States and Mexico, United States Section (Parts 1100—1199) XII United States International Development Cooperation Agency (Parts 1200—1299) XIII Board for International Broadcasting (Parts 1300—1399) XIV Foreign Service Labor Relations Board; Federal Labor Relations Authority; General Counsel of the Federal Labor Relations Authority; and the Foreign Service Impasse Disputes Panel (Parts 1400—1499) XV African Development Foundation (Parts 1500—1599) XVI Japan-United States Friendship Commission (Parts 1600—1699) XVII United States Institute of Peace (Parts 1700—1799)
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I Federal Highway Administration, Department of Transportation (Parts 1—999) II National Highway Traffic Safety Administration and Federal Highway Administration, Department of Transportation (Parts 1200—1299) III National Highway Traffic Safety Administration, Department of Transportation (Parts 1300—1399)
Title 24—Housing and Urban Development
SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE- VELOPMENT I Office of Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development (Parts 100—199) II Office of Assistant Secretary for Housing-Federal Housing Com- missioner, Department of Housing and Urban Development (Parts 200—299) III Government National Mortgage Association, Department of Housing and Urban Development (Parts 300—399) IV Office of Multifamily Housing Assistance Restructuring, Depart- ment of Housing and Urban Development (Parts 400—499) V Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 500—599) VI Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 600—699) [Reserved] VII Office of the Secretary, Department of Housing and Urban Devel- opment (Housing Assistance Programs and Public and Indian Housing Programs) (Parts 700—799) VIII Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Section 8 Housing Assistance Programs, Section 202 Di- rect Loan Program, Section 202 Supportive Housing for the El- derly Program and Section 811 Supportive Housing for Persons With Disabilities Program) (Parts 800—899) IX Office of Assistant Secretary for Public and Indian Housing, De- partment of Housing and Urban Development (Parts 900—999) X Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Interstate Land Sales Registration Program) (Parts 1700—1799) XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899) XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)
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I Bureau of Indian Affairs, Department of the Interior (Parts 1— 299) II Indian Arts and Crafts Board, Department of the Interior (Parts 300—399) III National Indian Gaming Commission, Department of the Inte- rior (Parts 500—599) IV Office of Navajo and Hopi Indian Relocation (Parts 700—799) V Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services (Part 900) VI Office of the Assistant Secretary-Indian Affairs, Department of the Interior (Part 1001) VII Office of the Special Trustee for American Indians, Department of the Interior (Part 1200)
Title 26—Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1— 799)
Title 27—Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury (Parts 1—299)
Title 28—Judicial Administration
I Department of Justice (Parts 0—199) III Federal Prison Industries, Inc., Department of Justice (Parts 300—399) V Bureau of Prisons, Department of Justice (Parts 500—599) VI Offices of Independent Counsel, Department of Justice (Parts 600—699) VII Office of Independent Counsel (Parts 700—799)
Title 29—Labor
SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO LABOR I National Labor Relations Board (Parts 100—199) II Office of Labor-Management Standards, Department of Labor (Parts 200—299) III National Railroad Adjustment Board (Parts 300—399) IV Office of Labor-Management Standards, Department of Labor (Parts 400—499) V Wage and Hour Division, Department of Labor (Parts 500—899) IX Construction Industry Collective Bargaining Commission (Parts 900—999) X National Mediation Board (Parts 1200—1299)
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XII Federal Mediation and Conciliation Service (Parts 1400—1499) XIV Equal Employment Opportunity Commission (Parts 1600—1699) XVII Occupational Safety and Health Administration, Department of Labor (Parts 1900—1999) XX Occupational Safety and Health Review Commission (Parts 2200—2499) XXV Pension and Welfare Benefits Administration, Department of Labor (Parts 2500—2599) XXVII Federal Mine Safety and Health Review Commission (Parts 2700—2799) XL Pension Benefit Guaranty Corporation (Parts 4000—4999)
Title 30—Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1—199) II Minerals Management Service, Department of the Interior (Parts 200—299) III Board of Surface Mining and Reclamation Appeals, Department of the Interior (Parts 300—399) IV Geological Survey, Department of the Interior (Parts 400—499) VI Bureau of Mines, Department of the Interior (Parts 600—699) VII Office of Surface Mining Reclamation and Enforcement, Depart- ment of the Interior (Parts 700—999)
Title 31—Money and Finance: Treasury
SUBTITLE A—OFFICE OF THE SECRETARY OF THE TREASURY (PARTS 0—50) SUBTITLE B—REGULATIONS RELATING TO MONEY AND FINANCE I Monetary Offices, Department of the Treasury (Parts 51—199) II Fiscal Service, Department of the Treasury (Parts 200—399) IV Secret Service, Department of the Treasury (Parts 400—499) V Office of Foreign Assets Control, Department of the Treasury (Parts 500—599) VI Bureau of Engraving and Printing, Department of the Treasury (Parts 600—699) VII Federal Law Enforcement Training Center, Department of the Treasury (Parts 700—799) VIII Office of International Investment, Department of the Treasury (Parts 800—899)
Title 32—National Defense
SUBTITLE A—DEPARTMENT OF DEFENSE I Office of the Secretary of Defense (Parts 1—399) V Department of the Army (Parts 400—699) VI Department of the Navy (Parts 700—799)
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VII Department of the Air Force (Parts 800—1099) SUBTITLE B—OTHER REGULATIONS RELATING TO NATIONAL DE- FENSE XII Defense Logistics Agency (Parts 1200—1299) XVI Selective Service System (Parts 1600—1699) XVIII National Counterintelligence Center (Parts 1800—1899) XIX Central Intelligence Agency (Parts 1900—1999) XX Information Security Oversight Office, National Archives and Records Administration (Parts 2000—2099) XXI National Security Council (Parts 2100—2199) XXIV Office of Science and Technology Policy (Parts 2400—2499) XXVII Office for Micronesian Status Negotiations (Parts 2700—2799) XXVIII Office of the Vice President of the United States (Parts 2800— 2899) XXIX Presidential Commission on the Assignment of Women in the Armed Forces (Part 2900)
Title 33—Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1—199) II Corps of Engineers, Department of the Army (Parts 200—399) IV Saint Lawrence Seaway Development Corporation, Department of Transportation (Parts 400—499)
Title 34—Education
SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF EDU- CATION (PARTS 1—99) SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION I Office for Civil Rights, Department of Education (Parts 100—199) II Office of Elementary and Secondary Education, Department of Education (Parts 200—299) III Office of Special Education and Rehabilitative Services, Depart- ment of Education (Parts 300—399) IV Office of Vocational and Adult Education, Department of Edu- cation (Parts 400—499) V Office of Bilingual Education and Minority Languages Affairs, Department of Education (Parts 500—599) VI Office of Postsecondary Education, Department of Education (Parts 600—699) VII Office of Educational Research and Improvement, Department of Education (Parts 700—799) XI National Institute for Literacy (Parts 1100—1199) SUBTITLE C—REGULATIONS RELATING TO EDUCATION XII National Council on Disability (Parts 1200—1299)
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I Panama Canal Regulations (Parts 1—299)
Title 36—Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1—199) II Forest Service, Department of Agriculture (Parts 200—299) III Corps of Engineers, Department of the Army (Parts 300—399) IV American Battle Monuments Commission (Parts 400—499) V Smithsonian Institution (Parts 500—599) VII Library of Congress (Parts 700—799) VIII Advisory Council on Historic Preservation (Parts 800—899) IX Pennsylvania Avenue Development Corporation (Parts 900—999) X Presidio Trust (Parts 1000—1099) XI Architectural and Transportation Barriers Compliance Board (Parts 1100—1199) XII National Archives and Records Administration (Parts 1200—1299) XIV Assassination Records Review Board (Parts 1400—1499)
Title 37—Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1—199) II Copyright Office, Library of Congress (Parts 200—299) IV Assistant Secretary for Technology Policy, Department of Com- merce (Parts 400—499) V Under Secretary for Technology, Department of Commerce (Parts 500—599)
Title 38—Pensions, Bonuses, and Veterans’ Relief
I Department of Veterans Affairs (Parts 0—99)
Title 39—Postal Service
I United States Postal Service (Parts 1—999) III Postal Rate Commission (Parts 3000—3099)
Title 40—Protection of Environment
I Environmental Protection Agency (Parts 1—799) V Council on Environmental Quality (Parts 1500—1599) VII Environmental Protection Agency and Department of Defense; Uniform National Discharge Standards for Vessels of the Armed Forces (Parts 1700—1799)
Title 41—Public Contracts and Property Management
SUBTITLE B—OTHER PROVISIONS RELATING TO PUBLIC CONTRACTS
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50 Public Contracts, Department of Labor (Parts 50–1—50–999) 51 Committee for Purchase From People Who Are Blind or Severely Disabled (Parts 51–1—51–99) 60 Office of Federal Contract Compliance Programs, Equal Employ- ment Opportunity, Department of Labor (Parts 60–1—60–999) 61 Office of the Assistant Secretary for Veterans Employment and Training, Department of Labor (Parts 61–1—61–999) SUBTITLE C—FEDERAL PROPERTY MANAGEMENT REGULATIONS SYSTEM 101 Federal Property Management Regulations (Parts 101–1—101–99) 105 General Services Administration (Parts 105–1—105–999) 109 Department of Energy Property Management Regulations (Parts 109–1—109–99) 114 Department of the Interior (Parts 114–1—114–99) 115 Environmental Protection Agency (Parts 115–1—115–99) 128 Department of Justice (Parts 128–1—128–99) SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE- MENT [RESERVED] SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATIONS SYSTEM 201 Federal Information Resources Management Regulation (Parts 201–1—201–99) [Reserved] SUBTITLE F—FEDERAL TRAVEL REGULATION SYSTEM 300 General (Parts 300–1—300.99) 301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99) 302 Relocation Allowances (Parts 302–1—302–99) 303 Payment of Expenses Connected with the Death of Certain Em- ployees (Part 303–70) 304 Payment from a Non-Federal Source for Travel Expenses (Parts 304–1—304–99)
Title 42—Public Health
I Public Health Service, Department of Health and Human Serv- ices (Parts 1—199) IV Health Care Financing Administration, Department of Health and Human Services (Parts 400—499) V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1999)
Title 43—Public Lands: Interior
SUBTITLE A—OFFICE OF THE SECRETARY OF THE INTERIOR (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC LANDS I Bureau of Reclamation, Department of the Interior (Parts 200— 499) II Bureau of Land Management, Department of the Interior (Parts 1000—9999)
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III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10005)
Title 44—Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0—399) IV Department of Commerce and Department of Transportation (Parts 400—499)
Title 45—Public Welfare
SUBTITLE A—DEPARTMENT OF HEALTH AND HUMAN SERVICES (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE II Office of Family Assistance (Assistance Programs), Administra- tion for Children and Families, Department of Health and Human Services (Parts 200—299) III Office of Child Support Enforcement (Child Support Enforce- ment Program), Administration for Children and Families, Department of Health and Human Services (Parts 300—399) IV Office of Refugee Resettlement, Administration for Children and Families Department of Health and Human Services (Parts 400—499) V Foreign Claims Settlement Commission of the United States, Department of Justice (Parts 500—599) VI National Science Foundation (Parts 600—699) VII Commission on Civil Rights (Parts 700—799) VIII Office of Personnel Management (Parts 800—899) X Office of Community Services, Administration for Children and Families, Department of Health and Human Services (Parts 1000—1099) XI National Foundation on the Arts and the Humanities (Parts 1100—1199) XII Corporation for National and Community Service (Parts 1200— 1299) XIII Office of Human Development Services, Department of Health and Human Services (Parts 1300—1399) XVI Legal Services Corporation (Parts 1600—1699) XVII National Commission on Libraries and Information Science (Parts 1700—1799) XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899) XXI Commission on Fine Arts (Parts 2100—2199) XXIII Arctic Research Commission (Part 2301) XXIV James Madison Memorial Fellowship Foundation (Parts 2400— 2499) XXV Corporation for National and Community Service (Parts 2500— 2599)
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I Coast Guard, Department of Transportation (Parts 1—199) II Maritime Administration, Department of Transportation (Parts 200—399) III Coast Guard (Great Lakes Pilotage), Department of Transpor- tation (Parts 400—499) IV Federal Maritime Commission (Parts 500—599)
Title 47—Telecommunication
I Federal Communications Commission (Parts 0—199) II Office of Science and Technology Policy and National Security Council (Parts 200—299) III National Telecommunications and Information Administration, Department of Commerce (Parts 300—399)
Title 48—Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1—99) 2 Department of Defense (Parts 200—299) 3 Department of Health and Human Services (Parts 300—399) 4 Department of Agriculture (Parts 400—499) 5 General Services Administration (Parts 500—599) 6 Department of State (Parts 600—699) 7 United States Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899) 9 Department of Energy (Parts 900—999) 10 Department of the Treasury (Parts 1000—1099) 12 Department of Transportation (Parts 1200—1299) 13 Department of Commerce (Parts 1300—1399) 14 Department of the Interior (Parts 1400—1499) 15 Environmental Protection Agency (Parts 1500—1599) 16 Office of Personnel Management Federal Employees Health Ben- efits Acquisition Regulation (Parts 1600—1699) 17 Office of Personnel Management (Parts 1700—1799) 18 National Aeronautics and Space Administration (Parts 1800— 1899) 19 United States Information Agency (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099) 21 Office of Personnel Management, Federal Employees Group Life Insurance Federal Acquisition Regulation (Parts 2100—2199) 23 Social Security Administration (Parts 2300—2399) 24 Department of Housing and Urban Development (Parts 2400— 2499) 25 National Science Foundation (Parts 2500—2599) 28 Department of Justice (Parts 2800—2899) 29 Department of Labor (Parts 2900—2999)
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34 Department of Education Acquisition Regulation (Parts 3400— 3499) 35 Panama Canal Commission (Parts 3500—3599) 44 Federal Emergency Management Agency (Parts 4400—4499) 51 Department of the Army Acquisition Regulations (Parts 5100— 5199) 52 Department of the Navy Acquisition Regulations (Parts 5200— 5299) 53 Department of the Air Force Federal Acquisition Regulation Supplement (Parts 5300—5399) 54 Defense Logistics Agency, Department of Defense (Part 5452) 57 African Development Foundation (Parts 5700—5799) 61 General Services Administration Board of Contract Appeals (Parts 6100—6199) 63 Department of Transportation Board of Contract Appeals (Parts 6300—6399) 99 Cost Accounting Standards Board, Office of Federal Procure- ment Policy, Office of Management and Budget (Parts 9900— 9999)
Title 49—Transportation
SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION (PARTS 1—99) SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION I Research and Special Programs Administration, Department of Transportation (Parts 100—199) II Federal Railroad Administration, Department of Transportation (Parts 200—299) III Federal Highway Administration, Department of Transportation (Parts 300—399) IV Coast Guard, Department of Transportation (Parts 400—499) V National Highway Traffic Safety Administration, Department of Transportation (Parts 500—599) VI Federal Transit Administration, Department of Transportation (Parts 600—699) VII National Railroad Passenger Corporation (AMTRAK) (Parts 700—799) VIII National Transportation Safety Board (Parts 800—999) X Surface Transportation Board, Department of Transportation (Parts 1000—1399) XI Bureau of Transportation Statistics, Department of Transpor- tation (Parts 1400—1499)
Title 50—Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Inte- rior (Parts 1—199)
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II National Marine Fisheries Service, National Oceanic and Atmos- pheric Administration, Department of Commerce (Parts 200— 299) III International Fishing and Related Activities (Parts 300—399) IV Joint Regulations (United States Fish and Wildlife Service, De- partment of the Interior and National Marine Fisheries Serv- ice, National Oceanic and Atmospheric Administration, De- partment of Commerce); Endangered Species Committee Reg- ulations (Parts 400—499) V Marine Mammal Commission (Parts 500—599) VI Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 600—699)
CFR Index and Finding Aids
Subject/Agency Index List of Agency Prepared Indexes Parallel Tables of Statutory Authorities and Rules List of CFR Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies Appearing in the CFR
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CFR Title, Subtitle or Agency Chapter Administrative Committee of the Federal Register 1, I Advanced Research Projects Agency 32, I Advisory Commission on Intergovernmental Relations 5, VII Advisory Committee on Federal Pay 5, IV Advisory Council on Historic Preservation 36, VIII African Development Foundation 22, XV Federal Acquisition Regulation 48, 57 Agency for International Development, United States 22, II Federal Acquisition Regulation 48, 7 Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Agriculture Department Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Animal and Plant Health Inspection Service 7, III; 9, I Chief Financial Officer, Office of 7, XXX Commodity Credit Corporation 7, XIV Cooperative State Research, Education, and Extension 7, XXXIV Service Economic Research Service 7, XXXVII Energy, Office of 7, XXIX Environmental Quality, Office of 7, XXXI Farm Service Agency 7, VII, XVIII Federal Acquisition Regulation 48, 4 Federal Crop Insurance Corporation 7, IV Food and Nutrition Service 7, II Food Safety and Inspection Service 9, III Foreign Agricultural Service 7, XV Forest Service 36, II Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II Information Resources Management, Office of 7, XXVII Inspector General, Office of 7, XXVI National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI Natural Resources Conservation Service 7, VI Operations, Office of 7, XXVIII Procurement and Property Management, Office of 7, XXXII Rural Business-Cooperative Service 7, XVIII, XLII Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV Rural Telephone Bank 7, XVI Rural Utilities Service 7, XVII, XVIII, XLII Secretary of Agriculture, Office of 7, Subtitle A Transportation, Office of 7, XXXIII World Agricultural Outlook Board 7, XXXVIII Air Force Department 32, VII Federal Acquisition Regulation Supplement 48, 53 Alcohol, Tobacco and Firearms, Bureau of 27, I AMTRAK 49, VII American Battle Monuments Commission 36, IV American Indians, Office of the Special Trustee 25, VII Animal and Plant Health Inspection Service 7, III; 9, I Appalachian Regional Commission 5, IX
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1986 50 CFR—Continued 51 FR Page 50 CFR 51 FR Chapter II—Continued Page 258 Fee adjustment; eff. to 9–30– Chapter II 86 ...... 8840 215 Authority citation revised ...... 24839 261.104 (e)(3)(iii) revised ...... 34990 215.2 Revised ...... 24839 261.105 Amended ...... 34990 215.3 Revised ...... 24840 261.161 Table 1 amended ...... 34990 215.31—215.34 (Subpart D) Re- 262.161 Table 1 amended ...... 34990 vised...... 24840 262.171 (a)(2)(v) amended ...... 34990 216 Temporary regulation ...... 36560 262.211 Table I amended ...... 34990 216.24 (d)(2)(ii)(C), (iii)(C), (iv)(C), 262.221 (g)(6)(iii) amended ...... 34990 (D), and (H), and (vii)(A), (C), 263.104 Table 1 amended ...... 34990 (E), (F), and (G) removed; 263.166 Table IV amended ...... 34990 (d)(2)(ii)(D), (iii)(D), (iv)(E), 263.261 (b) table amended ...... 34990 (F), (G), (I) through (M), and 263.301 (b) amended ...... 34990 (vii)(B), (D), and (H) redesig- 263.312 (a) amended ...... 34990 nated as (d)(2)(ii)(C), (iii)(C), 263.314 (b) Table II amended ...... 34990 (iv)(C) through (J), and 264.111 Table 1 amended ...... 34991 (vii)(A), (B), and (C)...... 201 264.155 Table 1 amended ...... 34991 (a)(2), (d)(2)(ii)(A), (iv) introduc- 264.221 Table 1 amended ...... 34991 tory text, (A), (B), new (G), 264.252 (a) corrected ...... 34991 (H), and (I), (v)(C), and new 264.271 (f)(2)(vii) amended ...... 34991 (vii)(C) revised; new (a)(3) and 264.321 (a) Table 1, (f)(2)(ii), (vii) (d)(2)(vii)(D) added...... 201 and (g)(2)(ii) amended ...... 34991 (c)(1) and (d)(2)(iii)(A)(1) amend- 264.371 (f)(2)(v) and (vii) amend- ed...... 202 ed ...... 34991 (a)(4) and (e)(9) added; interim 264.421 (f)(2)(vii) and (g)(2)(ii) eff. to 7–1–87 ...... 32788 amended...... 34991 (e)(9) revised; interim emer- 265.106 Appendix 3 amended ...... 34991 gency...... 40172 265.171 (u)(2)(ii) and (v)(2)(ii) 226 Authority citation revised ...... 16052 amended...... 34991 226.11 (Subpart B) Added...... 16053 265.175 Table 1 and 2 amended ...... 34991 228.21—228.26 (Subpart C) Added; 266.121 (a) and (b) Table 1 amend- eff. to 5–7–91 ...... 11741 ed ...... 34991 255 Authority citation revised...... 9214 266.161 (b) table amended ...... 34991 255.6 (b) revised ...... 9214 266.171 (a)(2)(v) and (b)(1) amend- 255.10 (a) revised; (c) removed; (d) ed ...... 34991 and (e) redesignated as (c) and 285 Temporary regulations ...... 10865, (d) ...... 9214 29642, 32478, 33270 255.12 Revised ...... 9214 Inseason adjustments...... 28240
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50 CFR—Continued 51 FR 50 CFR—Continued 52 FR Page Page Chapter II—Continued Chapter II—Continued 285.2 Amended ...... 26899 258 Removed (regulations trans- 285.29 (d) revised ...... 28241 ferred to 22 CFR Part 33)...... 7533 285.50 Amended ...... 8324 267 Added ...... 37155 Chapter III 285 Temporary regulations ...... 9170, 301 Revised ...... 16466 20719, 34655 301.19 Added; interim emer- Inseason adjustments...... 28831 gency ...... 16472 285.2 Amended ...... 25011 371 (Subchapter C) Revised; in- 285.6 (a) revised...... 25012 terim emergency ...... 23421 285.23 (f) revised...... 25012 Inseason orders...... 41509 285.25 (c) amended...... 25012 372 Added; interim emergency eff. 285.30 (c)(2) amended...... 25012 to 12–31–86...... 33762 285.31 (a) (8) and (9) revised ...... 25012 Removed; interim emergency...... 43929 Chapter III Chapter IV 301 Revised ...... 16268 402 Revised ...... 19957 301.5 (f) added...... 33832 Chapter V 301.8 (d) revised; (i) added ...... 33832 550 Added ...... 4579 301.9 Revised ...... 33832 550.103 Corrected...... 7543 (c) added ...... 36941 550.150 (c) corrected...... 7543 301.19 Revised; interim emer- 550.170 (c) revised ...... 4579 gency ...... 10760 (d) table corrected ...... 13788 1987 301.21 Added; interim emer- gency ...... 7583 50 CFR 52 FR Page 371 Inseason orders ...... 49017 Chapter II 204.1 (b) table amended (OMB 1988 numbers); entries transferred 50 CFR 53 FR from 604.1 (b) table ...... 36780 Page (b) table amended (OMB num- Chapter II bers) ...... 38233 204.1 (b) table amended (OMB 215 Harvest levels ...... 26479 numbers) ...... 24644 216.24 (d)(5)(vii) revised...... 19880 215 Harvest levels ...... 28886 217.1 Amended ...... 24250 216 Determinations ...... 39743, 217.2 Amended ...... 24250 217.3 Amended ...... 24250 45953, 50420 217.4 Introductory text and (a) 216.3 Amended...... 8918 amended...... 24250 216.15 Revised ...... 17899 217.12 Amended...... 24250, 37153 216.24 Permit reauthorization ...... 1638 219 Removed...... 10340 (e) (1) through (5) revised ...... 8918 222.31 (Subpart D) Added; in- 226.11 Revised ...... 18990 terim...... 44915 227.72 (e)(4)(ii)(F) added ...... 33821 222.41 (Subpart D) Added...... 24251 253 Revised ...... 20325 (Subpart D) Redesignated as 253.3 (a)(1) corrected ...... 22609 Subpart E; interim ...... 44915 259 Authority citation revised ...... 35203 227.72 (e)(2) heading and (3) head- 259.35 (a) revised ...... 35203 ing removed; new (e) (2) 280.1 Redesignated as 280.2 and through (7) added ...... 24251 amended; new 280.1 added ...... 24644 (e)(4)(ii)(E) added...... 37154 280.2 Removed; new 280.2 redesig- 228.12 Amended; eff. to 12–31–91 ...... 1199 nated from 280.1 and amend- 246 (Subchapter E) Heading re- ed ...... 24644 vised...... 45341 280.3 Redesignated from 280.17 ...... 24645 246 Added ...... 45341 280.4 Correctly redesignated from 254 Removed...... 36781 280.18 and introductory text 256 Removed...... 35920 corrected...... 27693 257 Removed...... 35920 280.17 Redesignated as 280.3...... 24645
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50 CFR—Continued 53 FR 50 CFR—Continued 53 FR Page Page Chapter II—Continued Chapter III—Continued 280.18 Correctly redesignated as 380.23 Redesignated as 380.20 and 280.4 and introductory text cor- revised; new 380.23 redesig- rected...... 27693 nated from 380.22...... 46873 285 Temporary regulations ...... 8631, 380.24—380.26 Added ...... 46873 11510, 31701 Inseason adjustments...... 30845, 32621 1989 285.2 Amended ...... 24645 285.4 Heading and (d)(2) revised; 50 CFR 54 FR Page (b) and (d) (3) and (4) amended; (f)(1) footnote 1 and (4) re- Chapter II moved ...... 24645 204 Entry control date ...... 16123 285.5 (c) amended ...... 24645 204.1 (b) table amended (OMB 285.20 (a)(4) and (b)(3) amended...... 24645 number) ...... 13890, 285.28 (h) and (l) amended ...... 24645 14239, 16125, 22758, 23663, 30046, 285.29 (a), (b), and (c) amended ...... 24645 51723 285.31 (a)(22) amended ...... 24645 215 Harvest levels ...... 32346 285.52 Amended...... 24645 216 Determination at 53 FR 50420 285.53 (a) introductory text and rescended...... 7933 (2) and (b) amended ...... 24645 Note added; interim...... 21921 285.54 (a), (b), (c), and (d) amend- Finding of conformance .....37684, 50763 ed ...... 24645 ETP adjustments...... 38526 285.83 (a) introductory text and 216.3 Amended; interim ...... 9448 (3), (b), and (c) amended ...... 24645 Amended ...... 17741 285.84 Amended...... 24645 Comment time extended...... 18519 Corrected...... 27798 216.11 Introductory text revised; 285.85 (a) introductory text interim...... 21921 amended...... 24645 216.24 (d)(2)(vii)(C) revised; 285.86 Amended...... 24645 (d)(2)(vii)(E) added; interim ...... 415 285.103 (a) and (b) amended ...... 24645 (e) (1) through (5) revised; in- 296.5 (a) (2) and (3) and (c) amend- terim...... 9448 ed ...... 24645 (b) through (e) amended...... 13890 Chapter III (f)(5) revised; (f) (6) and (7) added 301 Plan approval ...... 7528 ...... 17741 Revised...... 10537 Comment time extended...... 18519 301.6 (a) table correctly re- Note added; interim...... 21921 vised...... 16838 217.12 Amended; interim ...... 32818 301.10 (b) and (c) added...... 20330 Amended ...... 37813 301.13 (a), (b), (c), (e), (g), (h), (i) 222.23 (a) amended ...... 22907 and (j) republished ...... 20330 226 (Subpart C) Heading revised; 301.16 (h) republished ...... 20330 interim emergency eff. to 4–2– 301.18 (b) revised...... 3213 90...... 32088 301.20 (f)(2) revised ...... 3213 Effectiveness corrected ...... 34282 380 (Subchapter D and Part) 226.21 Added; interim emergency Added ...... 8768 eff. to 4–2–90 ...... 32088 380.2 Amended ...... 46873 Effectiveness corrected ...... 34282 380.20 Redesignated as 380.21; new 227 (Subpart C) Heading revised; 380.20 redesignated from 380.23 interim; eff. 4–2–90 ...... 32088 and revised ...... 46873 227.4 (e) added; interim emer- 380.21 Redesignated as 380.22; new gency eff. to 4–2–90...... 32088 380.21 redesignated from Effectiveness corrected ...... 34282 380.20 ...... 46873 227.21 Added; interim emergency 380.22 Redesignated as 380.23; new eff. to 4–2–90 ...... 32088 380.22 redesignated from Effectiveness corrected ...... 34282 380.21 ...... 46873 227.72 (e)(8) added ...... 7777
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50 CFR—Continued 54 FR 50 CFR—Continued 54 FR Page Page Chapter II—Continued Chapter III—Continued (e)(2)(i), (3)(ii), (6) (i), (ii), (iii), 371 Inseason orders ...... 10989 Table 1 heading, and Maps 1 Inseason adjustments...... 51747 and 2 headings revised; (e) 380.2 Amended...... 6411, 40669 Table 2 amended; (e)(3) (iii) 380.3—380.4 Added ...... 6411 and (iv) redesignated as (3) (iv) 380.4 (g) amended ...... 40669 and (v); new (e)(3)(iii), (6)(vi), 380.5 Added ...... 6412 (9), and Table 3 added; interim 380.6—380.7 Added ...... 6413 ...... 32818 (b) amended ...... 40669 (e), (2), (3), (6), and Tables 1 and 2 revised ...... 37813 380.7 (a), (c)(3), and (d)(2) amend- 228 Authority citation revised ...... 40349 ed ...... 40670 228.1 Amended; eff. 10–30–89 ...... 40349 380.8 Added ...... 6414 228.2 Revised; eff. 10–30–89 ...... 40349 Revised...... 40670 228.4 (a) introductory text and (c) 380.9—380.11 Added ...... 6415 revised; (a) (1) and (9) amended; 380.10 (f), and (g) through (q) re- (d) added; eff. 10–30–89...... 40349 designated as (i) and (k) 228.5 (a) revised; eff. 10–30–89...... 40350 through (u); new (f), (g), (h), 228.6 (b) and (e)(2) revised; eff. 10– and (j) added ...... 40671 30–89 ...... 40350 380.24 (b) amended ...... 4798 229 Added; interim; eff. to 10–1– 380.27 Added ...... 4798 93...... 21921 Chapter IV 229.6 (c)(2) added ...... 51723 402.14 (i)(1) revised; (i)(3) amend- 229.7 (b) added ...... 51723 ed; (i)(5) added; eff. 10–30–89...... 40350 260 Inspection fees ...... 10548 270 (Subchapter H and Part) Added ...... 50508 1990 280—285 (Subchapter H) Redesig- 50 CFR 55 FR nated as 280—285 (Subchapter Page I) ...... 50508 Chapter II (Subchapter I) Redesignated 204.1 (b) table amended (OMB from 280—285 (Subchapter H) number) ...... 35645 ...... 50508 282 Added; interim (effective date 215 Harvest levels ...... 30919 pending in part)...... 4033 216.3 Amended ...... 11926 285 Temporary regulations ...7430, 38386 Amended; interim...... 47882 Inseason adjustments ...... 29896 216.24 (d)(2)(vii)(E) revised; in- Temporary regulations ...... 43181, 47364 terim...... 11590 290 (Subchapter I) Redesignated (e)(1), (2), (3), (4), and (5) revised as 290 (Subchapter J)...... 50508 ...... 11926 (Subchapter J) Redesignated (c)(4)(ii), (d)(2)(ii)(C), (ii)(A) and from 290 (Subchapter I)...... 50508 (v)(B) amended; (c)(9) and 296 (Subchapter J) Redesignated (d)(2)(ix) added...... 20464 as 296 (Subchapter K) ...... 50508 (e)(5)(i) introductory text re- (Subchapter K) Redesignated vised; (e)(5)(vii), (viii) and (ix) from 296 (Subchapter J) ...... 50508 redesignated as (e)(5)(xii), 299 (Subchapter K and Part) (xiii) and (xiv); new (e)(5)(vii) Added; interim ...... 29898 through (xi) added; interim ...... 47882 Redesignated as 299 (Subchapter (e)(5)(iv) revised; (e)(5)(xv) L)...... 50508 added; interim ...... 53162 (Subchapter L) Redesignated 217.12 Amended...... 40840 from 299 (Subchapter K )...... 50508 222.22 Added ...... 20606 299.3 (a) effective date pending ...... 29899 222.23 (a) amended...... 50836 Chapter III 222.24 (d) and (e) amended...... 20607 301 Catch sharing plan ap- 222.25 Amended...... 20607 proval ...... 8542 222.27 Amended...... 20607 Revised...... 19896 222.31 Amended...... 20607
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50 CFR—Continued 55 FR 50 CFR—Continued 55 FR Page Page Chapter II—Continued Chapter III 226.21 (Subpart C) Heading and 301 Sharing plan ...... 11590 section added; eff. to 11–28– 301.5 (j) revised ...... 21877 90...... 12193 301.6 Revised; eff. to 4–1–91...... 11930 227 Alternative scientific testing 301.8 Revised ...... 21877 protocol ...... 41092 301.9 Revised; eff. to 4–1–91...... 11931 227.4 (e) revised; eff. to 11–28– (g) redesignated as (h); new (g) 90...... 12193 added; eff. to 12–31–90 ...... 21878 (f) added; interim; eff. to 12–31– 301.10 (d) revised ...... 23086 90 ...... 12648 301.19 (i) removed; (j), (k), and (l) Effective date corrected to 12–3– redesignated as (i), (j), and (k); 90 ...... 17441 (d), (f) and new (k) and table 2 (e) added ...... 46523 revised; eff. to 4–1–91 ...... 11931 (f) added...... 49210 301.20 (a) through (h) revised; eff. 227.12 Added; eff. to 12–3–90 ...... 12648 to 4–1–91...... 11932 (a)(3) Table 1 and footnote 371 Inseason adjustment...... 47058 amended ...... 17441 380.21 Text removed; heading re- Added ...... 49210 vised ...... 4179 227.21 (Subpart C) Heading and 380.23 Revised ...... 4179 section revised; eff. to 11–28– 380.24 Revised ...... 4180 90...... 12193 380.27 Revised ...... 4180 (Subpart C) Heading revised; 380.28 Added ...... 4180 section added...... 46523 227.72 (e)(4)(ii)(G) added ...... 41089 228.3 Amended ...... 28766 1991 228.31—228.38 (Subpart D) Added; 50 CFR 56 FR exp. 1995...... 29214 Page 228.38 (a)(2) eff. 11–1–90...... 29207 Chapter II 229.7 Corrected...... 2201 204.1 (b) table amended (OMB 251 Authority citation revised ...... 52849 numbers) ...... 378, 2446, 19314, 47163, 251.21 Removed...... 52849 65016 263 Authority citation revised ...... 23551 215 Harvest levels ...... 36735 263.101 (c) added ...... 23551 216 Embargo and revocation of 263.102 (c) added ...... 23551 findings ...... 21096 263.104 (e)(4) amended ...... 23551 Finding of nonconformance...... 41308 263.151 Amended ...... 23551 Finding of nonconformance; 263.154 (c) added ...... 23551 correction...... 48115 263.166 (a)(4) revised...... 23551 216.3 Amended ...11697, 41307, 47422, 50676 263.201 Heading revised; text 216.22 Heading revised; (c) amended...... 23551 added...... 41307 263.202 (c) added ...... 23551 216.24 (e)(2)(i), (ii), (3), (4), (6) and 263.221 (d) revised...... 23551 (8) revised; (e)(2)(iii) added; 263.251 Amended ...... 23551 (e)(3) eff. date pending...... 47423 263.254 (c) added ...... 23552 Regulation at 56 FR 47423 eff. 11– 263.266 (a)(4) amended ...... 23552 1–91 ...... 50278 263.301 Amended ...... 23552 (e)(5)(iv), (v) introductory text, 263.304 (c) added ...... 23552 (F), and (xiii) revised ...... 50677 263.316 (a)(4) amended ...... 23552 Regulations at 56 FR 47423 and 264 Authority citation revised ...... 41858 50278 effective date delayed to 264.101—264.108 (Subpart A) Re- 12-1-91 ...... 56603 vised...... 41858 Regulations at 56 FR 47423, 50278 267.101 (d) added ...... 23552 and 56603 comment time ex- 267.102 (d) added ...... 23552 tended to 5-1-92 ...... 67226 267.104 (d)(9) revised...... 23552 216.25 (a)(1) revised ...... 43888 285 Temporary regulations ...... 10618, 217.12 Amended...... 43717 34932, 43344 (b)(3) amended ...... 42542 285.24 (a) revised ...... 10246 222.23 (a) amended...... 58624
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50 CFR—Continued 56 FR 50 CFR—Continued 56 FR Page Page Chapter II—Continued Chapter III—Continued 227.12 (a)(3) Table 1 amended ...... 58184 380.27 Redesignated as 380.26 and 227.72 (e)(2)(i), (3)(i), (ii), Table 1 revised; new 380.27 redesig- and Table 2 revised; maps 1, 2, 3 nated from 380.28 and re- and 4 removed ...... 43717 vised...... 21099 228.21—228.26 (Subpart C) Re- 380.28 Redesignated as 380.27 and vised; effective to 9–23–96...... 41630 revised; new 380.28 added ...... 21099 246—247 (Subchapter E) Heading revised ...... 47425 1992 247 Added; 247.4 eff. date pending, 50 CFR 57 FR in part ...... 47424 Page 247.4 Regulation at 56 FR 47424 eff. 11–1–91 ...... 50278 Chapter II Regulations at 56 FR 47424 and 204.1 (b) table amended (OMB 50278 effective date delayed to numbers) ...... 40859 12-1-91 ...... 56603 215 Final harvest standards ...... 34081 Regulations at 56 FR 47424, 50278 215.32 (f)(2) removed; (f)(1) redes- and 56603 comment time ex- ignated as (f); (c)(1) revised...... 33902 tended to 5-1-92 ...... 67226 216 Embargo ...... 17857 253 Technical correction...... 46823 216.3 Amended; interim ...... 41702 253.3 (c)(2) revised ...... 41490 216.24 (e)(5)(xiii) correctly des- 253.5 (a) amended ...... 41490 ignated ...... 3142 (e)(3)(i)(C), (D) and (5)(xiv) re- 265.101—265.107 (Subpart A) Re- vised; interim ...... 41702 vised...... 55092 (e)(5)(i) introductory text and 282.1 (a) revised...... 19314 (vi) through (xv) revised; 282.2 Amended ...... 19314 (e)(5)(xvi) added ...... 54335 282.3 Revised ...... 19314 217 Authority citation revised ...... 40867 282.4 (a) designation removed...... 19315 Temporary regulations .....41703, 46815, 282.6 Revised ...... 19316 53603, 54533, 60135 282.9 (a)(6), (8) and (b)(1) re- 217.12 Amended; interim; eff. 7– vised...... 19316 24–92 through 8–31–92 ...... 33455 282.15 Revised ...... 19316 Amended; interim; eff. 9–1–92 to 285 Notice of closure ...... 13415, 24032 9–30–92...... 40861 Notice of closure; eff. thru 12– Amended; interim...... 40867 31–91 ...... 47918, 49430 Regulation at 57 FR 40867 con- Catch Limit Increase...... 46239 firmed and amended ...... 57353 285 Temporary regulations ...... 55095 222 Temporary regulations ...... 46815, Permits ...... 54797 53603, 54533, 60135 285.21 (e) and (k) revised ...... 50063 227 Technical correction...... 23458 (e) correctly designated .....56544, 61096 Temporary regulations .....41703, 45986, 298 Added (effective date pend- 46815, 47276, 52735, 53603, 54533, ing) ...... 58185 57968, 60135 Regulation at 56 FR 58185 effec- 227.4 (g) and (h) added...... 14662 tive 12–17–91 ...... 66001 227.21 Revised ...... 14663 Chapter III 227.71 Revised; interim ...... 40868 301 Catch sharing plan ...... 18533 (a) and (b) revised; (c) repub- Revised...... 18536 lished...... 57354 301.10 (g) redesignated as (h) and 227.72 (e)(1) introductory text revised; new (g) added ...... 19618 amended...... 14663 301.19 (e) revised; (f) removed ...... 57295 (e)(2)(i) and (3)(ii) suspended; 380.9 (c) added ...... 21098 (e)(2)(v), (3)(v), (6)(vi), (vii), 380.22 (a) revised ...... 21098 (viii) and (e)(8) added; interim; 380.23 Revised ...... 21099 eff. 7–24–92 through 8–31–92 380.24 Revised ...... 21099 (OMB number pending)...... 33455 380.26 Removed; new 380.26 redes- (e)(8)(i) revised; interim...... 36907 ignated from 380.27 and re- (e)(3)(iii)(A) added; interim; eff. vised...... 21099 9–1–92 to 9–30–92...... 40861
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50 CFR—Continued 57 FR 50 CFR—Continued 57 FR Page Page Chapter II—Continued Chapter III—Continued Figures 1 through 8b redesig- 380.23 Revised ...... 13051 nated as part 227 figures 1 380.24 Revised ...... 13051 through 8b; (e)(7) removed; 380.26 Revised ...... 13052 (e)(1) introductory text, (2), 380.27 Revised ...... 13052 (3), (4) and (6) revised; (e)(5) 380.29 Revised ...... 13052 added; interim ...... 40868 (e) revised ...... 57354 1993 227 Figures 1 through 8b redesig- 50 CFR 58 FR nated from 227.72 figures 1 Page through 8b; interim...... 40868 Chapter II 260 Inspection service program .....33456 260.71 Removed...... 30924 204.1 (b) table amended (OMB 285 Temporary regulations ...... 11913, numbers) ...... 21943 28131, 29655, 29656, 42710, 43409, (b) table amended; interim ...... 33567 44341,45579, 47412, 59310 (b) table amended (OMB num- 285.1 (c) amended ...... 32923 bers) ...... 59401 285.2 Amended ...... 372, 32920 215 Final harvest standards ...... 42027 285.3 (b) and (f) revised; (g) Harvest quotas ...... 58297 216 Finding of conformance ...... 42030 added...... 372 216.3 Amended; interim ...... 29130 (f) revised; (h) added ...... 32920 216.4 (b)(1) through (h) removed; 285.5 (c) amended ...... 32923 (b) introductory text re- 285.20 (a)(1)(i) removed; (a)(1)(ii) vised...... 65134 through (iv) redesignated as 216.15 (d) added ...... 17791 (a)(1)(i) through (iii); new (e) added ...... 45074 (a)(1)(i), (ii), (b)(1) and (3) re- (f) added...... 58297 vised...... 32920 216.24 (a)(2), (b)(1)(ii), (c)(4)(i)(B), 285.21 (c) revised ...... 372 (ii) and (d)(2)(i)(A) revised; (a) and (b) revised ...... 32920 (d)(2)(x) added; interim ...... 29130 285.22 Revised ...... 32920 (a)(1), (b)(1)(iii) heading and (v) 285.23 (f)(1), (2) and (g) revised...... 372 amended; (d)(2)(vii)(C)(1) in- Revised...... 32921 troductory text and ((i)(D) re- 285.24 (c) revised...... 8730 vised ...... 63539 Revised...... 32921 (d)(2)(viii) introductory text, 285.25 (c) revised ...... 373 (A) introductory text, (B), (C) (b) amended ...... 32923 and (E) amended ...... 63540 285.26 Revised ...... 373 216.110—216.113 (Subpart I) Re- Table revised ...... 32922 moved ...... 65134 285.28 (a) revised ...... 373 217 Temporary regulations ...... 4088, 285.29 (a), (b) and (e) revised; OMB 17364, 28790 number...... 373 217.12 Amended; interim; eff. 2– (a) revised...... 32922 10–93 through 4–10–93 ...... 8556 285.30 (c)(2) and (d) revised...... 374 Amended; interim; eff. 10–20–93 (c)(1) and (d) revised ...... 32922 ...... 48799 285.31 (a)(1), (2), (5), (10) and (15) Amended; interim...... 48977 revised; (a)(30) through (33) and Amended ...... 54067 (c) added ...... 374 222 Temporary regulations ...... 4088 (a)(10), (17), (18), (26) and (28) re- 222.23 (a) amended...... 26921 vised; (a)(34) through (38) 226.12 Added ...... 45278 added ...... 32922 226.21 (Subpart C) Added ...... 33218 285 Figure 1 added ...... 374 226.22 Added ...... 68551 299 Revised; interim ...... 33650 226 Tables 1 and 2 and Figures 1 299.5 OMB number pending ...... 33650 through 4 added ...... 45278 OMB number ...... 40858 Table 3 and Figure 5 added...... 68552 Chapter III 227 Temporary regulations ....4088, 5643, 301 Revised ...... 12879 17364, 19631, 28790, 28793, 33219, 33220, 371 Inseason orders...... 2054 38538, 43820
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50 CFR—Continued 58 FR 50 CFR—Continued 58 FR Page Page Chapter II—Continued Chapter II—Continued 227.12 (b)(6) added...... 16371 285.7 Added ...... 45290 (a)(3) Table 1 amended ...... 53139 285.8 Added ...... 45290 (a)(3) illustration revised...... 53141 285.9 Added ...... 45290 (a)(3) Table 1 corrected ...... 58594 285.21 (a), (b), (c), (e), (g), (h), (k) 227.72 (e)(2)(ii)(A)(5) and (6) re- and (l) revised; (m) added...... 45290 moved; (e)(2)(ii)(A)(7) redesig- 285.22 Introductory text and (a) nated as (e)(2)(ii)(A)(5) ...... 2990 through (e) revised; (i) (e)(2)(iii) and (4)(iii)(D) added; added...... 45291 interim; eff. 2–10–93 through 4– 285.23 (c)(1), (2) and (d) revised; (f) 10–93 ...... 8556 removed ...... 45292 (e)(4)(ii)(A) existing text redes- 285.24 (d)(2) and (3) redesignated ignated as (e)(4)(ii)(A)(1); as (d)(3) and (4); new (d)(4) re- (e)(4)(ii)(A)(1) heading, (A)(2) vised; new (d)(2) added...... 45292 and (D) added; (e)(4)(iii) intro- 285.25 (c) revised ...... 45292 ductory text revised ...... 28796 285.26 Table amended...... 45292 (e)(2)(iii) and (4)(iii)(D) added; 285.28 (b) and (j) revised ...... 45293 eff. 10–20–93 ...... 48799 285.29 (a), (b) and (d) revised...... 45293 (e)(3)(i) and (ii) revised; interim 285.30 (c)(2) revised ...... 45293 ...... 48977 285.31 (a)(1), (2) and (5) amended; (e)(4)(ii) and (iii) redesignated (a)(10), (16), (26), (30) and (31) re- as (e)(4)(iii) and (iv); new vised; (a)(32) removed; (a)(33) (e)(4)(iv) introductory text re- through (38) redesignated as vised; new (e)(4)(ii) added...... 54067 (a)(32) through (37) ...... 45293 (e)(5) heading and (i) revised...... 54068 285.50 Revised ...... 45293 227 Figure 9a added ...... 28797 Chapter III Figure 9b added ...... 28798 301 Revised ...... 17795 Figures 10 and 11 added ...... 54069 Temporary regulations ...... 51253 228.11 Revised; eff. 2–12–93 371 Inseason adjustments ...... 54307 through 12–31–97 ...... 4093 380.20 Revised ...... 39454 228.12 Revised; eff. 2–12–93 380.23 Revised ...... 39454 through 12–31–97 ...... 4093 380.24 Revised ...... 39455 228.13 (b) and (c) revised; eff. 2–12– 380.26 Revised ...... 39456 93 through 12–31–97 ...... 4093 380.27 Revised ...... 39456 228.14 (b) and (c) introductory text revised; eff. 2–12–93 through 12–31–97 ...... 4093 1994 229 Regulation at 55 FR 21921 eff. 50 CFR 59 FR date extended to 4-1-94 ...... 51789 Page 229.1 (b) amended ...... 51789 Chapter II 282.2 Amended; interim ...... 33567 204.1 Regulation at 58 FR 33567 282.3 Revised; interim...... 33567 confirmed...... 13894 282.5 (a) revised; interim ...... 33567 (b) table amended (OMB num- 282.6 Revised; interim...... 33567 bers); eff. 7–27–94 through 10– 282.8 Revised; interim...... 33568 31–94...... 39303 282.9 (a)(6) revised; (a)(16) added; (b) table amended (OMB num- interim...... 33568 bers) ...... 43781 282.14 (a)(2) revised; interim...... 33568 66272, 66780 282.15 Revised; interim ...... 33568 (b) table amended (OMB num- 285 Temporary regulations ...... 26921, bers); eff. 10–6–94 ...... 46134 45074, 48464, 49437, 50523, 53668, 63104 215 Authority citation revised ...... 50375 Harvest quotas...... 32872, 36154, 44777, 215.1 Revised; interim...... 50375 53434 215.11 (Subpart B) Revised; in- 285.2 Amended ...... 45289 terim...... 50375 285.3 Introductory text, (f) and (h) 215.32 (b) revised ...... 35474 revised; (i) through (p) 216 Temporary regulations ...... 8142 added...... 45289 Finding of conformance...... 15655
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50 CFR—Continued 59 FR 50 CFR—Continued 59 FR Page Page Chapter II—Continued Chapter II—Continued Embargoes...... 65974 Table 2 amended ...... 30716 216.2 Amended; interim ...... 50375 227 Temporary regulations ...... 23169, 216.3 Amended ...... 16145, 35865, 63062 29545 Amended; interim...... 50375 227.4 (e) removed; (f), (g) and (h) 216.6 (a), (b), (d) and (e) amended; redesignated as (e), (f) and interim...... 50375 (g) ...... 450 216.7 (a) and (b) amended; in- (f) and (g) removed; interim; eff. terim...... 50375 8–18–94 to 5–26–95 ...... 42532 216.8 Amended; interim ...... 50375 227.21 (Subpart C) (a), (b)(1) and 216.12 (b)(1)(i) amended; in- (2) amended ...... 450 terim...... 50375 Section removed; interim; eff. 8– 216.13 (b) amended; interim ...... 50375 18–94 to 5–26–95 ...... 42532 (c) amended; interim ...... 50376 227.72 (e)(4)(i)(G)(2) redesignated 216.14 Heading, (a) introductory as (e)(4)(i)(G)(2)(i); text and (b)(1) amended; in- (e)(4)(i)(G)(2)(ii) added ...... 25829 terim...... 50376 (e)(4)(i)(I) added; (e)(4)(iv)(A) re- 216.15 Introductory text amend- vised; interim ...... 33449 ed; interim...... 50376 (e)(3)(i) and (ii)(B) revised...... 33699 216.16 Added; interim...... 50376 227 Figure 12a added...... 25830 216.21 Amended; interim ...... 50376 Figure 12b added ...... 25831 216.23 (d) amended; interim ...... 50376 228.51—228.57 (Subpart F) Added; 216.24 (e)(3)(i)(A)(1) revised ...... 16145 eff. 3–3–94 through 3–3–99 ...... 5126 (e) heading and (9) revised ...... 30306 Note amended; eff. 6–17–94 229 Regulation at 54 FR 21921 eff. through 9–1–95...... 31165 date extended to 5–1–94...... 17048 (e)(1) redesignated as (e)(1)(i); Added; eff. 6–17–94 through 9–1– (e)(1)(ii) added ...... 35865 95 ...... 31165 (b)(2)(vii), (viii), (4), (c)(8), Heading correctly added...... 34899 (d)(2)(i)(D), (vi), (e)(7) intro- 229.1 (b) amended ...... 17049 ductory text, (ii) and (g) 242 Policy statement ...... 28922, 36063 amended; interim ...... 50376 282.2 Regulation at 58 FR 33567 (d)(2)(i)(A)(2) and (3) revised ...... 52923 confirmed and amended ...... 13894 (e)(5)(xiv) revised...... 63062 282.3 Regulation at 58 FR 33567 216.25 (a) introductory text confirmed...... 13894 amended; interim ...... 50376 282.5 Regulation at 58 FR 33567 216.26 (b), (c) and (d) revised; in- confirmed...... 13894 terim...... 50376 282.6 Regulation at 58 FR 33567 216.31 (a)(10) and (c) amended; in- confirmed...... 13894 terim...... 50376 282.8 Regulation at 58 FR 33568 216.40 Redesignated as 216.50; in- confirmed...... 13894 terim...... 50376 282.9 Regulation at 58 FR 33568 216.45 Added; interim...... 50376 confirmed...... 13894 216.50 Redesignated from 216.40; 282.14 Regulation at 58 FR 33568 interim...... 50376 confirmed...... 13894 216.70 (a) introductory text and 282.15 Regulation at 58 FR 33568 (3) amended; interim...... 50376 confirmed...... 13894 216.72 Amended; interim ...... 50376 285 Temporary regulations ...... 42176, 216.73 (b)(4) amended; interim ...... 50376 46569, 48575 217 Temporary regulations ...... 23169, 51871, 54396, 65279 29545 Harvest quotas ...... 55821 217.12 Amended; interim ...... 10586 285.2 Amended; interim ...... 17725 222.23 (a) amended...... 450, 31095 285.22 (a), (d) introductory text, (a) amended; interim; eff. 8–18– (1), (2), (e) introductory text, (f) 94 to 5–26–95...... 42532 introductory text and (i) 226.13 Added ...... 28805 amended; (e)(1) revised; in- 226 Figures 6, 7 and 8 added ...... 28805 terim...... 17725
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50 CFR—Continued 59 FR 50 CFR—Continued 60 FR Page Page Chapter II—Continued Chapter II—Continued 285.23 (c)(1) and (2) revised; in- 217 Restrictions...... 21741, 26691, 32121, terim...... 17726 42809, 44780 285.24 (e) added; interim ...... 17726 217.12 Amended; interim ...... 25622 285.26 Introductory text revised; Regulation at 60 FR 25622 con- interim...... 17726 firmed; eff. 10–16–95...... 47715 285.29 (a) and (b)(1) revised; in- 222 Decision...... 43721 terim...... 17726 222.23 Regulation at 59 FR 42352 285.31 (a)(28), (30) and (37) revised; eff. date corrected to 8–18–94 to (c) removed; interim ...... 17726 4–17–95...... 3948 Chapter III 222.31 Revised ...... 3775 301 Revised ...... 22526 222.42 Added; interim...... 25623 Inseason adjustments...... 24359, 30307, Regulation at 60 FR 25623 con- 33699, 33700, 35474, 35475, 36719, firmed; eff. 10–16–95...... 47715 37721, 37723, 39476, 39477, 42775, 227 Restrictions...... 21741, 26691, 32121, 49591, 51871, 53117 42809, 44780 Fishery management measures Determination...... 51928 ...... 24964 Policy statement...... 52121 Temporary regulations ...... 29207 227.4 Regulation at 59 FR 42352 eff. 301.7 (f) revised ...... 27242 date corrected to 8–18–94 to 4– 301.11 (g) revised ...... 27242 17–95...... 3948 301.23 Added; eff. 10–6–94 ...... 46134 (f) and (g) added ...... 19342 371 Temporary regulations ...... 47283 227.21 Regulation at 59 FR 42353 380.2 Amended ...... 11730 eff. date corrected to 8–18–94 to 380.20 Revised ...... 25835 4–17–95...... 3948 380.23 (c), (e) introductory text, Added ...... 19342 (f) introductory text, (g), (h) in- 227.72 (e)(4)(i)(A)(3), (C), (G)(1), troductory text, (1), (2), (i), (k) (2)(i), (I), (ii)(A), (B), (iii)(C), introductory text and (3) re- (D) and (iv) revised; vised; (k)(5) added ...... 25835 (e)(4)(iii)(A)(2) removed; 380.24 (f) introductory text, (2), (e)(4)(iii)(E) added (OMB num- (g)(1) introductory text, (ii) ber pending)...... 15516 and (2) revised; (f)(3), (g)(1)(iii) (e)(1) introductory text revised; and (iv) added; (g)(1)(i) amend- (e)(7) added...... 8958 ed ...... 25836 (e)(2)(iv) added; interim...... 25623 380.26 (d) through (h) revised ...... 25836 380.27 (c) and (d) revised; (e) (e)(3)(ii)(B) stayed; (e)(3)(ii)(C) added...... 25837 added; eff. 5–30–95 through 11– 380.28 Added ...... 11730 30–95...... 28743 380.30 Added ...... 25837 Regulation at 60 FR 25623 con- 380 Figure 2 added ...... 25837 firmed; eff. 10–16–95...... 47715 Figure 3 added ...... 25840 227 Figure 1 revised...... 15519 Figure 13 added...... 15520 228.41—228.48 (Subpart E) Added; 1995 eff. 11–13–95 through 11–13– 50 CFR 60 FR 00...... 53145 Page 229 Revised ...... 45100 Chapter II Fisheries list ...... 67063 204 Authority citation revised ...... 11051 229.2 (k) revised...... 6039 Removed...... 39249 229.4 (b)(2) introductory text and 204.1 (b) table revised (OMB num- (i)(B) revised; (b)(2)(iii) bers) ...... 11051 added ...... 6039 210 Removed...... 39272 229.6 (c)(2)(i) amended; (c)(6) re- 216 Findings ...... 10332 moved; (c)(7) through (10) re- 216.24 Amended...... 45100 designated as (c)(6) through 216.70—216.90 (Subpart G) Re- (9) ...... 6039 moved ...... 39272 Revised; eff. 1–1–96 ...... 45104
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50 CFR—Continued 60 FR 50 CFR—Continued 60 FR Page Page Chapter II—Continued Chapter II—Continued 229.7 (b) amended; (e) removed; (f) (a)(3), (4), (8), (13), (15), (30), (31), redesignated as (e)...... 6039 (34) and (37) revised; (a)(38) 250 Removed...... 39272 added ...... 38515 270 Removed...... 39272 285.32 (a) and (b) revised ...... 38515 280 Authority citation revised ...... 14384 285.34 Added ...... 38515 280 Quotas ...... 51932 285.50—285.59 (Subpart C) Re- vised...... 38516 280.1—280.2 (Subpart A) Heading 285.53 (d) revised ...... 57685 added...... 14384 285.200—285.205 (Subpart F) 280.1 Revised ...... 14384 Added ...... 14388 280.2 Amended ...... 14384 280.3 Redesignated as 280.10...... 14385 Chapter III 280.4 Redesignated as 280.11...... 14385 301 Revised ...... 14655 Inseason adjustments...... 26840, 31260, 280.10—280.11 (Subpart B) Head- 33364, 33365, 34472, 36364, 39153, ing added ...... 14385 39663, 43563, 46774, 48672, 51735, 280.10 Redesignated from 280.3 54818 and revised ...... 14385 Technical correction ...... 40227 280.11 Redesignated from 280.4; (a) 371 Inseason adjustments ...... 56959 amended...... 14385 380.23 (a), (c), (d), (e) introductory 280.50—280.54 (Subpart C) text, (f) through (j) and (k) in- Added ...... 14385 troductory text revised...... 43063 281 Quotas ...... 51932 380.24 (d) introductory text, (2), 282 Quotas ...... 51932 (f) introductory text, (g)(1) in- 285 Temporary regulations ...... 42469, troductory text and (2) re- 48052, 65597 vised...... 43064 Quotas ...... 51932 380.26 (a) through (i) revised ...... 43064 285.1 (c) revised...... 38511 380.27 (c) and (d) revised ...... 43065 285.2 Amended ...... 14386, 38511 380.28 (m)(2) introductory text re- 285.3 (j) and (k) revised; (q), (r) and vised; (m)(2)(ii) added ...... 43065 (s) added ...... 38511 285.9 Removed ...... 38512 1996 285.20 (a)(1)(i) and (b)(3) re- 50 CFR 61 FR vised...... 38512 Page 285.21 (a), (b), (c) heading, (h), (i) Chapter II and (m) revised; (c) amend- 215 Removed...... 11750 ed ...... 38512 215.2 (d), (g) and (h) redesignated 285.22 (a), (b), (d), (e), (f) heading to 216.3...... 11750 and (h) revised; (f) introduc- 215.21—215.27 (Subpart C) Redes- tory text amended ...... 38512 ignated as 216.81—216.87 (Sub- 285.23 (d) revised ...... 14387 part G)...... 11750 (d) removed; (e) redesignated as 215.31—215.34 (Subpart D) Redes- (d); (a), (b) and new (d) revised ignated as 216.71—216.74 (Sub- ...... 38513 part F) ...... 11750 285.24 (a), (c), (d) and (e) re- 216.3 Amended.....7429, 15887, 21933, 27794 vised...... 38513 Amended; redesignated in part 285.25 (d) revised; (e) added ...... 38514 from 215.2...... 11750 285.26 Revised ...... 14387 216.13 Heading revised; (d) Amended ...... 38514 added...... 21933 285.27 Revised ...... 38514 216.24 (b), (d)(1), (2)(i)(A)(1), (2), 285.29 (a) and (b)(1) revised ...... 14387 (iii)(B) and (e)(7) removed; (c), (a) and (d) revised ...... 38515 (d)(2)(ii)(C), (iii)(A), (e)(2)(i)(A) 285.30 Revised ...... 14387 and (5)(v)(B) revised; 285.31 (a)(10), (14), (29) and (32) (d)(2)(v)(B) amended...... 7429 amended; (a)(18), (19), (31), (36) Amended; (e)(3)(i)(E) added; and (37) revised ...... 14388 (e)(3)(iii) footnote revised...... 27794
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50 CFR—Continued 61 FR 50 CFR—Continued 61 FR Page Page Chapter II—Continued Chapter II—Continued 216.26 Heading, (b), (c) and (d) re- 217.12 Amended ...... 1848, 66944 vised; introductory text and (e) 222 Status reviews...... 17 added...... 21933 Authority citation revised ...... 21939 216.27 Added ...... 21933 222.23 (b) amended ...... 21939 216.31 Revised ...... 21935 (a) amended ...... 41522 216.32 Revised ...... 21935 216.33 Revised ...... 21935 227 Status reviews...... 17 216.34 Revised ...... 21936 Technical correction...... 6064 216.35 Added ...... 21936 Restrictions ...... 33377 216.36 Added ...... 21937 227.4 (h) added...... 56149 216.37 Added ...... 21937 227.21 Revised ...... 56149 216.38 Added ...... 21937 227.72 (e)(2)(iii)(A) revised; 216.39 Added ...... 21937 (e)(2)(iii)(B) and (C) redesig- 216.40 Added ...... 21938 nated as (e)(2)(iii)(C) and (D); 216.41 Added ...... 21938 new (e)(2)(iii)(B) added ...... 1848 216.44 Added ...... 21939 (e)(2)(iii) correctly revised; CFR 216.71—216.74 (Subpart F) Redes- correction...... 10477 ignated from 215.31—215.34 (e)(2)(ii)(B)(1), (4)(i)(C), (iii) in- (Subpart D)...... 11750 troductory text, (iv)(C) and 216.81—216.87 (Subpart G) Redes- (5)(i) revised...... 66944 ignated from 215.21—215.27 227 Figures 14a, 14b and 15 (Subpart C) ...... 11750 added...... 66945 216.90—216.95 (Subpart H) 228 Removed...... 15887 Added ...... 27794 228.11—228.14 (Subpart B) Redes- 216.101—216.108 (Subpart I) ignated as 216.111—216.114 Added; interim ...... 15887 (Subpart J); interim ...... 15887 216.111—216.114 (Subpart J) Re- 228.21—228.26 (Subpart C) Redes- designated from 228.11—228.14 ignated as 216.121—216.126 (Subpart B); interim ...... 15887 (Subpart K); interim ...... 15887 216.113 Amended; interim ...... 15890 216.114 Amended; interim ...... 15890 228.41—228.48 (Subpart E) Redes- 216.121—216.126 (Subpart K) Re- ignated as 216.141—216.148 designated from 228.21—228.26 (Subpart M); interim ...... 15887 (Subpart C); interim ...... 15887 228.51—228.57 (Subpart F) Redes- Removed...... 51214 ignated as 216.151—216.157 216.123 Amended; interim ...... 15890 (Subpart N); interim ...... 15887 216.124 Amended; interim ...... 15890 229 Fisheries list ...... 3851 216.125 Amended; interim ...... 15890 230 Revised ...... 29631 216.126 Amended; interim ...... 15890 246 Removed...... 35550 216.141—216.148 (Subpart M) Re- 247 Removed...... 27795 designated from 228.41—228.48 251 Removed...... 14683 (Subpart E); interim ...... 15887 253 Revised ...... 19172 216.143 Amended; interim ...... 15890 255 Removed...... 19177 216.144 Amended; interim ...... 15890 260.84 Added ...... 9369 216.146 Amended; interim ...... 15890 261 Revised ...... 9369 216.147 Amended; interim ...... 15890 262 Removed ...... 9369 216.148 Amended; interim ...... 15890 263 Removed ...... 9369 216.151—216.157 (Subpart J) Re- 264 Removed ...... 9369 designated from 228.51—228.57 (Subpart F); interim ...... 15887 265 Removed ...... 9369 216.153 Amended; interim ...... 15890 266 Removed ...... 9369 216.154 Amended; interim ...... 15890 267 Removed ...... 9369 216.156 Amended; interim ...... 15890 280 Removed...... 35550 216.157 Amended; interim ...... 15891 281 Removed...... 35550 217 Technical correction ...... 6064 282 Removed...... 35550 Restrictions ...... 33377 285 Inseason adjustments ....53677, 66618
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50 CFR—Continued 61 FR 50 CFR—Continued 61 FR Page Page Chapter II—Continued Chapter III—Continued Temporary regulations...... 8223, 11336, 301.19 Redesignated as 301.20; new 30182, 38656, 39361, 40352, 43027, 301.19 redesignated from 43184, 48413, 48640, 50765, 55119, 301.18 ...... 11341 55926, 57340, 58341 301.20 Redesignated as 301.21; new Quotas ...... 60221 301.20 redesignated from 285.2 Amended ...... 30186 301.19 ...... 11341 285.22 (a)(1), (3) and (b) through (e) 301.21 Redesignated as 301.22; new revised; (f) introductory text 301.21 redesignated from 301.20; amended...... 30186 (d), (f) and (g) revised...... 11341 285.24 (a)(1), (2) and (d)(3) re- 301.22 Redesignated as 301.23; new vised...... 30187 301.22 redesignated from 285.25 (c) amended; (d)(2) re- 301.21 ...... 11341 vised...... 30187 (i) through (o) redesignated as 285.26 Introductory text re- (j) through (p); (d)(2)(i) vised...... 30187 through (vii) and new (h) 285.31 (a)(4) revised ...... 30187 through new (p) revised; new 285.52 Revised ...... 30187 (i) added...... 11342 290 (Subchapter J) Removed...... 8224 301.23 Redesignated as 301.24; new 296.2 Amended...... 6322 301.23 redesignated from 296.4 (c) and (d) removed; (e) re- 301.22 ...... 11341 designated as (c)...... 6322 296.5 (a)(2) amended; (a)(3) re- (a) and (b) revised ...... 11343 moved; (a)(4) redesignated as 301.24 Redesignated as 301.25; new (a)(3); (e)(6)(ii) amended ...... 6322 301.24 redesignated from 296.6 (b)(1) amended...... 6322 301.23 ...... 11341 296.13 Revised ...... 6322 (a), (e)(1), (3), (f)(1)(i), (iii), (v), 296.14 (a) introductory text re- (vi) and (g) revised ...... 11343 vised ...... 6323 301.25 Redesignated from 298 Removed...... 35550 301.24 ...... 11341 299 Removed...... 35550 351 (Subchapter B) Removed ...... 9370 Chapter III 371 Redesignated as Part 371 (Subchapter D) ...... 11752 Chapter III Revised...... 35550 300 (Subchapter A) Added ...... 11752 380 Nomenclature change...... 8489 Inseason adjustments...... 39362, 41987, Redesignated as Part 380 (Sub- 55225 chapter E)...... 11752 301 Redesignated as Part 301 380.2 Amended...... 8486 (Subchapter B) ...... 11752 380.23 (b)(1), (c) through (j), (k) in- Inseason adjustments...... 27025, 29695, troductory text, (5)(v)(A), (ix) 29975 and (xiii) revised; (k)(5)(ii)(G), 301.3 (h) revised; (i) through (o) re- (l), (m) and (n) added ...... 8486 designated as (j) through (p); 380.24 (e) removed; (f) and (g) re- new (i) added...... 11340 designated as (e) and (f); (a) in- 301.5 (b) through (f) revised ...... 11340 troductory text, (b) introduc- 301.7 (b) and (c) revised ...... 11340 tory text, (c) introductory 301.8 (c) revised...... 11340 text, (d) introductory text, new 301.10 (a) and (b) revised ...... 11340 (e) introductory text, (f) intro- 301.12 (b) revised ...... 11340 ductory text, (1) introductory 301.14 Revised ...... 11340 text, (2) and (3) revised; (e)(4), 301.15 (b)(1) revised ...... 11341 (5) and (f)(4) added...... 8487 301.17 Redesignated as 301.18; new 380.26 (b) through (i) revised ...... 8488 301.17 added...... 11341 380.27 Revised ...... 8488 301.18 Redesignated as 301.19; new 380 Figures 2 and 3 redesignated 301.18 redesignated from as Appendixes A and B; new 301.17 ...... 11341 Figure 2 added ...... 8489
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1997 50 CFR—Continued 62 FR Page 50 CFR 62 FR Chapter II—Continued Page 285.21 (b)(1), (c), (d), (e), (g) and (l) Chapter II revised ...... 332 216 Temporary regulations ...... 33374 (b)(7) added; interim ...... 27519 217 Authority citation revised...... 6737 (c), (d), (e), (g), (k) and (l) re- Technical correction...... 7947 vised ...... 30744 Exemption...... 43124 (b)(7) revised...... 34416, 38487 217.12 Amended; interim ...... 6737 285.22 (a)(1), (c), (d) and (f) heading Corrected ...... 7947 revised; (f) amended ...... 35109 222 Authority citation revised...... 6738, (a)(1) revised; (a)(3) amended ...... 38941 24355 285.24 (a)(1) and (e) revised; (a)(4) Technical correction...... 7947 amended...... 30745 222.23 (a) amended ...... 24355 (a)(1) revised...... 38941 (a) amended; eff. 10–17–97 ...... 43953 285.27 (a) amended ...... 30745 222.32 Added; interim ...... 6738 285.29 Heading revised; Introduc- 222.33 Added ...... 24355 tory text removed; (a), (b) in- 222.34 Added; eff. 11–27–97 through troductory text, (c) and (d) 7–31–98 ...... 63470 amended; (f) added ...... 30745 227 Authority citation revised ...... 24355 285.31 (a)(4) and (37) revised; Exemption...... 43124 (a)(39) added ...... 30745 227.4 (h) correctly revised ...... 1297 (a)(40) added...... 38487 (e) revised ...... 24355 285.33 Heading revised; existing (i) added...... 24609 text designated as (a); (b) (j), (k) and (l) added; eff. 10–17–97 added...... 38487 ...... 43953 285.53 (a), (b) and (c) revised; (d) 227.12 (a) heading, (4) and (b)(4) re- amended...... 332 vised; (a) introductory text 285.54 Heading and (a) revised...... 30746 added...... 24355 285.87 Added ...... 44423 227.21 Revised; interim ...... 38483 285.205 (k) and (l) added ...... 44423 227.22 Added; interim...... 38484 Chapter III 229.2 Amended; interim; eff. 4–1– 300 Inseason adjustments ....38037, 43126 97 through 6–30–97 ...... 16110 Fishery management measures Amended; interim; eff. 11–15–97 ...... 12759, 33039 ...... 39183 Implementation plan...... 40753 229.3 (g) and (h) added; interim; eff. 4–1–97 through 6–30–97 ...... 16111 (g) through (j) added; interim; 1998 eff. 11–15–97 ...... 39184 50 CFR 63 FR 229.4 (a), (b) and (e) revised...... 46 Page 229.30 Added; interim; eff. 4–1–97 Chapter II through 6–30–97 ...... 16111 216 Workshop ...... 52984, 56094, 67624 229.31 Added ...... 51813 216.3 Amended; eff. 1–1–99 through 229.32 Added; interim; eff. in part 9–30–04 ...... 66076 11–15–97 and in part 1–1–98 ...... 39184 216.111—216.118 (Subpart J) Re- 259.31 (e) added; authority cita- vised; eff. 2–2–98 through 12–31– tion removed ...... 331 02 ...... 5283 260 Inspection fees ...... 67585 216.161—216.166 (Subpart O) 285 Temporary regulations ....3490, 9376, Added; eff. 1–1–99 through 9–30– 36998, 38036, 38037, 43126, 44423, 48497, 04...... 66076 50887, 52666 217 Temporary regulations ...... 55053, Fishery reopening ...... 32697 62959, 66766 Fishery opening...... 53577 Exemption...... 57620 Inseason adjustments...... 35447, 45764, 217.12 Amended; interim ...... 17955 51608, 53247, 66828 222 Authority citation revised...... 8872 Quotas ...... 42416 Technical correction ...... 23226 285.2 Amended ...... 30744, 38487 222.3 Added ...... 8872 285.20 (b)(1) revised; interim ...... 8635 222.22 (g) and (h) added...... 8872
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50 CFR—Continued 63 FR 1999 Page Chapter II—Continued (Regulations published from January 1, 226 Critical habitat designa- 1999, through October 1, 1999) tion...... 9967 50 CFR 64 FR 226.22 Introductory text amend- Page ed...... 1393 Chapter II 226.23 Added ...... 1393 216 Hearing...... 37690 226.72 Added; eff. 10–2–98 ...... 46701 216.3 Amended; eff. 7–1–99 through 226.73 Added; eff. 10–2–98 ...... 46701 6–30–04 ...... 28120 226 Table 4 added ...... 1394 Regulation at 63 FR 66076 eff. 1– Figure 9 added...... 1395 1–99 through 9–30–04 ...... 28121 227 Authority citation revised ...... 13371 216.23 (e) added; interim ...... 27927 Technical correction ...... 23226 Regulation at 64 FR 29727 con- Heading revised; eff. 10–14–98 ...... 49041 firmed...... 53269 Workshop...... 52984, 56094, 67624 216.120—216.128 (Subpart K) Added; eff. 3–1–99 through 12– Temporary regulations .....55053, 62959, 31–03...... 9930 66766 216.130—216.137 (Subpart L) Exemption...... 57620 Added; eff. 7–1–99 through 6–30– 227.4 (m) and (n) added...... 13371 04...... 28120 (o) added; eff. 10–9–98...... 42591 216.161—216.166 (Subpart O) Regu- (p) added; eff. 10–14–98 ...... 49041 lation at 63 FR 66076 eff. 1–1–99 227.72 (e)(2)(iv)(B) and (4)(iv) through 9–30–04 ...... 28121 amended; (e)(4)(iii) revised; in- 217 Removed...... 14054 terim...... 17956 220 Removed...... 14054 Figures 6, 7, 8a, 8b, 9a and 9b re- 221 Removed...... 14054 moved; Figure 5 revised ...... 17958 222 Revised ...... 14054 229 Fishery list...... 5748 Temporary regulations .....25460, 27206, 229 Figure 1 added ...... 27861 28761, 29805 229.2 Amended ...... 66487 222.205 (c)(1) and (2) (effective 229.3 (k) through (p) added...... 66487 date pending in part)...... 14060 229.31 (b) and (c)(2) revised...... 27861 222.305 (a) (effective date pending 229.33 Added ...... 66487 in part) ...... 14062 (a)(2) and (5) corrected ...... 71042 223 Redesignated from 227; head- 229.34 Added ...... 66489 ing and authority citation re- vised...... 14068 230 Quotas ...... 16701, 65129 Temporary regulations .....25460, 27206, 260 Inspection fees ...... 69021 28761, 29805 285 Temporary regulations ...... 35161, Authority citation revised ...... 50415 37506, 38340, 43116, 44173, 48641, 49296, 223.1 Removed ...... 14068 49668, 49873, 54078, 55339 223.2 Removed ...... 14068 Inseason adjustments...... 51855 223.3 Removed ...... 14068 Catch limit adjustment ...... 71792 223.4 Removed ...... 14068 285.2 Amended; interim ...... 669 223.11 Redesignated as 223.201...... 14068 285.3 (a) revised; interim ...... 669 223.12 Redesignated as 223.202...... 14068 285.9 Added; interim ...... 669 223.21—223.22 (Subpart C) Head- 285.22 (a)(3) revised ...... 27865 ing removed...... 14068 285.31 (a)(22) revised; interim ...... 669 223.21 Redesignated as 223.203...... 14068 (a)(40) removed ...... 36612 223.22 Redesignated as 223.204...... 14068 285.33 (b) removed ...... 36612 223.71—223.72 (Subpart D) Head- ing removed...... 14068 Chapter III 223.71 Redesignated as 223.205...... 14068 300 Technical correction...... 15324 223.72 Redesignated as 223.206...... 14068 Notice...... 30145 223.101 Added ...... 14068 Inseason adjustment ...... 35541, 64005 223.102 Added ...... 14068 300.63 (b) revised ...... 13009 (a)(16), (17) and (18) added...... 14328 (c) added ...... 24752 (a)(12) and (13) added...... 14517 (b) corrected ...... 31938 (a)(14) and (15) added...... 14528
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50 CFR—Continued 64 FR 50 CFR—Continued 64 FR Page Page Chapter II—Continued Chapter II—Continued (a)(19) added...... 14536 226.205 Redesignated from 226.22; (a)(20) and (21) added;eff. 11–15– heading revised; introductory 99 ...... 50415 text amended...... 14067 223.201—223.206 (Subpart B) Head- 226.206 Redesignated from 226.23; ing revised ...... 14068 heading revised ...... 14067 223.201 Redesignated from 223.11; (a) amended...... 14068, 24061 (b)(1) and (2)(iv) amended ...... 14068 226.207 Redesignated from 226.71; 223.202 Redesignated from heading revised ...... 14067 223.12 ...... 14068 226.208 Redesignated from 226.72; (b)(1) and Table amended ...... 14069 223.203 Redesignated from 223.21; heading revised ...... 14067 heading revised ...... 14068 226.209 Redesignated from 226.73; (a), (b)(1), (2) and (3) amended ...... 14069 heading revised ...... 14067 223.204 Redesignated from 223.22; 226.210 Added ...... 24061 heading revised ...... 14068 226 Figures 1 through 9 removed; Revised...... 14069 Tables 1 through 4 amended...... 14067 223.205 Redesignated from 223.71; Tables 5 and 6 added...... 24061 heading revised ...... 14068 227 Redesignated as 223 ...... 14068 Revised...... 14069 229.1 (f) revised...... 9086 223.206 Redesignated from 229.2 Amended ...... 7551, 9086 223.72 ...... 14068 229.3 (g) through (j) revised ...... 7552 Revised (effective date pending (c) amended; (e) through (p) re- in part) ...... 14070 designated as (f) through (q); 223.207 Added (effective date new (e) added...... 9086 pending in part) ...... 14073 229.4 (b)(2)(v) removed; (b)(2)(vi), 224 Added ...... 14066 (c) and (d) through (m) redesig- 224.101 (a) revised...... 14328 nated as (b)(2)(v), (vi) and (c) 225 Removed...... 14054 through (l); new (b)(2)(vi), 226.1—226.2 (Subpart A) Re- (d)(3), (e)(1), (3), (g) and (l) moved ...... 14067 amended; new (c) introductory 226.11—226.13 (Subpart B) Head- text, (3), (4), (5), (d)(1) and (2) ing removed...... 14067 amended ...... 9086 226.11 Redesignated as 226.201...... 14067 229.5 (c) and (e) amended; (d) re- 226.12 Redesignated as 226.202...... 14067 vised ...... 9087 226.13 Redesignated as 226.203...... 14067 229.6 (a) amended; (b) revised ...... 9087 226.21—226.23 (Subpart C) Head- 229.7 (c)(4)(vi) and (6) removed; ing removed...... 14067 (c)(4)(vii) through (x) redesig- 226.21 Redesignated as 226.204...... 14067 nated as (c)(4)(vi) through (ix); 226.22 Redesignated as 226.205...... 14067 (b) introductory text, (c) head- 226.23 Redesignated as 226.206...... 14067 ing, (1), (2), (4) introductory 226.71—226.73 (Subpart D) Head- text, (i), new (v), (5) and (d)(4) ing removed...... 14067 revised ...... 9087 226.71 Redesignated as 226.207...... 14067 229.8 (b)(2) revised; (c) redesig- 226.72 Redesignated as 226.208...... 14067 nated in part as (d)...... 9087 226.73 Redesignated as 226.209...... 14067 226.101 Added ...... 14067 229.9 (a)(3)(ii) revised...... 9087 226.201 Redesignated from 226.11; 229.10 (d) revised; (g)(1) amend- heading revised ...... 14067 ed...... 9087 226.202 Redesignated from 226.12; 229.11 (b) amended ...... 9088 heading revised; (c)(1), (2) and 229.20 (f) amended...... 9088 (3) amended ...... 14067 229.30 Added ...... 9088 226.203 Redesignated from 226.13; 229.31 (c)(2) and (3) revised; (c)(4) heading revised; (a) and (b) and (5) redesignated as (c)(7) amended...... 14067 and (8); new (c)(4), (5) and (6) 226.204 Redesignated from 226.21; added; interim...... 3432 heading revised ...... 14067 229.32 Revised ...... 7552
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50 CFR—Continued 64 FR 50 CFR—Continued 64 FR Page Page Chapter II—Continued Chapter III—Continued (b), (c)(3)(ii), (4)(ii), (5)(ii), 300.16 Revised ...... 15 (d)(2)(ii), (3)(ii), (4)(ii), (5)(ii) 300.17 Added ...... 15 and (f)(2) stayed...... 17292 300.20 Revised ...... 44430 229 Figure 1 revised; interim...... 3434 300.21 Amended...... 29133 230 Quotas ...... 28413, 31037 Amended ...... 44430 249.501 Form BD revised...... 37594 285 Catch limit adjustment...... 10576 300.24 Amended...... 29133 Removed...... 29133 300.25 Amended; (a)(1) revised ...... 29133 Specifications ...... 29806 300.26 Amended; (d) revised ...... 29133 Retention limit adjustment ...... 31992 300.27 Revised ...... 29133 Temporary regulations ...... 34138 300.28 (b) and (c) revised ...... 29133 285.21 (b)(7) revised; interim...... 27208 Heading revised; (a), (b), and (c) (b)(7) revised...... 30926 redesignated as (e), (f), and Chapter III (g); new (a) through (d) added 300 Fisheries management meas- ...... 44430 ures ...... 13519 300.29 Added ...... 44431 Inseason adjustment ...... 26890 300.61 Amended; eff. 10–29–99...... 52469 Nomenclature change...... 44431 300.63 Heading and introductory 300.13 (a)(1) introductory text re- text revised; (d) added; eff. 10– vised ...... 15 29–99 ...... 52469 300.14 Added ...... 15 300.60—300.65 (Subpart E) Figure 1 300.15 (c) added ...... 15 added; eff. 10–29–99...... 52470 Æ
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