50 Parts 200 to 599 Revised as of October 1, 2001
Wildlife and Fisheries
Containing a codification of documents of general applicability and future effect
As of October 1, 2001
With Ancillaries
Published by Office of the Federal Register National Archives and Records Administration
A Special Edition of the Federal Register
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For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402–0001
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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 ...... 319
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 ...... 379
Chapter V—Marine Mammal Commission ...... 421
Finding Aids:
Material Approved for Incorporation by Reference ...... 447
Table of CFR Titles and Chapters ...... 449
Alphabetical List of Agencies Appearing in the CFR ...... 467
List of CFR Sections Affected ...... 477
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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, 2001), 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, 2001.
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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, 2001.
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.
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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 77 223 Threatened marine and anadromous species ...... 98 224 Endangered marine and anadromous species ...... 171 225 [Reserved] 226 Designated critical habitat ...... 176 228 Notice and hearing on section 103(d) regulations .... 218 229 Authorization for commercial fisheries under the Marine Mammal Protection Act of 1972 ...... 225
SUBCHAPTER D—WHALING 230 Whaling provisions ...... 255
SUBCHAPTER E—TRANSPORTATION AND LABELING OF FISH OR WILDLIFE [RESERVED]
SUBCHAPTER F—AID TO FISHERIES 253 Fisheries assistance programs ...... 258 259 Capital construction fund ...... 267
SUBCHAPTER G—PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF, AND CERTAIN OTHER PROCESSED FOOD PRODUCTS 260 Inspection and certification ...... 279 3
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261 United States Standards for Grades ...... 309
SUBCHAPTERS H–J [RESERVED]
SUBCHAPTER K—CONTINENTAL SHELF 296 Fishermen’s Contingency Fund ...... 311
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PART 216—REGULATIONS GOV- 216.36 Permit conditions. 216.37 Marine mammal parts. ERNING THE TAKING AND IM- 216.38 Reporting. PORTING OF MARINE MAMMALS 216.39 Permit amendments. 216.40 Penalties and permit sanctions. Subpart A—Introduction 216.41 Permits for scientific research and enhancement. Sec. 216.42 Photography. [Reserved] 216.1 Purpose of regulations. 216.43 Public display. [Reserved] 216.2 Scope of regulations. 216.44 Applicability/transition. 216.3 Definitions. 216.45 General Authorization for Level B 216.4 Other laws and regulations. harassment for scientific research. 216.5 Payment of penalty. 216.46 U.S. citizens on foreign flag vessels 216.6 Forfeiture and return of seized prop- operating under the International Dol- erty. phin Conservation Program. 216.7 Holding and bonding. 216.47–216.49 [Reserved] 216.8 Enforcement officers. Subpart E—Designated Ports Subpart B—Prohibitions 216.50 Importation at designated ports. 216.11 Prohibited taking. 216.12 Prohibited importation. Subpart F—Pribilof Islands, Taking for 216.13 Prohibited uses, possession, transpor- Subsistence Purposes tation, sales, and permits. 216.14 Marine mammals taken before the 216.71 Allowable take of fur seals. MMPA. 216.72 Restrictions on taking. 216.15 Depleted species. 216.73 Disposition of fur seal parts. 216.16 Prohibitions under the General Au- 216.74 Cooperation with Federal officials. thorization for Level B harassment for scientific research. Subpart G—Pribilof Islands Administration Subpart C—General Exceptions 216.81 Visits to fur seal rookeries. 216.82 Dogs prohibited. 216.21 Actions permitted by international 216.83 Importation of birds or mammals. treaty, convention, or agreement. 216.84 [Reserved] 216.22 Taking by State or local government 216.85 Walrus and Otter Islands. officials. 216.86 Local regulations. 216.23 Native exceptions. 216.87 Wildlife research. 216.24 Taking and related acts incidental to commercial fishing operations by tuna Subpart H—Dolphin Safe Tuna Labeling purse seine vessels in the eastern trop- ical Pacific Ocean. 216.90 Purposes. 216.25 Exempted marine mammals and ma- 216.91 Dolphin-safe labeling standards. rine mammal products. 216.92 Dolphin-safe requirements for tuna 216.26 Collection of certain marine mammal harvested in the ETP by large purse parts without prior authorization. seine vessels. 216.27 Release, non-releasability, and dis- 216.93 Submission of documentation. position under special exception permits 216.94 Tracking and verification program. for rehabilitated marine mammals. 216.95 False statements or endorsements. 216.96 Official mark for ‘‘Dolphin-safe’’ tuna Subpart D—Special Exceptions products. 216.30 [Reserved] Subpart I—General Regulations Governing 216.31 Definitions. Small Takes of Marine Mammals Inci- 216.32 Scope. dental to Specified Activities 216.33 Permit application submission, re- view, and decision procedures. 216.101 Purpose. 216.34 Issuance criteria. 216.102 Scope. 216.35 Permit restrictions. 216.103 Definitions.
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216.104 Submission of requests. Subpart O—Taking of Marine Mammals In- 216.105 Specific regulations. cidental to Shock Testing the USS 216.106 Letter of Authorization. SEAWOLF by Detonation of Conven- 216.107 Incidental harassment authorization tional Explosives in the Offshore Waters for Arctic waters. of the U.S. Atlantic Coast 216.108 Requirements for monitoring and re- porting under incidental harassment au- 216.161 Specified activity, geographical re- thorizations for Arctic waters. gion, and incidental take levels. 216.162 Effective dates. Subpart J—Taking of Ringed Seals 216.163 Permissible methods of taking; miti- Incidental to On-Ice Seismic Activities gation. 216.164 Prohibitions. 216.111 Specified activity and specified geo- 216.165 Requirements for monitoring and re- graphical region. porting. 216.112 Effective dates. 216.166 Modifications to the Letter of Au- 216.113 Permissible methods. thorization. 216.114 Mitigation. 216.167–216.169 [Reserved] 216.115 Requirements for monitoring and re- porting. Subpart P—Taking of Marine Mammals In- 216.116 Applications for Letters of Author- cidental to Operating A Low Fre- ization. quency Acoustic Source by the North 216.117 Renewal of Letters of Authorization. Pacific Acoustic Laboratory 216.118 Modifications to Letters of Author- 216.170 Specified activity and specified geo- ization. graphical region. 216.119 [Reserved] 216.171 Effective dates. 216.172 Permissible methods of taking. Subpart K—Taking of Marine Mammals In- 216.173 Prohibitions. cidental to Space Vehicle and Test 216.174 Mitigation. Flight Activities 216.175 Requirements for monitoring and re- porting. 216.120 Specified activity and specified geo- 216.176 Letter of authorization. graphical region. 216.177 Renewal of a letter of authorization. 216.121 Effective dates. 216.178 Modifications to a letter of author- 216.122 Permissible methods of taking. ization. 216.123 Prohibitions. 216.124 Mitigation. Subpart Q [Reserved] 216.125 Requirements for monitoring and re- porting. Subpart R—Taking of Marine Mammals In- 216.126 Applications for Letters of Author- cidental to Construction and Oper- ization. ation of Offshore Oil and Gas Facilities 216.127 Renewal of Letters of Authorization. in the U.S. Beaufort Sea 216.128 Modifications of Letters of Author- ization. 216.200 Specified activity and specified geo- graphical region. Subpart L—Taking of Marine Mammals 216.201 Effective dates. 216.202 Permissible methods of taking. Incidental to Power Plant Operations 216.203 Prohibitions. 216.130 Specified activity, specified geo- 216.204 Mitigation. graphical region, and incidental take lev- 216.205 Measures to ensure availability of els. species for subsistence uses. 216.206 Requirements for monitoring and re- 216.131 Effective dates. porting. 216.132 Permissible methods of taking. 216.207 Applications for Letters of Author- 216.133 Prohibitions. ization. 216.134 Mitigation requirements. 216.208 Letters of Authorization. 216.135 Monitoring and reporting. 216.209 Renewal of Letters of Authorization. 216.136 Renewal of the Letter of Authoriza- 216.210 Modifications to Letters of Author- tion. ization. 216.137 Modifications to the Letter of Au- NOTE TO PART 216: See also 50 CFR parts 228 thorization. and 229 for regulations governing certain in- 216.138–216.140 [Reserved] cidental takings of marine mammals. AUTHORITY: 16 U.S.C. 1361 et seq., unless Subparts M—N [Reserved] otherwise noted.
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SOURCE: 39 FR 1852, Jan. 15, 1974, unless Suite 4200, Long Beach, CA 90802–4213, otherwise noted. or his or her designee. Agreement on the International Dolphin Subpart A—Introduction Conservation Program (Agreement on the IDCP) means the Agreement estab- § 216.1 Purpose of regulations. lishing the formal binding IDCP that The regulations in this part imple- was signed in Washington, DC on May ment the Marine Mammal Protection 21, 1998. Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361– Alaskan Native means a person de- 1407, Pub. L. 92–522, which, among other fined in the Alaska Native Claims Set- things, restricts the taking, possession, tlement Act (43 U.S.C. 1602(b)) (85 Stat. transportation, selling, offering for 588) as a citizen of the United States sale, and importing of marine mam- who is of one-fourth degree or more mals. Alaska Indian (including Tsimishian Indians enrolled or not enrolled in the § 216.2 Scope of regulations. Metlaktla Indian Community), Es- This part 216 applies solely to marine kimo, or Aleut blood or combination mammals and marine mammal prod- thereof. The term includes any Native, ucts as defined in § 216.3. For regula- as so defined, either or both of whose tions under the MMPA, with respect to adoptive parents are not Natives. It other marine mammals and marine also includes, in the absence of proof of mammal products, see 50 CFR part 18. a minimum blood quantum, any citizen [39 FR 1852, Jan. 15, 1974, as amended at 59 of the United States who is regarded as FR 50375, Oct. 3, 1994] an Alaska Native by the Native village or group, of which he claims to be a § 216.3 Definitions. member and whose father or mother is In addition to definitions contained (or, if deceased, was) regarded as Na- in the MMPA, and unless the context tive by any Native village or Native otherwise requires, in this part 216: group. Any such citizen enrolled by the Acts means, collectively, the Marine Secretary of the Interior pursuant to Mammal Protection Act of 1972, as section 5 of the Alaska Native Claims amended, 16 U.S.C. 1361 et seq., the En- Settlement Act shall be conclusively dangered Species Act of 1973, as amend- presumed to be an Alaskan Native for ed, 16 U.S.C. 1531 et seq., and the Fur purposes of this part. Seal Act of 1966, as amended, 16 U.S.C. Article of handicraft means items 1151 et seq. made by an Indian, Aleut or Eskimo Active sportfishing means paying pas- from the nonedible byproducts of fur sengers have their terminal fishing seals taken for personal or family con- gear (lures, hooks, etc.) in the water in sumption which— an attempt to catch fish or, in the case (1) Were commonly produced by Alas- of fishing involving chumming, fishing kan Natives on or before October 14, is considered to be in progress from the 1983; instant fish have been sighted taking (2) Are composed wholly or in some bait (boiling) during that chumming significant respect of natural mate- process. rials, and; Administrator, Northeast Region means (3) Are significantly altered from Administrator, Northeast Region, Na- their natural form and which are pro- tional Marine Fisheries Service, One duced, decorated, or fashioned in the Blackburn Drive, Gloucester, MA 01930– exercise of traditional native handi- 2298. crafts without the use of pantographs, Administrator, Southeast Region means multiple carvers, or similar mass copy- Administrator, Southeast Region, Na- ing devices. Improved methods of pro- tional Marine Fisheries Service, 9721 duction utilizing modern implements Executive Center Drive, St. Peters- such as sewing machines or modern burg, FL 33702–2432. tanning techniques at a tannery reg- Administrator, Southwest Region istered pursuant to § 216.23(c) may be means the Regional Administrator, used so long as no large scale mass pro- Southwest Region, National Marine duction industry results. Traditional Fisheries Service, 501 W. Ocean Blvd., native handicrafts include, but are not
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limited to, weaving, carving, stitching, 101(a)(5)(D) of the MMPA, and sections sewing, lacing, beading, drawing, and 7(b)(4) and 10(a)(1)(B) of the ESA). painting. The formation of traditional Carrying capacity means the Regional native groups, such as a cooperative, is Director’s determination of the max- permitted so long as no large scale imum amount of fish that a vessel can mass production results. carry in short tons based on the great- Assistant Administrator means the As- er of the amount indicated by the sistant Administrator for Fisheries, builder of the vessel, a marine sur- National Marine Fisheries Service, Na- veyor’s report, or the highest amount tional Oceanic and Atmospheric Ad- reported landed from any one trip. ministration, Silver Spring, MD 20910, Certified charter vessel means a fishing or his/her designee. vessel of a non-U.S. flag nation, which Authentic native articles of handicrafts is operating under the jurisdiction of and clothing means items made by an the marine mammal laws and regula- Indian, Aleut or Eskimo which (a) were tions of another, harvesting, nation by commonly produced on or before De- a formal declaration entered into by cember 21, 1972, and (b) are composed mutual agreement of the nations. wholly or in some significant respect of Co-investigator means the on-site rep- natural materials, and (c) are signifi- resentative of a principal investigator. cantly altered from their natural form Commercial fishing operation means and which are produced, decorated, or the lawful harvesting of fish from the fashioned in the exercise of traditional marine environment for profit as part native handicrafts without the use of of an ongoing business enterprise. Such pantographs, multiple carvers, or simi- terms may include licensed com- lar mass copying devices. Improved mercial passenger fishing vessel (as methods of production utilizing mod- defined) activities, but no other sport- ern implements such as sewing ma- fishing activities, whether or not the 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 Declaration of Panama means the dec- conducted by qualified personnel, the laration signed in Panama City, Repub- results of which: lic of Panama, on October 4, 1995. (i) Likely would be accepted for pub- Director, Office of Protected Resources lication in a refereed scientific journal; means Director, Office of Protected Re- (ii) Are likely to contribute to the sources, National Marine Fisheries basic knowledge of marine mammal bi- Service, 1315 East-West Highway, Sil- ology or ecology. (Note: This includes, ver Spring, MD 20910. for example, marine mammal parts in Dolphin Mortality Limit (DML) means a properly curated, professionally ac- the maximum allowable number of in- credited scientific collection); or cidental dolphin mortalities per cal- (iii) Are likely to identify, evaluate, endar year assigned to a vessel, unless or resolve conservation problems. a shorter time period is specified. (2) Research that is not on marine Endangered Species means a species or mammals, but that may incidentally subspecies of marine mammal listed as take marine mammals, is not included ‘‘endangered’’ pursuant to the Endan- in this definition (see sections gered Species Act of 1973, 87 Stat. 884, 101(a)(3)(A), 101(a)(5)(A), and Pub. L. 93–205 (see part 17 of this title).
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ESA means the Endangered Species Fur seal means North Pacific fur seal, Act of 1973, as amended, 16 U.S.C. 1531 scientifically known as Callorhinus et seq. ursinus. ETP means the eastern tropical Pa- Hard part means any bone, tooth, cific Ocean which includes the Pacific baleen, treated pelt, or other part of a Ocean area bounded by 40° N. latitude, marine mammal that is relatively solid 40° S. latitude, 160° W. longitude and or durable. the coastlines of North, Central and Harvesting nation means the country South America. under whose flag one or more fishing Facility means, in the context specific vessels are documented, or which has to captive marine mammals,: (1) One or by formal declaration agreed to assert more permanent primary enclosures jurisdiction over one or more certified used to hold marine mammals captive charter vessels, from which vessel(s) (i.e., pools, lagoons) and associated in- fish are caught that are a part of any frastructure (i.e., equipment and sup- cargo or shipment of fish to be im- plies necessary for the care and main- ported into the United States, regard- tenance of marine mammals) where less of any intervening transshipments. these enclosures are either located Humane means the method of taking, within the boundaries of a single con- import, export, or other activity which tiguous parcel of land and water, or are involves the least possible degree of grouped together within the same gen- pain and suffering practicable to the eral area within which enclosure-to-en- animal involved. closure transport is expected to be Import means to land on, bring into, completed in less than one hour; or or introduce into, or attempt to land (2) A traveling display/exhibit, where on, bring into, or introduce into, any the enclosure(s) and associated infra- place subject to the jurisdiction of the structure is transported together with United States, whether or not such the marine mammals. 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(f)(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 commercial fishing operations. § 216.24(f)(5). Intentional purse seine set means that Force majeure means forces outside a tuna purse seine vessel or associated the vessel operator’s or vessel owner’s vessels chase marine mammals and control that could not be avoided by subsequently make a purse seine set. the exercise of due care. International Dolphin Conservation FSA means the Fur Seal Act of 1966, Program (IDCP) means the inter- as amended, 16 U.S.C. 1151 et seq. national program established by the
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agreement signed in La Jolla, Cali- webbing, or a series of such gillnets, fornia, in June 1992, as formalized, with a total length of 2.5 kilometers or modified, and enhanced in accordance more that is used on the high seas and with the Declaration of Panama and allowed to drift with the currents and the Agreement on the IDCP. winds for the purpose of harvesting fish International Dolphin Conservation by entangling the fish in the webbing Program Act (IDCPA) means Public Law of the net. 105–42, enacted into law on August 15, Level A Harassment means any act of 1997. pursuit, torment, or annoyance which International Review Panel (IRP) has the potential to injure a marine means the International Review Panel mammal or marine mammal stock in established by the Agreement on the the wild. IDCP. Intrusive research means a procedure Level B Harassment means any act of conducted for bona fide scientific re- pursuit, torment, or annoyance which search involving: A break in or cutting has the potential to disturb a marine of the skin or equivalent, insertion of mammal or marine mammal stock in an instrument or material into an ori- the wild by causing disruption of be- fice, introduction of a substance or ob- havioral patterns, including, but not ject into the animal’s immediate envi- limited to, migration, breathing, nurs- ronment that is likely either to be in- ing, breeding, feeding, or sheltering but gested or to contact and directly affect which does not have the potential to animal tissues (i.e., chemical sub- injure a marine mammal or marine stances), or a stimulus directed at ani- mammal stock in the wild. mals that may involve a risk to health Marine environment means the oceans or welfare or that may have an impact and the seas, including estuarine and on normal function or behavior (i.e., brackish waters. audio broadcasts directed at animals Marine mammal means those speci- that may affect behavior). For captive mens of the following orders, which are animals, this definition does not in- morphologically adapted to the marine clude: environment, whether alive or dead, (1) A procedure conducted by the pro- and any part thereof, including but not fessional staff of the holding facility or limited to, any raw, dressed or dyed fur an attending veterinarian for purposes of animal husbandry, care, mainte- or skin: Cetacea (whales and por- nance, or treatment, or a routine med- poises), Pinnipedia, other than walrus ical procedure that, in the reasonable (seals and sea lions). judgment of the attending veteri- MMPA means the Marine Mammal narian, would not constitute a risk to Protection Act of 1972, as amended, 16 the health or welfare of the captive U.S.C. 1361 et seq. animal; or Native village or town means any com- (2) A procedure involving either the munity, association, tribe, band, clan introduction of a substance or object or group. (i.e., as described in this definition) or Optimum sustainable population is a a stimulus directed at animals that, in population size which falls within a the reasonable judgment of the attend- range from the population level of a ing veterinarian, would not involve a given species or stock which is the risk to the health or welfare of the cap- largest supportable within the eco- tive animal. system to the population level that re- Label means a display of written, sults in maximum net productivity. printed, or graphic matter on or affixed Maximum net productivity is the to the immediate container of any arti- greatest net annual increment in popu- cle. lation numbers or biomass resulting Land or landing means to begin off- loading any fish, to arrive in port with from additions to the population due to the intention of offloading fish, or to reproduction and/or growth less losses cause any fish to be offloaded. due to natural mortality. Large-scale driftnet means a gillnet Per-stock per-year dolphin mortality that is composed of a panel or panels of limit means the maximum allowable
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number of incidental dolphin mortali- turn to the water, or is in the water ties and serious injuries from a speci- within the Exclusive Economic Zone of fied stock per calendar year, as estab- the United States where the water is so lished under the IDCP. shallow that the specimen is unable to Pregnant means pregnant near term. return to its natural habitat under its Pribilovians means Indians, Aleuts, own power. and Eskimos who live on the Pribilof Subsistence means the use of marine Islands. mammals taken by Alaskan Natives Principal investigator means the indi- for food, clothing, shelter, heating, vidual primarily responsible for the transportation, and other uses nec- taking, importation, export, and any essary to maintain the life of the taker related activities conducted under a or those who depend upon the taker to permit issued for scientific research or provide them with such subsistence. enhancement purposes. Subsistence uses means the customary Public display means an activity that and traditional uses of fur seals taken provides opportunities for the public to by Pribilovians for direct personal or view living marine mammals at a facil- family consumption as food, shelter, ity holding marine mammals captive. fuel, clothing, tools or transportation; Regional Director means the Director, for the making and selling of handi- Southwest Region, NMFS, 501 W. Ocean craft articles out of nonedible byprod- Blvd., Long Beach, CA 90802, or his/her ucts of fur seals taken for personal or designee. family consumption; and for barter, or Rehabilitation means treatment of sharing for personal or family con- beached and stranded marine mammals sumption. As used in this definition— taken under section 109(h)(1) of the (1) Family means all persons related MMPA or imported under section by blood, marriage, or adoption, or any 109(h)(2) of the MMPA, with the intent person living within a household on a of restoring the marine mammal’s permanent basis. health and, if necessary, behavioral (2) Barter means the exchange of fur patterns. seals or their parts, taken for subsist- Secretary shall mean the Secretary of ence uses— Commerce or his authorized represent- (i) For other wildlife or fish or their ative. parts, or Serious injury means any injury that (ii) For other food or for nonedible will likely result in mortality. 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
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empty of fish and ending when a vessel alty, the Secretary may request the unloads all of its fish. Attorney General to institute a civil Tuna product means any food product action in the appropriate United States processed for retail sale and intended District Court to collect the penalty. for human or animal consumption that [39 FR 1852, Jan. 15, 1974. Redesignated at 46 contains an item listed in FR 61652, Dec. 18, 1981] § 216.24(f)(2)(i) or (ii), but does not in- clude perishable items with a shelf life § 216.6 Forfeiture and return of seized of less than 3 days. property. Wasteful manner means any taking or (a) Whenever any cargo or marine method of taking which is likely to re- mammal or marine mammal product sult in the killing of marine mammals has been seized pursuant to section 107 beyond those needed for subsistence, of the MMPA, the Secretary shall expe- subsistence uses, or for the making of dite any proceedings commenced under authentic native articles of handicrafts these regulations. 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, which appears in the Finding toward payment of the civil penalty. Aids section of the printed volume and on (c) Whenever a civil penalty has been GPO Access. 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- paid, the Secretary may request the trator, Southeast Region was added, effective Attorney General to institute a civil Jan. 1, 1999 through Sept. 30, 2004. action in an appropriate United States 2. At 64 FR 28120, May 25, 1999, in § 216.3, the District Court to compel forfeiture of definition Administrator, Northeast Region was such seized property or the monetary added, effective July 1, 1999 through June 30, value thereof to the Secretary for dis- 2004. position by him in such manner as he § 216.4 Other laws and regulations. deems appropriate. If no judicial action to compel forfeiture is commenced (a) Federal. Nothing in this part, nor within 30 days after final decision- any permit issued under authority of making assessment of a civil penalty, this part, shall be construed to relieve pursuant to § 216.60, such seized prop- a person from any other requirements erty shall immediately be returned to imposed by a statute or regulation of the respondent. the United States, including any appli- (d) If the final decision of the Sec- cable statutes or regulations relating retary under these regulations is that to wildlife and fisheries, health, quar- respondent has committed no violation antine, agriculture, or customs. of the MMPA or of any permit or regu- (b) State laws or regulations. See part lations issued thereunder, any marine 403 of this chapter. 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, connection with the proceedings under 1993] these regulations, or the bond or other monetary value substituted therefor, § 216.5 Payment of penalty. 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
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such proceedings result in a finding ject to forfeiture or has been forfeited that the person accused is not guilty of under the MMPA. a criminal violation of the MMPA, the [39 FR 1852, Jan. 15, 1974. Redesignated at 46 Secretary may institute proceedings FR 61652, Dec. 18, 1981, and amended at 50 FR for the assessment of a civil penalty 12785, Apr. 1, 1985; 59 FR 50375, Oct. 3, 1994] under this part: Provided, That if no such civil penalty proceedings have § 216.8 Enforcement officers. been commenced by the Secretary Enforcement Agents of the National within 30 days following the final dis- Marine Fisheries Service shall enforce position of the criminal case, any prop- the provisions of the MMPA and may erty seized pursuant to section 107 of take any actions authorized by the the MMPA shall be returned to the re- MMPA with respect to enforcement. In spondent. addition, the Secretary may utilize, by (f) If any seized property is to be re- agreement, the personnel, services, and turned to the respondent, the Regional facilities of any other Federal Agency Director shall issue a letter author- for the purposes of enforcing this izing such return. This letter shall be MMPA. Pursuant to the terms of sec- dispatched to the respondent by reg- tion 107(b) of the MMPA, the Secretary istered mail, return receipt requested, may also designate officers and em- and shall identify the respondent, the ployees of any State or of any posses- seized property, and, if appropriate, the sion of the United States to enforce the bailee of the seized property. It shall provisions of this MMPA. also provide that upon presentation of the letter and proper identification, [39 FR 1852, Jan. 15, 1974. Redesignated at 46 the seized property is authorized to be FR 61652, Dec. 18, 1981, and amended at 59 FR 50375, Oct. 3, 1994] released. All charges for storage, care, or handling of the seized property ac- cruing 5 days or more after the date of Subpart B—Prohibitions the return receipt shall be for the ac- count of the respondent: Provided, That § 216.11 Prohibited taking. if it is the final decision of the Sec- Except as otherwise provided in sub- retary under these regulations that the parts C, D, and I of this part 216 or in respondent has committed the alleged part 228 or 229, it is unlawful for: violation, all charges which have ac- (a) Any person, vessel, or conveyance crued for the storage, care, or handling subject to the jurisdiction of the of the seized property shall be for the United States to take any marine account of the respondent. mammal on the high seas, or (b) Any person, vessel, or conveyance [39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 59 FR to take any marine mammal in waters 50375, Oct. 3, 1994] or on lands under the jurisdiction of the United States, or § 216.7 Holding and bonding. (c) Any person subject to the juris- 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 Regional Director of the National Ma- FR 21254, May 18, 1982; 54 FR 21921, May 19, rine Fisheries Service (see § 201.2 of this 1989] title) or his designee, who shall either hold such seized property or arrange § 216.12 Prohibited importation. 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
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is unlawful for any person to import of the MMPA or these regulations, or into the United States any: to transport, sell, or offer for sale any (1) Marine mammal: such marine mammal or any marine (i) Taken in violation of the MMPA, mammal product made from any such or mammal. (ii) Taken in another country in vio- (c) Any person subject to the juris- lation to the laws of that country; diction of the United States to use in a (2) Any marine mammal product if commercial fishery, any means or (i) The importation into the United method of fishing in contravention of States of the marine mammal from regulations and limitations issued by which such product is made would be the Secretary of Commerce for that unlawful under paragraph (b)(1) of this fishery to achieve the purposes of this section, or MMPA. (ii) The sale in commerce of such (d) Any person to violate any term, product in the country of origin if the condition, or restriction of any permit product is illegal. issued by the Secretary. (c) Except in accordance with an ex- ception referred to in subpart C and [39 FR 1852, Jan. 15, 1974, as amended at 59 §§ 216.31 (regarding scientific research FR 50375, 50376, Oct. 3, 1994; 61 FR 21933, May 10, 1996] permits only) and 216.32 of this part 216, it is unlawful to import into the United § 216.14 Marine mammals taken before States any: the MMPA. (1) Marine mammal which was preg- nant at the time of taking. (a) Section 102(e) of the MMPA pro- (2) Marine mammal which was nurs- vides, in effect, that the MMPA shall ing at the time of taking, or less than not apply to any marine mammal 8 months old, whichever occurs later. taken prior to December 21, 1972, or to (3) Specimen of an endangered or any marine mammal product, con- threatened species of marine mammal. sisting of or composed in whole or in (4) Specimen taken from a depleted part of, any marine mammal taken be- species or stock of marine mammals, fore that date. This prior status of any or marine mammal or marine mammal (5) Marine mammal taken in an inhu- product may be established by submit- mane manner. ting to the Director, National Marine (d) It is unlawful to import into the Fisheries Service prior to, or at the United States any fish, whether fresh, time of importation, an affidavit con- frozen, or otherwise prepared, if such taining the following: fish was caught in a manner proscribed (1) The Affiant’s name and address; by the Secretary of Commerce for per- (2) Identification of the Affiant; sons subject to the jurisdiction of the (3) A description of the marine mam- United States, whether or not any ma- mals or marine mammal products rine mammals were in fact taken inci- which the Affiant desires to import; dent to the catching of the fish. (4) A statement by the Affiant that, to the best of his knowledge and belief, [39 FR 1852, Jan. 15, 1974, as amended at 59 the marine mammals involved in the FR 50375, Oct. 3, 1994] application were taken prior to Decem- § 216.13 Prohibited uses, possession, ber 21, 1972; transportation, sales, and permits. (5) A statement by the Affiant in the It is unlawful for: following language: (a) Any person to use any port, har- The foregoing is principally based on the bor or other place under the jurisdic- attached exhibits which, to the best of my tion of the United States for any pur- 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- portation of—under the Marine Mammal mammal product; or Protection Act of 1972 (16 U.S.C. 1361 through (b) Any person subject to the juris- 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
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U.S.C. 1001, or to penalties under the Marine Bay, Prince William Sound, Yakutat Mammal Protection Act of 1972. Bay, Shelikof Strait, and off Kodiak Is- (b) Either one of two exhibits shall be land and freshwater tributaries to attached to such affidavit, and will these waters. contain either: [53 FR 17899, May 18, 1988, as amended at 58 (1) Records or other available evi- FR 17791, Apr. 6, 1993; 58 FR 45074, Aug. 26, dence showing that the product con- 1993; 58 FR 58297, Nov. 1, 1993; 59 FR 50376, sists of or is composed in whole or in Oct. 3, 1994; 65 FR 34597, May 31, 2000] part of marine mammals taken prior to the effective date of the MMPA. Such § 216.16 Prohibitions under the Gen- records or other evidentiary material eral Authorization for Level B har- must include information on how, assment for scientific research. when, where, and by whom the animals It shall be unlawful for any person were taken, what processing has taken to: place since taking, and the date and lo- (a) Provide false information in a let- cation of such processing; or ter of intent submitted pursuant to (2) A statement from a government § 216.45(b); agency of the country of origin exer- (b) Violate any term or condition im- cising jurisdiction over marine mam- posed pursuant to § 216.45(d). mals that any and all such mammals from which the products sought to be [59 FR 50376, Oct. 3, 1994] imported were derived were taken prior to December 21, 1972. Subpart C—General Exceptions (c) No pre-Act marine mammal or pre-Act marine mammal product may § 216.21 Actions permitted by inter- be imported unless the requirements of national treaty, convention, or agreement. this section have been fulfilled. (d) This section has no application to The MMPA and these regulations any marine mammal or marine mam- shall not apply to the extent that they mal product intended to be imported are inconsistent with the provisions of pursuant to §§ 216.21, 216.31 or § 216.32. any international treaty, convention or agreement, or any statute imple- [39 FR 1852, Jan. 15, 1974, as amended at 59 menting the same relating to the tak- FR 50375, 50376, Oct. 3, 1994] ing or importation of marine mammals § 216.15 Depleted species. or marine mammal products, which was existing and in force prior to De- The following species or population cember 21, 1972, and to which the stocks have been designated by the As- United States was a party. Specifi- sistant Administrator as depleted cally, the regulations in subpart B of under the provisions of the MMPA. this part and the provisions of the (a) Hawaiian monk seal (Monachus MMPA shall not apply to activities schauinslandi). carried out pursuant to the Interim (b) Bowhead whale (Balaena mystice- Convention on the Conservation of tus). (c) North Pacific fur seal (Callorhinus North Pacific Fur Seals signed at ursinus). Pribilof Island population. Washington on February 9, 1957, and (d) Bottlenose dolphin (Tursiops the Fur Seal Act of 1966, 16 U.S.C. 1151 truncatus), coastal-migratory stock through 1187, as in each case, from along the U.S. mid-Atlantic coast. time to time amended. (e) Eastern spinner dolphin (Stenella [39 FR 1852, Jan. 15, 1974, as amended at 59 longirostris orientalis). FR 50376, Oct. 3, 1994] (f) Northeastern offshore spotted dol- phin (Stenella attenuata). § 216.22 Taking by State or local gov- (g) Cook Inlet, Alaska, stock of ernment officials. beluga whales (Delphinapterus leucas). (a) A State or local government offi- The stock includes all beluga whales cial or employee may take a marine occurring in waters of the Gulf of Alas- mammal in the normal course of his ka north of 58° North latitude includ- duties as an official or employee, and ing, but not limited to, Cook Inlet, no permit shall be required, if such Kamishak Bay, Chinitna Bay, Tuxedni taking:
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(1) Is accomplished in a humane and conservation responsibilities in manner; marine shoreline areas; or a person au- (2) Is for the protection or welfare of thorized under 16 U.S.C. 1382(c) may such mammal or for the protection of take and salvage a marine mammal the public health or welfare; and specimen if it is stranded and dead or it (3) Includes steps designed to insure was stranded or rescued and died dur- return of such mammal, if not killed in ing treatment, transport, captivity or the course of such taking, to its nat- other rehabilitation subsequent to that ural habitat. In addition, any such offi- stranding or distress if salvage is for cial or employee may, incidental to the purpose of utilization in scientific such taking, possess and transport, but research or for the purpose of mainte- not sell or offer for sale, such mammal nance in a properly curated, profes- and use any port, harbor, or other place sionally accredited scientific collec- under the jurisdiction of the United tion. States. All steps reasonably prac- (2) Registration. A person salvaging a ticable under the circumstances shall dead marine mammal specimen under be taken by any such employee or offi- this section must register the salvage cial to prevent injury or death to the of the specimen with the appropriate marine mammal as the result of such Regional Office of the National Marine taking. Where the marine mammal in Fisheries Service within 30 days after question is injured or sick, it shall be the taking or death occurs. The reg- permissible to place it in temporary istration must include: 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 section shall be included in a written (iii) A description of the parts report to be submitted to the Secretary salvaged; every six months beginning December (iv) The date and the location of the 31, 1973. Unless otherwise permitted by taking; 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.
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(5) Transfer without prior authoriza- (7) Tranfers outside of the United tion. A person who salvages a marine States. A person who salvages a marine mammal specimen under this section mammal specimen, or a person who has may transfer that specimen to another received a marine mammal specimen person if: under the provisions of this section, (i) The person transferring the ma- may not transfer that specimen to a rine mammal specimen does not re- person outside of the United States un- ceive remuneration for the specimen; less the Assistant Administrator (ii) The person receiving the marine grants prior written authorization for mammal specimen is an employee of the transfer. The Assistant Adminis- the National Marine Fisheries Service, trator may grant authorization for the the U.S. Fish and Wildlife Service, or transfer if there is evidence that the any other Federal agency with jurisdic- conditions listed under paragraphs tion and conservation responsibilities (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this in marine shoreline areas; is a person section are met. authorized under 16 U.S.C. 1382(c); or is (8) Exceptions to requirements for notifi- a person who has received prior author- cation or prior authorization. A person ization under paragraph (c)(6) of this may transfer a marine mammal speci- section; men salvaged under this section with- (iii) The marine mammal specimen is out the notification required in para- transferred for the purpose of scientific graph (c)(5)(v) of this section or the 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 within the United States so that anal- (iv) The unique number assigned by yses can be performed for the person the National Marine Fisheries Service salvaging the specimen; or is on, marked on, or affixed to the ma- (ii) The transfer is a loan of not more rine mammal specimen or container; than 1 year to another professionally and accredited scientific collection within (v) Except as provided under para- the United States. graph (c)(8) of this section, the person 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:
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(i) It is being sent by an Alaskan Na- received from Indians, Aleuts, or Eski- tive directly or through a registered mos pursuant to this section; agent to a tannery registered under (iv) Such other information as the paragraph (c) of this section for the Secretary may request; purpose of processing, and will be re- (v) A certification in the following turned directly or through a registered language: agent to the Alaskan Native; or (ii) It is sold or transferred to a reg- I hereby certify that the foregoing infor- istered agent in Alaska for resale or mation is complete, true and correct to the transfer to an Alaskan Native; or best of my knowledge and belief. I under- stand that this information is submitted for (iii) It is an edible portion and it is the purpose of obtaining the benefit of an ex- sold in an Alaskan Native village or ception under the Marine Mammal Protec- town. tion Act of 1972 (16 U.S.C. 1361 through 1407) (2) No marine mammal taken for pur- and regulations promulgated thereunder, and poses of creating and selling authentic that any false statement may subject me to native articles of handicraft and cloth- the criminal penalties of 18 U.S.C. 1001, or to ing may be sold or otherwise trans- penalties under the Marine Mammal Protec- ferred to any person other than an In- tion Act of 1972. dian, Aleut or Eskimo, or delivered, (vi) The signature of the applicant. carried, transported or shipped in The sufficiency of the application shall interstate or foreign commerce, unless: be determined by the Secretary, and in (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 will be returned directly or through a a tannery or other agent shall be sub- registered agent to the Indian, Aleut or ject to such conditions as the Sec- Eskimo; or retary prescribes, which may include, (ii) It is sold or transferred to a reg- but are not limited to, provisions re- istered agent for resale or transfer to garding records, inventory segregation, an Indian, Aleut, or Eskimo; or reports, and inspection. The Secretary (iii) It has first been transformed may charge a reasonable fee for proc- into an authentic native article of essing such applications, including an handicraft or clothing; or appropriate apportionment of overhead (iv) It is an edible portion and sold and administrative expenses of the De- (A) in an Alaskan Native village or partment of Commerce. town, or (B) to an Alaskan Native for (d) Notwithstanding the preceding his consumption. provisions of this section, whenever, (c) Any tannery, or person who wish- under the MMPA, the Secretary deter- es to act as an agent, within the juris- mines any species of stock of marine diction of the United States may apply mammals to be depleted, he may pre- to the Director, National Marine Fish- scribe regulations pursuant to section eries Service, U.S. Department of Com- 103 of the MMPA upon the taking of merce, Washington, DC 20235, for reg- such marine animals by any Indian, istration as a tannery or an agent Aleut, or Eskimo and, after promulga- which may possess and process marine tion of such regulations, all takings of mammal products for Indians, Aleuts, such marine mammals shall conform or Eskimos. The application shall in- to such regulations. clude the following information: (e) Marking and reporting of Cook Inlet (i) The name and address of the appli- Beluga Whales. (1) Definitions. In addi- cant; tion to definitions contained in the (ii) A description of the applicant’s MMPA and the regulations in this part: procedures for receiving, storing, proc- (i) Reporting means the collection and essing, and shipping materials; delivery of biological data, harvest (iii) A proposal for a system of book- data, and other information regarding keeping and/or inventory segregation the effect of taking a beluga whale by which the applicant could maintain (Delphinapterus leucas) from Cook Inlet, accurate records of marine mammals as required by NMFS.
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(ii) Whaling captain or vessel operator reporting form as required by para- means the individual who is identified graph (e) of this section. by Alaskan Natives as the leader of (5) The Anchorage Field Office of each hunting team (usually the other NMFS is located in room 517 of the crew on the boat) and who is the whal- Federal Office Building, 222 West 7th Av- ing captain; or the individual operating enue; its mailing address is: NMFS, the boat at the time the whale is har- Box 43, Anchorage, AK. 99513. vested or transported to the place of [39 FR 1852, Jan. 15, 1974, as amended at 59 processing. FR 50376, Oct. 3, 1994; 64 FR 27927, May 24, (iii) Cook Inlet means all waters of 1999] Cook Inlet north of 59° North latitude, including, but not limited to, waters of § 216.24 Taking and related acts inci- Kachemak Bay, Kamishak Bay, dental to commercial fishing oper- Chinitna Bay, and Tuxedni Bay. ations by tuna purse seine vessels (2) Marking. Each whaling captain or in the eastern tropical Pacific vessel operator, upon killing and land- Ocean. ing a beluga whale (Delphinapterus (a)(1) No marine mammal may be leucas) from Cook Inlet, Alaska, must taken in the course of a commercial remove the lower left jawbone, leaving fishing operation by a United States the teeth intact and in place. When purse seine fishing vessel in the ETP multiple whales are harvested during unless the taking constitutes an inci- one hunting trip, the jawbones will be dental catch as defined in § 216.3, and marked for identification in the field vessel and operator permits have been to ensure correct reporting of harvest obtained in accordance with these reg- information by placing a label marked ulations, and such taking is not in vio- with the date, time, and location of lation of such permits or regulations. harvest within the container in which (2)(i) It is unlawful for any person the jawbone is placed. The jawbone(s) using a United States purse seine fish- must be retained by the whaling cap- ing vessel of 400 short tons (st) (362.8 tain or vessel operator and delivered to metric tons (mt)) carrying capacity or NMFS at the Anchorage Field Office, less to intentionally deploy a net on or 222 West 7th Avenue, Anchorage, Alaska to encircle dolphins, or to carry more 99513 within 72 hours of returning from than two speedboats, if any part of its the hunt. fishing trip is in the ETP. (3) Reporting. Upon delivery to NMFS (ii) It is unlawful for any person of a jawbone, the whaling captain or using a United States purse seine fish- vessel operator must complete and ing vessel of greater than 400 short tons mail a reporting form, available from (362.8 mt) carrying capacity that does NMFS, to the NMFS Anchorage Field not have a valid permit obtained under Office within 30 days. A separate form these regulations to catch, possess, or is required for each whale harvested. land tuna if any part of the vessel’s (i) To be complete, the form must fishing trip is in the ETP. contain the following information: the (iii) It is unlawful for any person sub- date and location of kill, the method of ject to the jurisdiction of the United harvest, and the coloration of the States to receive, purchase, or possess whale. The respondent will also be in- tuna caught, possessed, or landed in vited to report on any other observa- violation of paragraph (a)(2)(ii) of this tions concerning the animal or cir- section. cumstance of the harvest. (iv) It is unlawful for a person subject (ii) Data collected pursuant to para- to the jurisdiction of the United States graph (e) of this section will be re- to intentionally deploy a purse seine ported on forms obtained from the An- net on, or to encircle, dolphins from a chorage Field Office. These data will be vessel operating in the ETP when the maintained in the NMFS Alaska Re- DML assigned to that vessel has been gional Office in Juneau, Alaska, where reached, or when there is not a DML such data will be available for public assigned to that vessel. review. (3) Upon written request made in ad- (4) No person may falsify any infor- vance of entering the ETP, the limita- mation required to be set forth on the tions in paragraphs (a)(2)(i) and
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(a)(2)(ii) of this section may be waived (including observers). A vessel owner or by the Administrator, Southwest Re- operator who is at sea on a fishing trip gion, for the purpose of allowing tran- when his or her permit expires and to sit through the ETP. The waiver will whom a permit for the next year has provide, in writing, the terms and con- been issued may take marine mammals ditions under which the vessel must op- under the terms of the new permit erate, including a requirement to re- without having to display it on board port by radio to the Administrator, the vessel until the vessel returns to Southwest Region, the vessel’s date of port. exit from or subsequent entry into the (4) Application for vessel permit. The permit area. owner or managing owner of a purse (b) Permits—(1) Vessel permit. The seine vessel may apply for a vessel per- owner or managing owner of a United mit from the Administrator, South- States purse seine fishing vessel of west Region, allowing at least 45 days greater than 400 st (362.8 mt) carrying for processing. The application must be capacity that participates in commer- signed by the applicant and contain: cial fishing operations in the ETP must (i) The name, official number, ton- possess a valid vessel permit issued nage, carrying capacity in short or under this paragraph (b) of this sec- metric tons, maximum speed in knots, tion. This permit is not transferable processing equipment, and type and and must be renewed annually. If a ves- quantity of gear, including an inven- sel permit holder surrenders his/her tory of equipment required under para- permit to the Administrator, South- graph (c)(2) of this section if the appli- west Region, the permit will not be re- cation is for purse seining involving turned and a new permit will not be the intentional taking of marine mam- issued before the end of the calendar mals, of the vessel that is to be covered year. Vessel permits are valid through under the permit; December 31 of each year. (ii) A statement of whether the vessel (2) Operator permit. The person in will make sets involving the inten- charge of and actually controlling fish- tional taking of marine mammals; ing operations (hereinafter referred to as the operator) on a United States (iii) The type and identification num- purse seine fishing vessel engaged in ber(s) of Federal, State, and local com- commercial fishing operations under a mercial fishing licenses under which vessel permit must possess a valid op- vessel operations are conducted, and erator permit issued under paragraph the dates of expiration; (b) of this section. Such permits are (iv) The name(s) of the operator(s) not transferable and must be renewed anticipated to be used; and annually. To receive a permit, the op- (v) The name of the applicant, wheth- erator must have satisfactorily com- er he/she is the owner or the managing pleted all required training under para- owner, his/her address, telephone and graph (c)(4) of this section. The opera- fax numbers, and, if applicable, the tor’s permit is valid only when the per- name, address, telephone and fax num- mit holder is on a vessel with a valid bers of the agent or organization act- vessel permit. Operator permits will be ing on behalf of the vessel. valid through December 31 of each (5) Application for operator permit. A year. person wishing to operate a purse seine (3) Possession and display. A valid ves- vessel may apply for an operator per- sel permit issued pursuant to para- mit from the Administrator, South- graph (b)(1) of this section must be on west Region, allowing at least 45 days board the vessel while engaged in fish- for processing. The application must be ing operations, and a valid operator signed by the applicant or the appli- permit issued pursuant to paragraph cant’s representative, if applicable, and (b)(2) of this section must be in the pos- contain: session of the operator to whom it was (i) The name, address, telephone and issued. Permits must be shown upon re- fax numbers of the applicant; quest to NMFS enforcement agents, or (ii) The type and identification num- to U.S. Coast Guard officers, or to des- ber(s) of any Federal, state, and local ignated agents of NMFS or the IATTC fishing licenses held by the applicant;
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(iii) The name of the vessel(s) on erally, to the penalties provided for which the applicant anticipates serving under the MMPA. Procedures gov- as an operator; and erning permit sanctions and denials are (iv) The date, location, and provider found at subpart D of 15 CFR part 904. of any training for the operator permit. (ii) Observer placement. By obtaining a (6) Fees. (i) Vessel permit application permit, the permit holder consents to fees. An application for a permit under the placement of an observer on the paragraph (b)(1) of this section must vessel during every trip involving oper- include a fee for each vessel as speci- ations in the ETP and agrees to pay- fied on the application form. The As- ment of the fees for observer place- sistant Administrator may change the ment. No observer will be assigned to a amount of this fee at any time if a dif- vessel unless that vessel owner has sub- ferent fee is determined in accordance mitted payment of observer fees to the with the NOAA Finance Handbook and Administrator, Southwest Region. The specified by the Administrator, South- observers may be placed under an ob- west Region, on the application form. server program of NMFS, IATTC, or (ii) Operator permit fee. There is no fee another international observer pro- for a operator permit under paragraph gram approved by the IDCP and the (b)(2) of this section. The Assistant Ad- Administrator, Southwest Region. ministrator may impose a fee or (iii) Explosives. The use of explosive change the amount of this fee at any devices is prohibited during all tuna time if a different fee is determined in purse seine operations that involve ma- accordance with the NOAA Finance rine mammals. Handbook and specified by the Admin- (iv) Reporting requirements. (A) The istrator, Southwest Region, on the ap- vessel permit holder of each permitted plication form. vessel must notify the Administrator, (iii) Observer placement fee. The vessel Southwest Region or the IATTC con- permit holder must submit the fee for tact designated by the Administrator, the placement of observers, as estab- Southwest Region, at least 5 days in lished by the IATTC or other approved advance of the vessel’s departure on a observer program, to the Adminis- fishing voyage to allow for observer trator, Southwest Region, by Sep- placement on every voyage. tember 1 of the year prior to the year (B) The vessel permit holder must no- in which the vessel will be operated in tify the Administrator, Southwest Re- the ETP. The Administrator, South- gion, or the IATTC contact designated west Region, will forward all observer by the Administrator, Southwest Re- placement fees to the IATTC or to the gion, of any change of vessel operator applicable international organization at least 48 hours prior to departing on approved by the Administrator, South- a trip. In the case of a change in oper- west Region. ator due to an emergency, notification (7) Application approval. The Adminis- must be made within 72 hours of the trator, Southwest Region, will deter- change. mine the adequacy and completeness of (v) Data release. By using a permit, an application and, upon determining the permit holder authorizes the re- that an application is adequate and lease to NMFS and the IATTC of all complete, will approve that application data collected by observers aboard and issue the appropriate permit, ex- purse seine vessels during fishing trips cept for applicants having unpaid or under the IATTC observer program or overdue civil penalties, criminal fines, another international observer pro- or other liabilities incurred in a legal gram approved by the Administrator, proceeding. Southwest Region. The permit holder (8) Conditions applicable to all per- must furnish the international ob- mits— (i) General Conditions. Failure to server program with all release forms comply with the provisions of a permit required to authorize the observer data or with these regulations may lead to to be provided to NMFS and the suspension, revocation, modification, IATTC. Data obtained under such re- or denial of a permit. The permit hold- leases will be used for the same pur- er, vessel, vessel owner, operator, or poses as would data collected directly master may be subject, jointly or sev- by observers placed by NMFS and will
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be subject to the same standards of bowbunch pulled and continues to at confidentiality. least two-thirds the distance from the (9) Mortality and serious injury reports. backdown channel apex to the stern The Administrator, Southwest Region, tiedown point. The dolphin safety will provide to the public periodic sta- panel must consist of small mesh web- tus reports summarizing the estimated bing not to exceed 1 1/4 inches (3.18 cen- incidental dolphin mortality and seri- timeter (cm)) stretch mesh extending ous injury by U.S. vessels of individual downward from the corkline and, if species and stocks. present, the base of the dolphin apron (c) Purse seining by vessels with DMLs. to a minimum depth equivalent to two In addition to the terms and conditions strips of 100 meshes of 4 1/4 inches (10.80 set forth in paragraph (b) of this sec- cm) stretch mesh webbing. In addition, tion, any permit for a vessel to which at least a 20-fathom length of corkline a DML has been assigned under para- must be free from bunchlines at the graph (c)(8) of this section and any op- apex of the backdown channel. erator permit when used on such a ves- (ii) Dolphin safety panel markers. Each sel are subject to the following terms end of the dolphin safety panel and dol- and conditions: phin apron must be identified with an (1) A vessel may be used to chase and easily distinguishable marker. encircle schools of dolphins in the ETP (iii) Dolphin safety panel hand holds. only under the immediate direction of Throughout the length of the corkline the holder of a valid operator’s permit. under which the dolphin safety panel (2) No retention of Marine Mammals. and dolphin apron are located, hand Except as otherwise authorized by a hold openings must be secured so that specific permit, marine mammals inci- they will not allow the insertion of a 1 dentally taken must be immediately 3/8 inch (3.50 cm) diameter cylindrical- returned to the ocean without further shaped object. injury. The operator of a purse seine (iv) Dolphin safety panel corkline vessel must take every precaution to hangings. Throughout the length of the refrain from causing or permitting in- corkline under which the dolphin safe- cidental mortality or serious injury of ty panel and dolphin apron are located, marine mammals. Live marine mam- corkline hangings must be inspected by mals must not be brailed, sacked up, or the vessel operator following each trip. hoisted onto the deck during ortza re- Hangings found to have loosened to the trieval. extent that a cylindrical object with a (3) Gear and equipment required for 1 3/8 inch (3.50 cm) diameter can be in- valid permit. A vessel possessing a ves- serted between the cork and corkline sel permit for purse seining involving hangings, must be tightened so as not the intentional taking of marine mam- to allow the insertion of a cylindrical mals may not engage in fishing oper- object with a 1 3/8 inch (3.50 cm) diame- ations involving the intentional de- ter. ployment of the net on or encirclement (v) Speedboats. A minimum of three of dolphins unless it is equipped with a speedboats in operating condition must dolphin safety panel in its purse seine, be carried. All speedboats carried has the other required gear and equip- aboard purse seine vessels and in oper- ment, and uses the required proce- ating condition must be rigged with dures. tow lines and towing bridles or towing (i) Dolphin safety panel. The dolphin posts. Speedboat hoisting bridles may safety panel must be a minimum of 180 not be substituted for towing bridles. fathoms in length (as measured before (vi) Raft. A raft suitable to be used as installation), except that the minimum a dolphin observation-and-rescue plat- length of the panel in nets deeper than form must be carried. 18 strips must be determined in a ratio (vii) Face mask and snorkel, or view of 10 fathoms in length for each strip of box. At least two face masks and snor- net depth. It must be installed so as to kels or view boxes must be carried. protect the perimeter of the backdown (viii) Lights. The vessel must be area. The perimeter of the backdown equipped with lights capable of pro- area is the length of corkline that be- ducing a minimum of 140,000 lumens of gins at the outboard end of the last output for use in darkness to ensure
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sufficient light to observe that proce- gear and techniques. Additional train- dures for dolphin release are carried ing may be required for any operator out and to monitor incidental dolphin who is found by the Administrator, mortality. Southwest Region, to lack proficiency (4) Vessel inspection—(i) Annual. At in the required fishing procedures or least once during each calendar year, familiarity with the relevant provi- purse seine nets and other gear and sions or regulations of the MMPA or equipment required under § 216.24(c)(2) the IDCP. must be made available for inspection (6) Marine mammal release require- and for a trial set/net alignment by an ments. All operators must use the fol- authorized NMFS inspector or IATTC lowing procedures during all sets in- staff as specified by the Administrator, volving the incidental taking of marine Southwest Region, in order to obtain a mammals in association with the cap- vessel permit. ture and landing of tuna. (ii) Reinspection. Purse seine nets and (i) Backdown procedure. Backdown other gear and equipment required by must be performed following a purse these regulations must be made avail- seine set in which dolphins are cap- able for reinspection by an authorized tured in the course of catching tuna, NMFS inspector or IATTC staff as and must be continued until it is no specified by the Administrator, South- longer possible to remove live dolphins west Region. The vessel permit holder from the net by this procedure. At must notify the Administrator, South- least one crewman must be deployed west Region, of any net modification at during backdown to aid in the release least 5 days prior to departure of the of dolphins. Thereafter, other release vessel in order to determine whether a procedures required will be continued reinspection or trial set/net alignment so that all live dolphins are released is required. prior to the initiation of the sack-up (iii) Upon failure to pass an inspec- procedure. tion or reinspection, a vessel may not engage in purse seining involving the (ii) Prohibited use of sharp or pointed intentional taking of marine mammals instrument. The use of a sharp or point- until the deficiencies in gear or equip- ed instrument to remove any marine ment are corrected as required by mammal from the net is prohibited. NMFS. (iii) Sundown sets prohibited. On every (5) Operator permit holder training re- set encircling dolphin, the backdown quirements. An operator must maintain procedure must be completed no later proficiency sufficient to perform the than one-half hour after sundown, ex- procedures required herein, and must cept as provided here. For the purpose attend and satisfactorily complete a of this section, sundown is defined as formal training session approved by the time at which the upper edge of the the Administrator, Southwest Region, sun disappears below the horizon or, if in order to obtain his or her permit. At the view of the sun is obscured, the the training session an attendee will be local time of sunset calculated from ta- instructed on the relevant provisions bles developed by the U.S. Naval Ob- and regulatory requirements of the servatory or other authoritative source MMPA and the IDCP, and the fishing approved by the Administrator, South- gear and techniques that are required west Region. A sundown set is a set in for, or will contribute to, reducing seri- which the backdown procedure has not ous injury and mortality of dolphin in- been completed and rolling the net to cidental to purse seining for tuna. Op- sack-up has not begun within one-half erators who have received a written hour after sundown. Should a set ex- certificate of satisfactory completion tend beyond one-half hour after sun- of training and who possess a current down, the operator must use the re- or previous calendar year permit will quired marine mammal release proce- not be required to attend additional dures including the use of the high in- formal training sessions unless there tensity lighting system. In the event a are substantial changes in the relevant sundown set occurs where the seine provisions or implementing regulations skiff was let go 90 or more minutes be- of the MMPA or the IDCP, or in fishing fore sundown, and an earnest effort to
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rescue dolphins is made, the Inter- (D) A description of the applicability national Review Panel of the IDCP of this modification to other purse may recommend to the United States seine vessels; that in the view of the International (E) The planned design, time, dura- Review Panel, prosecution by the tion, and general area of the experi- United States is not recommended. mental operation; Any such recommendation will be con- (F) The name(s) of the permitted op- sidered by the United States in evalu- erator(s) of the vessel(s) during the ex- ating the appropriateness of prosecu- periment; and tion in a particular circumstance. (G) A statement of the qualifications (iv) Dolphin safety panel. During of the individual or company doing the backdown, the dolphin safety panel analysis of the research. (ii) The Administrator, Southwest must be positioned so that it protects Region, will acknowledge receipt of the the perimeter of the backdown area. application and, upon determining that The perimeter of the backdown area is it is complete, will publish a notice in the length of corkline that begins at the FEDERAL REGISTER summarizing the outboard end of the last bow bunch the application, making the full appli- pulled and continues to at least two- cation available for inspection and in- thirds the distance from the backdown viting comments for a minimum period channel apex to the stern tiedown of 30 days from the date of publication. point. (iii) The Administrator, Southwest (7) Experimental fishing operations. Region, after considering the informa- The Administrator, Southwest Region, tion in the application and the com- may authorize experimental fishing op- ments received on it, will either issue a erations, consistent with the provi- waiver to conduct the experiment sions of the IDCP, for the purpose of which includes restrictions or condi- testing proposed improvements in fish- tions deemed appropriate, or deny the ing techniques and equipment that application, giving the reasons for de- may reduce or eliminate dolphin mor- nial. tality or serious injury, or do not re- (iv) A waiver for an experimental quire the encirclement of dolphins in fishing operation will be valid only for the course of fishing operations. The the vessels and operators named in the Administrator, Southwest Region, may permit, for the time period and areas waive, as appropriate, any require- specified, for trips carrying an observer ments of this section except DMLs and designated by the Administrator, the obligation to carry an observer. Southwest Region, when all the terms (i) A vessel permit holder may apply and conditions of the permit are met. to the Administrator, Southwest Re- (v) The Administrator, Southwest gion, for an experimental fishing oper- Region, may suspend or revoke an ex- ation waiver allowing for processing no perimental fishing waiver in accord- ance with 15 CFR part 904 if the terms less than 90 days before the date the and conditions of the waiver or the pro- proposed operation is intended to visions of the regulations are not fol- begin. An application must be signed lowed. by the permitted operator and contain: (8) Operator permit holder performance (A) The name(s) of the vessel(s) and requirements. [Reserved] the vessel permit holder(s) to partici- (9) Vessel permit holder dolphin mor- pate; tality limits. For purposes of this para- (B) A statement of the specific vessel graph, the term ‘‘vessel permit holder’’ gear and equipment or procedural re- includes both the holder of a current quirement to be exempted and why vessel permit and also the holder of a such an exemption is necessary to con- vessel permit for the following year. duct the experiment; (i) By September 1 each year, a vessel (C) A description of how the proposed permit holder desiring a DML for the modification to the gear and equip- following year must provide to the Ad- ment or procedures is expected to re- ministrator, Southwest Region, the duce incidental mortality or serious in- name of the United States purse seine jury of marine mammals; fishing vessel(s) of carrying capacity
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greater than 400 st (362.8 mt) carrying (C) Within the requirements of Annex capacity that the owner intends to use IV of the Agreement on the IDCP, the to intentionally deploy purse seine Administrator, Southwest Region, may fishing nets in the ETP to encircle dol- adjust a vessel’s DML if it will further phins in an effort to capture tuna dur- scientific or technological advance- ing the following year. NMFS will for- ment in the protection of marine mam- ward the list of purse seine vessels to mals in the fishery or if the past per- the Director of the IATTC on or before formance of the vessel indicates that October 1, or as otherwise required by the protection or use of the yellowfin the IDCP, for assignment of a DML for tuna stocks or marine mammals is best the following year under the provisions served by the adjustment, within the of Annex IV of the Agreement on the mandates of the MMPA. Experimental IDCP. fishing operation waivers or scientific (ii) Each vessel permit holder that research permits will be considered a desires a DML only for the period be- basis for adjustments. tween July 1 to December 31 must pro- (iv)(A) A vessel assigned a full-year vide the Administrator, Southwest Re- DML that does not make a set on dol- gion, by September 1 of the prior year, phins by April 1 or that leaves the fish- the name of the United States purse ery will lose its DML for the remainder seine fishing vessel(s) of greater than of the year, unless the failure to set on 400 st (362.8 mt) carrying capacity that dolphins is due to force majeure or other the owner intends to use to inten- extraordinary circumstances as deter- tionally deploy purse seine fishing nets mined by the International Review in the ETP to encircle dolphins in an Panel. effort to capture tuna during the pe- (B) A vessel assigned a DML for the riod. NMFS will forward the list of second half of the year will be consid- purse seine vessels to the Director of ered to have lost its DML if the vessel the IATTC on or before October 1, or as has not made a set on dolphins before otherwise required under the IDCP, for December 31, unless the failure to set possible assignment of a DML for the 6- on dolphins is due to force majeure or month period July 1 to December 31. extraordinary circumstances as deter- Under the IDCP, the DML will be cal- mined by the International Review culated by the IDCP from any unuti- Panel. lized pool of DMLs in accordance with the procedure described in Annex IV of (C) Any vessel that loses its DML for the Agreement on the IDCP and will 2 consecutive years will not be eligible not exceed one-third of an unadjusted to receive a DML for the following full-year DML as calculated by the year. IDCP. (D) NMFS will determine, based on (iii)(A) The Administrator, South- available information, whether a vessel west Region, will notify vessel owners has left the fishery. of the DML assigned for each vessel for (1) A vessel lost at sea, undergoing the following year, or the second half extensive repairs, operating in an of the year, as applicable. ocean area other than the ETP, or for (B) The Administrator, Southwest which other information indicates will Region, may adjust the DMLs in ac- no longer be conducting purse seine op- cordance with Annex IV of the Agree- erations in the ETP for the remainder ment on the IDCP. All adjustments of of the period covered by the DML will full-year DMLs will be made before be determined to have left the fishery. January 1, and the Administrator, (2) NMFS will make all reasonable ef- Southwest Region, will notify the Di- forts to determine the intentions of the rector of the IATTC of any adjust- vessel owner, and the owner of any ves- ments prior to a vessel departing on a sel that has been preliminarily deter- trip using its adjusted DML. The noti- mined to have left the fishery will be fication will be no later than February provided notice of such preliminary de- 1 in the case of adjustments to full- termination and given the opportunity year DMLs, and no later than May 1 in to provide information on whether the the case of adjustments to DMLs for vessel has left the fishery prior to the second half of the year. NMFS making a final determination
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under 15 CFR part 904 and notifying the when any applicable per-stock per-year IATTC. dolphin mortality limit has been (v) Any vessel that exceeds its as- reached or exceeded, or is expected to signed DML after any applicable ad- be reached in the near future. justment under paragraph (c)(8)(iii) of (ix) If individual dolphins belonging this section will have its DML for the to a stock that is prohibited from being subsequent year reduced by 150 percent taken are not reasonably observable at of the overage, unless another adjust- the time the net skiff attached to the ment is determined by the Inter- net is released from the vessel at the national Review Panel. start of a set, the fact that individuals (vi) A vessel that is covered by a of that stock are subsequently taken valid vessel permit and that does not will not be cause for enforcement ac- normally fish for tuna in the ETP but tion provided that all procedures re- desires to participate in the fishery on quired by the applicable regulations a limited basis may apply for a per-trip have been followed. DML from the Administrator, South- (x) Vessel and operator permit hold- west Region, at any time, allowing at ers must not intentionally deploy a least 60 days for processing. The re- purse seine net on or encircle dolphins quest must state the expected number intentionally: of trips involving sets on dolphins and (A) When the vessel’s DML, as ad- the anticipated dates of the trip or justed, is reached or exceeded; or trips. The request will be forwarded to (B) After the date and time provided the Director of the IATTC for proc- in actual notification by letter, fac- essing in accordance with Annex IV of simile, radio, or electronic mail, or no- the Agreement on the IDCP. A per-trip tice in the FEDERAL REGISTER by the DML will be assigned if one is made Administrator, Southwest Region, available in accordance with the terms based upon the best available evidence, of Annex IV of the IDCP. If a vessel as- that intentional sets on dolphins must signed a per-trip DML does not set on cease because the total of the DMLs as- dolphins during that trip, the vessel signed to the U.S. fleet has been will be considered to have lost its DML reached or exceeded, or is expected to unless this was a result of force majeure be exceeded in the near future. or other extraordinary circumstances (xi) Sanctions recommended by the as determined by the International Re- International Review Panel for any view Panel. After two consecutive violation of these rules will be consid- losses of a DML, a vessel will not be el- ered by NMFS and NOAA in enforce- igible to receive a DML for the next ment actions brought under these regu- fishing year. lations. (vii) Observers will make their (xii) Intentionally deploying a purse records available to the vessel operator seine net on, or to encircle, dolphins at any reasonable time, including after after a vessel’s DML, as adjusted, has each set, in order for the operator to been reached will disqualify the vessel monitor the balance of the DML(s) re- from consideration for a DML for the maining for use. following year. If already assigned, the (viii) Vessel and operator permit DML for the following year will be holders must not deploy a purse seine withdrawn, and the Director of the net on or encircle any school of dol- IATTC will be notified by NMFS that phins containing individuals of a par- the DML assigned to that vessel will be ticular stock of dolphins: unutilized. Procedures found at 15 CFR (A) When the applicable per-stock part 904 apply to the withdrawal of the per-year dolphin mortality limit for permit. that stock of dolphins (or for that ves- (d) Purse seining by vessels without as- sel, if so assigned) has been reached or signed DMLs. In addition to the re- exceeded; or quirements of paragraph (b) of this sec- (B) After the time and date provided tion, a vessel permit used for a trip not in actual notification or notification in involving an assigned DML and the op- the FEDERAL REGISTER by the Adminis- erator’s permit when used on such a trator, Southwest Region, based upon vessel are subject to the following the best available evidence, stating terms and conditions: a permit holder
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may take marine mammals provided (3) Any marine mammals killed dur- that such taking is an accidental oc- ing fishing operations that are acces- currence in the course of normal com- sible to crewmen and requested from mercial fishing operations and the ves- the permit holder or master by the ob- sel does not intentionally deploy its server must be brought aboard the ves- net on, or to encircle, dolphins; marine sel and retained for biological proc- mammals taken incidental to such essing, until released by the observer commercial fishing operations must be for return to the ocean. Whole marine immediately returned to the environ- mammals or marine mammal parts ment where captured without further designated as biological specimens by injury, using release procedures such the observer must be retained in cold as hand rescue, and aborting the set at storage aboard the vessel until re- the earliest effective opportunity; the trieved by authorized personnel of use of one or more rafts and face masks NMFS or the IATTC when the vessel or view boxes to aid in the rescue of returns to port for unloading. dolphins is recommended. (4) It is unlawful for any person to (e) Observers: (1) The holder of a ves- forcibly assault, impede, intimidate, sel permit must allow an observer duly interfere with, or to influence or at- tempt to influence an observer, or to authorized by the Administrator, harass (including sexual harassment) Southwest Region, to accompany the an observer by conduct which has the vessel on all fishing trips in the ETP purpose or effect of unreasonably inter- for the purpose of conducting research fering with the observer’s work per- and observing operations, including formance, or which creates an intimi- collecting information that may be dating, hostile, or offensive environ- used in civil or criminal penalty pro- ment. In determining whether conduct ceedings, forfeiture actions, or permit constitutes harassment, the totality of sanctions. A vessel that fails to carry the circumstances, including the na- an observer in accordance with these ture of the conduct and the context in requirements may not engage in fish- which it occurred, will be considered. ing operations. The determination of the legality of a (2) Research and observation duties particular action will be made from the will be carried out in such a manner as facts on a case-by-case basis. to minimize interference with commer- (5)(i) All observers must be provided cial fishing operations. Observers must sleeping, toilet and eating accommoda- be provided access to vessel personnel tions at least equal to that provided to and to dolphin safety gear and equip- a full crew member. A mattress or ment, electronic navigation equip- futon on the floor or a cot is not ac- ment, radar displays, high powered bin- ceptable in place of a regular bunk. oculars, and electronic communication Meal and other galley privileges must equipment. The navigator must provide be the same for the observer as for true vessel locations by latitude and other crew members. longitude, accurate to the nearest (ii) Female observers on a vessel with minute, upon request by the observer. an all-male crew must be accommo- Observers must be provided with ade- dated either in a single-person cabin quate space on the bridge or pilothouse or, if reasonable privacy can be ensured for clerical work, as well as space on by installing a curtain or other tem- deck adequate for carrying out ob- porary divider, in a two-person cabin server duties. No vessel owner, master, shared with a licensed officer of the operator, or crew member of a per- vessel. If the cabin assigned to a female mitted vessel may impair, or in any observer does not have its own toilet way interfere with, the research or ob- and shower facilities that can be pro- servations being carried out. Masters vided for the exclusive use of the ob- must allow observers to use vessel server, then a schedule for time-shar- communication equipment to report ing common facilities must be estab- information concerning the take of lished before the placement meeting marine mammals and other observer and approved by NMFS or other ap- collected data upon request of the ob- proved observer program and must be server. followed during the entire trip.
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(iii) In the event there are one or more female crew members, the female 1604.14.3040 Tuna, other than albacore, in airtight observer must be provided a bunk in a containers, not in oil, over quota. cabin shared solely with female crew (C) Loins: members, and provided toilet and 1604.14.4000 Tuna, not in airtight containers, not shower facilities shared solely with in oil, over 6.8kg. 1604.14.5000 Tuna, other, not in airtight con- these female crew members. tainers. (f) Importation, purchase, shipment, (D) Other (only if the sale and transport. (1)(i) It is illegal to product contains import into the United States any fish, tuna): 0304.10.4099 Other fish, fillets and other fish meat, whether fresh, frozen, or otherwise pre- fresh or chilled. pared, if the fish have been caught with 0304.20.2066 Other fish, fillets, skinned, in blocks commercial fishing technology that re- weighing over 4.5kg, frozen. sults in the incidental kill or inci- 0304.20.6096 Other fish, fillets, frozen. 0304.90.1089 Other fish meat, in bulk or immediate dental serious injury of marine mam- containers, fresh or chilled. mals in excess of that allowed under 0304.90.9091 Other fish meat, fresh or chilled. this part for U.S. fishermen, or as spec- ified at paragraphs (f)(7) through (f)(9) (ii) HTS numbers requiring a Fisheries of this section. Certificate of Origin, not subject to yel- (ii) For purposes of this paragraph(f), lowfin tuna embargo. The following HTS and in applying the definition of an numbers identify tuna or tuna prod- ‘‘intermediary nation,’’ an import oc- ucts, other than fresh tuna or tuna curs when the fish or fish product is re- identified in paragraph (f)(2)(i) of this leased from a nation’s Customs’ cus- section, known to be imported into the tody and enters into the territory of United States. All shipments imported the nation. For other purposes, ‘‘im- into the United States under these port’’ is defined in § 216.3. HTS numbers must be accompanied by (2)(i) HTS numbers requiring a Fisheries a FCO. The shipment may not be im- Certificate of Origin, subject to yellowfin ported into the United States if har- tuna embargo. The following U.S. Har- vested by a large-scale driftnet nation, monized Tariff Schedule (HTS) num- unless accompanied by the official bers identify yellowfin tuna or yel- statement described in paragraph lowfin tuna products that are har- (f)(5)(x) of this section. vested in the ETP purse seine fishery and imported into the United States. All shipments containing tuna or tuna (A) Frozen: products imported into the United 0303.41.0000 Albacore or longfinned tunas, frozen. 0303.43.0000 Skipjack, frozen. States under these HTS numbers must 0303.49.0020 Bluefin, frozen. be accompanied by a Fisheries Certifi- 0303.49.0040 Other tuna, frozen. cate of Origin (FCO), NOAA Form 370. (B) Canned: Yellowfin tuna identified by any of the 1604.14.2020 Albacore tuna, in airtight containers, not in oil, not over 7kg, in quota. following HTS numbers that was har- 1604.14.3020 Albacore tuna, in airtight containers, vested using a purse seine in the ETP not in oil, not in quota. may not be imported into the United States unless both the nation with ju- (iii) Exports from driftnet nations only: risdiction over the harvesting vessel HTS numbers requiring a Fisheries Cer- and the exporting nation (if different) tificate of Origin and official certification. have an affirmative finding under para- The following HTS numbers identify graph (f)(9) of this section. categories of fish and shellfish, other than those identified in paragraphs (f)(2)(i) and (f)(2)(ii) of this section, (A) Frozen: known to have been harvested using a 0303.42.0020 Yellowfin tuna, whole, frozen. large-scale driftnet and imported into 0303.42.0040 Yellowfin tuna, eviscerated, head on, the United States. Shipments exported frozen. 0303.42.0060 Yellowfin tuna, other, frozen. from a large-scale driftnet nation and (B) Canned: imported into the United States under 1604.14.1000 Tuna, non-specific, in airtight con- any of the HTS numbers listed in para- tainers, in oil. 1604.14.2040 Tuna, other than albacore, not over graph (f)(2) of this section must be ac- 7kg, in airtight containers. companied by an FCO and the official
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statement described in paragraph FCO is filed with the Customs Service (f)(5)(x) of this section. at the time of importation: (i) Tuna classified under an HTS number listed in paragraphs (f)(2)(i) or (A) Frozen: (f)(2)(ii) of this section, or 0303.10.0012 Salmon, chinook, frozen. (ii) Fish classified under an HTS 0303.10.0022 Salmon, chum, frozen. 0303.10.0032 Salmon, pink, frozen. number listed in paragraph (f)(2) of this 0303.10.0042 Salmon, sockeye, frozen. section that was harvested by a vessel 0303.10.0052 Salmon, coho, frozen. of a large-scale driftnet nation, as 0303.10.0062 Salmon, Pacific, non-specific, frozen. 0303.21.0000 Trout, frozen. identified under paragraph (f)(8) of this 0303.22.0000 Salmon, Atlantic and Danube, fro- section. zen. (4) Disposition of Fisheries Certificates 0303.29.0000 Salmonidae, other, frozen. of Origin. The FCO form described in 0303.70.4097 Fish, other, frozen. 0303.75.0010 Dogfish, frozen. paragraph (f)(5) of this section may be 0303.75.0090 Other sharks, frozen. obtained from the Administrator, 0303.79.2041 Swordfish steaks, frozen Southwest Region, or downloaded from 0303.79.2049 Swordfish, other, frozen. the Internet at http://swr.ucsd.edu/ 0304.20.2066 Fish, fillet, skinned, in blocks frozen noaa370.htm. The FCO required under over 4.5kg. paragraph (f)(3) of this section must ac- 0304.20.6008 Salmonidae, salmon fillet, frozen. company the tuna or tuna products 0304.20.6096 Fish, fillet, frozen. 0307.49.0010 Squid, other, fillet, frozen. from entry into the United States, (B) Canned: through final processing, and it must 1604.11.2020 Salmon, pink, canned in oil, in air- be endorsed at each change in owner- tight containers. 1604.11.2030 Salmon, sockeye, canned in oil, in ship. FCOs that require multiple en- airtight containers. dorsements must be submitted to the 1604.11.2090 Salmon, other, canned in oil, in air- Administrator, Southwest Region, by tight containers. the last endorser when all required en- 1604.11.4010 Salmon, chum, canned, not in oil. 1604.11.4020 Salmon, pink, canned, not in oil. dorsements are completed. An invoice 1604.11.4030 Salmon, sockeye, canned, not in oil. must accompany the shipment at the 1604.11.4040 Salmon, other, canned, not in oil. time of importation or, in the alter- 1604.11.4050 Salmon, other, canned, not in oil. 1604.19.2000 Fish, other, in airtight containers, not native, must be made available within in oil. 30 days of a request by the Secretary or 1604.19.3000 Fish, other, in airtight containers, in the Administrator, Southwest Region, oil. to produce the invoice. 1605.90.6055 Squid, loligo, prepared/preserved. (C) Other: (5) Contents of Fisheries Certificate of 0304.10.4099 Other fish, fillets and other fish meat, Origin. An FCO, certified to be accurate fresh or chilled. by the first exporter of the accom- 0304.20.2066 Other fish, fillets, skinned, in blocks weighing over 4.5kg, frozen. panying shipment, must include the 0304.20.6098 Other fish, fillets, frozen. following information: 0304.90.1089 Other fish, fillets and fish meat, in (i) Customs entry identification; bulk or in immediate containers, fresh or chilled. (ii) Date of entry; 0304.90.9092 Other fish meat, fresh or chilled. (iii) Exporter’s full name and com- 0305.30.6080 Fish, non-specific, fillet. dried/salted/ plete address; brine. (iv) Importer’s or consignee’s full 0305.49.4040 Fish, non-specific, smoked. name and complete address; 0305.59.2000 Shark fins. 0305.59.4000 Fish, non-specific, dried. (v) Species description, product form, 0305.69.4000 Salmon, non-specific, salted. and HTS number; (vi) Total net weight of the shipment 0305.69.5000 Fish, non-specific, in immediate con- tainers, salted, not over 6.8kg. in kilograms; 0305.69.6000 Fish, non-specific, salted, other. (vii) Ocean area where the fish were 0307.49.0050 Squid, non-specific, frozen/dried/salt- harvested (ETP, Western Pacific ed/brine. Ocean, South Pacific Ocean, Atlantic 0307.49.0060 Squid, non-specific, & cuttle fish fro- zen/dried/salted/brine. Ocean, Caribbean Sea, Indian Ocean, or other); (3) Imports requiring a Fisheries Certifi- (viii) Type of fishing gear used to cate of Origin. Shipments containing harvest the fish (purse seine, longline, the following may not be imported into baitboat, large-scale driftnet, gillnet, the United States unless a completed trawl, pole and line, or other);
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(ix) Country under whose laws the sistant Administrator has made an af- harvesting vessel operated based upon firmative finding required for importa- the flag of the vessel or, if a certified tion for that nation under paragraph charter vessel, the country that ac- (f)(9) of this section; cepted responsibility for the vessel’s (B) Exported from an intermediary fishing operations; nation, as defined in section 3 of the (x) Dates on which the fishing trip MMPA, and a ban is currently in force began and ended; prohibiting the importation from that (xi) If the shipment includes tuna or nation under paragraph (f)(9)(viii) of products harvested with a purse seine this section; or net, the name of the harvesting vessel; (C) Harvested before March 3, 1999, (xii) Dolphin safe condition of the the effective date of section 4 of the shipment; IDCPA, and would have been banned (xiv) For shipments harvested by ves- from importation under section sels of a nation known to use large- scale driftnets, as determined by the 101(a)(2) of the MMPA at the time of Secretary pursuant to paragraph (f)(8) harvest. of this section, a statement must be in- (ii) Driftnet embargo. A shipment con- cluded on the Fisheries Certificate of taining an item listed in paragraph Origin that is dated and signed by a re- (f)(2) of this section may not be im- sponsible government official of the ported into the United States if it: harvesting nation, certifying that the (A) Was exported from or harvested fish or fish products were harvested by on the high seas by any nation deter- a method other than large-scale mined by the Assistant Administrator driftnet; and to be engaged in large-scale driftnet (xii) If the shipment contains tuna fishing, unless the FCO is accompanied harvested in the ETP by a purse seine by an original statement by a respon- vessel of more than 400 st (362.8 mt) sible government official of the har- carrying capacity, each importer or vesting nation, signed and dated by processor who takes custody of the that official, certifying that the fish or shipment must sign and date the form fish products were harvested by a to certify that the form and attached method other than large-scale driftnet; documentation accurately describe the or shipment of fish that they accompany. (B) Is identified on the FCO as having (6) Dolphin-safe label. Tuna or tuna been harvested by a large-scale products sold in or exported from the driftnet. United States that include on the label (8) Large-scale driftnet nation: deter- the term ‘‘dolphin-safe’’ or any other mination. Based upon the best informa- term or symbol that claims or suggests tion available, the Assistant Adminis- the tuna were harvested in a manner trator will determine which nations not injurious to dolphins are subject to the requirements of subpart H of this have registered vessels that engage in part. fishing using large-scale driftnets. (7) Scope of embargoes—(i) ETP yel- Such determinations will be published lowfin tuna embargo. Yellowfin tuna or in the FEDERAL REGISTER. A respon- yellowfin tuna products harvested sible government official of any such using a purse seine in the ETP identi- nation may certify to the Assistant fied by an HTS number listed in para- Administrator that none of the na- graph (f)(2)(i) of this section may not tion’s vessels use large-scale driftnets. be imported into the United States if Upon receipt of the certification, the such tuna or tuna products were: Assistant Administrator may find, and (A) Harvested on or after March 3, publish such finding in the Federal Reg- 1999, the effective date of section 4 of ister, that none of that nation’s vessels the IDCPA, and harvested by, or ex- engage in fishing with large-scale ported from, a nation that the Assist- driftnets. ant Administrator has determined has (9) Affirmative finding procedure for purse seine vessels of greater than 400 nations harvesting yellowfin tuna using a st (362.8 mt) carrying capacity har- purse seine in the ETP. (i) The Assistant vesting tuna in the ETP, unless the As- Administrator will determine, on an
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annual basis, whether to make an af- total dolphin mortality of the nation’s firmative finding based upon documen- purse seine fleet (including certified tary evidence provided by the govern- charter vessels operating under its ju- ment of the exporting nation, by the risdiction) exceeded the aggregated government of the harvesting nation, if total of the mortality limits assigned different, or by the IDCP and the by the IDCP for that nation’s purse IATTC, and will publish the finding in seine vessels; and the FEDERAL REGISTER. A finding will (ii) Immediately after the national remain valid for 1 year or for such authorities discovered the aggregate other period as the Assistant Adminis- mortality of its fleet had been exceed- trator may determine. An affirmative ed, the nation required all its vessels to finding will be terminated if the Assist- cease fishing for tuna in association ant Administrator determines that the with dolphins for the remainder of the requirements of this paragraph are no calendar year; and longer being met. Every 5 years, the (D)(1) For calendar year 2000 and any government of the harvesting nation, subsequent years in which the parties must submit such documentary evi- agree to a global allocation system for dence directly to the Assistant Admin- per-stock per-year individual stock istrator and request an affirmative quotas, the nation responded to the no- finding. Documentary evidence needs tification from the IATTC that an indi- to be submitted by the harvesting na- vidual stock quota had been reached by tion for the first affirmative finding prohibiting any additional sets on the subsequent to the effective date of this stock for which the quota had been rule. The Assistant Administrator may reached; require the submission of supporting (2) If a per-stock per-year quota is al- documentation or other verification of located to each nation, the annual per- statements made in connection with stock per-year dolphin mortality of the requests to allow importations. An af- nation’s purse seine fleet (including firmative finding applies to tuna and certified charter vessels operating tuna products that were harvested by vessels of the nation after February 15, under its jurisdiction) did not exceed 1999. To make an affirmative finding, the aggregated total of the per-stock the Assistant Administrator must find per-year limits assigned by the IDCP that: for that nation’s purse seine vessels (if (A) The harvesting nation partici- any) for the year preceding the year in pates in the IDCP and is either a mem- which the finding would start; or ber of the IATTC or has initiated (and (3)(i) Because of extraordinary cir- within 6 months thereafter completed) cumstances beyond the control of the all steps required of applicant nations, nation and the vessel captains, the per- in accordance with article V, para- stock per-year dolphin mortality of the graph 3, of the Convention establishing nation’s purse seine fleet (including the IATTC, to become a member of certified charter vessels operating that organization; under its jurisdiction) exceeded the ag- (B) The nation is meeting its obliga- gregated total of the per-stock per-year tions under the IDCP and its obliga- limits assigned by the IDCP for that tions of membership in the IATTC, in- nation’s purse seine vessels; and cluding all financial obligations; (ii) Immediately after the national (C)(1) The annual total dolphin mor- authorities discovered the aggregate tality of the nation’s purse seine fleet per-stock mortality limits of its fleet (including certified charter vessels op- had been exceeded, the nation required erating under its jurisdiction) did not all its vessels to cease fishing for tuna exceed the aggregated total of the mor- in association with the stocks whose tality limits assigned by the IDCP for limits had been exceeded, for the re- that nation’s purse seine vessels for the mainder of the calendar year. year preceding the year in which the (ii) Documentary Evidence and Compli- finding would start; or ance with the IDCP.—(A) Documentary (2)(i) Because of extraordinary cir- Evidence. The Assistant Administrator cumstances beyond the control of the will make an affirmative finding under nation and the vessel captains, the paragraph (f)(9)(i) of this section only
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if the government of the harvesting na- (f)(2)(i) of this section may be imported tion provides directly to the Assistant into the United States from any inter- Administrator, or authorizes the mediary nation. An ‘‘intermediary na- IATTC to release to the Assistant Ad- tion’’ is a nation that exports yellowfin ministrator, complete, accurate, and tuna or yellowfin tuna products to the timely information that enables the United States and that imports yel- Assistant Administrator to determine lowfin tuna or yellowfin tuna products whether the harvesting nation is meet- that are subject to a direct ban on im- ing the obligations of the IDCP, and portation into the United States pursu- whether ETP-harvested tuna imported ant to section 101(a)(2)(B) of the from such nation comports with the MMPA, unless shown not to be yel- tracking and verification regulations lowfin tuna or yellowfin tuna products of subpart H of this part. harvested using purse seine in the ETP. (B) Revocation. After considering the The Assistant Administrator will pub- information provided under paragraph lish in the FEDERAL REGISTER a notice (f)(9)(ii)(A) of this section, each party’s announcing when NMFS has deter- financial obligations to the IATTC, and mined, based on the best information any other relevant information, includ- available, that a nation is an ‘‘inter- ing information that a nation is con- mediary nation.’’ After the effective sistently failing to take enforcement date of that notice, these import re- actions on violations which diminish strictions shall apply. Shipments of the effectiveness of the IDCP, the As- yellowfin tuna or yellowfin tuna prod- sistant Administrator, in consultation ucts shipped through a nation on a with the Secretary of State, will re- through bill of lading or in another voke an affirmative finding issued to a manner that does not enter the ship- nation that is not meeting the obliga- ments into that nation as an importa- tions of the IDCP. tion do not make that nation an inter- (iii) A harvesting nation may apply mediary nation. for an affirmative finding at any time (A) Intermediary nation determination by providing to the Assistant Adminis- status. Imports from an intermediary trator the information and authoriza- nation of tuna and tuna products clas- tions required in paragraphs (f)(9)(i) sified under any of the HTS numbers in and (f)(9)(ii) of this section, allowing at paragraph (f)(2)(i) of this section may least 60 days from the submission of be imported into the United States complete information to NMFS for only if the Assistant Administrator de- processing. termines and publishes in the FEDERAL (iv) The Assistant Administrator will REGISTER that the intermediary nation make or renew an affirmative finding has provided certification and reason- for the period from April 1 through able proof that it has not imported in March 31, or portion thereof, if the har- the preceding 6 months yellowfin tuna vesting nation has provided all the in- or yellowfin tuna products that are formation and authorizations required subject to a ban on direct importation by paragraphs (f)(9)(i) and (f)(9)(ii) of into the United States under section this section, and has met the require- 101(a)(2)(B) of the MMPA. At that time, ments of paragraphs (f)(9)(i) and the nation shall no longer be consid- (f)(9)(ii) of this section. ered an ‘‘intermediary nation’’ and (v) Reconsideration of finding. The As- these import restrictions shall no sistant Administrator may reconsider longer apply. a finding upon a request from, and the (B) Changing the status of intermediary submission of additional information nation determinations. The Assistant by, the harvesting nation, if the infor- Administrator will review decisions mation indicates that the nation has under this paragraph upon the request met the requirements under para- of an intermediary nation. Such re- graphs (f)(9)(i) and (f)(9)(ii) of this sec- quests must be accompanied by specific tion. and detailed supporting information or (vi) Intermediary nation. Except as au- documentation indicating that a re- thorized under this paragraph, no tuna view or reconsideration is warranted. or tuna products classified under one of For purposes of this paragraph, the the HTS numbers listed in paragraph term ‘‘certification and reasonable
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proof’’ means the submission to the As- safe’’ if they are dolphin-safe under sistant Administrator by a responsible subpart H. government official from the nation of (g) Penalties. Any person or vessel a document reflecting the nation’s cus- subject to the jurisdiction of the toms records for the preceding 6 United States will be subject to the months, together with a certification penalties provided for under the MMPA attesting that the document is accu- for the conduct of fishing operations in rate. violation of these regulations. (vii) Pelly certification. After 6 months [65 FR 48, Jan 3, 2000] of an embargo being in place against a nation under this section, that fact § 216.25 Exempted marine mammals will be certified to the President for and marine mammal products. purposes of certification under section (a) The provisions of the MMPA and 8(a) of the Fishermen’s Protective Act these regulations shall not apply: of 1967 (22 U.S.C. 1978(a)) for as long as (1) To any marine mammal taken be- the embargo remains in effect. fore December 21, 1972 1, or (viii) Coordination. The Assistant Ad- (2) To any marine mammal product if ministrator will promptly advise the the marine mammal portion of such Department of State and the Depart- product consists solely of a marine ment of the Treasury of embargo deci- mammal taken before such date. sions, actions and finding determina- (b) The prohibitions contained in tions. § 216.12(c) (3) and (4) shall not apply to (10) Fish refused entry. If fish is denied marine mammals or marine mammal entry under paragraph (f)(3) of this sec- products imported into the United tion, the District Director of Customs States before the date on which a no- shall refuse to release the fish for entry tice is published in the FEDERAL REG- into the United States and shall issue a ISTER with respect to the designation notice of such refusal to the importer of the species or stock concerned as de- or consignee. pleted or endangered. (11) Disposition of fish refused entry (c) Section 216.12(b) shall not apply to into the United States; redelivered fish. articles imported into the United Fish which is denied entry under para- States before the effective date of the graph (f)(3) of this section and which is foreign law making the taking or sale, not exported under Customs super- as the case may be, of such marine vision within 90 days from the date of mammals or marine mammal products notice of refusal of admission or date of unlawful. redelivery shall be disposed of under [39 FR 1852, Jan. 15, 1974, as amended at 56 Customs laws and regulations. Pro- FR 43888, Sept. 5, 1991; 59 FR 50376, Oct. 3, vided however, that any disposition 1994] shall not result in an introduction into the United States of fish caught in vio- § 216.26 Collection of certain marine mammal parts without prior au- lation of the MMPA. thorization. (12) Market Prohibitions. It is unlawful for any person to sell, purchase, offer Notwithstanding any other provision for sale, transport, or ship in the of this subpart: (a) Any bones, teeth or ivory of any United States, any tuna or tuna prod- dead marine mammal may be collected ucts unless the tuna products are ei- from a beach or from land within 1⁄4 of ther: a mile of the ocean. The term ocean in- (i) Dolphin-safe under subpart H; or cludes bays and estuaries. (ii) harvested in compliance with the (b) Notwithstanding the provisions of IDCP by vessels under the jurisdiction subpart D, soft parts that are sloughed, of a nation that is a member of the excreted, or discharged naturally by a IATTC or has initiated, and within 6 months thereafter completes, all steps 1 required by applicant nations to be- In the context of captive maintenance of marine mammals, the only marine mammals come members of the IATTC. exempted under this section are those that (iii) For purposes of this section, were actually captured or otherwise in cap- tuna or tuna products are ‘‘dolphin- tivity before December 21, 1972.
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living marine mammal in the wild may (2) The custodian of the rehabilitated be collected or imported for bona fide marine mammal shall provide written scientific research and enhancement, notification prior to any release into provided that collection does not in- the wild. volve the taking of a living marine (i) Notification shall be provided to: mammal in the wild. (A) The NMFS Regional Director at (c) Any marine mammal part col- least 15 days in advance of releasing lected under paragraph (a) of this sec- any beached or stranded marine mam- tion or any marine mammal part col- mal, unless advance notice is waived in lected and imported under paragraph writing by the Regional Director; or (b) of this section must be registered (B) The Office Director at least 30 and identified, and may be transferred days in advance of releasing any im- or otherwise possessed, in accordance ported marine mammal. with § 216.22(c). In registering a marine (ii) Notification shall include the fol- mammal part collected or imported lowing: under paragraph (b) of this section, the (A) A description of the marine mam- person who collected or imported the mal, including its physical condition part must also state the scientific re- and estimated age; search or enhancement purpose for (B) The date and location of release; which the part was collected or im- and ported. (C) The method and duration of (d) No person may purchase, sell or transport prior to release. trade for commercial purposes any ma- (3) The Regional Director, or the Of- rine mammal part collected or im- fice Director as appropriate, may: ported under this section. (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 improve the likelihood of success or to [39 FR 1852, Jan. 15, 1974, as amended at 59 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 same species, and stock if known, un- mammals. 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 tion of receipt, subsequent transfers the specific conditions imposed pursu- 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 Fisheries Service, National Oceanic images, and if there are any such uses, and Atmospheric Administration, De- the names of all photographers; and partment of Commerce and is intended (9) Persons conducting scientific re- for importation into the United States search under authority of the General shall be subject to the provisions of 50 Authorization may not transfer or as- CFR part 14. sign any authority granted thereunder (b) For the information of importers, to any other person. designated ports of entry for the (e) Suspension, revocation, or modifica- United States are: tion. (1) NMFS may suspend, revoke, or modify the authority to conduct sci- New York, N.Y. entific research under the General Au- Miami, Fla. Chicago, Ill. thorization if: San Francisco, Calif. (i) The letter of intent included false Los Angeles, Calif. information or statements of a mate- New Orleans, La. rial nature; Seattle, Wash. (ii) The research does not constitute Honolulu, Hi. bona fide scientific research; (c) Additionally, marine mammals or (iii) Research activities result in marine mammal products which are takings of marine mammals other than entered into Alaska, Hawaii, Puerto by Level B harassment; (iv) Research activities differ from Rico, Guam, American Samoa or the those described in the letter of intent Virgin Islands and which are not to be submitted by the applicant and letter forwarded or transhipped within the of confirmation issued by NMFS; or United States may be imported (v) The applicant violates any term through the following ports: or condition set forth in this section. Alaska—Juneau, Anchorage, Fairbanks (2) Any suspension, revocation, or Hawaii—Honolulu modification is subject to the require- Puerto Rico—San Juan ments of 15 CFR part 904. Guam—Honolulu, Hi. American Samoa—Honolulu, Hi. [59 FR 50376, Oct. 3, 1994] Virgin Islands—San Juan, P.R. § 216.46 U.S. citizens on foreign flag (d) Importers are advised to see 50 vessels operating under the Inter- CFR part 14 for importation require- national Dolphin Conservation Pro- ments and information. gram. [39 FR 1852, Jan. 15, 1974. Redesignated at 59 The MMPA’s provisions do not apply FR 50376, Oct. 3, 1994] to a citizen of the United States who incidentally takes any marine mam- mal during fishing operations in the Subpart F—Pribilof Islands, Taking ETP which are outside the U.S. exclu- for Subsistence Purposes sive economic zone (as defined in sec- § 216.71 Allowable take of fur seals. tion 3 of the Magnuson-Stevens Fish- ery Conservation and Management Act Pribilovians may take fur seals on (16 U.S.C. 1802)), while employed on a the Pribilof Islands if such taking is fishing vessel of a harvesting nation (a) For subsistence uses, and that is participating in, and in compli- (b) Not accomplished in a wasteful ance with, the IDCP. manner. [65 FR 56, Jan. 3, 2000] [51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996] §§ 216.47–216.49 [Reserved] § 216.72 Restrictions on taking. Subpart E—Designated Ports (a) The harvests of seals on St. Paul and St. George Islands shall be treated § 216.50 Importation at designated independently for the purposes of this ports. section. Any suspension, termination, (a) Any marine mammal or marine or extension of the harvest is applica- mammal product which is subject to ble only to the island for which it is the jurisdiction of the National Marine issued.
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(b) By April 1 of every third year, be- (1) St. Paul Island—Seals may only be ginning April 1994, the Assistant Ad- harvested from the following haulout ministrator will publish in the FED- areas: Zapadni, English Bay, Northeast ERAL REGISTER a summary of the pre- Point, Polovina, Lukanin, Kitovi, and ceding 3 years of harvesting and a dis- Reef. No haulout area may be har- cussion of the number of seals expected vested more than once per week. to be taken annually over the next 3 (2) St. George Island—Seals may only years to satisfy the subsistence re- be harvested from the following quirements of each island. This discus- haulout areas: Northeast and Zapadni. sion will include an assessment of fac- Neither haulout area may be harvested tors and conditions on St. Paul and St. more than twice per week. George Islands that influence the need by Pribilof Aleuts to take seals for sub- (e)(1) The Assistant Administrator is sistence uses and an assessment of any required to suspend the take provided changes to those conditions indicating for in § 215.31 when: that the number of seals that may be (i) He determines, after reasonable taken for subsistence each year should notice by NMFS representatives to the be made higher or lower. Following a Pribilovians on the island, that the 30-day public comment period, a final subsistence needs of the Pribilovians notification of the expected annual on the island have been satisfied; harvest levels for the next 3 years will or be published. (ii) He determines that the harvest is (c)(1) No fur seal may be taken on the otherwise being conducted in a waste- Pribilof Islands before June 23 of each ful manner; or year. (iii) The lower end of the range of the (2) No fur seal may be taken except by experienced sealers using the tradi- estimated subsistence level provided in tional harvesting methods, including the notice issued under paragraph (b) stunning followed immediately by of this section is reached. exsanguination. The harvesting meth- (2) A suspension based on a deter- od shall include organized drives of mination under paragraph (e)(1)(ii) of subadult males to killing fields unless this section may be lifted by the As- it is determined by the NMFS rep- sistant Administrator if he finds that resentatives, in consultation with the the conditions which led to the deter- Pribilovians conducting the harvest, mination that the harvest was being that alternative methods will not re- conducted in a wasteful manner have sult in increased disturbance to the been remedied. rookery or the increased accidental (3) A suspension issued in accordance take of female seals. with paragraph (e)(1)(iii) of this section (3) Any taking of adult fur seals or may not exceed 48 hours in duration pups, or the intentional taking of and shall be followed immediately by a subadult female fur seals is prohibited. review of the harvest data to determine (4) Only subadult male fur seals 124.5 if a finding under paragraph (e)(1)(i) of centimeters or less in length may be this section is warranted. If a the har- taken. vest is not suspended under paragraph (5) Seals with tags and/or entangling (e)(1)(i) of this section, the Assistant debris may only be taken if so directed by NMFS scientists. Administrator must provide a revised (d) The scheduling of the harvest is estimate of the number of seals re- at the discretion of the Pribilovians, quired to satisfy the Pribilovians’ sub- but must be such as to minimize stress sistence needs. to the harvested seals. The (f) The Assistant Administrator shall Pribilovians must give adequate ad- terminate the take provided for in vance notice of their harvest schedules § 215.31 on August 8 of each year or to the NMFS representatives to allow when it is determined under paragraph for necessary monitoring activities. (e)(1)(i) of this section that the subsist- Scheduling must be consistent with the ence needs of the Pribilovians on the following restrictions:
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island have been satisfied, whichever needs of the Pribilovians or for making occurs first. determinations under § 215.32(e). [51 FR 24840, July 9, 1986, as amended at 57 [51 FR 24840, July 9, 1986. Redesignated at 61 FR 33902, July 31, 1992; 59 FR 35474, July 12, FR 11750, Mar. 22, 1996] 1994. Redesignated at 61 FR 11750, Mar. 22, 1996] Subpart G—Pribilof Islands Administration § 216.73 Disposition of fur seal parts. Except for transfers to other Alaskan § 216.81 Visits to fur seal rookeries. Natives for barter or sharing for per- From June 1 to October 15 of each sonal or family consumption, no part year, no person, except those author- of a fur seal taken for subsistence uses ized by a representative of the National may be sold or otherwise transferred to Marine Fisheries Service, or accom- any person unless it is a nonedible by- panied by an authorized employee of product which: the National Marine Fisheries Service, (a) Has been transformed into an ar- shall approach any fur seal rookery or ticle of handicraft, or hauling grounds nor pass beyond any (b) Is being sent by an Alaskan Na- posted sign forbidding passage. tive directly, or through a registered [41 FR 49488, Nov. 9, 1976. Redesignated at 61 agent, to a tannery registered under 50 FR 11750, Mar. 22, 1996] CFR 216.23(c) for the purpose of proc- essing, and will be returned directly to § 216.82 Dogs prohibited. the Alaskan Native for conversion into In order to prevent molestation of fur an article of handicraft, or seal herds, the landing of any dogs at (c) Is being sold or transferred to an Pribilof Islands is prohibited. Alaskan Native, or to an agent reg- [41 FR 49488, Nov. 9, 1976. Redesignated at 61 istered under 50 CFR 216.23(c) for resale FR 11750, Mar. 22, 1996] or transfer to an Alaskan Native, who will convert the seal part into a handi- § 216.83 Importation of birds or mam- craft. mals. No mammals or birds, except house- [51 FR 24840, July 9, 1986. Redesignated at 61 hold cats, canaries and parakeets, shall FR 11750, Mar. 22, 1996] be imported to the Pribilof Islands without the permission of an author- § 216.74 Cooperation with Federal offi- cials. ized representative of the National Ma- rine Fisheries Service. Pribilovians who engage in the har- vest of seals are required to cooperate [41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996] with scientists engaged in fur seal re- search on the Pribilof Islands who may § 216.84 [Reserved] need assistance in recording tag or other data and collecting tissue or § 216.85 Walrus and Otter Islands. other fur seal samples for research pur- By Executive Order 1044, dated Feb- poses. In addition, Pribilovians who ruary 27, 1909, Walrus and Otter Islands take fur seals for subsistence uses were set aside as bird reservations. All must, consistent with 5 CFR persons are prohibited to land on these 1320.7(k)(3), cooperate with the NMFS islands except those authorized by the representatives on the Pribilof Islands appropriate representative of the Na- who are responsible for compiling the tional Marine Fisheries Service. following information on a daily basis: [41 FR 49488, Nov. 9, 1976. Redesignated at 61 (a) The number of seals taken each FR 11750, Mar. 22, 1996] day in the subsistence harvest, (b) The extent of the utilization of § 216.86 Local regulations. fur seals taken, and Local regulations will be published (c) Other information determined by from time to time and will be brought the Assistant Administrator to be nec- to the attention of local residents and essary for determining the subsistence persons assigned to duty on the Islands
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by posting in public places and brought § 216.90 Purposes. to the attention of tourists by personal This subpart governs the require- notice. ments for using the official mark, de- [41 FR 49488, Nov. 9, 1976. Redesignated at 61 scribed in § 216.96, or an alternative FR 11750, Mar. 22, 1996] mark that refers to dolphins, porpoises, or marine mammals, to label tuna or § 216.87 Wildlife research. tuna products offered for sale in or ex- (a) Wildlife research, other than re- ported from the United States using search on North Pacific fur seals, in- the term ‘‘dolphin-safe’’ or suggesting cluding specimen collection, may be the tuna were harvested in a manner permitted on the Pribilof Islands sub- not injurious to dolphins. ject to the following conditions: (1) Any person or agency, seeking to [65 FR 56, Jan. 3, 2000] conduct such research shall first obtain § 216.91 Dolphin-safe labeling stand- any Federal or State of Alaska permit ards. required for the type of research in- volved. (a) It is a violation of section 5 of the (2) Any person seeking to conduct Federal Trade Commission Act (15 such research shall obtain prior ap- U.S.C. 45) for any producer, importer, proval of the Director, Pribilof Islands exporter, distributor, or seller of any Program, National Marine Fisheries tuna products that are exported from Service, National Oceanic and Atmos- or offered for sale in the United States pheric Administration, 1700 Westlake to include on the label of those prod- Avenue North, Seattle, WA 98109, by ucts the term ‘‘dolphin-safe’’ or any filing with the Director an application other term or symbol that claims or which shall include: suggests that the tuna contained in the (i) Copies of the required Federal and products were harvested using a meth- State of Alaska permits; and od of fishing that is not harmful to dol- (ii) A resume of the intended research phins if the products contain tuna har- program. vested: (3) All approved research shall be (1) ETP large purse seine vessel. In the subject to all regulations and adminis- ETP by a purse seine vessel of greater trative procedures in effect on the than 400 st (362.8 mt) carrying capacity Pribilof Islands, and such research unless: shall not commence until approval (i) The documentation requirements from the Director is received. for dolphin-safe tuna under §§ 216.92 and (4) Any approved research program 216.94 are met; shall be subject to such terms and con- (ii) No dolphin were killed or seri- ditions as the Director, Pribilof Islands ously injured during the sets in which Program deems appropriate. the tuna were caught; or (5) Permission to utilize the Pribilof (iii) If the Assistant Administrator Islands to conduct an approved re- publishes notification in the FEDERAL search program may be revoked by the REGISTER announcing a finding that Director, Pribilof Islands Program at the intentional deployment of purse any time for noncompliance with any seine nets on or encirclement of dol- terms and conditions, or for violations phins is having a significant adverse of any regulation or administrative impact on any depleted stock: procedure in effect on the Pribilof Is- (A) No tuna products were caught on lands. a trip using a purse seine net inten- tionally deployed on or to encircle dol- [43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996] phins; and (B) No dolphins were killed or seri- ously injured during the sets in which Subpart H—Dolphin Safe Tuna the tuna were caught. Labeling (2) Non-ETP purse seine vessel. Outside the ETP by a vessel using a purse seine AUTHORITY: 16 U.S.C. 1385. net: SOURCE: 61 FR 27794, June 3, 1996, unless (i) In a fishery in which the Assistant otherwise noted. Administrator has determined that a
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regular and significant association oc- § 216.92 Dolphin-safe requirements for curs between dolphins and tuna (simi- tuna harvested in the ETP by large lar to the association between dolphins purse seine vessels. and tuna in the ETP), unless such prod- (a) U.S. vessels. Tuna products that ucts are accompanied by a written contain tuna harvested by U.S. flag statement, executed by the captain of purse seine vessels of greater than 400 the vessel and an observer partici- st (362.8 mt) carrying capacity in the pating in a national or international ETP may be labeled ‘‘dolphin-safe’’ if program acceptable to the Assistant the following requirements are met: Administrator, certifying that no purse (1) ‘‘Dolphin-safe’’ Tuna Tracking seine net was intentionally deployed on Forms certified by the vessel captain or used to encircle dolphins during the and the observer are submitted to the particular voyage on which the tuna Regional Administrator, Southwest were caught and no dolphins were Region, at the end of the fishing trip killed or seriously injured in the sets during which the tuna was harvested; in which the tuna were caught; or (ii) In any other fishery unless the (2) The tuna has been processed by a products are accompanied by a written U.S. tuna processor in a plant located statement executed by the captain of in one of the 50 states, Puerto Rico, or the vessel certifying that no purse American Samoa that is in compliance seine net was intentionally deployed on with the tuna tracking and verification or used to encircle dolphins during the requirements of § 216.94; particular voyage on which the tuna (3) The tuna or tuna products are ac- was harvested; companied by a properly completed (3) Driftnet. By a vessel engaged in FCO; large-scale driftnet fishing; or (4) The tuna or tuna products meet (4) Other fisheries. By a vessel in a the dolphin-safe labeling standards fishery other than one described in under § 216.91; and paragraphs (a)(1) through(a)(3) of this (5) The FCO is properly endorsed by section that is identified by the Assist- each processor certifying that, to the ant Administrator as having a regular best of his or her knowledge and belief, and significant mortality or serious in- the FCO and attached documentation jury of dolphins, unless such product is are complete and accurate. accompanied by a written statement, (b) Imported tuna. Tuna or tuna prod- executed by the captain of the vessel ucts harvested in the ETP by purse and an observer participating in a na- seine vessels of greater than 400 st tional or international program ac- (362.8 mt) carrying capacity and pre- ceptable to the Assistant Adminis- sented for import into the United trator, that no dolphins were killed or States are dolphin safe if: seriously injured in the sets or other (1) The tuna was harvested by a U.S. gear deployments in which the tuna vessel fishing in compliance with the were caught, provided that the Assist- requirements of the IDCP and applica- ant Administrator determines that ble U.S. law, or by a vessel belonging such an observer statement is nec- to a nation that has obtained an af- essary. firmative finding of § 216.24(f)(9); (b) It is a violation of section 5 of the (2) The tuna or tuna products are ac- Federal Trade Commission Act (15 companied by a properly completed U.S.C. 45) to willingly and knowingly FCO; use a label referred to in this section in (3) The tuna or tuna products are ac- a campaign or effort to mislead or de- companied by valid documentation ceive consumers about the level of pro- signed by a representative of the appro- tection afforded dolphins under the priate IDCP member nation, certifying IDCP. that: (c) A tuna product that is labeled (i) There was an IDCP approved ob- with the official mark, described in server on board the vessel(s) during the § 216.96, may not be labeled with any entire trip(s); and other label or mark that refers to dol- (ii) The tuna contained in the ship- phins, porpoises, or marine mammals. ment were caught according to the dol- [65 FR 57, Jan. 3, 2000] phin-safe labeling standards of § 216.91;
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(4) The documentation provided in (a) Tuna tracking forms. Whenever a paragraph(b)(3) of this section includes U.S. flag tuna purse seine vessel of a listing of vessel names and identi- greater than 400 st (362.8 mt) carrying fying numbers of the associated Tuna capacity fishes in the ETP, IDCP ap- Tracking Forms for each trip of which proved Tuna Tracking Forms (TTFs), tuna in the shipment originates; and bearing the IATTC cruise number as- (5) The FCO is properly endorsed by signed to that trip, are used by the ob- each exporter, importer, and processor server to record every set made during certifying that, to the best of his or her that trip. One TTF is used to record knowledge and belief, the FCO and at- ‘‘dolphin-safe’’ sets and a second TTF tached documentation are complete is used to record ‘‘non-dolphin-safe’’ and accurate. sets. The information entered on the TTFs following each set includes date [65 FR 57, Jan. 3, 2000] of trip, set number, date of loading, § 216.93 Submission of documentation. name of the vessel, vessel Captain’s name, observer’s name, well number, (a) Requirements for the submission weights by species composition, esti- of documents concerning the activities mated tons loaded, and date of the set. of U.S. flag vessels with greater than The observer and the vessel engineer 400 st carrying capacity fishing in the initial the entry for each set, and the ETP are contained in § 216.94. vessel Captain and observer review and (b) The import documents required sign both TTFs at the end of the fish- by §§ 216.91 and 216.92 must accompany ing trip certifying that the information the tuna product whenever it is offered on the form is accurate. The captain’s for sale or export, except that these and observer’s certification of the TTF documents need not accompany the on which dolphin-safe sets are recorded product when offered for sale if: complies with 16 U.S.C. 1385(h). (1) The documents do not require fur- (b) Tracking fishing operations. (1) ther endorsement by any importer or During ETP fishing trips by purse seine processor and are submitted to officials vessels, tuna caught in sets designated of the U.S. Customs Service at the as ‘‘dolphin-safe’’ by the vessel ob- time of import; or server must be stored separately from (2) The documents are endorsed as re- tuna caught in ‘‘non-dolphin-safe’’ sets quired by § 216.92(b)(4) and the final from the time of capture through un- processor delivers the endorsed docu- loading, except as provided in para- ments to the Administrator, Southwest graph (b)(2) of this section. Vessel per- Region, or to U.S. Customs as required. sonnel will decide into which wells [65 FR 57, Jan. 3, 2000] tuna will be loaded. The observer will initially designate whether each set is § 216.94 Tracking and verification pro- ‘‘dolphin-safe’’ or not, based on his/her gram. observation of the set. The observer The Administrator, Southwest Re- will initially identify a vessel fish well gion, has established a national track- as ‘‘dolphin-safe’’ if the first tuna load- ing and verification program to accu- ed into the well during a trip was cap- rately document the ‘‘dolphin-safe’’ tured in a set in which no dolphin died condition of tuna, under the standards or was seriously injured. The observer set forth in § 216.91(a). The tracking will initially identify a vessel fish well program includes procedures and re- as ‘‘non-dolphin-safe’’ if the first tuna ports for use when importing tuna into loaded into the well during a trip was the U.S. and during U.S. purse seine captured in a set in which a dolphin fishing, processing, and marketing in died or was seriously injured. Any tuna the U.S. and abroad. Verification of loaded into a well previously des- tracking system operations is attained ignated ‘‘non-dolphin-safe’’ or ‘‘mixed through the establishment of audit and well’’ is considered ‘‘non-dolphin-safe’’ document review requirements. The tuna. Except as provided for in para- tracking program is consistent with graph (b)(2)(i) of this section, the ob- the international tuna tracking and server will change the designation of a verification program adopted by the ‘‘dolphin-safe’’ well to ‘‘non-dolphin- Parties to the IDCP. safe’’ if any tuna are loaded into the
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well that were captured in a set in concerning tuna retained on the vessel which a dolphin died or was seriously will be recorded as the first entry on injured. the TTFs for the new trip. If the trip is (2) Mixed wells. Only two acceptable not terminated following a partial un- conditions exist under which a loading, the vessel will retain the ‘‘mixed’’ well can be created. original TTFs and submit a copy of (i) In the event that a set has been those TTFs to the Administrator, designated ‘‘dolphin-safe’’ by the ob- Southwest Region, within 5 working server, but during the loading process days. In either case, the species and dolphin mortality or serious injury is amount unloaded will be noted on the identified, the ‘‘dolphin-safe’’ designa- respective originals. tion of the set will change to ‘‘non-dol- (5) Tuna offloaded to trucks, storage phin-safe.’’ If one or more of the wells facilities or carrier vessels must be into which the newly designated ‘‘non- loaded or stored in such a way as to dolphin-safe’’ tuna are loaded already maintain and safeguard the identifica- contains ‘‘dolphin-safe’’ tuna loaded tion of the ‘‘dolphin-safe’’ or ‘‘non-dol- during a previous set, the observer will phin-safe’’ designation of the tuna as it note in his or her trip records the well left the fishing vessel. numbers and the estimated weight of (6)(i) When ETP caught tuna is to be such ‘‘non-dolphin-safe’’ tuna and des- offloaded from a U.S. purse seiner di- ignate such well(s) as ‘‘mixed well(s).’’ rectly to a U.S. canner within the 50 Once a well has been identified as states, Puerto Rico, or American ‘‘non-dolphin-safe’’ or ‘‘mixed’’ all tuna Samoa, or in any port and subse- subsequently loaded into that well will quently loaded aboard a carrier vessel be designated as ‘‘non-dolphin-safe.’’ for transport to a U.S. processing loca- When the contents of such a ‘‘mixed tion, a NMFS representative may meet well’’ are received by a processor, the the U.S. purse seiner to receive the tuna will be weighed and separated ac- TTFs from the vessel observer and to cording to the observer’s report of the monitor the handling of ‘‘dolphin-safe’’ estimated weight of ‘‘dolphin-safe’’ and and ‘‘non-dolphin-safe’’ tuna. ‘‘non-dolphin-safe’’ tuna contained in that well. In addition, 15 percent of the (ii) When ETP caught tuna is ‘‘dolphin-safe’’ tuna unloaded from the offloaded from an U.S. purse seiner in ‘‘mixed well’’ will be designated as any port and subsequently loaded ‘‘non-dolphin-safe.’’ aboard a carrier vessel for transport to (ii) Near the end of an ETP fishing a cannery outside the jurisdiction of trip, if the only well space available is the United States, a NMFS representa- in a ‘‘non-dolphin-safe’’ well, and there tive may meet the vessel to receive is an opportunity to make one last set, copies of the TTFs from the observer ‘‘dolphin-safe’’ tuna caught in that set and monitor the offloading. The U.S. may be loaded into the ‘‘non-dolphin- caught tuna becomes the tracking and safe’’ well. The ‘‘dolphin-safe’’ tuna verification responsibility of the for- must be kept physically separate from eign buyer when it is offloaded from the ‘‘non-dolphin-safe’’ tuna already in the U.S. vessel. the well, using netting or other mate- (iii) If a NMFS representative does rial. not meet the vessel in port at the time (3) The captain, managing owner, or of arrival, the observer may take the vessel agent of a U.S. purse seine vessel signed TTFs to the IATTC office and returning to port from a trip, any part mail copies to the Administrator, of which included fishing in the ETP, Southwest Region, from that location must provide at least 48 hours notice of within 5 working days of the end of the the vessel’s intended place of landing, trip. arrival time, and schedule of unloading (iv) When ETP caught tuna is to the Administrator, Southwest Re- offloaded from a U.S. purse seiner di- gion. rectly to a processing facility located (4) If the trip terminates when the outside the jurisdiction of the United vessel enters port to unload part or all States in a country that is a party to of its catch, new TTFs will be assigned the IDCP, the national authority in to the new trip, and any information whose area of jurisdiction the tuna is
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to be processed will assume the respon- in any manner or at any time in its sibility for tracking and verification of processing with any ‘‘dolphin-safe’’ the tuna offloaded. A representative of tuna or tuna products and may not the national authority will receive cop- share the same storage containers, ies of the TTFs from the observer, and cookers, conveyers, tables, or other copies of the TTFs will be forwarded to canning and labeling machinery. the Administrator, Southwest Region. (5) Canned tuna processors must sub- (c) Tracking cannery operations. (1) mit a report to the Administrator, Whenever a tuna canning company in Southwest Region, of all tuna received the 50 states, Puerto Rico, or American at their processing facilities in each Samoa is scheduled to receive a domes- calendar month whether or not the tic or imported shipment of ETP tuna is actually canned or stored dur- caught tuna for processing, the com- ing that month. Monthly cannery re- pany must provide at least 48 hours no- ceipt reports must be submitted elec- tice of the location and arrival date tronically or by mail before the last and time of such a shipment, to the Ad- day of the month following the month ministrator, Southwest Region, so that being reported. Monthly reports must a NMFS representative can be present contain the following information: to monitor delivery and verify that (i) Domestic receipts: species, condi- ‘‘dolphin-safe’’ and ‘‘non-dolphin-safe’’ tion (round, loin, dressed, gilled and tuna are clearly identified and remain gutted, other), weight in short tons to segregated. the fourth decimal, ocean area of cap- (2) At the close of delivery activities, ture (eastern tropical Pacific, western which may include weighing, boxing or Pacific, Indian, eastern and western containerizing, and transfer to cold Atlantic, other), catcher vessel, trip storage or processing, the company dates, carrier name, unloading dates, must provide a copy of the processor’s and location of unloading. receiving report to the NMFS rep- (ii) Import receipts: In addition to the resentative, if present. If a NMFS rep- information required in paragraph resentative is not present, the com- pany must submit a copy of the proc- (c)(5)(i) of this section, a copy of the essor’s receiving report to the Adminis- FCO for each imported receipt must be trator, Southwest Region, electroni- provided. cally, by mail, or by fax within 5 work- (d) Tracking imports. All tuna prod- ing days. The processor’s receiving re- ucts, except fresh tuna, that are im- port must contain, at a minimum: date ported into the United States must be of delivery, catcher vessel name and accompanied by a properly certified flag, trip number and dates, storage FCO as required by § 216.24(f). container number(s), ‘‘dolphin-safe’’ or (e) Verification requirements.—(1) ‘‘non-dolphin-safe’’ designation of each Record maintenance. Any exporter, container, species, product description, transshipper, importer, or processor of and weight of tuna in each container. any tuna or tuna products containing (3) Tuna canning companies will re- tuna harvested in the ETP must main- port on a monthly basis the amounts of tain records related to that tuna for at ETP-caught tuna that are removed least 3 years. These records include, from cold storage. This report may be but are not limited to: FCO and re- submitted in conjunction with the quired certifications, any report re- monthly report required in paragraph quired in paragraph (a) and (b) of this (c)(5) of this section. This report must section, invoices, other import docu- contain: ments, and trip reports. (i) The date of removal; (2) Record submission. Within 30 days (ii) Storage container number(s) and of receiving a written request from the ‘‘dolphin-safe’’ or ‘‘non-dolphin-safe’’ Administrator, Southwest Region, any designation of each container; and exporter, transshipper, importer, or (iii) Details of the disposition of fish processor of any tuna or tuna products (for example, canning, sale, rejection, containing tuna harvested in the ETP etc.). must submit to the Administrator any (4) During canning activities, ‘‘non- record required to be maintained under dolphin-safe’’ tuna may not be mixed paragraph (e)(1) of this section.
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(3) Audits and spot-checks. Upon re- endorsement required by § 216.92 is lia- quest of the Administrator, Southwest ble for a civil penalty not to exceed Region, any such exporter, $100,000, that may be assessed in an ac- transshipper, importer, or processor tion brought in any appropriate Dis- must provide the Administrator, trict Court of the United States on be- Southwest Region, timely access to all half of the Secretary. pertinent records and facilities to allow for audits and spot-checks on § 216.96 Official mark for ‘‘Dolphin- caught, landed, and processed tuna. safe’’ tuna products. (f) Confidentiality of proprietary infor- (a) This is the ‘‘official mark’’ (see mation. Information submitted to the Assistant Administrator under this figure 1) designated by the United section will be treated as confidential States Department of Commerce that in accordance with NOAA Administra- may be used to label tuna products tive Order 216–100 ‘‘Protection of Con- that meet the ‘‘dolphin-safe’’ standards fidential Fisheries Statistics.’’ set forth in the Dolphin Protection Consumer Information Act, 16 U.S.C. [65 FR 57, Jan. 3, 2000] 1385, and implementing regulations at § 216.95 False statements or endorse- §§ 216.91 through 216.94: ments. Any person who knowingly and will- fully makes a false statement or false
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(b) Location and size of the official Act of 1972, as amended, 16 U.S.C. mark. The official mark on labels must 1371(a)(5), which provides a mechanism allow the consumer to identify the offi- for allowing, upon request, the inci- cial mark and be similar in design and dental, but not intentional, taking of scale to figure 1. A full color version of small numbers of marine mammals by the official mark is available at http:/ U.S. citizens who engage in a specified /swr.ucsd.edu/dsl.htm. activity (other than commercial fish- [65 FR 34410, May 30, 2000] ing) within a specified geographic re- gion.
Subpart I—General Regulations § 216.102 Scope. Governing Small Takes of Ma- The taking of small numbers of ma- rine Mammals Incidental to rine mammals under section 101(a)(5) Specified Activities (A) through (D) of the Marine Mammal Protection Act may be allowed only if SOURCE: 61 FR 15887, Apr. 10, 1996, unless the National Marine Fisheries Service: otherwise noted. (a) Finds, based on the best scientific evidence available, that the total tak- § 216.101 Purpose. ing by the specified activity during the The regulations in this subpart im- specified time period will have a neg- plement section 101(a)(5) (A) through ligible impact on species or stock of (D) of the Marine Mammal Protection marine mammal(s) and will not have
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an unmitigable adverse impact on the fects on annual rates of recruitment or availability of those species or stocks survival. of marine mammals intended for sub- Small numbers means a portion of a sistence uses; marine mammal species or stock whose (b) Prescribes either regulations taking would have a negligible impact under § 216.106, or requirements and on that species or stock. conditions contained within an inci- Specified activity means any activity, dental harassment authorization issued other than commercial fishing, that under § 216.107, setting forth permis- takes place in a specified geographical sible methods of taking and other region and potentially involves the means of effecting the least practicable taking of small numbers of marine adverse impact on the species or stock mammals. of marine mammal and its habitat and Specified geographical region means an on the availability of the species or area within which a specified activity stock of marine mammal for subsist- is conducted and that has certain bio- ence uses, paying particular attention geographic characteristics. to rookeries, mating grounds, and Unmitigable adverse impact means an areas of similar significance; and impact resulting from the specified ac- (c) Prescribes either regulations or tivity: requirements and conditions contained (1) That is likely to reduce the avail- within an incidental harassment au- ability of the species to a level insuffi- thorization, as appropriate, pertaining cient for a harvest to meet subsistence to the monitoring and reporting of needs by: such taking. The specific regulations (i) Causing the marine mammals to governing certain specified activities abandon or avoid hunting areas; are contained in subsequent subparts of (ii) Directly displacing subsistence this part. users; or § 216.103 Definitions. (iii) Placing physical barriers be- tween the marine mammals and the In addition to definitions contained subsistence hunters; and in the MMPA, and in § 216.3, and unless the context otherwise requires, in sub- (2) That cannot be sufficiently miti- sequent subparts to this part: gated by other measures to increase Arctic waters means the marine and the availability of marine mammals to estuarine waters north of 60° N. lat. allow subsistence needs to be met. Citizens of the United States and U.S. § 216.104 Submission of requests. citizens mean individual U.S. citizens or any corporation or similar entity if it (a) In order for the National Marine is organized under the laws of the Fisheries Service to consider author- United States or any governmental izing the taking by U.S. citizens of unit defined in 16 U.S.C. 1362(13). U.S. small numbers of marine mammals in- Federal, state and local government cidental to a specified activity (other agencies shall also constitute citizens than commercial fishing), or to make a of the United States for purposes of finding that an incidental take is un- this part. likely to occur, a written request must Incidental harassment, incidental tak- be submitted to the Assistant Adminis- ing and incidental, but not intentional, trator. All requests must include the taking all mean an accidental taking. following information for their activ- This does not mean that the taking is ity: unexpected, but rather it includes (1) A detailed description of the spe- those takings that are infrequent, un- cific activity or class of activities that avoidable or accidental. (A complete can be expected to result in incidental definition of ‘‘take’’ is contained in taking of marine mammals; § 216.3). (2) The date(s) and duration of such Negligible impact is an impact result- activity and the specific geographical ing from the specified activity that region where it will occur; cannot be reasonably expected to, and (3) The species and numbers of ma- is not reasonably likely to, adversely rine mammals likely to be found with- affect the species or stock through ef- in the activity area;
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(4) A description of the status, dis- subsistence community with a draft tribution, and seasonal distribution plan of cooperation; (when applicable) of the affected spe- (ii) A schedule for meeting with the cies or stocks of marine mammals like- affected subsistence communities to ly to be affected by such activities; discuss proposed activities and to re- (5) The type of incidental taking au- solve potential conflicts regarding any thorization that is being requested aspects of either the operation or the (i.e., takes by harassment only; takes plan of cooperation; by harassment, injury and/or death) (iii) A description of what measures and the method of incidental taking; the applicant has taken and/or will (6) By age, sex, and reproductive con- take to ensure that proposed activities dition (if possible), the number of ma- will not interfere with subsistence rine mammals (by species) that may be whaling or sealing; and taken by each type of taking identified (iv) What plans the applicant has to in paragraph (a)(5) of this section, and continue to meet with the affected the number of times such takings by communities, both prior to and while each type of taking are likely to occur; conducting the activity, to resolve con- (7) The anticipated impact of the ac- flicts and to notify the communities of tivity upon the species or stock of ma- any changes in the operation; rine mammal; (13) The suggested means of accom- (8) The anticipated impact of the ac- plishing the necessary monitoring and tivity on the availability of the species reporting that will result in increased or stocks of marine mammals for sub- knowledge of the species, the level of sistence uses; taking or impacts on populations of (9) The anticipated impact of the ac- marine mammals that are expected to tivity upon the habitat of the marine be present while conducting activities mammal populations, and the likeli- and suggested means of minimizing hood of restoration of the affected burdens by coordinating such reporting habitat; requirements with other schemes al- (10) The anticipated impact of the ready applicable to persons conducting loss or modification of the habitat on such activity. Monitoring plans should the marine mammal populations in- include a description of the survey volved; techniques that would be used to deter- (11) The availability and feasibility mine the movement and activity of (economic and technological) of equip- marine mammals near the activity ment, methods, and manner of con- site(s) including migration and other ducting such activity or other means of habitat uses, such as feeding. Guide- effecting the least practicable adverse lines for developing a site-specific mon- impact upon the affected species or itoring plan may be obtained by writ- stocks, their habitat, and on their ing to the Director, Office of Protected availability for subsistence uses, pay- Resources; and ing particular attention to rookeries, (14) Suggested means of learning of, mating grounds, and areas of similar encouraging, and coordinating research significance; opportunities, plans, and activities re- (12) Where the proposed activity lating to reducing such incidental tak- would take place in or near a tradi- ing and evaluating its effects. tional Arctic subsistence hunting area (b)(1) The Assistant Administrator and/or may affect the availability of a shall determine the adequacy and com- species or stock of marine mammal for pleteness of a request and, if deter- Arctic subsistence uses, the applicant mined to be adequate and complete, must submit either a plan of coopera- will begin the public review process by tion or information that identifies publishing in the FEDERAL REGISTER ei- what measures have been taken and/or ther: will be taken to minimize any adverse (i) A proposed incidental harassment effects on the availability of marine authorization; or mammals for subsistence uses. A plan (ii) A notice of receipt of a request must include the following: for the implementation or re- (i) A statement that the applicant implementation of regulations gov- has notified and provided the affected erning the incidental taking.
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(2) Through notice in the FEDERAL istrator shall publish in the FEDERAL REGISTER, newspapers of general cir- REGISTER the negative finding along culation, and appropriate electronic with the basis for denying the request. media in the coastal areas that may be affected by such activity, NMFS will § 216.105 Specific regulations. invite information, suggestions, and (a) For all petitions for regulations comments for a period not to exceed 30 under this paragraph, applicants must days from the date of publication in provide the information requested in the FEDERAL REGISTER. All informa- § 216.104(a) on their activity as a whole, tion and suggestions will be considered which includes, but is not necessarily by the National Marine Fisheries Serv- limited to, an assessment of total im- ice in developing, if appropriate, the pacts by all persons conducting the ac- most effective regulations governing tivity. the issuance of letters of authorization (b) For allowed activities that may or conditions governing the issuance of result in incidental takings of small an incidental harassment authoriza- numbers of marine mammals by har- tion. assment, serious injury, death or a (3) Applications that are determined combination thereof, specific regula- to be incomplete or inappropriate for tions shall be established for each al- the type of taking requested, will be re- lowed activity that set forth: turned to the applicant with an expla- (1) Permissible methods of taking; nation of why the application is being (2) Means of effecting the least prac- returned. ticable adverse impact on the species (c) The Assistant Administrator shall and its habitat and on the availability evaluate each request to determine, of the species for subsistence uses; and based upon the best available scientific (3) Requirements for monitoring and evidence, whether the taking by the reporting, including requirements for specified activity within the specified the independent peer-review of pro- geographic region will have a neg- posed monitoring plans where the pro- ligible impact on the species or stock posed activity may affect the avail- and, where appropriate, will not have ability of a species or stock for taking an unmitigable adverse impact on the for subsistence uses. availability of such species or stock for (c) Regulations will be established subsistence uses. If the Assistant Ad- based on the best available informa- ministrator finds that the mitigating tion. As new information is developed, measures would render the impact of through monitoring, reporting, or re- the specified activity negligible when search, the regulations may be modi- 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- Director, Office of Protected Re- posed regulations for the specific activ- sources. The information to be sub- ity. mitted in a request for an authoriza- (d) If, subsequent to the public review tion will be specified in the appropriate period, the Assistant Administrator subpart to this part or may be obtained finds that the taking by the specified by writing to the above named person. activity would have more than a neg- (b) Issuance of a Letter of Authoriza- ligible impact on the species or stock tion will be based on a determination of marine mammal or would have an that the level of taking will be con- unmitigable adverse impact on the sistent with the findings made for the availability of such species or stock for total taking allowable under the spe- subsistence uses, the Assistant Admin- cific regulations.
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(c) Letters of Authorization will (3) Requirements for monitoring and specify the period of validity and any reporting, including requirements for additional terms and conditions appro- the independent peer-review of pro- priate for the specific request. posed monitoring plans where the pro- (d) Notice of issuance of all Letters of posed activity may affect the avail- Authorization will be published in the ability of a species or stock for taking FEDERAL REGISTER within 30 days of for subsistence uses. issuance. (b) Issuance of an incidental harass- (e) Letters of Authorization shall be ment authorization will be based on a withdrawn or suspended, either on an determination that the number of ma- individual or class basis, as appro- rine mammals taken by harassment priate, if, after notice and opportunity will be small, will have a negligible im- for public comment, the Assistant Ad- pact on the species or stock of marine ministrator determines that: mammal(s), and will not have an (1) The regulations prescribed are not unmitigable adverse impact on the being substantially complied with; or availability of species or stocks for taking for subsistence uses. (2) The taking allowed is having, or (c) An incidental harassment author- may have, more than a negligible im- ization will be either issued or denied pact on the species or stock or, where within 45 days after the close of the relevant, an unmitigable adverse im- public review period. pact on the availability of the species (d) Notice of issuance or denial of an or stock for subsistence uses. incidental harassment authorization (f) The requirement for notice and will be published in the FEDERAL REG- opportunity for public review in ISTER within 30 days of issuance of a § 216.106(e) shall not apply if the Assist- determination. ant Administrator determines that an (e) Incidental harassment authoriza- emergency exists that poses a signifi- tions will be valid for a period of time cant risk to the wellbeing of the spe- not to exceed 1 year but may be re- cies or stocks of marine mammals con- newed for additional periods of time cerned. not to exceed 1 year for each reauthor- (g) A violation of any of the terms ization. and conditions of a Letter of Author- (f) An incidental harassment author- ization or of the specific regulations ization shall be modified, withdrawn, shall subject the Holder and/or any in- or suspended if, after notice and oppor- dividual who is operating under the au- tunity for public comment, the Assist- thority of the Holder’s Letter of Au- ant Administrator determines that: thorization to penalties provided in the (1) The conditions and requirements MMPA. prescribed in the authorization are not being substantially complied with; or § 216.107 Incidental harassment au- (2) The authorized taking, either in- thorization for Arctic waters. dividually or in combination with (a) Except for activities that have other authorizations, is having, or may the potential to result in serious injury have, more than a negligible impact on or mortality, which must be authorized the species or stock or, where relevant, under § 216.105, incidental harassment an unmitigable adverse impact on the authorizations may be issued, fol- availability of the species or stock for lowing a 30-day public review period, to subsistence uses. allowed activities that may result in (g) The requirement for notice and only the incidental harassment of a opportunity for public review in para- small number of marine mammals. graph (f) of this section shall not apply Each such incidental harassment au- if the Assistant Administrator deter- thorization shall set forth: mines that an emergency exists that (1) Permissible methods of taking by poses a significant risk to the well- harassment; being of the species or stocks of marine (2) Means of effecting the least prac- mammals concerned. ticable adverse impact on the species, (h) A violation of any of the terms its habitat, and on the availability of and conditions of an incidental harass- the species for subsistence uses; and ment authorization shall subject the
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holder and/or any individual who is op- posals must be independently peer-re- erating under the authority of the viewed prior to issuance of an inci- holder’s incidental harassment author- dental harassment authorization under ization to penalties provided in the this subpart. In order to complete the MMPA. peer-review process within the time frames mandated by the MMPA for an § 216.108 Requirements for monitoring incidental harassment authorization, a and reporting under incidental har- assment authorizations for Arctic proposed monitoring plan submitted waters. under this paragraph must be sub- mitted to the Assistant Administrator (a) Holders of an incidental harass- no later than the date of submission of ment authorization in Arctic waters the application for an incidental har- and their employees, agents, and des- assment authorization. Upon receipt of ignees must cooperate with the Na- tional Marine Fisheries Service and a complete monitoring plan, and at its other designated Federal, state, or discretion, the National Marine Fish- local agencies to monitor the impacts eries Service will either submit the of their activity on marine mammals. plan to members of a peer review panel Unless stated otherwise within an inci- for review or within 60 days of receipt dental harassment authorization, the of the proposed monitoring plan, sched- holder of an incidental harassment au- ule a workshop to review the plan. The thorization effective in Arctic waters applicant must submit a final moni- must notify the Alaska Regional Direc- toring plan to the Assistant Adminis- tor, National Marine Fisheries Service, trator prior to the issuance of an inci- of any activities that may involve a dental harassment authorization. take by incidental harassment in Arc- (e) At its discretion, the National tic waters at least 14 calendar days Marine Fisheries Service may place an prior to commencement of the activ- observer aboard vessels, platforms, air- ity. craft, etc., to monitor the impact of ac- (b) Holders of incidental harassment tivities on marine mammals. authorizations effective in Arctic wa- (f)(1) As specified in the incidental ters may be required by their author- harassment authorization, the holder ization to designate at least one quali- of an incidental harassment authoriza- fied biological observer or another ap- tion for Arctic waters must submit re- propriately experienced individual to ports to the Assistant Administrator observe and record the effects of activi- within 90 days of completion of any in- ties on marine mammals. The number dividual components of the activity (if of observers required for monitoring any), within 90 days of completion of the impact of the activity on marine the activity, but no later than 120 days mammals will be specified in the inci- prior to expiration of the incidental dental harassment authorization. If ob- harassment authorization, whichever is servers are required as a condition of earlier. This report must include the the authorization, the observer(s) must following information: be approved in advance by the National Marine Fisheries Service. (i) Dates and type(s) of activity; (c) The monitoring program must, if (ii) Dates and location(s) of any ac- appropriate, document the effects (in- tivities related to monitoring the ef- cluding acoustical) on marine mam- fects on marine mammals; and mals and document or estimate the ac- (iii) Results of the monitoring activi- tual level of take. The requirements ties, including an estimate of the ac- for monitoring plans, as specified in tual level and type of take, species the incidental harassment authoriza- name and numbers of each species ob- tion, may vary depending on the activ- served, direction of movement of spe- ity, the location, and the time. cies, and any observed changes or (d) Where the proposed activity may modifications in behavior. affect the availability of a species or (2) Monitoring reports will be re- stock of marine mammal for taking for viewed by the Assistant Administrator subsistence purposes, proposed moni- and, if determined to be incomplete or toring plans or other research pro- inaccurate, will be returned to the
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holder of the authorization with an ex- (a) On-ice geophysical seismic activi- planation of why the report is being re- ties involving vibrator-type, airgun, or turned. If the authorization holder dis- other energy source equipment shown agrees with the findings of the Assist- to have similar or lesser effects. ant Administrator, the holder may re- (b) Operation of transportation and quest an independent peer review of the camp facilities associated with seismic report. Failure to submit a complete activities. and accurate report may result in a delay in processing future authoriza- § 216.114 Mitigation. tion requests. (a) All activities identified in § 216.113 (g) Results of any behavioral, feed- must be conducted in a manner that ing, or population studies, that are minimizes to the greatest extent prac- conducted supplemental to the moni- ticable adverse effects on ringed and toring program, should be made avail- bearded seals and their habitat. able to the National Marine Fisheries (b) All activities identified in § 216.113 Service before applying for an inci- must be conducted as far as practicable dental harassment authorization for from any observed ringed or bearded the following year. seal or ringed seal lair. No energy source must be placed over an observed ringed seal lair, whether or not any Subpart J—Taking of Ringed Seals seal is present. Incidental to On-Ice Seismic Activities § 216.115 Requirements for monitoring and reporting.
SOURCE: 63 FR 5283, Feb. 2, 1998, unless oth- (a) Holders of Letters of Authoriza- erwise noted. tion are required to cooperate with the National Marine Fisheries Service and EFFECTIVE DATE NOTE: At 63 FR 5283, Feb. 2, 1998, subpart J was revised, effective Feb. any other Federal, state, or local agen- 2, 1998, to Dec. 31, 2002. cy monitoring the impacts on ringed or bearded seals. § 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- pleting each year’s activities and must Regulations in this subpart are effec- include the following information: tive from February 2, 1998 through De- (1) Location(s) of survey activities. cember 31, 2002. (2) Level of effort (e.g., duration, area surveyed, number of surveys), methods § 216.113 Permissible methods. used, and a description of habitat (e.g., The incidental, but not intentional, ice thickness, surface topography) for taking of ringed and bearded seals from each location. January 1 through May 31 by U.S. citi- (3) Numbers of ringed seals, bearded zens holding a Letter of Authorization, seals, or other marine mammals ob- issued under § 216.106, is permitted dur- served, proximity to seismic or associ- ing the course of the following activi- ated activities, and any seal reactions ties: observed for each location.
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(4) Numbers of ringed seal lairs ob- (1) Timely receipt of the reports re- served and proximity to seismic or as- quired under § 216.115(d), which have sociated activities for each location. been reviewed by the Assistant Admin- (5) Other information as required in a istrator and determined to be accept- Letter of Authorization. able; and (2) A determination that the mitiga- § 216.116 Applications for Letters of Authorization. tion measures required under § 216.114(b) and the Letter of Authoriza- (a) To incidentally take ringed and tion have been undertaken. bearded seals pursuant to these regula- (b) A notice of issuance of a Letter of tions, each company conducting seis- Authorization or of a renewal of a Let- mic operations between January 1 and May 31 in the geographical area de- ter of Authorization will be published scribed in § 216.111, must apply for and in the FEDERAL REGISTER within 30 obtain a Letter of Authorization in ac- days of issuance. cordance with § 216.106. (b) The application must be sub- § 216.118 Modifications to Letters of Authorization. mitted to the National Marine Fish- eries Service at least 90 days before the (a) In addition to complying with the activity is scheduled to begin. provisions of § 216.106, except as pro- (c) Applications for Letters of Au- vided in paragraph (b) of this section, thorization and for renewals of Letters no substantive modification, including of Authorization must include the fol- withdrawal or suspension, to a Letter lowing: of Authorization issued pursuant to (1) Name of company requesting the § 216.106 and subject to the provisions of authorization; this subpart shall be made until after (2) A description of the activity in- notice and an opportunity for public cluding method to be used (vibroseis, comment. For purposes of this para- airgun, watergun), the dates and dura- graph, renewal of a Letter of Author- tion of the activity, the specific loca- ization under § 216.117, without modi- tion of the activity and the estimated fication, is not considered a sub- area that will actually be affected by stantive modification. the exploratory activity; (b) If the Assistant Administrator de- (3) Any plans to monitor the behavior termines that an emergency exists that and effects of the activity on marine mammals; poses a significant risk to the well- (4) A description of what measures being of the species or stocks of marine the applicant has taken and/or will mammals specified in § 216.111, the Let- take to ensure that proposed activities ter of Authorization issued pursuant to will not interfere with subsistence seal- § 216.106, or renewed pursuant to this ing; and section may be substantively modified (5) What plans the applicant has to without prior notice and an oppor- continue to meet with the affected tunity for public comment. A notice communities, both prior to and while will be published in the FEDERAL REG- conducting the activity, to resolve con- ISTER subsequent to the action. flicts and to notify the communities of any changes in the operation. § 216.119 [Reserved] (d) A copy of the Letter of Authoriza- tion must be in the possession of the Subpart K—Taking of Marine persons conducting activities that may Mammals Incidental to Space involve incidental takings of ringed Vehicle and Test Flight Activi- and bearded seals. ties § 216.117 Renewal of Letters of Author- ization. SOURCE: 64 FR 9930, Mar. 1, 1999, unless oth- (a) A Letter of Authorization issued erwise noted. under § 216.106 for the activity identi- EFFECTIVE DATE NOTE: At 64 FR 9930, Mar. fied in § 216.111 will be renewed annu- 1, 1999, subpart K was added, effective Mar. 1, ally upon: 1999, to Dec. 31, 2003.
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§ 216.120 Specified activity and speci- (a) Take any marine mammal not fied geographical region. specified in § 216.120(b); (a) Regulations in this subpart apply (b) Take any marine mammal speci- only to the incidental taking of those fied in § 216.120(b) other than by inci- marine mammals specified in para- dental, unintentional harassment; graph (b) of this section by U.S. citi- (c) Take a marine mammal specified zens engaged in: in § 216.120(b) if such take results in (1) Launching up to 10 Minuteman more than a negligible impact on the and Peacekeeper missiles each year species or stocks of such marine mam- from Vandenberg Air Force Base, for a mal; or total of up to 50 missiles over the 5- (d) Violate, or fail to comply with, year authorization period, the terms, conditions, and require- (2) Launching up to 20 rockets each ments of these regulations or a Letter year from Vandenberg Air Force Base, of Authorization issued under § 216.106. for a total of up to 100 rocket launches over the 5-year authorization period, § 216.124 Mitigation. (3) Aircraft flight test operations, (a) The activity identified in and (4) Helicopter operations from Van- § 216.120(a) must be conducted in a man- denberg Air Force Base. ner that minimizes, to the greatest ex- (b) The incidental take of marine tent possible, adverse impacts on ma- mammals on Vandenberg Air Force rine mammals and their habitats. Base and in waters off southern Cali- When conducting operations identified fornia, under the activity identified in in § 216.120, the following mitigation paragraph (a) of this section, is limited measures must be utilized: to the following species: Harbor seals (1) All aircraft and helicopter flight (Phoca vitulina), California sea lions paths must maintain a minimum dis- (Zalophus californianus), northern ele- tance of 1,000 ft (305 m) from recognized phant seals (Mirounga angustirostris), seal haulouts and rookeries (e.g., Point northern fur seals (Callorhinus ursinus), Sal, Purisima Point, Rocky Point), ex- Guadalupe fur seals (Arctocephalus cept in emergencies or for real-time se- townsendi), and Steller sea lions curity incidents (e.g., search-and-res- (Eumetopias jubatus). cue, fire-fighting) which may require approaching pinniped rookeries closer § 216.121 Effective dates. than 1,000 ft (305 m). Regulations in this subpart are effec- (2) For missile and rocket launches, tive from March 1, 1999, through De- unless constrained by other factors in- cember 31, 2003. cluding, but not limited to, human safety, national security or launch tra- § 216.122 Permissible methods of tak- jectories, in order to ensure minimum ing. negligible impacts of launches on har- (a) Under Letters of Authorization bor seals and other pinnipeds, holders issued pursuant to § 216.106, the 30th of Letters of Authorization must avoid, Space Wing, U.S. Air Force, its con- whenever possible, launches during the tractors, and clients, may incidentally, harbor seal pupping season of February but not intentionally, take marine through May. mammals by harassment, within the (3) For Titan IV launches only, the area described in § 216.120, provided all holder of that Letter of Authorization terms, conditions, and requirements of must avoid launches, whenever pos- these regulations and such Letter(s) of sible, which predict a sonic boom on Authorization are complied with. the Northern Channel Islands during (b) [Reserved] harbor seal, elephant seal, and Cali- fornia sea lion pupping seasons. § 216.123 Prohibitions. (4) If post-launch surveys determine Notwithstanding takings authorized that an injurious or lethal take of a by § 216.120 and by a Letter of Author- marine mammal has occurred, the ization issued under § 216.106, no person launch procedure and the monitoring in connection with the activities de- methods must be reviewed, in coopera- scribed in § 216.120 shall: tion with NMFS, and appropriate
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changes must be made through modi- sound pressure level measurements fication to a Letter of Authorization, made previously. prior to conducting the next launch (c) Holders of Letters of Authoriza- under that Letter of Authorization. tion must conduct additional moni- (5) Additional mitigation measures as toring as required under an annual Let- contained in a Letter of Authorization. ter of Authorization. (b) [Reserved] (d) The Holder of the Letter of Au- thorization must submit a report to § 216.125 Requirements for monitoring the Southwest Administrator, National and reporting. Marine Fisheries Service within 90 (a) Holders of Letters of Authoriza- days after each launch. This report tion issued pursuant to § 216.106 for ac- must contain the following informa- tivities described in § 216.120(a) are re- tion: quired to cooperate with the National (1) Date(s) and time(s) of the launch, Marine Fisheries Service, and any (2) Design of the monitoring pro- other Federal, state or local agency gram, and monitoring the impacts of the activity (3) Results of the monitoring pro- on marine mammals. Unless specified grams, including, but not necessarily otherwise in the Letter of Authoriza- limited to: tion, the Holder of the Letter of Au- thorization must notify the Adminis- (i) Numbers of pinnipeds present on trator, Southwest Region, National the haulout prior to commencement of Marine Fisheries Service, by letter or the launch, telephone, at least 2 weeks prior to ac- (ii) Numbers of pinnipeds that may tivities possibly involving the taking have been harassed as noted by the of marine mammals. number of pinnipeds estimated to have (b) Holders of Letters of Authoriza- entered the water as a result of launch tion must designate qualified on-site noise, individuals, as specified in the Letter (iii) The length of time(s) pinnipeds of Authorization, to: remained off the haulout or rookery, (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 made in consultation with the National at least 180 days prior to expiration of Marine Fisheries Service), these regulations. This report will: (3) As required under a Letter of Au- (1) Summarize the activities under- thorization, investigate the potential taken and the results reported all pre- for spontaneous abortion, disruption of vious reports, effective female-neonate bonding, and (2) Assess the impacts at each of the other reproductive dysfunction, major rookeries, (4) Supplement observations on Van- (3) Assess the cumulative impact on denberg and on the Northern Channel pinnipeds and other marine mammals Islands, if indicated, with video-record- from Vandenberg activities, and ing of mother-pup seal responses for (4) State the date(s) location(s) and daylight launches during the pupping findings of any research activities re- season, and lated to monitoring the effects on (5) Conduct acoustic measurements launch noise and sonic booms on ma- of those launch vehicles not having rine mammal populations.
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§ 216.126 Applications for Letters of no substantive modification, including Authorization. withdrawal or suspension, to the Let- (a) To incidentally take harbor seals ter of Authorization issued pursuant to and other marine mammals pursuant § 216.106 and subject to the provisions of to these regulations, either the U.S. this subpart shall be made until after citizen (see definition at § 216.103) con- notice and an opportunity for public ducting the activity or the 30th Space comment. Wing on behalf of the U.S. citizen con- (b) If the Assistant Administrator de- ducting the activity, must apply for termines that an emergency exists that and obtain a Letter of Authorization in poses a significant risk to the well- accordance with § 216.106. being of the species or stocks of marine (b) The application must be sub- mammals specified in § 216.120(b) or mitted to the National Marine Fish- that significantly and detrimentally eries Service at least 30 days before the alters the scheduling of launches, a activity is scheduled to begin. Letter of Authorization issued pursu- (c) Applications for Letters of Au- ant to § 216.106 may be substantively thorization and for renewals of Letters modified without a prior notice and an of Authorization must include the fol- opportunity for public comment. A no- lowing: (1) Name of the U.S. citizen request- tice will be published in the FEDERAL ing the authorization, REGISTER subsequent to the action. (2) A description of the activity, the dates of the activity, and the specific Subpart L—Taking of Marine location of the activity, and Mammals Incidental to Power (3) Plans to monitor the behavior and Plant Operations effects of the activity on marine mam- mals. (d) A copy of the Letter of Authoriza- SOURCE: 64 FR 28120, May 25, 1999, unless tion must be in the possession of the otherwise noted. persons conducting activities that may EFFECTIVE DATE NOTE: At 64 FR 28120, May involve incidental takings of seals and 25, 1999, subpart L was added, effective July sea lions. 1, 1999 through June 30, 2004.
§ 216.127 Renewal of Letters of Author- § 216.130 Specified activity, specified ization. geographical region, and incidental A Letter of Authorization issued take levels. under § 216.126 for the activity identi- (a) Regulations in this subpart apply fied in § 216.120(a) will be renewed annu- only to the incidental taking of harbor ally upon: seals (Phoca vitulina), gray seals (a) Timely receipt of the reports re- (Halichoerus grypus), harp seals (Phoca quired under § 216.125(d), which have groenlandica), and hooded seals been reviewed by the Assistant Admin- (Cystophora cristata) by U.S. citizens istrator and determined to be accept- engaged in power plant operations at able; the Seabrook Station nuclear power (b) A determination that the mitiga- plant, Seabrook, NH. tion measures required under § 216.124 and the Letter of Authorization have (b) The incidental take of harbor, been undertaken; and gray, harp, and hooded seals under the (c) A notice of issuance of a Letter of activity identified in this section is Authorization or a renewal of a Letter limited to 20 harbor seals and 4 of any of Authorization will be published in combination of gray, harp, and hooded the FEDERAL REGISTER within 30 days seals for each year of the authoriza- of issuance. tion.
§ 216.128 Modifications of Letters of § 216.131 Effective dates. Authorization. Regulations in this subpart are effec- (a) In addition to complying with the tive from July 1, 1999 through June 30, provisions of § 216.106, except as pro- 2004. vided in paragraph (b) of this section,
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§ 216.132 Permissible methods of tak- the date of issuance of the final rule. ing. Failure of the holder of the Letter of Under a Letter of Authorization Authorization to implement such issued to North Atlantic Energy Serv- measures in accordance with the NMFS ices Corporation for Seabrook Station, specifications may be grounds to inval- the North Atlantic Energy Services idate the Letter of Authorization. Corporation may incidentally, but not intentionally, take marine mammals § 216.135 Monitoring and reporting. specified in § 216.130 in the course of op- (a) The holder of the Letter of Au- erating the station’s intake cooling thorization is required to cooperate water system. with NMFS and any other Federal, state, or local agency monitoring the § 216.133 Prohibitions. impacts of the activity on harbor, Notwithstanding takings authorized gray, harp, or hooded seals. by § 216.130(a) and by the Letter of Au- (b) The holder of the Letter of Au- thorization, issued under § 216.106, the thorization must designate a qualified following activities are prohibited: individual or individuals capable of (a) The taking of harbor seals, gray identifying any seal or seal parts or seals, harp seals, and hooded seals that marine mammal or marine mammal is other than incidental. parts, that occur in the intake circu- (b) The taking of any marine mam- lating system, including the intake mal not authorized in this applicable transition structure, both forebays, subpart or by any other law or regula- and any marine mammal or marine tion. mammal parts observed as a result of (c) The violation of, or failure to screen washings conducted. comply with, the terms, conditions, (c) The holder of the Letter of Au- and requirements of this part or a Let- thorization must conduct at least two ter of Authorization issued under daily visual inspections of the circu- § 216.106. lating water and service water forebays during the period specified in the Let- § 216.134 Mitigation requirements. ter of Authorization. The holder of the Letter of Author- (d) The holder of the Letter of Au- ization is required to report, within 6 thorization must conduct at least daily months from the issuance of a final inspections of the intake transition rule, to the Administrator, Northeast structure from April 1 through Decem- Region, NMFS, on possible mitigation ber, unless weather conditions prevent measures effecting the least prac- safe access to the structure. ticable adverse impact on the seals (e) The holder of the Letter of Au- specified in § 216.130. The report shall thorization must conduct screen also include a recommendation of washings at least daily during the which measures, if any, the holder months of higher incidents of observed could feasibly implement. A descrip- takes and this period will be specified tion of any mitigation measures that in the Letter of Authorization. During Seabrook Station has considered, but the months not specified in the LOA, determined would not be feasible, must screen washings will be conducted be included as well. After submission of twice a week. Examination of the de- such report, NMFS shall determine bris must be conducted to determine if whether the holder of the Letter of Au- any seal remains are present. thorization must implement measures (f) The holder of the Letter of Au- to effect the least practicable adverse thorization must report orally to the impact on the seals. If NMFS deter- Northeast Regional Administrator, mines that such measures must be im- NMFS, by telephone or other accept- plemented then NMFS shall specify, able means, any marine mammals or after consultation with the holder of marine mammal parts found in the lo- the Letter of Authorization, the sched- cations specified in § 216.135(b) through ule and other conditions for implemen- (e). Such oral reports must be made by tation of the measures. Implementa- the close of the next business day fol- tion of such measures must be com- lowing the finding of any marine mam- pleted no later than 42 months after mal or marine mammal parts.
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(g) The holder of the Letter of Au- tion is made and other conditions and thorization must arrange to have a ne- requirements specified in § 216.136(a) cropsy examination performed by are satisfied, and provided that any qualified individuals on any marine modifications of the Letter of Author- mammal or marine mammal parts re- ization that may be required are done covered through monitoring as speci- pursuant to § 216.137. fied under § 216.135(b) through (e). (c) Notice of issuance of a renewal of (h) The holder of the Letter of Au- the Letter of Authorization will be thorization must also provide written published in the FEDERAL REGISTER notification to the Administrator, within 30 days of issuance. Northeast Region, NMFS, of such ma- rine mammal or marine mammal parts § 216.137 Modifications to the Letter of found within 30 days from the time of Authorization. the discovery. This report must con- tain the results of any examinations or (a) In addition to complying with the necropsies of the marine mammals in provisions of § 216.106, except as pro- addition to any other information re- vided in paragraph (b) of this section, lating to the circumstances of the no substantive modification, including take. withdrawal or suspension, to the Let- (i) An annual report, identifying ter of Authorization issued pursuant to mitigation measures implemented to § 216.106 and subject to the provisions of effect the least practicable adverse im- this subpart shall be made until after pact on the seals and/or are being con- notice and an opportunity for public sidered for implementation pursuant to comment. For purposes of this para- the requirements specified at § 216.134, graph, renewal of a Letter of Author- must be submitted to the Adminis- ization under § 216.136, without modi- trator, Northeast Region, NMFS, with- fication, is not considered a sub- in 30 days prior to the expiration date stantive modification. of the issuance of the Letter of Author- (b) If NMFS determines that an ization. emergency exists that poses a signifi- § 216.136 Renewal of the Letter of Au- cant risk to the well-being of the spe- thorization. cies or stocks of marine mammals specified in § 216.130, the Letter of Au- (a) A Letter of Authorization issued thorization issued pursuant to this sec- under § 216.106 for the activity identi- fied in § 216.130(a) may be renewed an- tion may be substantively modified nually provided the following condi- without prior notice and an oppor- tions and requirements are satisfied: tunity for public comment. Notifica- (1) Timely receipt of the reports re- tion will be published in the FEDERAL quired under § 216.135, which have been REGISTER subsequent to the action. reviewed by the Administrator, North- east Region, NMFS, and determined to §§ 216.138–216.140 [Reserved] be acceptable; (2) A determination that the max- Subparts M—N [Reserved] imum incidental take authorizations in § 216.130(b) will not be exceeded; and Subpart O—Taking of Marine (3) A determination that research on Mammals Incidental to Shock mitigation measures required under § 216.134(a) and the Letter of Authoriza- Testing the USS SEAWOLF by tion have been undertaken. Detonation of Conventional (b) If a species’ annual incidental Explosives in the Offshore Wa- take authorization is exceeded, NMFS ters of the U.S. Atlantic Coast will review the documentation sub- mitted under § 216.135, to determine SOURCE: 63 FR 66076, Dec. 1, 1998, unless whether or not the taking is having otherwise noted. more than a negligible impact on the species or stock involved. The Letter of EFFECTIVE DATE NOTE: At 63 FR 66076, Dec. Authorization may be renewed pro- 1, 1998, subpart O was added, effective Jan. 1, vided a negligible impact determina- 1999 through Sept. 30, 2004.
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§ 216.161 Specified activity, geo- paragraph (b) of this section that are graphical region, and incidental also listed as threatened or endangered take levels. under § 17.11 of this title, is prohibited. (a) Regulations in this subpart apply only to the incidental taking of marine § 216.162 Effective dates. mammals specified in paragraph (b) of Regulations in this subpart are effec- this section by U.S. citizens engaged in tive May 1 through September 30 of the detonation of conventional mili- any single year between the years 2000 tary explosives within the waters of and 2004, inclusive. the U.S. Atlantic Coast offshore 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
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zone shows that no other right whales biologists and other trained individ- are present. uals, and the marine mammal popu- (2) If weather and/or sea conditions as lations monitored, approximately 3 described in the Letter of Authoriza- weeks prior to detonation, 48–72 hours tion preclude adequate aerial surveil- prior to a scheduled detonation, on the lance, detonation must be delayed day of detonation, and for a period of until conditions improve sufficiently time specified in the Letter of Author- for aerial surveillance to be under- ization after each detonation. Moni- taken. toring shall include, but not nec- (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- § 216.164 Prohibitions. ducted. Necropsies will be performed 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 in this subpart. charge. Measurements must be made at 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 (a) The holder of the Letter of Au- zone. Based upon the results of this thorization is required to cooperate test, the monitoring and safety zones with the National Marine Fisheries described in the Letter of Authoriza- Service and any other Federal, state or tion, may be modified accordingly. 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)
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on any ship or aircraft involved in ma- stantively modified without prior no- rine mammal reconnaissance, or moni- tice and an opportunity for public com- toring either prior to, during, or after ment. A notice will be published in the explosives detonation in order to mon- FEDERAL REGISTER subsequent to the itor the impact on marine mammals. action. (h) A final report must be submitted to the Administrator, Southeast Re- §§ 216.167–216.169 [Reserved] gion, no later than 120 days after com- pletion of shock testing the USS Subpart P—Taking of Marine SEAWOLF. This report must contain Mammals Incidental to Oper- the following information: ating A Low Frequency (1) Date and time of all detonations Acoustic Source by the North conducted under the Letter of Author- ization. Pacific Acoustic Laboratory (2) A description of all pre-detonation and post-detonation activities related SOURCE: 66 FR 43458, Aug. 17, 2001, unless to mitigating and monitoring the ef- otherwise noted. fects of explosives detonation on ma- EFFECTIVE DATE NOTE: At 66 FR 43458, Aug. rine mammal populations. 17, 2001, subpart P was added, effective Sept. (3) Results of the monitoring pro- 17, 2001 to Sept. 17, 2006. gram, including numbers by species/ stock of any marine mammals noted § 216.170 Specified activity and speci- injured or killed as a result of the deto- fied geographical region. nation and numbers that may have (a) Regulations in this subpart apply been harassed due to presence within only to the incidental taking of small the designated safety zone. numbers of marine mammals specified (4) Results of coordination with in paragraph (b) of this section by U.S. coastal marine mammal/sea turtle citizens engaged in conducting acous- stranding networks. tic research using a moored, low-fre- (i) A final report on results of quency acoustic source by the North necropsies of stranded marine mam- Pacific Acoustic Laboratory off Kauai, mals funded by the U.S. Navy must be Hawaii. submitted to the Director, Office of (b) The incidental harassment of ma- Protected Resources, no later than 18 rine mammals under the activity iden- months after completion of shock test- tified in paragraph (a) of this section is ing the USS SEAWOLF. limited to small numbers of the fol- lowing species: humpback whales § 216.166 Modifications to the Letter of (Megaptera novaengliae), fin whales Authorization. (Balaenoptera physalus), blue whales (B. (a) In addition to complying with the musculus), Bryde’s whales (B. edeni), provisions of § 216.106, except as pro- minke whales (B. acutorostrata), North vided in paragraph (b) of this section, Pacific right whales (Balaena no substantive modification, including japonicus), sperm whales (Physeter withdrawal or suspension, to the Let- macrocephalus), short-finned pilot ter of Authorization issued pursuant to whales (Globicephala macrorhynchus), § 216.106 and subject to the provisions of beaked whales (Ziphius cavirostris, this subpart shall be made until after Berardius bairdi, and Mesoplodon spp.), notice and an opportunity for public spinner dolphins (Stenella longirostris), comment. spotted dolphins (Stenella attenuata), (b) If the Assistant Administrator de- striped dolphins (Stenella coeruleoalba), termines that an emergency exists that bottlenose dolphins (Tursiops poses a significant risk to the well- truncatus), rough-toothed dolphins being of the species or stocks of marine (Steno bredanensis), pygmy sperm mammals specified in § 216.161(b), or whales (Kogia breviceps), dwarf sperm that significantly and detrimentally whales (Kogia simus), killer whales alters the scheduling of explosives det- (Orcinus orca), false killer whales onation within the area specified in (Pseudorca crassidens), pygmy killer § 216.161(a), the Letter of Authorization whales (Feresa attenuata), and melon- issued pursuant to § 216.106 may be sub- headed whales (Peponocephala electra).
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and Hawaiian monk seals (Monachus (b) Not increase the duty cycle dur- schauinslandi). ing the months of January through April. § 216.171 Effective dates. (c) Operate at the minimum power Regulations in this subpart are effec- level necessary for conducting large- tive from September 17, 2001, through scale acoustic thermometry and long- September 17, 2006. range propagation objectives, but no more than 260 Watts. § 216.172 Permissible methods of tak- (d) Precede all transmissions from ing. the acoustic source by a 5-minute (a) Under a Letter of Authorization ramp-up of the acoustic source’s power. issued pursuant to §§ 216.106 and 216.176, § 216.175 Requirements for monitoring the Holder of this Letter of Authoriza- and reporting. tion may incidentally, but not inten- tionally, take marine mammals by har- (a) The holder of the Letter of Au- assment within the area described in § thorization is required to cooperate 216.170(a), provided the activity is in with the National Marine Fisheries compliance with all terms, conditions, Service and any other Federal, state or and requirements of these regulations local agency monitoring the impacts of and the Letter of Authorization. the activity on marine mammals. The (b) The activities identified in § holder must notify the Southwest Re- 216.170(a) must be conducted in a man- gional Administrator at least 2 weeks ner that minimizes, to the greatest ex- prior to commencing monitoring ac- tent practicable, any adverse impacts tivities. on marine mammals and their habitat. (b) The Holder of this Authorization must conduct a minimum of eight sur- § 216.173 Prohibitions. veys each year from February through early April in the area off the north Notwithstanding takings authorized shore of Kauai, Hawaii, as specified in by § 216.170(b) and by a Letter of Au- the Letter of Authorization issued thorization issued under §§ 216.106 and under §§ 216.106 and 216.176. 216.176, no person in connection with (c) The Holder of this Authorization the activities described in § 216.170(a) must, through coordination with ma- shall: rine mammal stranding networks in (a) Take any marine mammal not Hawaii, monitor strandings of marine specified in § 216.170(b); mammals to detect long-term trends in (b) Take any marine mammal speci- stranding and the potential relation- fied in § 216.170(b) other than by inci- ship to the North Pacific Acoustic Lab- dental, unintentional harassment; oratory acoustic source. (c) Take any marine mammal speci- (d) Activities related to the moni- fied in § 216.170(b) if such take results toring described in paragraphs (b) and in more than a negligible impact on (c) of this section, or in the Letter of the species or stocks of such marine Authorization issued under §§ 216.106 mammal; or and 216.176 may be conducted without (d) Violate, or fail to comply with, the need for a separate scientific re- the terms, conditions, and require- search permit. ments of these regulations or a Letter (e) In coordination and compliance of Authorization issued under §§ 216.106 with marine mammal researchers oper- and 216.176. ating under this subpart, at its discre- tion, the National Marine Fisheries § 216.174 Mitigation. Service may place an observer on any As described in the Letter of Author- aircraft involved in marine mammal ization issued under §§ 216.106 and surveys in order to monitor the impact 216.176., the North Pacific Acoustic on marine mammals. Laboratory acoustic source must: (f) The holder of a Letter of Author- (a) Operate at the minimum duty ization must annually submit a report cycle necessary for conducting large- to the Director, Office of Protected Re- scale acoustic thermometry and long- sources, National Marine Fisheries range propagation objectives. Service, no later than 120 days after
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the conclusion of the humpback whale § 216.177 Renewal of a letter of au- aerial survey monitoring program. thorization. This report must contain all the infor- (a) A Letter of Authorization issued mation required by the Letter of Au- under § 216.106 and § 216.176 for the ac- thorization, including the results, if tivity identified in § 216.170(a) will be any, of coordination with coastal ma- renewed annually upon: rine mammal stranding networks. (1) Notification to the National Ma- (g) A final comprehensive report rine Fisheries Service that the activity must be submitted to the Director, Of- described in the application for a Let- fice of Protected Resources, National ter of Authorization submitted under § Marine Fisheries Service no later than 216.176 will be undertaken and that 240 days after completion of the final there will not be a substantial modi- year of humpback whale aerial survey fication to the described work, mitiga- tion, or monitoring undertaken during monitoring conducted under § 216.175. the upcoming season; This report must contain all the infor- (2) Timely receipt of the monitoring mation required by the Letter of Au- reports required under § 216.175, which thorization. have been reviewed by the National Marine Fisheries Service and deter- § 216.176 Letter of authorization. mined to be acceptable; (a) A Letter of Authorization, unless (3) A determination by the National suspended or revoked, will be valid for Marine Fisheries Service that the miti- a period of time specified in the Letter gation, monitoring, and reporting of Authorization but may not exceed measures required under §§ 216.174 and the period of validity of this subpart. 216.175 and the Letter of Authorization (b) A Letter of Authorization with a were undertaken and will be under- period of validity less than the period taken during the upcoming period of of validity of this subpart may be re- validity of a renewed Letter of Author- newed subject to renewal conditions in ization; and § 216.177. (4) Renewal of a Letter of Authoriza- tion will be based on a determination (c) A Letter of Authorization will set that the number of marine mammals forth: taken by the activity continues to be (1) Permissible methods of incidental small and that the number of marine taking; mammals taken by the activity, speci- (2) Authorized geographic area for fied in § 216.170(b), will have no more taking; than a negligible impact on the species (3) Means of effecting the least prac- or stock of affected marine mammal(s). ticable adverse impact on the species (b) A notice of issuance or denial of a of marine mammals authorized for tak- renewal of a Letter of Authorization ing and its habitat; and will be published in the FEDERAL REG- (4) Requirements for monitoring and ISTER within 30 days of a determina- reporting incidental takes. tion. (d) Issuance of a Letter of Authoriza- § 216.178 Modifications to a letter of tion will be based on a determination authorization. that the number of marine mammals (a) In addition to complying with the taken by the activity will be small, and provisions of §§ 216.106 and 216.176, ex- that the number of marine mammals cept as provided in paragraph (b) of taken by the activity, specified in § this section, no substantive modifica- 216.170(b), as a whole, will have no more tion (including withdrawal or suspen- than a negligible impact on the species sion) to the Letter of Authorization or stocks of affected marine mam- issued pursuant to §§ 216.106 and 216.176 mal(s). and subject to the provisions of this (e) Notice of issuance or denial of a subpart shall be made by the National Letter of Authorization will be pub- Marine Fisheries Service until after a lished in the FEDERAL REGISTER within notification and an opportunity for 30 days of a determination. public comment has been provided. For purposes of this paragraph, a renewal
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of a Letter of Authorization under § lowing species: bowhead whale (Balaena 216.177 without modification, except for mysticetus), gray whale (Eschrichtius the period of validity, is not considered robustus), beluga whale (Delphinapterus a substantive modification. leucas), ringed seal (Phoca hispida), (b) If the Assistant Administrator de- spotted seal (Phoca largha) and bearded termines that an emergency exists that seal (Erignathus barbatus). poses a significant risk to the well- being of the species or stocks of marine § 216.201 Effective dates. mammals specified in § 216.170(b), a Regulations in this subpart are effec- Letter of Authorization issued pursu- tive from May 25, 2000, until May 25, ant to §§ 216.106 and 216.176 may be sub- 2005. stantively modified without prior noti- fication and an opportunity for public § 216.202 Permissible methods of tak- comment. Notification will be pub- ing. lished in the FEDERAL REGISTER within 30 days subsequent to the action. (a) Under Letters of Authorization issued pursuant to §§ 216.106 and 216.208, the Holder of the Letter of Authoriza- Subpart Q [Reserved] tion may incidentally, but not inten- tionally, take marine mammals by Subpart R—Taking of Marine harassment, injury, and mortality Mammals Incidental to Con- within the area described in § 216.200(a), struction and Operation of provided the activity is in compliance Offshore Oil and Gas Facilities with all terms, conditions, and require- in the U.S. Beaufort Sea ments of the regulations in this sub- part and the appropriate Letter of Au- SOURCE: 65 FR 34030, May 25, 2000, unless thorization. otherwise noted. (b) The activities identified in EFFECTIVE DATE NOTE: At 65 FR 34030, May § 216.200 must be conducted in a manner 25, 2000, subpart R was added, effective May that minimizes, to the greatest extent 25, 2000, to May 25, 2005. practicable, any adverse impacts on marine mammals, their habitat, and on § 216.200 Specified activity and speci- the availability of marine mammals fied geographical region. for subsistence uses. Regulations in this subpart apply only to the incidental taking of those § 216.203 Prohibitions. marine mammal species specified in Notwithstanding takings authorized paragraph (b) of this section by U.S. by § 216.200 and by a Letter of Author- citizens engaged in oil and gas develop- ization issued under §§ 216.106 and ment activities in areas within state 216.208, no person in connection with and/or Federal waters in the U.S. Beau- the activities described in § 216.200 fort Sea specified in paragraph (a) of shall: this section. The authorized activities as specified in a Letter of Authoriza- (a) Take any marine mammal not tion issued under §§ 216.106 and 216.208 specified in § 216.200(b); include, but may not be limited to, site (b) Take any marine mammal speci- construction, including ice road and fied in § 216.200(b) other than by inci- pipeline construction, vessel and heli- dental, unintentional harassment, in- copter activity; and oil production ac- jury or mortality; tivities, including ice road construc- (c) Take a marine mammal specified tion, and vessel and helicopter activ- in § 216.200(b) if such taking results in ity, but excluding seismic operations. more than a negligible impact on the (a)(1) Northstar Oil and Gas Develop- species or stocks of such marine mam- ment; and mal; or (2) [Reserved] (d) Violate, or fail to comply with, (b) The incidental take by harass- the terms, conditions, and require- ment, injury or mortality of marine ments of the regulations in this sub- mammals under the activity identified part or a Letter of Authorization in this section is limited to the fol- issued under § 216.106.
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§ 216.204 Mitigation. potentially involving the taking of ma- The activity identified in § 216.200(a) rine mammals. must be conducted in a manner that (b) Holders of Letters of Authoriza- minimizes, to the greatest extent pos- tion must designate qualified on-site sible, adverse impacts on marine mam- individuals, approved in advance by the mals and their habitats. When con- National Marine Fisheries Service, to ducting operations identified in conduct the mitigation, monitoring § 216.200, the mitigation measures con- and reporting activities specified in the tained in the Letter of Authorization Letter of Authorization issued pursu- issued under §§ 216.106 and 216.208 must ant to § 216.106 and § 216.208. be utilized. (c) Holders of Letters of Authoriza- tion must conduct all monitoring and/ § 216.205 Measures to ensure avail- or research required under the Letter ability of species for subsistence of Authorization. uses. (d) Unless specified otherwise in the When applying for a Letter of Au- Letter of Authorization, the Holder of thorization pursuant to § 216.207, or a that Letter of Authorization must sub- renewal of a Letter of Authorization mit interim reports to the Director, Of- pursuant to § 216.209, the applicant fice of Protected Resources, National must submit a Plan of Cooperation Marine Fisheries Service, no later than that identifies what measures have 90 days after completion of the winter been taken and/or will be taken to min- monitoring season (approximately Sep- imize any adverse effects on the avail- tember 15th), and 90 days after the ability of marine mammals for subsist- open water monitoring season (approxi- ence uses. A plan must include the fol- mately February 1st). This report must lowing: contain all information required by the (a) A statement that the applicant Letter of Authorization. has notified and met with the affected (e) A draft annual comprehensive re- subsistence communities to discuss port must be submitted by May 1st of proposed activities and to resolve po- the year following the issuance of a tential conflicts regarding timing and LOA; methods of operation; (b) A description of what measures (f) A final annual comprehensive re- the applicant has taken and/or will port must be submitted within the take to ensure that oil development ac- time period specified in the governing tivities will not interfere with subsist- Letter of Authorization. ence whaling or sealing; (g) A final comprehensive report on (c) What plans the applicant has to all marine mammal monitoring and re- continue to meet with the affected search conducted during the effective communities to notify the commu- period of the regulations in this sub- nities of any changes in operation. part must be submitted to the Direc- tor, Office of Protected Resources, Na- § 216.206 Requirements for monitoring tional Marine Fisheries Service at and reporting. least 240 days prior to expiration of (a) Holders of Letters of Authoriza- these regulations or 240 days after the tion issued pursuant to §§ 216.106 and expiration of these regulations if re- 216.208 for activities described in newal of the regulations will not be re- § 216.200 are required to cooperate with quested. the National Marine Fisheries Service, and any other Federal, state or local § 216.207 Applications for Letters of agency monitoring the impacts of the Authorization. activity on marine mammals. Unless (a) To incidentally take bowhead specified otherwise in the Letter of Au- whales and other marine mammals thorization, the Holder of the Letter of pursuant to the regulations in this sub- Authorization must notify the Admin- part, the U.S. citizen (see definition at istrator, Alaska Region, National Ma- § 216.103) conducting the activity iden- rine Fisheries Service, or his/her des- tified in § 216.200, must apply for and ignee, by letter or telephone, at least 2 obtain either an initial Letter of Au- weeks prior to initiating new activities thorization in accordance with
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§§ 216.106 and 216.208, or a renewal under (c) Issuance and renewal of each Let- § 216.209. ter of Authorization will be based on a (b) The application for an initial Let- determination that the number of ma- ter of Authorization must be submitted rine mammals taken by the activity to the National Marine Fisheries Serv- will be small, that the total number of ice at least 180 days before the activity marine mammals taken by the activity is scheduled to begin. as a whole will have no more than a (c) Applications for initial Letters of negligible impact on the species or Authorization must include all infor- stock of affected marine mammal(s), mation items identified in § 216.104(a). and will not have an unmitigable ad- (d) NMFS will review an application verse impact on the availability of spe- for an initial Letter of Authorization cies or stocks of marine mammals for in accordance with § 216.104(b) and, if taking for subsistence uses. adequate and complete, will publish a (d) Notice of issuance or denial of a notice of receipt of a request for inci- Letter of Authorization will be pub- dental taking and, in accordance with lished in the FEDERAL REGISTER within Administrative Procedure Act require- 30 days of a determination. ments, a proposed amendment to § 216.200(a). In conjunction with amend- § 216.209 Renewal of Letters of Author- ization. ing § 216.200(a), the National Marine Fisheries Service will provide a min- (a) A Letter of Authorization issued imum of 45 days for public comment on under § 216.106 and § 216.208 for the ac- the application for an initial Letter of tivity identified in § 216.200 will be re- Authorization. newed annually upon: (e) Upon receipt of a complete appli- (1) Notification to the National Ma- cation for an initial Letter of Author- rine Fisheries Service that the activity ization, and at its discretion, the Na- described in the application submitted tional Marine Fisheries Service may under § 216.207 will be undertaken and submit the monitoring plan to mem- that there will not be a substantial bers of a peer review panel for review modification to the described work, and/or schedule a workshop to review mitigation or monitoring undertaken the plan. Unless specified in the Letter during the upcoming season; of Authorization, the applicant must (2) Timely receipt of the monitoring submit a final monitoring plan to the reports required under § 216.205, and the Assistant Administrator prior to the Letter of Authorization issued under issuance of an initial Letter of Author- § 216.208, which have been reviewed by ization. the National Marine Fisheries Service and determined to be acceptable, and § 216.208 Letters of Authorization. the Plan of Cooperation required under § 216.205; and (a) A Letter of Authorization, unless (3) A determination by the National suspended, revoked or not renewed, Marine Fisheries Service that the miti- will be valid for a period of time not to gation, monitoring and reporting meas- exceed the period of validity of this ures required under § 216.204 and the subpart, but must be renewed annually Letter of Authorization issued under subject to annual renewal conditions in §§ 216.106 and 216.208, were undertaken § 216.209. and will be undertaken during the up- (b) Each Letter of Authorization will coming annual period of validity of a set forth: renewed Letter of Authorization. (1) Permissible methods of incidental (b) If a request for a renewal of a Let- taking; ter of Authorization issued under (2) Means of effecting the least prac- §§ 216.106 and 216.208 indicates that a ticable adverse impact on the species, substantial modification to the de- its habitat, and on the availability of scribed work, mitigation or monitoring the species for subsistence uses; and undertaken during the upcoming sea- (3) Requirements for monitoring and son will occur, the National Marine reporting, including any requirements Fisheries Service will provide the pub- for the independent peer-review of pro- lic a minimum of 30 days for review posed monitoring plans. and comment on the request. Review
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and comment on renewals of Letters of Subpart B—Certificates of Exemption for Authorization are restricted to: Pre-Act Endangered Species Parts (1) New cited information and data that indicates that the determinations 222.201 General requirements. made in this subpart are in need of re- 222.202 Certificate renewal. consideration, 222.203 Modification, amendment, suspen- (2) The Plan of Cooperation, and sion, and revocation of certificates. (3) The proposed monitoring plan. 222.204 Administration of certificates. (c) A notice of issuance or denial of a 222.205 Import and export requirements. Renewal of a Letter of Authorization Subpart C—General Permit Procedures will be published in the FEDERAL REG- ISTER within 30 days of a determina- 222.301 General requirements. tion. 222.302 Procedure for obtaining permits. 222.303 Issuance of permits. § 216.210 Modifications to Letters of 222.304 Renewal of permits. Authorization. 222.305 Rights of succession and transfer of (a) In addition to complying with the permits. provisions of §§ 216.106 and 216.208, ex- 222.306 Modification, amendment, suspen- cept as provided in paragraph (b) of sion, cancellation, and revocation of per- this section, no substantive modifica- mits. tion (including withdrawal or suspen- 222.307 Permits for incidental taking of spe- sion) to the Letter of Authorization by cies. the National Marine Fisheries Service, 222.308 Permits for scientific purposes or for issued pursuant to §§ 216.106 and 216.208 the enhancement of propagation or sur- vival of species. and subject to the provisions of this 222.309 Permits for listed species of sea tur- subpart shall be made until after noti- tles involving the Fish and Wildlife Serv- fication and an opportunity for public ice. comment has been provided. For pur- poses of this paragraph, a renewal of a AUTHORITY: 16 U.S.C. 1531 et seq.; 16 U.S.C. Letter of Authorization under § 216.209, 742a et seq.; 31 U.S.C. 9701. without modification (except for the Section 222.403 also issued under 16 U.S.C. 1361 et seq. period of validity), is not considered a substantive modification. SOURCE: 64 FR 14054, Mar. 23, 1999, unless (b) If the Assistant Administrator de- otherwise noted. termines that an emergency exists that poses a significant risk to the well- Subpart A—Introduction and being of the species or stocks of marine General Provisions mammals specified in § 216.200(b), a Letter of Authorization issued pursu- § 222.101 Purpose and scope of regula- ant to §§ 216.106 and 216.208 may be sub- tions. stantively modified without prior noti- (a) The regulations of parts 222, 223, fication and an opportunity for public and 224 of this chapter implement the comment. Notification will be pub- Endangered Species Act (Act), and gov- lished in the FEDERAL REGISTER within ern the taking, possession, transpor- 30 days subsequent to the action. tation, sale, purchase, barter, expor- tation, importation of, and other re- PARTS 217–221[RESERVED] quirements pertaining to wildlife and plants under the jurisdiction of the PART 222—GENERAL ENDANGERED Secretary of Commerce and determined AND THREATENED MARINE SPECIES to be threatened or endangered pursu- ant to section 4(a) of the Act. These Subpart A—Introduction and General regulations are implemented by the Provisions National Marine Fisheries Service, Na- tional Oceanic and Atmospheric Ad- Sec. ministration, U.S. Department of Com- 222.101 Purpose and scope of regulations. 222.102 Definitions. merce, This part pertains to general 222.103 Federal/state cooperation in the con- provisions and definitions. Specifically, servation of endangered and threatened parts 223 and 224 pertain to provisions species. to threatened species and endangered
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species, respectively. Part 226 enumer- servation plan has satisfied the permit ates designated critical habitat for en- issuance criteria under section dangered and threatened species. Cer- 10(a)(2)(B) of the Act for the species tain of the endangered and threatened covered by the plan and, with respect marine species enumerated in §§ 224.102 to unlisted species, that a proposed and 223.102 are included in Appendix I conservation plan has satisfied the per- or II to the Convention on Inter- mit issuance criteria under section national Trade of Endangered Species 10(a)(2)(B) of the Act that would other- of Wild Fauna and Flora. The importa- wise apply if the unlisted species cov- tion, exportation, and re-exportation of ered by the plan were actually listed. such species are subject to additional For the Services to cover a species regulations set forth at 50 CFR part 23, under a conservation plan, it must be chapter I. 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. other National Marine Fisheries Serv- lat. (the line of the North Carolina/Vir- ice enforced statutes or regulations. ginia border) and adjacent seas, other than waters of the Gulf Area, and all § 222.102 Definitions. waters shoreward thereof (including Accelerator funnel means a device ports). used to accelerate the flow of water Atlantic Shrimp Fishery—Sea Turtle through a shrimp trawl net. Conservation Area (Atlantic SFSTCA) Act means the Endangered Species means the inshore and offshore waters Act of 1973, as amended, 16 U.S.C. 1531 extending to 10 nautical miles (18.5 km) et seq. offshore along the coast of the States Adequately covered means, with re- of Georgia and South Carolina from the spect to species listed pursuant to sec- Georgia-Florida border (defined as the tion 4 of the Act, that a proposed con- line along 30°42′45.6″ N. lat.) to the
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North Carolina-South Carolina border Conservation plan means the plan re- (defined as the line extending in a di- quired by section 10(a)(2)(A) of the Act rection of 135°34′55″ from true north that an applicant must submit when from the North Carolina-South Caro- applying for an incidental take permit. lina land boundary, as marked by the Conservation plans also are known as border station on Bird Island at ‘‘habitat conservation plans’’ or 33°51′07.9″ N. lat., 078°32′32.6″ W. long.). ‘‘HCPs.’’ Authorized officer means: Conserved habitat areas means areas (1) Any commissioned, warrant, or explicitly designated for habitat res- petty officer of the U.S. Coast Guard; toration, acquisition, protection, or (2) Any special agent or enforcement other conservation purposes under a officer of the National Marine Fish- conservation plan. eries Service; Cooperative Agreement means an 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 natural catastrophic event in areas between persons in two or more foreign prone to such events). countries, or between a person within Commercial activity means all activi- the United States and a person in one ties of industry and trade, including, or more foreign countries, or between but not limited to, the buying or sell- persons within the United States, ing of commodities and activities con- where the fish or wildlife in question ducted for the purpose of facilitating are moving in any country or countries such buying and selling: Provided, how- outside the United States. ever, that it does not include the exhi- Four-seam, straight-wing trawl means bition of commodities by museums or a design of shrimp trawl in which the similar cultural or historical organiza- main body of the trawl is formed from tions. a top panel, a bottom panel, and two
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side panels of webbing. The upper and tions for Preventing Collisions at Sea, lower edges of the side panels of web- 1972), as depicted or noted on nautical bing are parallel over the entire length. charts published by the National Oce- Four-seam, tapered-wing trawl means a anic and Atmospheric Administration design of shrimp trawl in which the (Coast Charts, 1:80,000 scale) and as de- main body of the trawl is formed from scribed in 33 CFR part 80. a top panel, a bottom panel, and two Leatherback conservation zone means side panels of webbing. The upper and that portion of the Atlantic Area lying lower edges of the side panels of web- north of a line along 28°24.6′ N. lat. bing converge toward the rear of the (Cape Canaveral, FL). trawl. Northeast Regional Administrator Gulf Area means all waters of the Gulf of Mexico west of 81° W. long. (the means the Regional Administrator for line at which the Gulf Area meets the the Northeast Region of the National Atlantic Area) and all waters shore- Marine Fisheries Service, National ward thereof (including ports). Oceanic and Atmospheric Administra- Gulf Shrimp Fishery-Sea Turtle Con- tion, U.S. Department of Commerce, or servation Area (Gulf SFSTCA) means the their authorized representative. Mail offshore waters extending to 10 nau- sent to the Northeast Regional Admin- tical miles (18.5 km) offshore along the istrator should be addressed: Northeast coast of the States of Texas and Lou- Regional Administrator, F/NE, North- isiana from the South Pass of the Mis- east Regional Office, National Marine sissippi River (west of 89°08.5′ W. long.) Fisheries Service, NOAA, One to the U.S.-Mexican border. Blackburn Drive, Gloucester, MA 01930– Habitat restoration activity means an 2298. activity that has the sole objective of Northwest Regional Administrator restoring natural aquatic or riparian means the Regional Administrator for habitat conditions or processes. the Northwest Region of the National Harm in the definition of ‘‘take’’ in Marine Fisheries Service, National the Act means an act which actually Oceanic and Atmospheric Administra- kills or injures fish or wildlife. Such an tion, U.S. Department of Commerce, or act may include significant habitat their authorized representative. Mail modification or degradation which ac- sent to the Northwest Regional Admin- tually kills or injures fish or wildlife istrator should be addressed: North- by significantly impairing essential be- havioral patterns, including, breeding, west Regional Administrator, F/NW, spawning, rearing, migrating, feeding Northwest Regional Office, National or sheltering. Marine Fisheries Service, NOAA, 7600 Headrope means a rope that is at- Sand Point Way NE, Seattle, WA 98115– tached to the upper lip (top edge) of the 0070. mouth of a trawl net along the for- Office of Enforcement means the na- ward-most webbing. tional fisheries enforcement office of Headrope length means the distance the National Marine Fisheries Service. between the points at which the ends of Mail sent to the Office of Enforcement the headrope are attached to the trawl should be addressed: Office of Enforce- net, measured along the forward-most ment, F/EN, National Marine Fisheries webbing. Service, NOAA, 8484 Suite 415, Georgia Import means to land on, bring into, Ave., Silver Spring, MD 20910. or introduce into, or attempt to land Office of Protected Resources means on, bring into, or introduce into any the national program office of the en- place subject to the jurisdiction of the dangered species and marine mammal United States, whether or not such programs of the National Marine Fish- landing, bringing, or introduction con- eries Service. Mail sent to the Office of stitutes an importation within the Protected Resources should be ad- meaning of the tariff laws of the dressed: Office of Protected Resources, United States. Inshore means marine and tidal wa- F/PR, National Marine Fisheries Serv- ters landward of the 72 COLREGS de- ice, NOAA, 1315 East West Highway, marcation line (International Regula- 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 tablishes and maintains an active and a tongue on the top, center, leading adequate program for the conservation edge of the trawl and an additional of resident species listed as endangered tongue along the bottom, center, lead- or threatened. In order for a state pro- ing edge of the trawl. gram to be deemed an adequate and ac- Two-seam trawl means a design of tive program, the Assistant Adminis- shrimp trawl in which the main body of trator must find, and annually recon- the trawl is formed from a top and a firm that the criteria of either sections bottom panel of webbing that are di- 6(c)(1) (A) through (E) or sections rectly attached to each other down the 6(c)(1) (i) and (ii) of the Act have been sides of the trawl. satisfied. Underway with respect to a vessel, (2) Following receipt of an applica- means that the vessel is not at anchor, tion by a state for a Cooperative Agree- or made fast to the shore, or aground. ment with a copy of a proposed state Unforeseen circumstances means program, and a determination by the changes in circumstances affecting a Assistant Administrator that the state species or geographic area covered by a program is adequate and active, the conservation plan that could not rea- Assistant Administrator shall enter sonably have been anticipated by plan into an Agreement with the state. developers and NMFS at the time of (3) The Cooperative Agreement, as the conservation plan’s negotiation well as the Assistant Administrator’s and development, and that result in a finding upon which it is based, must be substantial and adverse change in the reconfirmed annually to ensure that it status of the covered species. reflects new laws, species lists, rules or Vessel means a vehicle used, or capa- regulations, and programs and to dem- ble of being used, as a means of trans- onstrate that it is still adequate and portation on water which includes active. every description of watercraft, includ- (b) Allocation and availability of funds. ing nondisplacement craft and sea- (1) The Assistant Administrator shall planes. allocate funds, appropriated for the Vessel restricted in her ability to ma- purpose of carrying out section 6 of the neuver has the meaning specified for Act, to various states using the fol- this term at 33 U.S.C. 2003(g). lowing as the basis for the determina- Wildlife means any member of the tion: animal kingdom, including without (i) The international commitments of limitation any mammal, fish, bird (in- the United States to protect endan- cluding any migratory, nonmigratory, gered or threatened species; or endangered bird for which protec- (ii) The readiness of a state to pro- tion is also afforded by treaty or other ceed with a conservation program con- international agreement), amphibian, sistent with the objectives and pur- reptile, mollusk, crustacean, arthropod poses of the Act; or other invertebrate, and includes any (iii) The number of federally listed part, product, egg, or offspring thereof, endangered and threatened species or the dead body or parts thereof. within a state; Wing net (butterfly trawl) means a (iv) The potential for restoring en- trawl that is fished along the side of dangered and threatened species within the vessel and that is held open by a a state; and 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- [64 FR 14054, Mar. 23, 1999, as amended at 64 dangered or threatened species in FR 60731, Nov. 8, 1999] terms of survival of the species. (2) Funds allocated to a state are § 222.103 Federal/state cooperation in available for obligation during the fis- the conservation of endangered and cal year for which they are allocated threatened species. and until the close of the succeeding (a) Application for and renewal of coop- fiscal year. Obligation of allocated erative agreements. (1) The Assistant Ad- funds occurs when an award or con- ministrator may enter into a Coopera- tract is signed by the Assistant Admin- tive Agreement with any state that es- 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 trator may approve variations from the the Certificate of Exemption, and any requirements of parts 222, 223, and 224 endorsements thereto, to the District of this chapter when the Assistant Ad- Director of Customs at the port of ex- ministrator finds that an emergency portation, which must precede or ac- exists and that the proposed variations company the shipment in order to per- will not hinder effective administra- mit the appropriate inspection prior to tion of those parts and will not be un- lading. Upon receipt, the District Di- lawful. Other sections within parts 222, rector may order such inspection, as 223, and 224 of this chapter may allow deemed necessary; the District will for a waiver or variation of specific re- clear the merchandise for export, prior quirements for emergency situations, to the lading of the merchandise. If upon certain conditions. In such cases, they are satisfied that the shipment is those conditions must be satisfied in proper and complies with the informa- order for the waiver or variation to be tion contained in the certificate and lawful. any endorsement thereto. The certifi- (b) No person shall take, import, ex- cate, and any endorsements, will be port or engage in any other prohibited forwarded to the Chief of the Office of activity involving any species of fish or Enforcement for NMFS. wildlife under the jurisdiction of the (3) No pre-Act endangered species Secretary of Commerce that has been part in compliance with the require- determined to be endangered under the ments of this subpart may be exported Act, or that has been determined to be except at a port or ports designated by threatened and for which the prohibi- the Secretary of the Interior, pursuant tions of section 9(a)(1) of the Act have to § 222.103. been applied by regulation, without a (4) Notwithstanding any provision of valid permit issued pursuant to these this subpart, it shall not be required regulations. The permit shall entitle that the Assistant Administrator au- the person to whom it is issued to en- thorizes the transportation in inter- gage in the activity specified in the state or foreign commerce of pre-Act permit, subject to the limitations of endangered species parts. the Act and the regulations in parts 222, 223, and 224 of this chapter, for the EFFECTIVE DATE NOTE: At 64 FR 14054, Mar. 23, 1999, part 222 was revised effective Mar. period stated on the permit, unless 23, 1999, with the exception of § 222.205 para- sooner modified, suspended or revoked. graphs (c)(1) and (c)(2), which contain infor- (c) Each person intending to engage mation collection requirements and will not in an activity for which a permit is re- become effective until approval has been quired by parts 222, 223, and 224 of this given by the Office of Management and chapter or by the Act shall, before 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,
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importation, exportation, or of any ten in the English language. Such 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 person relying upon its existence. (b) Applications must be received by (h) Permittees may be required to the Assistant Administrator at least 90 file reports of the activities conducted calendar days prior to the date on under the permit. Any such reports which the applicant desires to have the shall be filed not later than March 31 permit made effective, unless other- for the preceding calendar year ending wise specified in the regulations or December 31, or any portion thereof, guidelines pertaining to a particular during which a permit was in force, un- permit. The National Marine Fisheries less the regulations of parts 222, 223, or Service will attempt to process appli- 224 of this chapter or the provisions of cations deemed sufficient in the short- the permit set forth other reporting re- est possible time, but does not guar- quirements. antee that the permit will be issued 90 (i) From the date of issuance of the days after notice of receipt of the ap- permit, the permittee shall maintain plication is published in the FEDERAL complete and accurate records of any REGISTER. taking, possession, transportation, (c)(1) Upon receipt of an insuffi- sale, purchase, barter, exportation, or ciently or improperly executed applica- importation of fish or wildlife pursuant tion, the applicant shall be notified of to such permit. Such records shall be the deficiency in the application. If the kept current and shall include the applicant fails to supply the deficient names and addresses of persons with information or otherwise fails to cor- whom any fish or wildlife has been pur- rect the deficiency within 60 days fol- chased, sold, bartered, or otherwise lowing the date of notification, the ap- transferred, and the date of such trans- plication shall be considered aban- action, and such other information as doned. may be required or appropriate. Such (2) The sufficiency of the application records, unless otherwise specified, shall be determined by the Assistant shall be entered in books, legibly writ- Administrator in accordance with the
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requirements of this part. The Assist- days in advance of such hearing. Any ant Administrator, however, may interested person may appear at the 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. (3) Each permit shall bear a serial ERAL REGISTER within 10 days after the number. Upon renewal, such a number date of the issuance or denial and indi- may be reassigned to the permittee to cate where copies of the permit, if whom issued so long as the permittee issued, may be obtained. maintains continuity of renewal. (e)(1) The Assistant Administrator (b) When an application for a permit shall issue the permit unless: received by the Assistant Adminis- (i) Denial of the permit has been trator is deemed sufficient, the Assist- made pursuant to subpart D to 15 CFR ant Administrator shall, as soon as part 904; practicable, publish a notice in the (ii) The applicant has failed to dis- FEDERAL REGISTER. Information re- close material or information required, ceived by the Assistant Administrator or has made false statements as to any as a part of the application shall be material fact, in connection with the available to the public as a matter of application; public record at every stage of the pro- (iii) The applicant has failed to dem- ceeding. An interested party, within 30 onstrate a valid justification for the days after the date of publication of permit or a showing of responsibility; such notice, may submit to the Assist- (iv) The authorization requested po- ant Administrator written data, views, tentially threatens a fish or wildlife or arguments with respect to the tak- population; or ing, importation, or to other action (v) The Assistant Administrator finds proposed in the application, and may through further inquiry or investiga- request a hearing in connection with tion, or otherwise, that the applicant is the action to be taken thereon. not qualified. (c) If a request for a hearing is made within the 30-day period referred to in (2) The applicant shall be notified in paragraph (b) of this section, or if the writing of the denial of any permit re- Assistant Administrator determines quest, and the reasons thereof. If au- that a hearing would otherwise be ad- thorized in the notice of denial, the ap- visable, the Assistant Administrator plicant may submit further informa- may, within 60 days after the date of tion or reasons why the permit should publication of the notice referred to in not be denied. Such further informa- paragraph (b) of this section, afford to tion shall not be considered a new ap- such requesting party or parties an op- plication. The final action by the As- portunity for a hearing. Such hearing sistant Administrator shall be consid- shall also be open to participation by ered the final administrative decision any interested members of the public. of the Department of Commerce. Notice of the date, time, and place of (f) If a permit is issued under § 222.308, such hearing shall be published in the the Assistant Administrator shall pub- FEDERAL REGISTER not less than 15 lish notice thereof in the FEDERAL
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REGISTER, including the Assistant Ad- (2) Certain persons, other than the ministrator’s finding that such per- permittee, are granted the right to mit— carry on a permitted activity for the (1) Was applied for in good faith; remainder of the term of a current per- (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- piration, the permittee shall, unless EFFECTIVE DATE NOTE: At 64 FR 14054, Mar. 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 information in the original application Management and Budget. is still currently correct. If the infor- mation is incorrect the permittee shall § 222.306 Modification, amendment, file a statement of all changes in the suspension, cancellation, and rev- original application, accompanied by ocation of permits. any required fee at least 30 days prior (a) When circumstances have changed to the expiration of the permit. Any so that an applicant or a permittee de- person holding a valid renewable per- sires to have any term or condition of mit, who has complied with the fore- the application or permit modified, the going provision of this section, may applicant or permittee must submit in continue such activities as were au- writing full justification and sup- thorized by the expired permit until porting information in conformance the renewal application is acted upon. with the provisions of this part and the part under which the permit has been § 222.305 Rights of succession and issued or requested. Such applications transfer of permits. for modification are subject to the (a)(1) Permits issued pursuant to same issuance criteria as original ap- parts 222, 223, and 224 of this chapter plications. are not transferable or assignable. In (b) Notwithstanding the require- the event that a permit authorizes cer- ments of paragraph (a) of this section, tain activities in connection with a a permittee may change the mailing business or commercial enterprise, address or trade name under which which is then subject to any subse- business is conducted without obtain- quent lease, sale or transfer, the suc- ing a new permit or being subject to cessor to that enterprise must obtain a the same issuance criteria as original permit prior to continuing the per- permits. The permittee must notify the mitted activity, with the exceptions Assistant Administrator, in writing provided in paragraph (a)(2) of this sec- within 30 days, of any change in ad- tion. dress or of any change in the trade
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name for the business or activity speci- quired, the Assistant Administrator fied in the permit. The permit with the will issue a general incidental take change of address or in trade name permit. To be covered by a general in- must be endorsed by the Assistant Ad- cidental take permit, each individual ministrator, who shall provide an conducting the activity must have a 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 this chapter, or of the Act, or of a term (3) The species or stocks, by common or condition of the permit may subject and scientific name, and a description the permittee to both the penalties of the status, distribution, seasonal provided in the Act and suspension, distribution, habitat needs, feeding revocation, or amendment of the per- habits and other biological require- mit, as provided in subpart D to 15 CFR ments of the affected species or stocks; part 904. (4) A detailed description of the pro- posed activity, including the antici- § 222.307 Permits for incidental taking pated dates, duration, and specific lo- of species. cation. If the request is for a general (a) Scope. (1) The Assistant Adminis- incidental take permit, an estimate of trator may issue permits to take en- the total level of activity expected to dangered and threatened species inci- be conducted; dentally to an otherwise lawful activ- (5) A conservation plan, based on the ity under section 10(a)(1)(B) of the Act. best scientific and commercial data The regulations in this section apply to available, which specifies the fol- all endangered species, and those lowing: threatened species for which the prohi- (i) The anticipated impact (i.e., bitions of section 9(a)(1) of the Act, amount, extent, and type of antici- under the jurisdiction of the Secretary pated taking) of the proposed activity of Commerce, apply. on the species or stocks; (2) If the applicant represents an in- (ii) The anticipated impact of the dividual or a single entity, such as a proposed activity on the habitat of the corporation, the Assistant Adminis- species or stocks and the likelihood of trator will issue an individual inci- restoration of the affected habitat; dental take permit. If the applicant (iii) The steps (specialized equip- represents a group or organization ment, methods of conducting activi- whose members conduct the same or a ties, or other means) that will be taken similar activity in the same geo- to monitor, minimize, and mitigate graphical area with similar impacts on such impacts, and the funding avail- listed species for which a permit is re- able to implement such measures;
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(iv) The alternative actions to such priate, including, but not limited to taking that were considered and the the following: reasons why those alternatives are not (1) Reporting requirements or rights being used; and of inspection for determining whether (v) A list of all sources of data used the terms and conditions are being in preparation of the plan, including complied with; 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: (i) The status of the affected species (e) Duration of permits. The duration 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 applicant seeks to have covered under measures required by the Assistant Ad- the general incidental take permit, in- ministrator. cluding the anticipated dates, dura- (d) Permit conditions. In addition to tion, and specific location; and the general conditions set forth in this (iv) A signed certification that the part, every permit issued under this applicant has read and understands the section will contain such terms and general incidental take permit and the conditions as the Assistant Adminis- conservation plan, will comply with trator deems necessary and appro- their terms and conditions, and will
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fund and implement applicable meas- cies covered by the conservation plan ures of the conservation plan. without the consent of the permittee. (2) To issue a Certificate of Inclusion, (ii) If additional conservation and the Assistant Administrator must find mitigation measures are deemed nec- that: essary to respond to unforeseen cir- (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. available for development or use under This rule does not apply to incidental the original terms of the conservation take permits issued prior to March 25, plan without the consent of the per- 1998. The assurances provided in inci- mittee. dental take permits issued prior to (iii) NMFS has the burden of dem- March 25, 1998, remain in effect, and onstrating that unforeseen cir- those permits will not be revised as a cumstances exist, using the best sci- result of this rulemaking. entific and commercial data available. (1) Changed circumstances provided for These findings must be clearly docu- in the plan. If additional conservation mented and based upon reliable tech- and mitigation measures are deemed nical information regarding the status necessary to respond to changed cir- and habitat requirements of the af- cumstances and were provided for in fected species. NMFS will consider, but the plan’s operating conservation pro- not be limited to, the following factors: gram, the permittee will implement (A) Size of the current range of the the measures specified in the plan. affected species; (2) Changed circumstances not provided (B) Percentage of range adversely af- for in the plan. If additional conserva- 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, ficity of the species’ conservation pro- provided the plan is being properly im- gram under the conservation plan; and plemented. (F) Whether failure to adopt addi- (3) Unforeseen circumstances. (i) In ne- tional conservation measures would ap- gotiating unforeseen circumstances, preciably reduce the likelihood of sur- NMFS will not require the commit- vival and recovery of the affected spe- ment of additional land, water, or fi- cies in the wild. nancial compensation or additional re- (h) Nothing in this rule will be con- strictions on the use of land, water, or strued to limit or constrain the Assist- other natural resources beyond the ant Administrator, any Federal, State, level otherwise agreed upon for the spe- local, or Tribal government agency, or
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a private entity, from taking addi- partnership or a corporate entity, set tional actions at his or her own ex- forth the details. If the endangered spe- pense to protect or conserve a species cies is to be utilized by a person other included in a conservation plan. than the applicant, set forth the name of that person and such other informa- § 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. (b) Application procedures. Any person (iii) A copy of the formal research desiring to obtain such a permit may proposal or contract if one has been make application therefor to the As- prepared; sistant Administrator. Permits for ma- (iv) A statement of whether the pro- rine mammals shall be issued in ac- posed project or program has broader cordance with the provisions of part significance than the individual re- 216, subpart D of this chapter. Permits searcher’s goals. For example, does the relating to sea turtles may involve the proposed project or program respond Fish and Wildlife Service, in which directly or indirectly to recommenda- case the applicant shall follow the pro- tion of any national or international cedures set out in § 222.309. The fol- scientific body charged with research lowing information will be used as the or management of the endangered spe- basis for determining whether an appli- cies? If so, how?; and cation is complete and whether a per- (v) A description of the arrange- mit for scientific purposes or for en- ments, if any, for the disposition of any hancement of propagation or survival dead specimen or its skeleton or other of the affected species should be issued remains in a museum or other institu- by the Assistant Administrator. An ap- tional collection for the continued ben- plication for a permit shall provide the efit to science. following information and such other (6) A description of the endangered information that the Assistant Admin- species which is the subject of the ap- istrator may require: plication, including the following: (1) Title, as applicable, either— (i) A list of each species and the num- (i) Application for permit for sci- ber of each, including the common and entific purposes under the Act; or scientific name, the subspecies (if ap- (ii) Application for permit for the en- plicable), population group, and range; hancement of the propagation or sur- (ii) A physical description of each vival of the endangered species Under animal, including the age, size, and the Act. sex; (2) The date of the application. (iii) A list of the probable dates of (3) The identity of the applicant in- capture or other taking, importation, cluding complete name, address, and exportation, and other acts which re- telephone number. If the applicant is a quire a permit for each animal and the
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location of capture or other taking, im- tion of the facilities where any such portation, exportation, and other acts animals will be maintained including: which require a permit, as specifically (i) The dimensions of the pools or as possible; other holding facilities and the num- (iv) A description of the status of the ber, sex, and age of animals by species stock of each species related insofar as to be held in each; 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- gram and maintain or contribute data (i) Mode of transportation; to a stud book. (ii) Name of transportation company; (10) A statement of how the appli- (iii) Length of time in transit for the cant’s proposed project or program will transfer of the animal(s) from the cap- enhance or benefit the wild population. ture site to the holding facility; (11) For the 5 years preceding the (iv) Length of time in transit for any date of application, the applicant shall planned future move or transfer of the provide a detailed description of all animals; mortalities involving species under the (v) The qualifications of the common control of or utilized by the applicant carrier or agent used for transpor- and are either presently listed as en- tation of the animals; dangered species or are taxonomically (vi) A description of the pen, tank, related within the Order to the species container, cage, cradle, or other de- which is the subject of this application, vices used to hold the animal at both including: the capture site and during transpor- (i) A list of all endangered species tation; and related species that are the subject (vii) Special care before and during of this application that have been cap- transportation, such as salves, anti- tured, transported, maintained, or uti- biotics, moisture; and lized by the applicant for scientific (viii) A statement as to whether the purposes or for the enhancement of animals will be accompanied by a vet- propagation or survival of the affected erinarian or by another similarly species, and/or of related species that qualified person, and the qualifications are captured, transported, maintained, of such person. or utilized by the applicant for sci- (8) Describe the contemplated care entific purposes or for enhancement of and maintenance of any live animals propagation or survival of the affected sought, including a complete descrip- species;
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(ii) The numbers of mortalities the proposed action on the population, among such animals by species, by both direct and indirect; date, by location of capture, i.e., from (6) If a live animal is to be taken, which population, and the location of transported, or held in captivity, the such mortalities; applicant’s qualifications for the prop- (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 shall specifically consider, among (1) The number and kind of species other application criteria, the fol- covered; lowing: (2) The location and manner of tak- (1) Whether the permit was applied ing; for in good faith; (3) Port of entry or export; (2) Whether the permit, if granted (4) The methods of transportation, and exercised, will not operate to the care, and maintenance to be used with disadvantage of the endangered spe- live species; cies; (5) Any requirements for reports or (3) Whether the permit would be con- rights of inspections with respect to sistent with the purposes and policy any activities carried out pursuant to set forth in section 2 of the Act; the permit; (4) Whether the permit would further (6) The transferability or assign- a bona fide and necessary or desirable ability of the permit; scientific purpose or enhance the prop- (7) The sale or other disposition of agation or survival of the endangered the species, its progeny, or the species species, taking into account the bene- product; and fits anticipated to be derived on behalf (8) A reasonable fee covering the of the endangered species; costs of issuance of such permit, in- (5) The status of the population of cluding reasonable inspections and an the requested species and the effect of appropriate apportionment of overhead
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and administrative expenses of the De- review and processing, after which partment of Commerce. All such fees WPO will issue a combination ESA/ will be deposited in the Treasury to the CITES permit or a letter of denial. credit of the appropriation which is current and chargeable for the cost of PART 223—THREATENED MARINE furnishing the service. AND ANADROMOUS SPECIES § 222.309 Permits for listed species of sea turtles involving the Fish and Subpart A—General Provisions Wildlife Service. Sec. (a) This section establishes specific 223.101 Purpose and scope. procedures for issuance of the following 223.102 Enumeration of threatened marine permits: scientific purposes or to en- and anadromous species. hance the propagation or survival of endangered or threatened species of sea Subpart B—Restrictions Applicable to turtles; zoological exhibition or edu- Threatened Marine and Anadromous cational purposes for threatened spe- Species cies of sea turtles; and permits that re- 223.201 Guadalupe fur seal. quires coordination with the Fish and 223.202 Steller sea lion. Wildlife Service. The National Marine 223.203 Anadromous fish. Fisheries Service maintains jurisdic- 223.204 Exceptions to prohibitions relating tion for such species in the marine en- to anadromous fish. vironment. The Fish and Wildlife Serv- 223.205 Sea turtles. ice maintains jurisdiction for such spe- 223.206 Exceptions to prohibitions relating cies of sea turtles in the land environ- to sea turtles. 223.207 Approved TEDs. ment. 223.209 Tribal plans. (b) For permits relating to any activ- ity in the marine environment exclu- FIGURE 1 TO PART 223—NMFS TED FIGURE 2 TO PART 223—CAMERON TED sively, permit applicants and permit- FIGURE 3 TO PART 223—MATAGORDA TED tees must comply with the regulations FIGURE 4 TO PART 223—GEORGIA TED in parts 222, 223, and 224 of this chapter. FIGURE 5 TO PART 223—NET DIAGRAM FOR THE (c) For permits relating to any activ- EXCLUDER PANEL OF THE PARKER SOFT ity in the land environment exclu- TED sively, permit applicants must submit FIGURE 6 TO PART 223—TED EXTENSION IN applications to the Wildlife Permit Of- SUMMER FLOUNDER TRAWL fice (WPO) of the U.S. Fish and Wildlife FIGURES 7–9b TO PART 223 [RESERVED] Service in accordance with either 50 FIGURE 10 TO PART 223—FLOUNDER TED FIGURE 11 TO PART 223—JONES TED CFR 17.22(a), if the species is endan- FIGURE 12a TO PART 223—ATTACHMENT OF THE gered, or 50 CFR 17.32(a), if the species EXIT HOLE COVER is threatened. 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 FIGURE 14b TO PART 223—MAXIMUM ANGLE OF under its jurisdiction. Based on this re- DEFLECTOR BARS WITH BENT BARS AT- view and processing, WPO will issue ei- TACHED TO THE BOTTOM OF THE FRAME ther a permit or a letter of denial in FIGURE 15 TO PART 223—MAXIMUM ANGLE OF accordance with its own regulations. DEFLECTOR BARS WITH BARS UNATTACHED (e) For permits relating to any activ- TO THE BOTTOM OF THE FRAME ity in a marine environment and that FIGURE 16 TO PART 223—ESCAPE OPENING AND also requires a permit under the Con- FLAP DIMENSIONS FOR THE DOUBLE COVER vention on International Trade in En- FLAP TED dangered Species of Wild Fauna and AUTHORITY: 16 U.S.C. 1531-1543; subpart B, Flora (CITES) (TIAS 8249, July 1, 1975) § 223.12 also issued under 16 U.S.C. 1361 et seq. (50 CFR part 23), applicants must sub- SOURCE: 43 FR 32809, July 28, 1978, unless mit applications to the WPO. WPO will otherwise noted. Redesignated at 64 FR 14068, forward the application to NMFS for Mar. 23, 1999.
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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- (18) Upper Willamette River chinook bia River and north of Cape Blanco in salmon (Oncorhynchus tshawytscha). In- Curry County, OR. cludes all naturally spawned popu- (11) Gulf sturgeon (Acipenser lations of spring-run chinook salmon in oxyrinchus desotoi). the Clackamas River and in the Wil- (12) Hood Canal summer-run chum lamette River, and its tributaries, salmon (Oncorhynchus keta). Includes above Willamette Falls, Oregon. all naturally spawned populations of (19) Ozette Lake sockeye salmon summer-run chum salmon in Hood (Oncorhynchus nerka). Includes all nat- Canal and its tributaries as well as urally spawned populations of sockeye populations in Olympic Peninsula riv- salmon in Ozette Lake and streams and ers between Hood Canal and Dungeness tributaries flowing into Ozette Lake, Bay, Washington; Washington. (13) Columbia River chum salmon (20) Central Valley spring-run chi- (Oncorhynchus keta). Includes all natu- nook salmon (Oncorhynchus rally spawned populations of chum tshawytscha). Includes all naturally salmon in the Columbia River and its spawned populations of spring-run chi- tributaries in Washington and Oregon. nook salmon in the Sacramento River (14) Upper Willamette River Basin, and its tributaries, California. steelhead (Oncorhynchus mykiss). In- (21) California coastal chinook salm- cludes all naturally spawned popu- on (Oncorhynchus tshawytscha). In- lations of winter-run steelhead in the cludes all naturally spawned popu- Willamette River, Oregon, and its trib- lations of chinook salmon from Red- utaries upstream from Willamette wood Creek (Humboldt County, Cali- Falls to the Calapooia River, inclusive; fornia) through the Russian River (Sonoma County, California). (15) Middle Columbia River steelhead (Oncorhynchus mykiss). Includes all nat- (22) Northern California steelhead urally spawned populations of (Oncorhynchus mykiss). Includes all nat- steelhead in streams from above the urally spawned populations of Wind River, Washington, and the Hood steelhead (and their progeny) in coast- al river basins ranging from Redwood River, Oregon (exclusive), upstream to, Creek in Humboldt County, California and including, the Yakima River, to the Gualala River, inclusive, in Washington. Excluded are steelhead Mendocino County, California. from the Snake River Basin. (b) Marine plants. Johnson’s seagrass (16) Puget sound chinook salmon (Halophila johnsonii). (Oncorhynchus tshawytscha). Includes (c) Marine mammals. Guadalupe fur all naturally spawned populations of seal (Arctocephalus townsendi); Steller chinook salmon from rivers and sea lion (Eumetopias jubatus), eastern streams flowing into Puget Sound in- population, which consists of all cluding the Straits of Juan De Fuca Steller sea lions from breeding colonies from the Elwha River eastward, includ- located east of 144° W. longitude. ing rivers and streams flowing into (d) Sea turtles. Green turtle (Chelonia Hood Canal, South Sound, North Sound mydas) except for those populations and the Strait of Georgia in Wash- listed under § 224.101(c) of this chapter; ington. Loggerhead turtle (Caretta caretta); (17) Lower Columbia River chinook Olive ridley turtle (Lepidochelys salmon (Oncorhynchus tshawytscha). In- olivacea) except for those populations cludes all naturally spawned popu- listed under § 224.101(c) of this chapter. lations of chinook salmon from the Co- NOTE TO § 223.201(D): Jurisdiction for sea lumbia River and its tributaries from turtles by the Department of Commerce, Na- its mouth at the Pacific Ocean up- tional Oceanic and Atmospheric Administra- stream to a transitional point between tion, National Marine Fisheries Service, is Washington and Oregon east of the limited to turtles while in the water. Hood River and the White Salmon [64 FR 14068, Mar. 23, 1999, as amended at 64 River, and includes the Willamette FR 14328, Mar. 24, 1999; 64 FR 14517, 14528, River to Willamette Falls, Oregon, ex- 14536, Mar. 25, 1999; 64 FR 50415, Sept. 16, 1999; clusive of spring-run chinook salmon in 65 FR 36094, June 7, 2000; 65 FR 60383, Oct. 11, the Clackamas River. 2000]
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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 § 223.202—LISTED 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 island. 3. Marmot I...... 58°14.5 N 151°47.5 W 58°10.0 N 151°51.0 W 16580 SE quadrant. 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 island. 7. Chernabura I...... 54°47.5 N 159°31.0 W 54°45.5 N 159°33.5 W 16540 SE corner. 8. Pinnacle Rock ...... 54°46.0 N 161°46.0 W 16540 Whole island. 9. Clubbing Rks (N) .... 54°43.0 N 162°26.5 W 16540 Whole island. Clubbing Rks (S) ...... 54°42.0 N 162°26.5 W 16540 Whole Island. 10. Sea Lion Rks ...... 55°28.0 N 163°12.0 W 16520 Whole island.
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TABLE 1 TO § 223.202—LISTED STELLER SEA LION ROOKERY SITES 1—Continued
From To Island NOAA Notes Lat. Long. Lat. Long. chart
11. Ugamak I...... 54°14.0 N 164°48.0 W 54°13.0 N 164°48.0 W 16520 E end of island. 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 Morgan. 14. Bogoslof I...... 53°56.0 N 168°02.0 W 16500 Whole island. 15. Ogchul I...... 53°00.0 N 168°24.0 W 16500 Whole island. 16. Adugak I...... 52°55.0 N 169°10.5 W 16500 Whole island. 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, Saddleridge Pt. 19. Agligadak I...... 52°06.5 N 172°54.0 W 16480 Whole island. 20. Kasatochi I...... 52°10.0N 175°31.5W 52°10.5N 175°29.0W 16480 N half of island. 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 island. 23. Tag I...... 51°33.5 N 178°34.5 W 16460 Whole island. 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 island. 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(a)(1) of the ESA (16 U.S.C. person or presents a significant threat 1538(a)(1)) relating to endangered spe- to the vessel or property. cies apply to the threatened species of (5) Exemptions. Paragraph (a)(2) of salmonids listed in § 223.102(a)(1) this section does not apply to any ac- through (a)(10), and (a)(12) through tivity authorized by a prior written ex- (a)(19), except as provided in paragraph emption from the Director, Alaska Re- (b) of this section and § 223.209(a). gion, National Marine Fisheries Serv- (b) Limits on the prohibitions. (1) The ice. Concurrently with the issuance of exceptions of section 10 of the ESA (16 any exemption, the Assistant Adminis- U.S.C. 1539) and other exceptions under trator will publish notice of the exemp- the Act relating to endangered species, tion in the FEDERAL REGISTER. An ex- including regulations in part 222 of this emption may be granted only if the ac- chapter II implementing such excep- tivity will not have a significant ad- tions, also apply to the threatened spe- verse affect on Steller sea lions, the ac- cies of salmonids listed in § 223.102(a)(1)
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through (a)(10), and (a)(12) through (a)(5) through (a)(10), and (a)(12) (a)(19). through (a)(19) do not apply to fishery (2) The prohibitions of paragraph (a) harvest activities provided that: of this section relating to threatened (i) Fisheries are managed in accord- species of salmonids listed in § 223.102 ance with a NMFS-approved Fishery (a)(5) through (a)(10), and (a)(12) Management and Evaluation Plan through (a)(19) do not apply to activi- (FMEP) and implemented in accord- ties specified in an application for a ance with a letter of concurrence from permit for scientific purposes or to en- NMFS. NMFS will approve an FMEP hance the conservation or survival of only if it clearly defines its intended the species, provided that the applica- scope and area of impact and sets forth tion has been received by the Assistant the management objectives and per- Administrator for Fisheries, NOAA formance indicators for the plan. The (AA), no later than October 10, 2000. plan must adequately address the fol- The prohibitions of paragraph (a) of lowing criteria: this section apply to these activities (A) Define populations within af- upon the AA’s rejection of the applica- fected listed ESUs, taking into account tion as insufficient, upon issuance or spatial and temporal distribution, ge- denial of a permit, or March 7, 2001, netic and phenotypic diversity, and whichever occurs earliest. other appropriate identifiably unique (3) The prohibitions of paragraph (a) biological and life history traits. Popu- of this section relating to threatened lations may be aggregated for manage- species of salmonids listed in § 223.102 ment purposes when dictated by infor- (a)(4) through (a)(10), and (a)(12) mation scarcity, if consistent with sur- through (a)(19) do not apply to any em- ployee or designee of NMFS, the United vival and recovery of the listed ESU. In States Fish and Wildlife Service, any identifying management units, the Federal land management agency, the plan shall describe the reasons for Idaho Department of Fish and Game using such units in lieu of population (IDFG), Washington Department of units, describe how the management Fish and Wildlife (WDFW), the Oregon units are defined, given biological and Department of Fish and Wildlife life history traits, so as to maximize (ODFW), California Department of Fish consideration of the important biologi- and Game (CDFG), or of any other gov- cal diversity contained within the list- ernmental entity that has co-manage- ed ESU, respond to the scale and com- ment authority for the listed plexity of the ESU, and help ensure salmonids, when the employee or des- consistent treatment of listed ignee, acting in the course of his or her salmonids across a diverse geographic official duties, takes a threatened and jurisdictional range. salmonid without a permit if such ac- (B) Utilize the concepts of ‘‘viable’’ tion is necessary to: and ‘‘critical’’ salmonid population (i) Aid a sick, injured, or stranded thresholds, consistent with the con- salmonid, cepts contained in the technical docu- (ii) Dispose of a dead salmonid, or ment entitled ‘‘Viable Salmonid Popu- (iii) Salvage a dead salmonid which lations (NMFS, 2000b).’’ The VSP paper may be useful for scientific study. provides a framework for identifying (iv) Each agency acting under this the biological requirements of listed limit on the take prohibitions of para- salmonids, assessing the effects of graph (a) of this section is to report to management and conservation actions, NMFS the numbers of fish handled and and ensuring that such actions provide their status, on an annual basis. A des- for the survival and recovery of listed ignee of the listed entities is any indi- species. Proposed management actions vidual the Federal or state fishery must recognize the significant dif- agency or other co-manager has au- ferences in risk associated with viable thorized in writing to perform the list- and critical population threshold ed functions. states and respond accordingly to mini- (4) The prohibitions of paragraph (a) mize the long-term risks to population of this section relating to threatened persistence. Harvest actions impacting species of salmonids listed in § 223.102 populations that are functioning at or
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above the viable threshold must be de- gies, or objectives that data show are signed to maintain the population or needed. management unit at or above that (G) Provide for effective enforcement level. For populations shown with a and education. Coordination among in- high degree of confidence to be above volved jurisdictions is an important critical levels but not yet at viable lev- element in ensuring regulatory effec- els, harvest management must not ap- tiveness and coverage. preciably slow the population’s (H) Include restrictions on resident achievement of viable function. Har- and anadromous species fisheries that vest actions impacting populations minimize any take of listed species, in- that are functioning at or below crit- cluding time, size, gear, and area re- ical threshold must not be allowed to strictions. appreciably increase genetic and demo- (I) Be consistent with plans and con- graphic risks facing the population and ditions established within any Federal must be designed to permit the popu- court proceeding with continuing juris- lation’s achievement of viable func- diction over tribal harvest allocations. tion, unless the plan demonstrates that (ii) The state monitors the amount of the likelihood of survival and recovery take of listed salmonids occurring in of the entire ESU in the wild would not its fisheries and provides to NMFS on a be appreciably reduced by greater risks regular basis, as defined in NMFS’ let- to that individual population. ter of concurrence for the FMEP, a re- (C) Set escapement objectives or port summarizing this information, as maximum exploitation rates for each well as the implementation and effec- management unit or population based tiveness of the FMEP. The state shall on its status and on a harvest program provide NMFS with access to all data that assures that those rates or objec- and reports prepared concerning the tives are not exceeded. Maximum ex- implementation and effectiveness of ploitation rates must not appreciably the FMEP. reduce the likelihood of survival and (iii) The state confers with NMFS on recovery of the ESU. Management of its fishing regulation changes affecting fisheries where artificially propagated listed ESUs to ensure consistency with fish predominate must not compromise the approved FMEP. Prior to approving the management objectives for com- a new or amended FMEP, NMFS will mingled naturally spawned popu- publish notification in the FEDERAL lations. REGISTER announcing its availability (D) Display a biologically based ra- for public review and comment. Such tionale demonstrating that the harvest an announcement will provide for a management strategy will not appre- comment period on the draft FMEP of ciably reduce the likelihood of survival not less than 30 days. and recovery of the ESU in the wild, (iv) NMFS provides written concur- over the entire period of time the pro- rence of the FMEP which specifies the posed harvest management strategy af- implementation and reporting require- fects the population, including effects ments. NMFS’ approval of a plan shall reasonably certain to occur after the be a written approval by NMFS South- proposed actions cease. west or Northwest Regional Adminis- (E) Include effective monitoring and trator, as appropriate. On a regular evaluation programs to assess compli- basis, NMFS will evaluate the effec- ance, effectiveness, and parameter vali- tiveness of the program in protecting dation. At a minimum, harvest moni- and achieving a level of salmonid pro- toring programs must collect catch and ductivity commensurate with con- effort data, information on servation of the listed salmonids. If it escapements, and information on bio- is not, NMFS will identify ways in logical characteristics, such as age, fe- which the program needs to be altered cundity, size and sex data, and migra- or strengthened. If the responsible tion timing. agency does not make changes to re- (F) Provide for evaluating moni- spond adequately to the new informa- toring data and making any revisions tion, NMFS will publish notification in of assumptions, management strate- the FEDERAL REGISTER announcing its
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intention to withdraw the limit for ac- viable but the sole objective of the cur- tivities associated with that FMEP. rent collection program is to enhance Such an announcement will provide for the propagation or survival of the list- a comment period of not less than 30 ed ESU; or if the donor population is days, after which NMFS will make a shown with a high degree of confidence final determination whether to with- to be above critical threshold although draw the limit so that the prohibitions not yet functioning at viable levels, would then apply to those fishery har- and the collection will not appreciably vest activities. A template for devel- slow the attainment of viable status oping FMEPs is available from NMFS for that population. Northwest Region’s website (C) Taking into account health, (www.nwr.noaa.gov). abundances, and trends in the donor (v) The prohibitions of paragraph (a) population, broodstock collection pro- of this section relating to threatened grams reflect appropriate priorities. species of steelhead listed in § 223.102 The primary purpose of broodstock col- (a)(5) through (a)(9), (a)(14), and (a)(15) do not apply to fisheries managed sole- lection programs of listed species is to ly by the states of Oregon, Washington, reestablish indigenous salmonid popu- Idaho, and California until January 8, lations for conservation purposes. Such 2001. programs include restoration of simi- (5) The prohibitions of paragraph (a) lar, at-risk populations within the of this section relating to threatened same ESU, and reintroduction of at- species of salmonids listed in § 223.102 risk populations to underseeded habi- (a)(5) through (a)(10), and (a)(12) tat. After the species’ conservation through (a)(19) do not apply to activity needs are met and when consistent associated with artificial propagation with survival and recovery of the ESU, programs provided that: broodstock collection programs may be (i) A state or Federal Hatchery and authorized by NMFS such for sec- Genetics Management Plan (HGMP) ondary purposes, as to sustain tribal, has been approved by NMFS as meeting recreational, and commercial fisheries. the following criteria: (D) The HGMP includes protocols to (A) The HGMP has clearly stated address fish health, broodstock collec- goals, performance objectives, and per- tion, broodstock spawning, rearing and formance indicators that indicate the release of juveniles, deposition of purpose of the program, its intended hatchery adults, and catastrophic risk results, and measurements of its per- management. formance in meeting those results. (E) The HGMP evaluates, minimizes, Goals shall address whether the pro- and accounts for the propagation pro- gram is intended to meet conservation gram’s genetic and ecological effects objectives, contribute to the ultimate on natural populations, including dis- sustainability of natural spawning pop- ease transfer, competition, predation, ulations, and/or intended to augment and genetic introgression caused by the tribal, recreational, or commercial straying of hatchery fish. fisheries. Objectives should enumerate the results desired from the program (F) The HGMP describes inter- that will be used to measure the pro- relationships and interdependencies gram’s success or failure. with fisheries management. The com- (B) The HGMP utilizes the concepts bination of artificial propagation pro- of viable and critical salmonid popu- grams and harvest management must lation threshold, consistent with the be designed to provide as many benefits concepts contained in the technical and as few biological risks as possible document entitled ‘‘Viable Salmonid for the listed species. For programs Populations’’ (NMFS, 2000b). Listed whose purpose is to sustain fisheries, salmonids may be purposefully taken HGMPs must not compromise the abil- for broodstock purposes only if the ity of FMEPs or other management donor population is currently at or plans to conserve listed salmonids. above the viable threshold and the col- (G) Adequate artificial propagation lection will not impair its function; if facilities exist to properly rear progeny the donor population is not currently of naturally spawned broodstock, to
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maintain population health and diver- the responsible agency does not make sity, and to avoid hatchery-influenced changes to respond adequately to the selection or domestication. new information, NMFS will publish (H) Adequate monitoring and evalua- notification in the FEDERAL REGISTER tion exist to detect and evaluate the announcing its intention to withdraw success of the hatchery program and the limit on activities associated with any risks potentially impairing the re- that program. Such an announcement covery of the listed ESU. will provide for a comment period of no (I) The HGMP provides for evaluating less than 30 days, after which NMFS monitoring data and making any revi- will make a final determination wheth- sions of assumptions, management er to withdraw the limit so that take strategies, or objectives that data show prohibitions, likeall other activity not are needed; within a limit, would then apply to (J) NMFS provides written concur- that program. A template for devel- rence of the HGMP which specifies the oping HGMPs is available from NMFS implementation and reporting require- Northwest Region’s website ments. For Federally operated or fund- (www.nwr.noaa.gov). ed hatcheries, the ESA section 7 con- (6) The prohibitions of paragraph (a) sultation will achieve this purpose. of this section relating to threatened (K) The HGMP is consistent with species of salmonids listed in § 223.102 plans and conditions set within any (a)(7), (a)(8), (a)(10), and (a)(12) through Federal court proceeding with con- (a)(19) do not apply to actions under- tinuing jurisdiction over tribal harvest taken in compliance with a resource allocations. management plan developed jointly by (ii) The state monitors the amount of the States of Washington, Oregon and/ take of listed salmonids occurring in or Idaho and the Tribes (joint plan) its hatchery program and provides to within the continuing jurisdiction of NMFS on a regular basis a report sum- United States v. Washington or United marizing this information, and the im- States v. Oregon, the on-going Federal plementation and effectiveness of the court proceedings to enforce and imple- HGMP as defined in NMFS’ letter of ment reserved treaty fishing rights, concurrence. The state shall provide provided that: NMFS with access to all data and re- (i) The Secretary has determined pur- ports prepared concerning the imple- suant to 50 CFR 223.209 and the govern- mentation and effectiveness of the ment-to-government processes therein HGMP. that implementing and enforcing the (iii) The state confers with NMFS on joint tribal/state plan will not appre- a regular basis regarding intended col- ciably reduce the likelihood of survival lections of listed broodstock to ensure and recovery of affected threatened congruity with the approved HGMP. ESUs. (iv) Prior to final approval of an (ii) The joint plan will be imple- HGMP, NMFS will publish notification mented and enforced within the param- in the FEDERAL REGISTER announcing eters set forth in United States v. Wash- its availability for public review and ington orUnited States v. Oregon. comment for a period of at least 30 (iii) In making that determination days. for a joint plan, the Secretary has (v) NMFS’ approval of a plan shall be taken comment on how any fishery a written approval by NMFS South- management plan addresses the cri- west or Northwest Regional Adminis- teria in § 223.203(b)(4), or on how any trator, as appropriate. hatchery and genetic management plan (vi) On a regular basis, NMFS will addresses the criteria in § 223.203(b)(5). evaluate the effectiveness of the HGMP (iv) The Secretary shall publish no- in protecting and achieving a level of tice in the FEDERAL REGISTER of any salmonid productivity commensurate determination whether or not a joint with the conservation of the listed plan, will appreciably reduce the likeli- salmonids. If the HGMP is not effec- hood of survival and recovery of af- tive, the NMFS will identify to the ju- fected threatened ESUs, together with risdiction ways in which the program a discussion of the biological analysis needs to be altered or strengthened. If underlying that determination.
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(v) On a regular basis, NMFS will agency personnel, or are in accord with evaluate the effectiveness of the joint a permit issued by the Agency. plan in protecting and achieving a (v) The Agencies provide NMFS an- level of salmonid productivity com- nually, for its review and approval, a mensurate with conservation of the report listing all scientific research ac- listed salmonids. If the plan is not ef- tivities it conducts or permits that fective, then NMFS will identify to the may incidentally take threatened jurisdiction ways in which the joint salmonids during the coming year. plan needs to be altered or strength- Such reports shall also contain the ened. If the responsible agency does not amount of incidental take of threat- make changes to respond adequately to ened salmonids occurring in the pre- the new information, NMFS will pub- vious year’s scientific research activi- lish notification in the FEDERAL REG- ties and a summary of the results of ISTER announcing its intention to with- such research. draw the limit on activities associated (vi) Electrofishing in any body of with that joint plan. Such an an- water known or suspected to contain nouncement will provide for a com- threatened salmonids is conducted in ment period of no less than 30 days, accordance with NMFS ‘‘Guidelines for after which NMFS will make a final de- Electrofishing Waters Containing termination whether to withdraw the Salmonids Listed Under the Endan- limit so that take prohibitions would gered Species Act’’ (NMFS, 2000a). then apply to that joint plan as to all (vii) NMFS’ approval of a research other activity not within a limit. program shall be a written approval by (7) The prohibitions of paragraph (a) NMFS Northwest or Southwest Re- of this section relating to threatened gional Administrator. species of salmonids listed in (8) The prohibitions of paragraph (a) § 223.102(a)(5) through (a)(10), and (a)(12) of this section relating to threatened through (a)(19) do not apply to sci- species of salmonids listed in entific research activities provided § 223.102(a)(5) through (a)(10), and that: (a)(12), through (a)(19) do not apply to (i) Scientific research activities in- habitat restoration activities, as de- volving purposeful take is conducted fined in paragraph (b)(8)(iv) of this sec- by employees or contractors of the tion, provided that the activity is part ODFW, WDFW (Agencies), IDFG, or of a watershed conservation plan, and: CDFG (Agencies), or as a part of a monitoring and research program over- (i) The watershed conservation plan seen by or coordinated with that Agen- has been certified by the State of cy. Washington, Oregon, Idaho, or Cali- fornia (State) to be consistent with the (ii) The Agencies provide for NMFS’ state’s watershed conservation plan review and approval a list of all sci- guidelines. entific research activities involving di- rect take planned for the coming year, (ii) The State’s watershed conserva- including an estimate of the total di- tion plan guidelines have been found by rect take that is anticipated, a descrip- NMFS to provide for plans that: tion of the study design, including a (A) Take into account the potential justification for taking the species and severity of direct, indirect, and cumu- a description of the techniques to be lative impacts of proposed activities in used, and a point of contact. light of the status of affected species (iii) The Agencies annually provide and populations. to NMFS the results of scientific re- (B) Will not reduce the likelihood of search activities directed at threatened either survival or recovery of listed salmonids, including a report of the di- species in the wild. rect take resulting from the studies (C) Ensure that any taking will be in- and a summary of the results of such cidental. studies. (D) Minimize and mitigate any ad- (iv) Scientific research activities verse impacts. that may incidentally take threatened (E) Provide for effective monitoring salmonids are either conducted by and adaptive management.
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(F) Use the best available science and authorized officer access to the diver- technology, including watershed anal- sion facility for purposes of inspection ysis. and determination of continued com- (G) Provide for public and scientific pliance with the criteria. review and input. (iii) On a case by case basis, NMFS or (H) Include any measures that NMFS an Authorized Officer will review and determines are necessary or appro- approve a juvenile fish screen design priate. and construction plan and schedule (I) Include provisions that clearly that the water diverter proposes for identify those activities that are part screen installation. The plan and of plan implementation. schedule will describe interim oper- (J) Control risk to listed species by ation measures to avoid take of threat- ensuring funding and implementation ened salmonids. NMFS may require a of the above plan components. commitment of compensatory mitiga- (iii) NMFS will periodically review tion if implementation of the plan and state certifications of Watershed Con- schedule is terminated prior to comple- servation Plans to ensure adherence to tion. If the plan and schedule are not approved watershed conservation plan met, or if a schedule modification is guidelines. made that is not approved by NMFS or (iv) ‘‘Habitat restoration activity’’ is Authorized Officer, or if the screen in- defined as an activity whose primary stallation deviates from the approved purpose is to restore natural aquatic or design, the water diversion will be sub- riparian habitat conditions or proc- ject to take prohibitions and mitiga- esses. ‘‘Primary purpose’’ means the tion. activity would not be undertaken but (iv) This limit on the prohibitions of for its restoration purpose. paragraph (a) of this section does not (v) Prior to approving watershed con- encompass any impacts of reduced servation plan guidelines under para- flows resulting from the diversion or graph (b)(8)(ii) of this section, NMFS impacts caused during installation of will publish notification in the FED- the diversion device. These impacts are ERAL REGISTER announcing the avail- subject to the prohibition on take of ability of the proposed guidelines for listed salmonids. public review and comment. Such an (10) The prohibitions of paragraph (a) announcement will provide for a com- of this section relating to threatened ment period on the draft guidelines of species of salmonids listed in § 223.102 no less than 30 days. (a)(5) through (a)(10), and (a)(12) (9) The prohibitions of paragraph (a) through (a)(19) do not apply to routine of this section relating to threatened road maintenance activities provided species of salmonids listed in that: § 223.102(a)(5) through (a)(10), and (a)(12) (i) The activity results from routine through (a)(19) do not apply to the road maintenance activity conducted physical diversion of water from a by ODOT employees or agents that stream or lake, provided that: complies with ODOT’s Transportation (i) NMFS’ engineering staff or any re- Maintenance Management System source agency or tribe NMFS des- Water Quality and Habitat Guide ignates (authorized officer) has agreed (July, 1999); or by employees or agents in writing that the diversion facility is of a state, county, city or port that screened, maintained, and operated in complies with a program substantially compliance with Juvenile Fish Screen similar to that contained in the ODOT Criteria, National Marine Fisheries Guide that is determined to meet or ex- Service, Northwest Region, Revised ceed the protections provided by the February 16, 1995, with Addendum of ODOT Guide; or by employees or May 9, 1996, or in California with agents of a state, county, city or port NMFS’ Southwest Region ‘‘Fish that complies with a routine road Screening Criteria for Anadromous maintenance program that meets prop- Salmonids, January 1997’’ or with any er functioning habitat conditions as de- subsequent revision. scribed further in subparagraph (ii) fol- (ii) The owner or manager of the di- lowing. NMFS’ approval of state, city, version allows any NMFS engineer or county, or port programs that are
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equivalent to the ODOT program, or of other activity not within a limit. Such any amendments, shall be a written ap- an announcement will provide for a proval by NMFS Northwest or South- comment period of no less than 30 days, west Regional Administrator, which- after which NMFS will make a final de- ever is appropriate. Any jurisdiction termination whether to subject the ac- desiring its routine road maintenance tivities to the ESA section 9(a)(1) pro- activities to be within this limit must hibitions. first commit in writing to apply man- (iii) Prior to implementing any agement practices that result in pro- changes to a program within this limit tections equivalent to or better than the jurisdiction provides NMFS a copy those provided by the ODOT Guide, de- of the proposed change for review and tailing how it will assure adequate approval as within this limit. training, tracking, and reporting, and (iv) Prior to approving any state, describing in detail any dust abate- city, county, or port program as within ment practices it requests to be cov- this limit, or approving any sub- ered. stantive change in a program within (ii) NMFS finds the routine road this limit, NMFS will publish notifica- maintenance activities of any state, tion in the FEDERAL REGISTER an- city, county, or port to be consistent nouncing the availability of the pro- with the conservation of listed gram or the draft changes for public re- salmonids’ habitat when it contributes, view and comment. Such an announce- as does the ODOT Guide, to the attain- ment will provide for a comment pe- ment and maintenance of properly riod of not less than 30 days. functioning condition (PFC). NMFS de- (v) Pesticide and herbicide spraying fines PFC as the sustained presence of is not included within this limit, even natural habitat-forming processes that if in accord with the ODOT guidance. are necessary for the long-term sur- (11) The prohibitions of paragraph (a) vival of salmonids through the full of this section relating to threatened range of environmental variation. Ac- species of salmonids listed in § 223.102 tions that affect salmonid habitat (a)(5) through (a)(10), and (a)(12) must not impair properly functioning through (a)(19) do not apply to activi- habitat, appreciably reduce the func- ties within the City of Portland, Or- tioning of already impaired habitat, or egon Parks and Recreation Depart- retard the long-term progress of im- ment’s (PP&R) Pest Management Pro- paired habitat toward PFC. Periodi- gram (March 1997), including its Water- cally, NMFS will evaluate an approved ways Pest Management Policy updated program for its effectiveness in main- December 1, 1999, provided that: taining and achieving habitat function (i) Use of only the following chemi- that provides for conservation of the cals is included within this limit on the listed salmonids. Whenever warranted, take prohibitions: Round Up, Rodeo, NMFS will identify to the jurisdiction Garlon 3A, Surfactant LI–700, ways in which the program needs to be Napropamide, Cutrine Plus, and altered or strengthened. Changes may Aquashade. be identified if the program is not pro- (ii) Any chemical use is initiated in tecting desired habitat functions, or accord with the priorities and decision where even with the habitat character- processes of the Department’s Pest istics and functions originally tar- Management Policy, including the Wa- geted, habitat is not supporting popu- terways Pest Management Policy, up- lation productivity levels needed to dated December 1, 1999. conserve the ESU. If any jurisdiction (iii) Any chemical use within a 25 ft. within the limit does not make (7.5 m) buffer complies with the buffer changes to respond adequately to the application constraints contained in new information in the shortest PP&R’s Waterways Pest Management amount of time feasible, but not longer Policy (update December 1, 1999). than one year, NMFS will publish noti- (iv) Prior to implementing any fication in the FEDERAL REGISTER an- changes to this limit, the PP&R pro- nouncing its intention to withdraw the vides NMFS with a copy of the pro- limit so that take prohibitions would posed change for review and approval then apply to the program as to all as within this limit.
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(v) Prior to approving any sub- tivities to the ESA section 9(a)(1) pro- stantive change in a program within hibitions. this limit, NMFS will publish notifica- (12) The prohibitions of paragraph (a) tion in the FEDERAL REGISTER an- of this section relating to threatened nouncing the availability of the pro- species of salmonids listed in § 223.102 gram or the draft changes for public re- (a)(5) through (a)(10), and (a)(12) view and comment. Such an announce- through (a)(19) do not apply to munic- ment will provide for a comment pe- ipal, residential, commercial, and in- riod of no less than 30 days. dustrial (MRCI) development (includ- (vi) NMFS’ approval of amendments ing redevelopment) activities provided shall be a written approval by NMFS that: Northwest Regional Administrator. (i) Such development occurs pursuant (vii) NMFS finds the PP&R Pest to city, county, or regional govern- Management Program activities to be ment ordinances or plans that NMFS consistent with the conservation of has determined are adequately protec- listed salmonids’ habitat by contrib- tive of listed species; or within the ju- uting to the attainment and mainte- risdiction of the Metro regional gov- nance of properly functioning condi- ernment in Oregon and pursuant to or- tion (PFC). NMFS defines PFC as the dinances that Metro has found comply sustained presence of a watershed’s with its Urban Growth Management natural habitat-forming processes that Functional Plan (Functional Plan) fol- are necessary for the long-term sur- lowing a determination by NMFS that vival of salmonids through the full the Functional Plan is adequately pro- range of environmental variation. Ac- tective. NMFS approval or determina- tions that affect salmonid habitat tions about any MRCI development or- must not impair properly functioning dinances or plans, including the Func- habitat, appreciably reduce the func- tional Plan, shall be a written approval tioning of already impaired habitat, or by NMFS Northwest or Southwest Re- retard the long-term progress of im- gional Administrator, whichever is ap- paired habitat toward PFC. Periodi- propriate. NMFS will apply the fol- cally, NMFS will evaluate the effec- lowing 12 evaluation considerations tiveness of an approved program in when reviewing MRCI development or- maintaining and achieving habitat dinances or plans to assess whether function that provides for conservation they adequately conserve listed of the listed salmonids. Whenever war- salmonids by maintaining and restor- ranted, NMFS will identify to the ju- ing properly functioning habitat condi- risdiction ways in which the program needs to be altered or strengthened. tions: Changes may be identified if the pro- (A) MRCI development ordinance or gram is not protecting desired habitat plan ensures that development will functions, or where even with the habi- avoid inappropriate areas such as un- tat characteristics and functions origi- stable slopes, wetlands, areas of high nally targeted, habitat is not sup- habitat value, and similarly con- porting population productivity levels strained sites. needed to conserve the ESU. If any ju- (B) MRCI development ordinance or risdiction within the limit does not plan adequately avoids stormwater dis- make changes to respond adequately to charge impacts to water quality and the new information in the shortest quantity or to the hydrograph of the amount of time feasible, but not longer watershed, including peak and base than 1 year, NMFS will publish notifi- flows of perennial streams. cation in the FEDERAL REGISTER an- (C) MRCI development ordinance or nouncing its intention to withdraw the plan provides adequately protective ri- limit so that take prohibitions would parian area management requirements then apply to the program as to all to attain or maintain PFC around all other activity not within a limit. Such rivers, estuaries, streams, lakes, deep- an announcement will provide for a water habitats, and intermittent comment period of no less than 30 days, streams. Compensatory mitigation is after which NMFS will make a final de- provided, where necessary, to offset un- termination whether to subject the ac- avoidable damage to PFC due to MRCI
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development impacts to riparian man- ment or MRCI expansion area at suffi- agement areas. cient detail to demonstrate the width (D) MRCI development ordinance or and vegetation condition of riparian plan avoids stream crossings by roads, set-backs; information to demonstrate utilities, and other linear development the success of stormwater management wherever possible, and, where crossings and other conservation measures; and a must be provided, minimize impacts summary of any flood damage, mainte- through choice of mode, sizing, and nance problems, or other issues. placement. (iii) NMFS finds the MRCI develop- (E) MRCI development ordinance or ment activity to be consistent with the plan adequately protects historical conservation of listed salmonids’ habi- stream meander patterns and channel tat when it contributes to the attain- migration zones and avoids hardening ment and maintenance of PFC. NMFS of stream banks and shorelines. defines PFC as the sustained presence (F) MRCI development ordinance or of a watershed’s habitat-forming proc- plan adequately protects wetlands and esses that are necessary for the long- wetland functions, including isolated term survival of salmonids through the wetlands. full range of environmental variation. (G) MRCI development ordinance or Actions that affect salmonid habitat plan adequately preserves the hydro- must not impair properly functioning logic capacity of permanent and inter- habitat, appreciably reduce the func- mittent streams to pass peak flows. tioning of already impaired habitat, or (H) MRCI development ordinance or retard the long-term progress of im- plan includes adequate provisions for paired habitat toward PFC. Periodi- landscaping with native vegetation to cally, NMFS will evaluate an approved reduce need for watering and applica- program for its effectiveness in main- tion of herbicides, pesticides, and fer- taining and achieving habitat function tilizer. that provides for conservation of the (I) MRCI development ordinance or listed salmonids. Whenever warranted, plan includes adequate provisions to NMFS will identify to the jurisdiction prevent erosion and sediment run-off ways in which the program needs to be during construction. altered or strengthened. Changes may (J) MRCI development ordinance or be identified if the program is not pro- plan ensures that water supply de- tecting desired habitat functions, or mands can be met without impacting where even with the habitat character- flows needed for threatened salmonids istics and functions originally tar- either directly or through groundwater geted, habitat is not supporting popu- withdrawals and that any new water lation productivity levels needed to diversions are positioned and screened conserve the ESU. If any jurisdiction in a way that prevents injury or death within the limit does not make of salmonids. changes to respond adequately to the (K) MRCI development ordinance or new information in the shortest plan provides necessary enforcement, amount of time feasible, but not longer funding, reporting, and implementa- than 1 year, NMFS will publish notifi- tion mechanisms and formal plan eval- cation in the FEDERAL REGISTER an- uations at intervals that do not exceed nouncing its intention to withdraw the 5 years. limit so that take prohibitions would (L) MRCI development ordinance and then apply to the program as to all plan complies with all other state and other activity not within a limit. Such Federal environmental and natural re- an announcement will provide for a source laws and permits. comment period of no less than 30 days, (ii) The city, county or regional gov- after which NMFS will make a final de- ernment provides NMFS with annual termination whether to subject the ac- reports regarding implementation and tivities to the ESA section 9(a)(1) pro- effectiveness of the ordinances, includ- hibitions. ing: any water quality monitoring in- (iv) Prior to approving any city, formation the jurisdiction has avail- county, or regional government ordi- able; aerial photography (or some other nances or plans as within this limit, or graphic display) of each MRCI develop- approving any substantive change in
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an ordinance or plan within this limit, uting to the attainment and mainte- NMFS will publish notification in the nance of PFC. NMFS defines PFC as FEDERAL REGISTER announcing the the sustained presence of a watershed’s availability of the ordinance or plan or natural habitat-forming processes that the draft changes for public review and are necessary for the long-term sur- comment. Such an announcement will vival of salmonids through the full provide for a comment period of no less range of environmental variation. Ac- than 30 days. tions that affect salmonid habitat (13) The prohibitions of paragraph (a) must not impair properly functioning of this section relating to threatened habitat, appreciably reduce the func- species of salmonids listed in § 223.102 tioning of already impaired habitat, or (a)(12), (a)(13), (a)(16), (a)(17), and (a) retard the long-term progress of im- (19) do not apply to non-Federal forest paired habitat toward PFC. Programs management activities conducted in must meet this biological standard in the State of Washington provided that: order for NMFS to find they qualify for (i) The action is in compliance with a habitat-related limit. NMFS uses the forest practice regulations adopted and best available science to make these implemented by the Washington Forest determinations. NMFS may review and Practices Board that NMFS has found revise previous findings as new sci- are at least as protective of habitat entific information becomes available. functions as are the regulatory ele- NMFS will evaluate the effectiveness ments of the Forests and Fish Report of the program in maintaining and dated April 29, 1999, and submitted to achieving habitat function that pro- the Forest Practices Board by a con- vides for conservation of the listed sortium of landowners, tribes, and salmonids. If the program is not ade- state and Federal agencies. quate, NMFS will identify to the juris- (ii) All non-regulatory elements of diction ways in which the program the Forests and Fish Report are being needs to be altered or strengthened. implemented. Changes may be identified if the pro- (iii) Actions involving use of herbi- gram is not protecting desired habitat cides, pesticides, or fungicides are not functions or where even with the habi- included within this limit. tat characteristics and functions origi- (iv) Actions taken under alternative nally targeted, habitat is not sup- plans are included in this limit pro- porting population productivity levels vided that the Washington Department needed to conserve the ESU. If Wash- of Natural Resources (WDNR) finds ington does not make changes to re- that the alternate plans protect phys- spond adequately to the new informa- ical and biological processes at least as tion, NMFS will publish notification in well as the state forest practices rules the FEDERAL REGISTER announcing its and provided that NMFS, or any re- intention to withdraw the limit on ac- source agency or tribe NMFS des- tivities associated with the program. ignates, has the opportunity to review Such an announcement will provide for the plan at every stage of the develop- a comment period of no less than 30 ment and implementation. A plan may days, after which NMFS will make a be excluded from this limit if, after final determination whether to subject such review, WDNR determines that the activities to the ESA section 9(a)(1) the plan is not likely to adequately take prohibitions. protect listed salmon. (vii) NMFS approval of regulations (v) Prior to determining that regula- shall be a written approval by NMFS tions adopted by the Forest Practice Northwest Regional Administrator. Board are at least as protective as the (c) Affirmative defense. In connection elements of the Forests and Fish Re- with any action alleging a violation of port, NMFS will publish notification in the prohibitions of paragraph (a) of the FEDERAL REGISTER announcing the this section with respect to the threat- availability of the Report and regula- ened species of salmonids listed in tions for public review and comment. § 223.102 (a)(5) through (a)(10), and (vi) NMFS finds the activities to be (a)(12) through (a)(19), any person consistent with the conservation of claiming the benefit of any limit listed listed salmonids’ habitat by contrib- in paragraph (b) of this section or
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§ 223.209(a) shall have a defense where consistent with the Pacific Fishery the person can demonstrate that the Management Council’s Fishery Man- limit is applicable and was in force, agement Plan for Ocean Salmon Fish- and that the person fully complied eries and the annual ocean salmon fish- with the limit at the time of the al- ing regulations issued by the Secretary leged violation. This defense is an af- of Commerce for the Federal EEZ. firmative defense that must be raised, (3) Take of SONCC coho salmon in a pleaded, and proven by the proponent. hatchery program regulated under the If proven, this defense will be an abso- sole authority of the State of Oregon is lute defense to liability under section not prohibited, if the take results from (a)(1)(G) of the ESA with respect to the a hatchery program conducted in ac- alleged violation. cordance with the OCSRI, and the take (d) Severability. The provisions of this is counted against the total allocation section and the various applications of harvest-related mortality as speci- thereof are distinct and severable from fied in the OCSRI. NMFS must have one another. If any provision or the ap- issued a written concurrence stating plication thereof to any person or cir- that the hatchery program is con- cumstances is stayed or determined to sistent with the OCSRI including the be invalid, such stay or invalidity shall hatchery and genetic management plan not affect other provisions, or the ap- adopted pursuant to the OCSRI, using plication of such provisions to other information provided through the persons or circumstances, which can be MOA. given effect without the stayed or in- (4) Take of SONCC coho salmon in valid provision or application. fisheries research and monitoring ac- [65 FR 42475, July 10, 2000] 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 Memorandum of Agreement (MOA) be- studies directed at SONCC coho salm- tween the State of Oregon and NMFS. on, including a report of the directed (2) Incidental take of SONCC coho take resulting from the studies; salmon in ocean fisheries within 3 (iv) The CDFG and ODFW, provide miles (approximately 5 km) of the NMFS annually with a list of all re- coast that are regulated under the sole search and monitoring studies per- authority of the State of California is mitted that may allow incidental take not prohibited, provided that the ocean of listed coho salmon during the com- salmon fishing regulations adopted by ing year and report the level of inci- the California Fish and Game Commis- dental take of listed coho salmon from sion and CDFG for recreational and the previous year’s research and moni- commercial fisheries within 3 miles toring activities, for NMFS’ review and (approximately 5 km) of the coast are approval.
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(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 [64 FR 14069, Mar. 23, 1999] salmon. (5) Incidental take of the SONCC § 223.205 Sea turtles. coho salmon in Oregon resulting from a (a) The prohibitions of section 9 of habitat restoration activity is not pro- the Act (16 U.S.C. 1538) relating to en- hibited, provided that: dangered species apply to threatened (i) The activity is conducted pursu- species of sea turtle, except as provided ant to a watershed action or restora- in § 223.206. tion plan that has been affirmed by the (b) Except as provided in § 223.206, it state in writing as consistent with is unlawful for any person subject to NMFS’ approved state watershed plan the jurisdiction of the United States to guidelines set forth in § 222.307(c) of do any of the following: this chapter. NMFS shall also concur (1) Own, operate, or be on board a in writing that the plan is consistent vessel, except if that vessel is in com- with the state watershed plan guide- pliance with all applicable provisions lines; or of § 223.206(d); (ii) Until a watershed action or res- (2) Fish for, catch, take, harvest, or toration plan is approved by both Or- possess, fish or wildlife while on board egon and NMFS as described in para- a vessel, except if that vessel is in com- graph (a)(5)(i) of this section, or until pliance with all applicable provisions August 18, 1999, whichever occurs first, of § 223.206(d); the ODFW has made a written finding (3) Fish for, catch, take, harvest, or that the activity is consistent with possess, fish or wildlife contrary to any state restoration activity guidelines notice of tow-time or other restriction that NMFS has agreed, in writing, specified in, or issued under, meet the standards set forth in § 223.206(d)(3) or (d)(4); § 222.307(c) of this chapter. (4) Possess fish or wildlife taken in (6) Incidental take of the SONCC violation of paragraph (b) of this sec- coho salmon in California resulting tion; from a habitat restoration activity, as (5) Fail to follow any of the sea turtle defined in paragraph (a)(6)(iii) of this handling and resuscitation require- section, is not prohibited, provided ments specified in § 223.206(d)(1); that California has a program in effect (6) Possess a sea turtle in any man- that NMFS finds will assure tech- ner contrary to the handling and resus- nically supported watershed assess- citation requirements of § 223.206(d)(1); ments and coordinated long-term mon- (7) Fail to comply immediately, in itoring strategies for watershed protec- the manner specified at § 600.730 (b) tion plans and activities and: through (d) of this Title, with instruc- (i) The activity is conducted pursu- tions and signals specified therein ant to a watershed protection plan that issued by an authorized officer, includ- CDFG has affirmed, in writing, is con- ing instructions and signals to haul sistent with NMFS’ approved state wa- back a net for inspection; tershed plan guidelines set forth in (8) Refuse to allow an authorized offi- § 222.307(c) of this chapter for Califor- cer to board a vessel, or to enter an nia’s Watershed Protection Program. area where fish or wildlife may be NMFS must concur, in writing, that found, for the purpose of conducting a the plan is consistent with those guide- boarding, search, inspection, seizure, lines; or investigation, or arrest in connection (ii) Until a watershed protection or with enforcement of this section; restoration plan is certified by the (9) Destroy, stave, damage, or dispose State of California and NMFS as de- of in any manner, fish or wildlife, gear, scribed in paragraph (a)(6)(i) of this cargo, or any other matter after a com- section, or until August 18, 1999, which- munication or signal from an author- ever occurs first, when NMFS has made ized officer, or upon the approach of a written finding that the activity is such an officer or of an enforcement consistent with State of California con- vessel or aircraft, before the officer has
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an opportunity to inspect same, or in species of sea turtles, in accordance contravention of directions from the with and subject to the conditions of officer; part 222, subpart C—General Permit (10) Assault, resist, oppose, impede, Procedures. intimidate, threaten, obstruct, delay, (2) Incidental-take permits. The Assist- prevent, or interfere with an author- ant Administrator may issue permits ized officer in the conduct of any authorizing activities that would oth- boarding, search, inspection, seizure, erwise be prohibited under § 223.205(a) investigation, or arrest in connection in accordance with section 10(a)(1)(B) with enforcement of this section; of the Act (16 U.S.C. 1539(a)(1)(B)), and (11) Interfere with, delay, or prevent in accordance with, and subject to, the by any means, the apprehension of an- implementing regulations in part 222 of other person, knowing that such person this chapter. Such permits may be committed an act prohibited by this 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 of § 223.207 (c) or (d) has the burden of environment or disposed of. Reports proving such claim. shall be mailed by registered or cer- [64 FR 14069, Mar. 23, 1999] tified mail, return receipt requested, to the Assistant Administrator and shall § 223.206 Exceptions to prohibitions contain the following information: relating to sea turtles. (1) Name and position of the official (a) Permits—(1) Scientific research, edu- or employee involved; cation, zoological exhibition, or species (2) Description of the specimen(s) in- enhancement permits. The Assistant Ad- volved; ministrator may issue permits author- (3) Date and location of disposal; izing activities which would otherwise (4) Circumstances requiring the ac- be prohibited under § 223.205(a) for sci- tion; entific or educational purposes, for zoo- (5) Method of disposal; logical exhibition, or to enhance the (6) Disposition of the specimen(s), in- propagation or survival of threatened cluding, where the specimen(s) has
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been retained in captivity, a descrip- (B) Resuscitation must be attempted tion of the place and means of confine- on sea turtles that are comatose or in- ment, and the measures taken for its active but not dead by: maintenance and care; and (1) Placing the turtle on its back (7) Such other information as the As- (carapace) and pumping its breastplate sistant Administrator may require. (plastron) with hand or foot; or (c) Exception for research or conserva- (2) Placing the turtle on its breast- tion. Any employee or agent of the Na- plate (plastron) and elevating its hind- 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 consumed, sold, landed, offloaded, (d) Exception for incidental taking. The transshipped, or kept below deck. prohibitions against taking in (2) Gear requirements—(i) TED require- § 223.205(a) do not apply to the inci- ment for shrimp trawlers. Any shrimp dental take of any member of a threat- trawler that is in the Atlantic Area or ened species of sea turtle (i.e., a take Gulf Area must have an approved TED not directed toward such member) dur- installed in each net that is rigged for ing fishing or scientific research activi- fishing. A net is rigged for fishing if it ties, to the extent that those involved is in the water, or if it is shackled, are in compliance with all applicable tied, or otherwise connected to any requirements of paragraphs (d)(1) trawl door or board, or to any tow rope, through (d)(5) of this section, or in cable, pole or extension, either on compliance with the terms and condi- board or attached in any manner to the tions of an incidental take permit shrimp trawler. Exceptions to the TED issued pursuant to paragraph (a)(2) of requirement for shrimp trawlers are this section. provided in paragraph (d)(2)(ii) of this (1) Handling and resuscitation require- section. ments. (i) Any specimen taken inciden- (ii) Exemptions from the TED require- tally during the course of fishing or ment—(A) Alternative tow-time restric- scientific research activities must be tions. A shrimp trawler is exempt from handled with due care to prevent in- the TED requirements of paragraph jury to live specimens, observed for ac- (d)(2)(i) of this section if it complies tivity, and returned to the water ac- with the alternative tow-time restric- cording to the following procedures: tions in paragraph (d)(3)(i) of this sec- (A) Sea turtles that are dead or ac- tion and if it: tively moving must be released over (1) Has on board no power or mechan- the stern of the boat. In addition, they ical-advantage trawl retrieval system must be released only when trawls are (i.e., any device used to haul any part not in use, when the engine gears are of the net aboard); in neutral position, and in areas where (2) Is a bait shrimper that retains all they are unlikely to be recaptured or live shrimp on board in a container injured by vessels. with a circulating seawater system, if
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it does not possess more than 32 pounds lindrical piece of webbing distinct from (14.5 kg) of dead shrimp on board, and the main trawl’s body, wings, codend, if it has on board a valid original state and any other net extension(s). The bait-shrimp license (if in a state that TED extension must be constructed of requires such a license); webbing no larger than 3.5 inch (8.9 cm) (3) Has only a pusher-head trawl, stretched mesh. The TED extension skimmer trawl, or wing net rigged for must extend at least 24 inches (61.0 cm) fishing; and but not more than 36 inches (91.4 cm) (4) Is in an area during a period for forward of the leading edge of the TED which tow-time restrictions apply and aft of the trailing edge of the grid. under paragraphs (d)(3) (ii) or (iii) of (B) Exemptions from the TED require- this section, if it complies with all ap- ment. Any summer flounder trawler plicable provisions imposed under north of 35°46.1′ N. lat. (Oregon Inlet, those paragraphs. NC) from January 15 through March 15 (B) Exempted gear or activities. The fol- annually is exempt from the TED re- lowing fishing gear or activities are ex- quirement of paragraph (d)(2)(iii)(A) of empted from the TED requirements of this section, unless the Assistant Ad- paragraph (d)(2)(i) of this section: ministrator determines that TED use (1) A single test net (try net) with a is necessary to protect sea turtles or headrope length of 12 ft (3.6 m) or less ensure compliance, pursuant to the and with a footrope length of 15 ft (4.6 procedures of paragraph (d)(4) of this m) or less, if it is either pulled imme- section. diately in front of another net or is not (C) Monitoring. Summer flounder connected to another net in any way, if trawlers must carry onboard a NMFS- no more than one test net is used at a time, and if it is not towed as a pri- approved observer if requested by the mary net; Southeast Regional Administrator or (2) A beam or roller trawl, if the the Northeast Regional Administrator. frame is outfitted with rigid vertical A written notification will be sent to bars, and if none of the spaces between the address specified for the vessel in the bars, or between the bars and the either the NMFS or state fishing per- frame, exceeds 4 inches (10.2 cm); and mit application, or to the address spec- (3) A shrimp trawler fishing for, or ified for registration or documentation possessing, royal red shrimp, if royal purposes, or upon written notification red shrimp constitutes at least 90 per- otherwise served on the owner or oper- cent (by weight) of all shrimp either ator of the vessel. Owners and opera- found on board, or offloaded from that tors must comply with the terms and shrimp trawler. conditions specified in such written no- (iii) Gear requirement—summer floun- tification. All NMFS-approved observ- der trawlers—(A) TED requirement. (1) ers will report any violations of this Any summer flounder trawler in the section, or other applicable regulations summer flounder fishery-sea turtle pro- and laws. Information collected by ob- tection area must have an approved servers may be used for enforcement TED installed in each net that is purposes. rigged for fishing. A net is rigged for (D) Additional sea turtle conservation fishing if it is in the water, or if it is measures. The Assistant Administrator shackled, tied, or otherwise connected may impose other such restrictions to any trawl door or board, or to any upon summer flounder trawlers as the tow rope, cable, pole or extension, ei- Assistant Administrator deems nec- ther on board or attached in any man- essary or appropriate to protect sea ner to the summer flounder trawler. turtles and ensure compliance, pursu- Exceptions to the TED requirement for ant to the procedures of paragraph summer flounder trawlers are provided (d)(4) of this section. Such measures in paragraph (d)(2)(iii)(B) of this sec- may include, but are not limited to, a tion. requirement to use TEDs in areas other (2) Any approved hard TED or special than summer flounder fishery-sea tur- hard TED installed in a summer floun- tle protection area, a requirement to der trawl must be installed in a TED use limited tow-times, and closure of extension. The TED extension is a cy- 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 a trator may allow compliance with tow- closed area, fishing by any shrimp time restrictions, as an alternative to trawler required to have a NMFS-ap- the TED requirement of paragraph proved TED in each net rigged for fish- (d)(2)(i) of this section, if the Assistant ing is prohibited, unless the TED in- Administrator determines that the stalled is one described at § presence of algae, seaweed, debris or 223.207(a)(7)(ii)(B) or § other special environmental conditions 223.207(c)(1)(iv)(B), and the owner or op- in a particular area makes trawling erator of the shrimp trawl has notified with TED-equipped nets impracticable. the Southeast Regional Administrator (iii) Substitute—ineffectiveness of of his or her intention to fish in that TEDs. The Assistant Administrator area, in accordance with the procedure may require compliance with tow-time provided in paragraph (d)(5) of this sec- restrictions, as a substitute for the tion. If requested in writing from the TED requirement of paragraph (d)(2)(i) Southeast Regional Administrator, of this section, if the Assistant Admin- owners and operators of shrimp trawl- istrator determines that TEDs are inef- ers in the leatherback conservation fective in protecting sea turtles. zone must carry NMFS-approved ob- (iv) Notice; applicability; conditions. servers aboard such vessel(s). A shrimp The Assistant Administrator will pub- trawler in the leatherback conserva- lish notification concerning any tow- tion zone must comply with the terms time restriction imposed under para- and conditions specified in such writ- graph (d)(3)(ii) or (iii) of this section in ten request, as well as provide informa- the FEDERAL REGISTER and will an- tion on trawling hours, gear modifica- nounce it in summary form on channel tions, 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 (6) Restrictions applicable to the to provide observers. Notification of California/Oregon drift gillnet fishery— withdrawal or modification will in- (i) Pacific leatherback conservation clude findings in support of that ac- area. No person may fish with, set, or tion. haul back drift gillnet gear in U.S. wa- (iv) Procedures. The Assistant Admin- ters of the Pacific Ocean from August istrator will consult with the appro- 15 through November 15 in the area priate fisheries officials (state or Fed- bounded by straight lines connecting eral) where the fishing activities are the following coordinates in the order located in issuing notification of a de- listed: termination concerning unauthorized (A) Point Sur (36°18.5′ N) to 34°27′ N takings or notification concerning the 123°35’ W′; restriction of fishing activities. An (B) 34°27′ N 123°35′ W to 34°27′ N 129° emergency notification will be effec- W; tive for a period of up to 30 days and (C) 34°27′ N 129° W to 45° N 129° W; may be renewed for additional periods (D) 45° N 129° W to the point 45° N of up to 30 days each. The Assistant intersects the Oregon coast. Administrator may invite comments (ii) [Reserved] on such action, and may withdraw or modify the action by following proce- [64 FR 14070, Mar. 23, 1999, as amended at 64 dures similar to those for implementa- FR 55863, Oct. 15, 1999; 66 FR 1603, Jan. 9, 2001; tion. The Assistant Administrator will 66 FR 44551, Aug. 24, 2001] implement any permanent determina- EFFECTIVE DATE NOTE: At 64 FR 14070, Mar. tion or restriction through rule- 23, 1999, newly redesignated § 223.206 was re- making. vised. Paragraph (d)(5) contains information (5) Registration. If the Assistant Ad- collection requirements and will not become ministrator imposes restrictions under effective until approval has been given by the Office of Management and Budget. paragraph (d)(2)(iv), (d)(3)(ii), (d)(3)(iii), or (d)(4)(ii) of this section, the Assist- § 223.207 Approved TEDs. ant Administrator may require the owner and operator of a vessel to reg- Any netting, webbing, or mesh that ister before entering an area where, may be measured to determine compli- and during the time when, the restric- ance with this section is subject to tions apply. If registration is required, measurement, regardless of whether it the vessel’s owner and operator must is wet or dry. Any such measurement submit the following information to will be of the stretched mesh size. the NMFS Regional Office: (a) Hard TEDs. Hard TEDs are TEDs (i) The name and official number (or with rigid deflector grids and are cat- registration number) of the vessel; egorized as ‘‘hooped hard TEDs,’’ such (ii) The names, mailing and street ad- as the NMFS and Cameron TEDs (Fig- dresses, and telephone numbers of the ures 1 & 2 to this part), or ‘‘single-grid vessel owner and operator; hard TEDs,’’ such as the Matagorda (iii) The permit number or other and Georgia TEDs (Figures 3 & 4 to this identification of relevant state or Fed- part). Hard TEDs complying with the eral fishing permit(s); following generic design criteria are (iv) Where and when the vessel in- approved TEDs: tends to fish; (1) Construction materials. A hard TED (v) Where and when the vessel will must be constructed of one or a com- depart on any fishing trip, with suffi- bination of the following materials, cient specificity to allow for an ob- with minimum dimensions as follows: server to embark on the trip; and (i) Solid steel rod with a minimum (vi) Any changes in the information outside diameter of 1⁄4 inch (0.64 cm); submitted under paragraphs (d)(5)(i) (ii) Fiberglass or aluminum rod with through (d)(5)(v) of this section. Fail- a minimum outside diameter of 1⁄2 inch ure to do so immediately will void the (1.27 cm); or registration, rendering unlawful any (iii) Steel or aluminum tubing with a subsequent entry of the fishing vessel minimum outside diameter of 1⁄2 inch
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(1.27 cm) and a minimum wall thick- the escape opening must be cut hori- ness of 1⁄8 inch (0.32 cm) (also known as zontally along the same plane as the schedule 40 tubing). TED, and may not be cut in a fore-and- (2) Method of attachment. A hard TED aft direction. must be sewn into the trawl around the (7) Size of escape opening—(i) Hooped entire circumference of the TED with hard TED. On a hooped hard TED, the heavy twine. escape opening must not be smaller (3) Angle of deflector bars. (i) The than 25 inches by 25 inches (63.5 cm by angle of the deflector bars must be be- 63.5 cm) in the Gulf Area, or 30 inches tween 30° and 55° from the normal, hor- by 30 inches (76.2 cm by 76.2 cm) in the izontal flow through the interior of the Atlantic Area. A door frame may not trawl, except as provided in paragraph be used over the escape opening; how- (a)(3)(ii) of this section. ever, a webbing flap may be used as (ii) For any shrimp trawler fishing in provided in paragraph (e)(4)(iv)(C) of the Gulf SFSTCA or the Atlantic this section. SFSTCA, a hard TED with the position (ii) Single-grid hard TED—(A) Escape of the escape opening at the bottom of opening for standard single-grid hard the net when the net is in its deployed TED. On a single-grid hard TED, the position, the angle of the deflector bars cut in the trawl webbing for the escape from the normal, horizontal flow opening cannot be narrower than the 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—(1) Standard leatherback opening. A deflector bars and the frame must not single-grid hard TED escape opening exceed 4 inches (10.2 cm). shall be enlarged to allow leatherback (5) Direction of bars. The deflector turtles to escape by cutting an exit bars must run from top to bottom of hole in the extension forward of the the TED, as the TED is positioned in TED frame 26 inches (66 cm) deep, on the net, except that up to four of the each side, by 83 inches (211 cm) across bottom bars and two of the top bars, (Figures 12a and 12b to this part). Ex- including the frame, may run from side cess webbing is removed by cutting to side of the TED. across 1⁄2 mesh forward of the TED (6) Position of escape opening. The en- frame. The exit hole cover is made by tire width of the escape opening from cutting a 133-inch (388 cm) by 58-inch the trawl must be centered on and im- (148 cm) piece of webbing no smaller mediately forward of the frame at ei- than 11⁄2 inch (4 cm) stretch mesh and ther the top or bottom of the net when no larger than 1 5⁄8 inch (4.2 cm) stretch the net is in its deployed position. The mesh. The 133-inch (338 cm) edge of the escape opening must be at the top of cover is attached to the forward edge of the net when the slope of the deflector the opening (83-inch (211 cm) edge) with bars from forward to aft is upward, and a sewing sequence of 3:2. The cover must be at the bottom when such slope must overlap 5 inches (13 cm) of the is downward. For a single-grid TED, exit hole on each side. The side of the
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cover is attached, maintaining the 5- cm) in the Gulf Area, or an inside hori- inch (13 cm) overlap, to the side of the zontal measurement of at least 35 opening by sewing 28 inches (71 cm) of inches (88.9 cm) and an inside vertical the cover to 26 inches (66 cm) of the measurement of at least 30 inches (76.2 opening forward of the TED frame and cm) in the Atlantic Area. by sewing 15 inches (38 cm) of the ex- (B) A circular front hoop on a hard tension behind the TED frame. The TED must have an inside diameter of cover may extend no more than 24 at least 32 inches (81.3 cm) in the Gulf inches (61 cm) behind the posterior Area or 35 inches (88.9 cm) in the At- edge of the TED frame. The circum- lantic Area. ference of the exit opening must be 142 (ii) Single-grid hard TED. A single- inches (361 cm) when stretched. If an grid hard TED must have an inside hor- accelerator funnel is used with a sin- izontal and vertical measurement of at gle-grid hard TED, modified as above, least 28 inches (71.1 cm) in the Gulf it must have a minimum circumference Area or 30 inches (76.2 cm) in the At- of 142 inches (361 cm). lantic Area. The required inside meas- (2) Double cover flap TED opening. A urements must be at the mid-point of single-grid hard TED escape opening the deflector grid. shall be enlarged to allow leatherback (9) Flotation. Floats must be attached turtles to escape by cutting an exit to the top one-half of all hard TEDs hole in the extension forward of the with bottom escape openings. The TED frame 20 inches (51 cm) deep, on floats may be attached either outside each side, by 56 inches (142 cm) across. or inside the net, but not to a flap. Excess webbing is removed by cutting Floats attached inside the net must be across c mesh forward of the TED behind the rear surface of the TED. frame. The exit hole cover is made by Floats must be attached with heavy cutting two equal size rectangular pan- twine or rope. Floats must be con- els of webbing with mesh sizes no structed of aluminum, hard plastic, ex- smaller than 11⁄2 inch (4 cm) stretch panded polyvinyl chloride, or expanded mesh and no larger than 1 5⁄8 inch (4.2 cm) stretch mesh. Each panel must be ethylene vinyl acetate unless otherwise no less than 58 inches (147 cm) wide. specified. The requirements of this The 58-inch (147 cm) edges of each panel paragraph may be satisfied by compli- are attached to the forward edge of the ance with either the dimension require- opening (56-inch (142 cm) edge) with a ments of paragraph (a)(9)(i) of this sec- sewing sequence of 3:2. When both pan- tion, or the buoyancy requirements of els are attached, they may overlap paragraph (a)(9)(ii) of this section, or each other by no more than 15 inches the buoyancy-dimension requirements (38 cm). The panels may only be sewn of paragraph (a)(9)(iii) of this section. together along the leading edge of the If roller gear is used pursuant to para- cut. The panels may not overlap the es- graph (d)(5) of this section, the roller cape hole cut by more than 3 meshes on gear must be included in the circum- either side. The outer edges of the pan- ference measurement of the TED or the els may be attached in the same row of total weight of the TED. meshes forward and aft. The end of (i) Float dimension requirements. (A) each panel may not extend more than 6 For hard TEDs with a circumference of inches (15 cm) past the posterior edge 120 inches (304.8 cm) or more, a min- of the grid. Accelerator funnels and imum of either one round, aluminum chafing webbing may not be used with or hard plastic float, no smaller than this TED. (Figure 16 of this part illus- 9.8 inches (25.0 cm) in diameter, or two trates the escape opening and flap di- expanded polyvinyl chloride or ex- mensions for the double cover flap panded ethylene vinyl acetate floats, TED.) each no smaller than 6.75 inches (17.2 (8) Size of hoop or grid—(i) Hooped cm) in diameter by 8.75 inches (22.2 cm) hard TED. (A) An oval front hoop on a in length, must be attached. hard TED must have an inside hori- (B) For hard TEDs with a circum- zontal measurement of at least 32 ference of less than 120 inches (304.8 inches (81.3 cm) and an inside vertical cm), a minimum of either one round, measurement of at least 20 inches (50.8 aluminum or hard plastic float, no
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smaller than 9.8 inches (25.0 cm) in di- (B) For floats constructed of ex- ameter, or one expanded polyvinyl panded polyvinyl chloride or expanded chloride or expanded ethylene vinyl ac- ethylene vinyl acetate, where the cir- etate float, no smaller than 6.75 inches cumference of the TED is 120 inches (17.2 cm) in diameter by 8.75 inches (304.8 cm) or more, the combined buoy- (22.2 cm) in length, must be attached. ancy must equal or exceed 20 lb (9.1 (ii) Float buoyancy requirements. kg); or Floats of any size and in any combina- (C) For floats constructed of ex- tion must be attached such that the panded polyvinyl chloride or expanded combined buoyancy of the floats, as ethylene vinyl acetate, where the cir- marked on the floats, equals or exceeds cumference of the TED is less than 120 the weight of the hard TED, as marked inches (304.8 cm), the combined buoy- on the TED. The buoyancy of the floats ancy must equal or exceed 10 lb (4.5 and the weight of the TED must be kg). clearly marked on the floats and the (b) Special Hard TEDs. Special hard TED as follows: TEDs are hard TEDs which do not meet (A) Float buoyancy markings. Mark- all of the design and construction cri- ings on floats must be made in clearly teria of the generic standards specified legible raised or recessed lettering by in paragraph (a) of this section. The the original manufacturer. The mark- following special hard TEDs are ap- ing must identify the buoyancy of the proved TEDs: float in water, expressed in grams or (1) Flounder TED (Figure 10 to this kilograms, and must include the met- part). The Flounder TED is approved ric unit of measure. The marking may for use only in the Atlantic summer additionally include the buoyancy in flounder bottom trawl fishery. The English units. The marking must iden- Flounder TED is not an approved TED tify the nominal buoyancy for the for use by shrimp trawlers. The Floun- manufactured float. der TED must be constructed of at (B) TED weight markings. The mark- least 11⁄4 inch (3.2 cm) outside diameter ing must be made by the original TED aluminum or steel pipe with a wall manufacturer and must be permanent thickness of at least 1⁄8 inch (0.3 cm). It and clearly legible. The marking must must have a rectangular frame with identify the in-air, dry weight of the outside dimensions which can be no TED, expressed in grams or kilograms, less than 51 inches (129.5 cm) in length and must include the metric unit of and 32 inches (81.3 cm) in width. It measure. The marking may addition- must have at least five vertical deflec- ally include the weight in English tor bars, with bar spacings of no more units. The marked weight must rep- than 4 inches (10.2 cm). The vertical resent the actual weight of the indi- bars must be connected to the top of vidual TED as manufactured. Pre- the frame and to a single horizontal viously manufactured TEDs may be bar near the bottom. The horizontal marked upon return to the original bar must be connected at both ends to manufacturer. Where a TED is com- the sides of the frame and parallel to prised of multiple detachable compo- the bottom bar of the frame. There nents, the weight of each component must be a space no larger than 10 must be separately marked. inches (25.4 cm) between the horizontal (iii) Buoyancy-dimension requirements. bar and the bottom bar of the frame. Floats of any size and in any combina- One or more additional vertical bars tion, provided that they are marked running from the bottom bar to the pursuant to paragraph (a)(9)(ii)(A) of horizontal bar must divide the opening this section, must be attached such at the bottom into two or more rectan- that the combined buoyancy of the gles, each with a maximum height of 10 floats equals or exceeds the following inches (25.4 cm) and a maximum width values: of 141⁄2 inches (36.8 cm). This TED must (A) For floats constructed of alu- comply with paragraphs (a)(2), (a)(3), minum or hard plastic, regardless of (a)(6), and (a)(7)(ii) of this section with the size of the TED grid, the combined respect to the method of attachment, 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
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size of the escape opening, except that must consist of number 48 (3-mm thick) the deflector bars must be positioned or larger polypropylene or poly- in the net to deflect turtles to the es- ethylene webbing that is heat-set knot- cape opening in the top of the trawl. ted or braided. The leading edge of the This TED may not be configured with a 8-inch (20.3-cm) mesh panel must be 36 bottom escape opening. Installation of meshes wide. The 8-inch (20.3-cm) mesh an accelerator funnel is not permitted panel must be tapered on each side with this TED. with all-bar cuts to converge on an (2) Jones TED (Figure 11 to this part). apex, such that the length of each side The Jones TED must be constructed of is 36 bars. The leading edges of the 4- at least 11⁄4 inch (3.2 cm) outside diame- inch (10.2-cm) mesh panels must be 8 ter aluminum or steel pipe, and the meshes wide. The edges of the 4-inch pipe must have a wall thickness of at (10.2-cm) mesh panels must be cut with least 1⁄8 inch (0.3 cm). It must be gen- all-bar cuts running parallel to each erally oval in shape with a flattened other, such that the length of the inner bottom. The deflector bars must be at- edge is 72 bars and the length of the tached to the frame at a 45° angle from outer edge is 89 bars and the resulting the horizontal positioning downward fore-and-aft edge is 8 meshes deep. The and each bar must be attached at only two 4-inch (10.2-cm) mesh panels must one end to the frame. The deflector be sewn to the 8-inch (20.3-cm) mesh bars must be attached and lie in the panel to create a single triangular ex- same plane as the frame. The space be- cluder panel. The 72-bar edge of each 4- tween the ends of the bottom deflector inch (10.2-cm) mesh panel must be se- bars and the bottom frame bar must be curely joined with twine to one of the no more than 3 inches (7.6 cm). The 36-bar edges of the 8-inch (20.3-cm) spacing between the bottom three de- mesh panel, tied with knots at each flector bars on each side must be no knot of the 4-inch (10.2-cm) webbing greater than 21⁄2 inches (6.4 cm). The and at least two wraps of twine around spacing between all other deflector each bar of 4-inch (10.2-cm) mesh and bars must not exceed 31⁄2 inches (8.9 cm) the adjoining bar of the 8-inch (20.3-cm) and spacing between ends of opposing mesh. The adjoining fore-and-aft edges deflector bars also must not exceed 31⁄2 of the two 4-inch (10.2-cm) mesh panels inches (8.9 cm). This TED must comply must be sewn together evenly. with paragraphs (a)(2), (a)(3), (a)(6), (ii) Limitations on which trawls may (a)(7)(ii), (a)(8)(ii), and (a)(9) of this sec- have a Parker TED installed. The Parker tion with respect to the method of at- TED must not be installed or used in a tachment, the angle of the deflector two-seam trawl with a tongue, nor in a bars, the position of the escape open- triple-wing trawl (a trawl with a ing, the size of the escape opening, the tongue along the headrope and a sec- size of the grid, and flotation. ond tongue along the footrope). The (c) Soft TEDs. Soft TEDs are TEDs Parker TED may be installed and used with deflector panels made from poly- in any other trawl if the taper of the propylene or polyethylene netting. The body panels of the trawl does not ex- following soft TEDs are approved ceed 4b1p and if it can be properly in- TEDs: stalled in compliance with paragraph (1) Parker TED. The Parker TED is a (c)(1)(iii) of this section. soft TED, consisting of a single tri- (iii) Panel installation—(A) Leading angular panel, composed of webbing of edge attachment. The leading edge of two different mesh sizes, that forms a the excluder panel must be attached to complete barrier inside a trawl and the inside of the bottom of the trawl that angles toward an escape opening across a straight row of meshes. For a in the top of the trawl. two-seam trawl or a four-seam, ta- (i) Excluder Panel. (Figure 5 to this pered-wing trawl, the row of meshes for part) The excluder panel of the Parker attachment to the trawl must run the TED must be constructed of a single entire width of the bottom body panel, triangular piece of 8-inch (20.3 cm) from seam to seam. For a four-seam, 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
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panel and half the height of each wing (C) Side attachment. The sides of the panel of the trawl. Every mesh of the excluder panel must be attached evenly leading edge of the excluder panel must to the inside of the trawl from the out- be evenly sewn to this row of meshes; side attachment points of the excluder meshes may not be laced to the trawl. panel’s leading edge to the apex of the The row of meshes for attachment to excluder panel. Each side must be sewn the trawl must contain the following with the same sewing sequence, and, if number of meshes, depending on the the sides of the excluder panel cross stretched mesh size used in the trawl: rows of bars in the trawl, the crossings (1) For a mesh size of 21⁄4 inches (5.7 must be distributed evenly over the cm), 152–168 meshes; length of the side attachment. (2) For a mesh size of 21⁄8 inches (5.4 (iv) Escape opening. The escape open- cm), 161–178 meshes; ing for the Parker soft TED must (3) For a mesh size of 2 inches (5.1 match one of the following specifica- cm), 171–189 meshes; tions: (4) For a mesh size of 17⁄8 inches (4.8 (A) Longitudinal cut. A slit at least 56 cm), 182–202 meshes; inches (1.4 m) in taut length must be (5) For a mesh size of 13⁄4 inches (4.4 cut along the centerline of the top cm), 196–216 meshes; body panel of the trawl net imme- (6) For a mesh size of 15⁄8 inches (4.1 diately forward of the apex of the panel cm), 211–233 meshes; webbing. The slit must not be covered (7) For a mesh size of 11⁄2 inches (3.8 or closed in any manner. The edges and cm), 228–252 meshes; end points of the slit must not be rein- (8) For a mesh size of 13⁄8 inches (3.5 forced in any way; for example, by at- cm), 249–275 meshes; and taching additional rope or webbing or (9) For a mesh size of 11⁄4 inches (3.2 by changing the orientation of the web- cm), 274–302 meshes. bing. (B) Apex attachment. The apex of the (B) Leatherback escape opening. A hor- triangular excluder panel must be at- izontal cut extending from the attach- tached to the inside of the top body ment of one side of the deflector panel panel of the trawl at the centerline of to the trawl to the attachment of the the trawl. The distance, measured aft other side of the deflector panel to the along the centerline of the top body trawl must be made in a single row of panel from the same row of meshes for meshes across the top of the trawl and attachment of the excluder panel to measure at least 96 inches (244 cm) in the bottom body panel of the trawl, to taut width. All trawl webbing above the apex attachment point must con- the deflector panel between the 96-inch tain the following number of meshes, (244-cm) cut and edges of the deflector depending on the stretched mesh size panel must be removed. A rectangular used in the trawl: flap of nylon webbing not larger than 2- (1) For a mesh size of 21⁄4 inches (5.7 inch (5.1-cm) stretched mesh may be cm), 78–83 meshes; sewn to the forward edge of the escape (2) For a mesh size of 21⁄8 inches (5.4 opening. The width of the flap must cm), 83–88 meshes; not be larger than the width of the for- (3) For a mesh size of 2 inches (5.1 ward edge of the escape opening. The cm), 87–93 meshes; flap must not extend more than 12 (4) For a mesh size of 17⁄8 inches (4.8 inches (30.4 cm) beyond the rear point cm), 93–99 meshes; of the escape opening. The sides of the (5) For a mesh size of 13⁄4 inches (4.4 flap may be attached to the top of the cm), 100–106 meshes; trawl but must not be attached farther (6) For a mesh size of 15⁄8 inches (4.1 aft than the row of meshes through the cm), 107–114 meshes; rear point of the escape opening. One 1 (7) For a mesh size of 1 ⁄2 inches (3.8 row of steel chain not larger than 3⁄16 cm), 114–124 meshes; inch (4.76 mm) may be sewn evenly to (8) For a mesh size of 13⁄8 inches (3.5 the back edge of the flap. The stretched cm), 127–135 meshes; and length of the chain must not exceed 96 (9) For a mesh size of 11⁄4 inches (3.2 inches (244 cm). A Parker TED using cm), 137–146 meshes. the escape opening described in this
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paragraph meets the requirements of the escape opening at the bottom of § 223.206(d)(2)(iv)(B). the net when the net is in its deployed (2) [Reserved] position, in which case the webbing (d) Allowable modifications to hard flap must not extend beyond the pos- TEDs and special hard TEDs. Unless terior edge of the grid. otherwise prohibited in paragraph (b) (4) Chafing webbing. A single piece of of this section, only the following nylon webbing, with a twine size no modifications may be made to an ap- smaller than size 36 (2.46 mm in diame- proved hard TED or an approved spe- ter), may be attached outside of the es- cial hard TED: cape opening webbing flap to prevent (1) Floats. In addition to floats re- chafing on bottom opening TEDs. This quired pursuant to paragraph (a)(9) of webbing may be attached along its this section, floats may be attached to leading edge only. This webbing may the top one-half of the TED, either out- not extend beyond the trailing edge or side or inside the net, but not to a flap. sides of the existing escape opening Floats attached inside the net must be webbing flap, and it must not interfere behind the rear surface at the top of or otherwise restrict the turtle escape the TED. opening. (2) Accelerator funnel. An accelerator (5) Roller gear. Roller gear may be at- funnel may be installed in the trawl, if tached to the bottom of a TED to pre- it is made of net webbing material with vent chafing on the bottom of the TED a stretched mesh size not greater than and the trawl net. When a webbing flap 15⁄8 inches (4.1 cm), if it has an inside is used in conjunction with roller gear, horizontal opening of at least 39 inches the webbing flap must be of a length (99.1 cm) when measured in a taut posi- such that no part of the webbing flap tion, if it is inserted in the net imme- can touch or come in contact with any diately forward of the TED, and if its part of the roller gear assembly or the rear edge does not extend past the bars means of attachment of the roller gear of the TED. The trailing edge of the ac- assembly to the TED, when the trawl celerator funnel may be attached to net is in its normal, horizontal posi- the TED on the side opposite the es- tion. Roller gear must be constructed cape opening if not more than 1⁄3 of the circumference of the funnel is at- according to one of the following de- tached, and if the inside horizontal sign criteria: opening of at least 39 inches (99.1 cm) is (i) A single roller consisting of hard maintained. In a bottom-opening TED, plastic shall be mounted on an axle rod, so that the roller can roll freely only the top 1⁄3 of the circumference of the funnel may be attached to the about the axle. The maximum diame- TED. In a top-opening TED, only the ter of the roller shall be 6 inches (15.24 bottom 1⁄3 of the circumference of the cm), and the maximum width of the funnel may be attached to the TED. axle rod shall be 12 inches (30.4 cm). (3) Webbing flap. A webbing flap may The axle rod must be attached to the be used to cover the escape opening TED by two support rods. The max- under the following conditions: No de- imum clearance between the roller and vice holds it closed or otherwise re- the TED shall not exceed 1 inch (2.5 stricts the opening; it is constructed of cm) at the center of the roller. The webbing with a stretched mesh size no support rods and axle rod must be larger than 15⁄8 inches (4.1 cm); it lies made from solid steel or solid alu- on the outside of the trawl; it is at- minum rod no larger than 1⁄2 inch (1.28 tached along its entire forward edge cm) in diameter. The attachment of forward of the escape opening; it is not the support rods to the TED shall be attached on the sides beyond the row of such that there are no protrusions meshes that lies 6 inches (15.2 cm) be- (lips, sharp edges, burrs, etc.) on the hind the posterior edge of the grid; and front face of the grid. The axle rod and it does not extend more than 24 inches support rods must lie entirely behind (61.0 cm) beyond the posterior edge of the plane of the face of the TED grid. the grid, except for trawlers fishing in (ii) A single roller consisting of hard the Gulf SFSTCA or Atlantic SFSTCA plastic tubing shall be tightly tied to with a hard TED with the position of the back face of the TED grid with rope
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or heavy twine passed through the cen- definition of ‘‘Southeast Regional Ad- ter of the roller tubing. The roller shall ministrator’’). lie flush against the TED. The max- [64 FR 14073, Mar. 23, 1999, as amended at 64 imum outside diameter of the roller FR 55438, Oct. 13, 1999; 66 FR 1603, Jan. 9, 2001; shall be 31⁄2 inches (8.0 cm), the min- 66 FR 24288, May 14, 2001] imum outside diameter of the roller EFFECTIVE DATE NOTE: At 64 FR 14073, Mar. shall be 2 inches (5.1 cm), and the max- 23, 1999, § 223.207 was added. Paragraphs imum length of the roller shall be 12 (a)(9)(ii) (A) and (B) contain information col- inches (30.4 cm). The roller must lie en- lection requirements and will not become ef- tirely behind the plane of the face of fective until approved by the Office of Man- the grid. agement and Budget. (e) Revision of generic design criteria, § 223.209 Tribal plans. and approval of TEDs, of allowable modi- (a) Limits on the prohibitions. The pro- fications of hard TEDs, and of special hibitions of § 223.203(a) of this subpart hard TEDs. (1) The Assistant Adminis- relating to threatened species of trator may revise the generic design salmonids listed in § 223.102 do not criteria for hard TEDs set forth in apply to any activity undertaken by a paragraph (a) of this section, may ap- tribe, tribal member, tribal permittee, prove special hard TEDs in addition to tribal employee, or tribal agent in those listed in paragraph (b) of this compliance with a Tribal resource section, may approve allowable modi- management plan (Tribal Plan), pro- fications to hard TEDs in addition to vided that the Secretary determines those authorized in paragraph (d) of that implementation of such Tribal this section, or may approve other Plan will not appreciably reduce the TEDs, by regulatory amendment, if, likelihood of survival and recovery of according to a NMFS-approved sci- the listed salmonids. In making that entific protocol, the TED demonstrates determination the Secretary shall use a sea turtle exclusion rate of 97 percent the best available biological data (in- or greater (or an equivalent exclusion cluding any tribal data and analysis) to rate). Two such protocols have been determine the Tribal Plan’s impact on published by NMFS (52 FR 24262, June the biological requirements of the spe- 29, 1987; and 55 FR 41092, October 9, cies, and will assess the effect of the 1990) and will be used only for testing Tribal Plan on survival and recovery, relating to hard TED designs. Testing consistent with legally enforceable under any protocol must be conducted tribal rights and with the Secretary’s under the supervision of the Assistant trust responsibilities to tribes. Administrator, and shall be subject to (b) Consideration of a Tribal Plan. (1) A all such conditions and restrictions as Tribal Plan may include but is not lim- the Assistant Administrator deems ap- ited to plans that address fishery har- propriate. Any person wishing to par- vest, artificial production, research, or ticipate in such testing should contact water or land management, and may be the Director, Southeast Fisheries developed by one tribe or jointly with other tribes. The Secretary will con- Science Center, NMFS, 75 Virginia sult on a government-to-government Beach Dr., Miami, FL 33149–1003. basis with any tribe that so requests (2) Upon application, the Assistant and will provide to the maximum ex- Administrator may issue permits, sub- tent practicable technical assistance in ject to such conditions and restrictions examining impacts on listed salmonids as the Assistant Administrator deems and other salmonids as tribes develop appropriate, authorizing public or pri- Tribal resource management plans that vate experimentation aimed at improv- meet the management responsibilities ing shrimp retention efficiency of ex- and needs of the tribes. A Tribal Plan isting approved TEDs and at devel- must specify the procedures by which oping additional TEDs, or conducting the tribe will enforce its provisions. fishery research, that would otherwise (2) Where there exists a Federal court be subject to § 223.206(d)(2). Applica- proceeding with continuing jurisdic- tions should be made to the Southeast tion over the subject matter of a Tribal Regional Administrator (see § 222.102 Plan, the plan may be developed and
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implemented within the ongoing Fed- Plan will appreciably reduce the likeli- eral Court proceeding. In such cir- hood of survival and recovery of the cumstances, compliance with the Trib- listed salmonids. al Plan’s terms shall be determined (4) The Secretary shall publish notifi- within that Federal Court proceeding. cation in the FEDERAL REGISTER of any (3) The Secretary shall seek com- determination regarding a Tribal Plan ment from the public on the Sec- and the basis for that determination. retary’s pending determination wheth- er or not implementation of a Tribal [65 FR 42485, July 10, 2000]
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]
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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FIGURE 6 TO PART 223—TED EXTENSION IN SUMMER FLOUNDER TRAWL [64 FR 55864, Oct. 15, 1999]
FIGURES 7–9b TO PART 223 [RESERVED]
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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]
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FIGURE 16 TO PART 223—ESCAPE OPENING AND FLAP DIMENSIONS FOR THE DOUBLE COVER FLAP TED
[66 FR 24289, May 14, 2001]
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PART 224—ENDANGERED MARINE § 224.101 Enumeration of endangered AND ANADROMOUS SPECIES marine and anadromous species. The marine and anadromous species Sec. determined by the Secretary of Com- 224.101 Enumeration of endangered marine merce to be endangered pursuant to and anadromous species. section 4(a) of the Act, as well as spe- 224.102 Permits for endangered marine and cies listed under the Endangered Spe- anadromous species. cies Conservation Act of 1969 by the 224.103 Special prohibitions for endangered Secretary of the Interior and currently marine mammals. under the jurisdiction of the Secretary 224.104 Special requirements for fishing ac- of Commerce, are the following: tivities to protect endangered sea tur- tles. (a) Marine and anadromous fish. The following table lists the common and AUTHORITY: 16 U.S.C. 1531–1543 and 16 U.S.C. scientific names of endangered species, 1361 et seq. the locations where they are listed, and SOURCE: 64 FR 14066, Mar. 23, 1999, unless the citations for the listings and crit- otherwise noted. ical habitat designations.
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(b) Marine mammals. Blue whale § 224.103 Special prohibitions for en- (Balaenoptera musculus); Bowhead dangered marine mammals. whale (Balaena mysticetus); Caribbean (a) Approaching humpback whales in monk seal (Monachus tropicalis); Chi- Hawaii. Except as provided in part 222, nese river dolphin (Lipotes vexillifer); subpart C, of this chapter (General Per- Cochito (Phocoena sinus); Fin or mit Procedures), it is unlawful for any finback whale (Balaenoptera physalus); person subject to the jurisdiction of Hawaiian monk seal (Monachus the United States to commit, to at- schauinslandi); Humpback whale tempt to commit, to solicit another to (Megaptera novaeangliae); Indus River commit, or to cause to be committed, dolphin (Platanista minor); Mediterra- within 200 nautical miles (370.4 km) of nean monk seal (Monachus monachus); the Islands of Hawaii, any of the fol- Right whales (Eubalaena spp.); Saimaa lowing acts with respect to humpback seal (Phoca hispida saimensis); Sei whale whales (Megaptera novaeangliae): (Balaenoptera borealis); Sperm whale (1) Operate any aircraft within 1,000 (Physeter catodon); Western North Pa- feet (300 m) of any humpback whale; cific (Korean) gray whale (Eschrichtius (2) Approach, by any means, within robustus); Steller sea lion, western pop- 100 yard (90 m) of any humpback whale; ulation, (Eumetopias jubatus), which (3) Cause a vessel or other object to consists of Stellar sea lions from breed- approach within 100 yd (90 m) of a ing colonies located west of 144° W. lon- humpback whale; or gitude. (4) Disrupt the normal behavior or (c) Sea turtles. Green turtle (Chelonia prior activity of a whale by any other mydas) breeding colony populations in act or omission. A disruption of normal Florida and on the Pacific coast of behavior may be manifested by, among Mexico; Hawksbill turtle (Eretmochelys other actions on the part of the whale, imbricata); Kemp’s ridley turtle a rapid change in direction or speed; es- (Lepidochelys kempii); Leatherback tur- cape tactics such as prolonged diving, underwater course changes, underwater tle (Dermochelys coriacea); Olive ridley exhalation, or evasive swimming pat- turtle (Lepidochelys olivacea) breeding terns; interruptions of breeding, nurs- colony population on the Pacific coast ing, or resting activities, attempts by a of Mexico. whale to shield a calf from a vessel or NOTE TO § 224.101(C): Jurisdiction for sea human observer by tail swishing or by turtles by the Department of Commerce, Na- other protective movement; or the tional Oceanic and Atmospheric Administra- abandonment of a previously fre- tion, National Marine Fisheries Service, is quented area. limited to turtles while in the water. (b) Approaching humpback whales in (d) Marine invertebrates. White aba- Alaska—(1) Prohibitions. Except as pro- lone (Haliotis sorenseni). vided under paragraph (b)(2) of this sec- tion, it is unlawful for any person sub- [64 FR 14066, Mar. 23, 1999, as amended 64 FR 14328, Mar. 24, 1999; 65 FR 20918, Apr. 19, 2000; ject to the jurisdiction of the United 65 FR 69481, Nov. 17, 2000; 66 FR 29055, May 29, States to commit, to attempt to com- 2001] mit, to solicit another to commit, or to cause to be committed, within 200 nau- § 224.102 Permits for endangered ma- tical miles (370.4 km) of Alaska, or rine and anadromous species. within inland waters of the state, any of the acts in paragraphs (b)(1)(i) No person shall take, import, export, through (b)(1)(iii) of this section with or engage in any activity prohibited by respect to humpback whales (Megaptera section 9 of the Act involving any ma- novaeangliae): rine species that has been determined (i) Approach, by any means, includ- to be endangered under the Endangered ing by interception (i.e., placing a ves- Species Conservation Act of 1969 or the sel in the path of an oncoming hump- Act, and that is under the jurisdiction back whale so that the whale surfaces of the Secretary, without a valid per- within 100 yards (91.4 m) of the vessel), mit issued pursuant to part 222, sub- within 100 yards (91.4 m) of any hump- part C of this chapter. back whale;
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(ii) Cause a vessel or other object to meaning as the term is defined in 33 approach within 100 yards (91.4 m) of a U.S.C. 2006 and the International Regu- humpback whale; or lations for Preventing Collisions at Sea (iii) Disrupt the normal behavior or 1972 (see 33 U.S.C. 1602), with respect to prior activity of a whale by any other avoiding collisions with humpback act or omission, as described in para- whales. graph (a)(4) of this section. (c) Approaching North Atlantic right (2) Exceptions. The following excep- whales—(1) Prohibitions. Except as pro- tions apply to this paragraph (b), but vided under paragraph (b)(3) of this sec- any person who claims the applica- tion, it is unlawful for any person sub- bility of an exception has the burden of ject to the jurisdiction of the United proving that the exception applies: States to commit, attempt to commit, (i) Paragraph (b)(1) of this section to solicit another to commit, or cause does not apply if an approach is au- to be committed any of the following thorized by the National Marine Fish- acts: eries Service through a permit issued (i) Approach (including by intercep- under part 222, subpart C, of this chap- tion) within 500 yards (460 m) of a right ter (General Permit Procedures) or whale by vessel, aircraft, or any other through a similar authorization. means; (ii) Paragraph (b)(1) of this section (ii) Fail to undertake required right does not apply to the extent that a ves- whale avoidance measures specified sel is restricted in her ability to ma- under paragraph (b)(2) of this section. neuver and, because of the restriction, (2) Right whale avoidance measures. cannot comply with paragraph (b)(1) of Except as provided under paragraph this section. (b)(3) of this section, the following (iii) Paragraph (b)(1) of this section avoidance measures must be taken if does not apply to commercial fishing within 500 yards (460 m) of a right vessels lawfully engaged in actively whale: setting, retrieving or closely tending (i) If underway, a vessel must steer a commercial fishing gear. For purposes course away from the right whale and of this paragraph (b), commercial fish- immediately leave the area at a slow ing means taking or harvesting fish or safe speed. fishery resources to sell, barter, or (ii) An aircraft must take a course trade. Commercial fishing does not in- away from the right whale and imme- clude commercial passenger fishing op- diately leave the area at a constant erations (i.e. charter operations or airspeed. sport fishing activities). (3) Exceptions. The following excep- (iv) Paragraph (b)(1) of this section tions apply to this section, but any does not apply to state, local, or Fed- person who claims the applicability of eral government vessels operating in an exception has the burden of proving the course of official duty. that the exception applies: (v) Paragraph (b)(1) of this section (i) Paragraphs (b)(1) and (b)(2) of this does not affect the rights of Alaska Na- section do not apply if a right whale tives under 16 U.S.C. 1539(e). approach is authorized by the National (vi) These regulations shall not take Marine Fisheries Service through a precedence over any more restrictive permit issued under part 222, subpart C, conflicting Federal regulation per- of this chapter (General Permit Proce- taining to humpback whales, including dures) or through a similar authoriza- the regulations at 36 CFR 13.65 that tion. pertain specifically to the waters of (ii) Paragraphs (b)(1) and (b)(2) of this Glacier Bay National Park and Pre- section do not apply where compliance serve. would create an imminent and serious (3) General measures. Notwithstanding threat to a person, vessel, or aircraft. the prohibitions and exceptions in (iii) Paragraphs (b)(1) and (b)(2) of paragraphs (b)(1) and (2) of this section, this section do not apply when ap- to avoid collisions with humpback proaching to investigate a right whale whales, vessels must operate at a slow, entanglement or injury, or to assist in safe speed when near a humpback the disentanglement or rescue of a whale. ‘‘Safe speed’’ has the same right whale, provided that permission
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is received from the National Marine 226.201 Critical habitat for Hawaiian monk Fisheries Service or designee prior to seals. the approach. 226.202 Critical habitat for Steller sea lions. 226.203 Critical habitat for Northern right (iv) Paragraphs (b)(1) and (b)(2) of whales. this section do not apply to an aircraft 226.204 Critical habitat for Sacramento win- unless the aircraft is conducting whale ter-run chinook salmon. watch activities. 226.205 Critical habitat for Snake River (v) Paragraph (b)(2) of this section sockeye salmon, Snake River fall chi- does not apply to the extent that a ves- nook salmon, and Snake River spring/ sel is restricted in her ability to ma- summer chinook salmon. 226.206 [Reserved] neuver and, because of the restriction, 226.207 Critical habitat for leatherback tur- cannot comply with paragraph (b)(2) of tle. this section. 226.208 Critical habitat for green turtle. (d) Special prohibitions relating to en- 226.209 Critical habitat for hawksbill turtle. dangered Steller sea lion protection. The 226.210 Central California Coast Coho Salm- regulatory provisions set forth in part on (Oncorhynchus kisutch), Southern Or- 223 of this chapter, which govern egon/Northern California Coasts Coho Salmon (Oncorhynchus kisutch). threatened Steller sea lions, shall also 226.212 Critical habitat designation for 19 apply to the western population of evolutionary significant units of salmon Steller sea lions, which consists of all and steelhead in Washington, Oregon, Steller sea lions from breeding colonies Idaho, and California. located west of 144° W. long. 226.213 Critical habitat for Johnson’s seagrass. [64 FR 14066, Mar. 23, 1999, as amended at 66 TABLE 1 TO PART 226—MAJOR STELLER SEA FR 29509, May 31, 2001] LION ROOKERY SITES TABLE 2 TO PART 226—MAJOR STELLER SEA § 224.104 Special requirements for LION HAULOUT SITES IN ALASKA fishing activities to protect endan- TABLE 3 TO PART 226—HYDROLOGIC UNITS gered sea turtles. CONTAINING CRITICAL HABITAT FOR SNAKE (a) Shrimp fishermen in the south- RIVER SOCKEYE SALMON AND SNAKE RIVER eastern United States and the Gulf of SPRING/SUMMER AND FALL CHINOOK SALM- Mexico who comply with rules for ON TABLE 4 TO PART 226 [RESERVED] threatened sea turtles specified in TABLE 5 TO PART 226—HYDROLOGIC UNITS AND § 223.206 of this chapter will not be sub- COUNTIES CONTAINING CRITICAL HABITAT ject to civil penalties under the Act for FOR CENTRAL CALIFORNIA COAST COHO incidental captures of endangered sea SALMON, TRIBAL LANDS WITHIN THE turtles by shrimp trawl gear. RANGE OF THE ESU, AND DAMS/RES- (b) Summer flounder fishermen in ERVOIRS REPRESENTING THE UPSTREAM the Summer flounder fishery-sea turtle EXTENT OF CRITICAL HABITAT TABLE 6 TO PART 226—HYDROLOGIC UNITS AND protection area who comply with rules COUNTIES CONTAINING CRITICAL HABITAT for threatened sea turtles specified in FOR SOUTHERN OREGON/NORTHERN CALI- § 223.206 of this chapter will not be sub- FORNIA COASTS COHO SALMON, TRIBAL ject to civil penalties under the Act for LANDS WITHIN THE RANGE OF THE ESU, incidental captures of endangered sea AND DAMS/RESERVOIRS REPRESENTING THE turtles by summer flounder gear. UPSTREAM EXTENT OF CRITICAL HABITAT (c) Special prohibitions relating to TABLE 7 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT leatherback sea turtles are provided at FOR PUGET SOUND CHINOOK SALMON, AND § 223.206 (d)(2)(iv) and § 223.206 (d)(6) of DAMS/RESERVOIRS REPRESENTING THE UP- this chapter. STREAM EXTENT OF CRITICAL HABITAT. TABLE 8 TO PART 226 —HYDROLOGIC UNITS AND [64 FR 14066, Mar. 23, 1999, as amended at 66 COUNTIES CONTAINING CRITICAL HABITAT FR 44552, Aug. 24, 2001] FOR LOWER COLUMBIA RIVER CHINOOK SALMON, AND DAMS/RESERVOIRS REP- PART 225 [RESERVED] RESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT. PART 226—DESIGNATED CRITICAL TABLE 9 TO PART 226 —HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT HABITAT FOR UPPER WILLAMETTE RIVER CHINOOK SALMON, AND DAMS/RESERVOIRS REP- Sec. RESENTING THE UPSTREAM EXTENT OF 226.101 Purpose and scope. CRITICAL HABITAT.
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TABLE 10 TO PART 226—HYDROLOGIC UNITS AND DAMS/RESERVOIRS REPRESENTING THE AND COUNTIES CONTAINING CRITICAL HABI- UPSTREAM EXTENT OF CRITICAL HABITAT. TAT FOR UPPER COLUMBIA RIVER SPRING- TABLE 22 TO PART 226—HYDROLOGIC UNITS RUN CHINOOK SALMON, AND DAMS/RES- AND COUNTIES CONTAINING CRITICAL HABI- ERVOIRS REPRESENTING THE UPSTREAM TAT FOR LOWER COLUMBIA RIVER EXTENT OF CRITICAL HABITAT. STEELHEAD, AND DAMS/RESERVOIRS REP- TABLE 11 TO PART 226—HYDROLOGIC UNITS RESENTING THE UPSTREAM EXTENT OF AND COUNTIES CONTAINING CRITICAL HABI- CRITICAL HABITAT. TAT FOR CENTRAL VALLEY CALIFORNIA TABLE 23 TO PART 226—HYDROLOGIC UNITS SPRING-RUN CHINOOK SALMON, AND DAMS/ AND COUNTIES CONTAINING CRITICAL HABI- RESERVOIRS REPRESENTING THE UP- TAT FOR UPPER WILLAMETTE RIVER STREAM EXTENT OF CRITICAL HABITAT. STEELHEAD, AND DAMS/RESERVOIRS REP- TABLE 12 TO PART 226 —HYDROLOGIC UNITS RESENTING THE UPSTREAM EXTENT OF AND COUNTIES CONTAINING CRITICAL HABI- CRITICAL HABITAT. TAT FOR CALIFORNIA COASTAL CHINOOK TABLE 24 TO PART 226—HYDROLOGIC UNITS SALMON, AND DAMS/RESERVOIRS REP- AND COUNTIES CONTAINING CRITICAL HABI- RESENTING THE UPSTREAM EXTENT OF TAT FOR MIDDLE COLUMBIA RIVER CRITICAL HABITAT. STEELHEAD, AND DAMS/RESERVOIRS REP- TABLE 13 TO PART 226—HYDROLOGIC UNITS RESENTING THE UPSTREAM EXTENT OF AND COUNTIES CONTAINING CRITICAL HABI- CRITICAL HABITAT. TAT FOR HOOD CANAL SUMMER-RUN CHUM AUTHORITY: 16 U.S.C. 1533. SALMON, AND DAMS/RESERVOIRS REP- RESENTING THE UPSTREAM EXTENT OF § 226.101 Purpose and scope. CRITICAL HABITAT. TABLE 14 TO PART 226—HYDROLOGIC UNITS The regulations contained in this AND COUNTIES CONTAINING CRITICAL HABI- part identify those habitats designated TAT FOR COLUMBIA RIVER CHUM SALMON, by the Secretary of Commerce as crit- AND DAMS/RESERVOIRS REPRESENTING THE ical under section 4 of the Act, for en- UPSTREAM EXTENT OF CRITICAL HABITAT. dangered and threatened species under TABLE 15 TO PART 226—HYDROLOGIC UNITS the jurisdiction of the Secretary of AND COUNTIES CONTAINING CRITICAL HABI- TAT FOR OREGON COAST COHO SALMON, Commerce. Those species are enumer- AND DAMS/RESERVOIRS REPRESENTING THE ated at § 223.102 of this chapter, if UPSTREAM EXTENT OF CRITICAL HABITAT. threatened and at § 224.101 of this chap- TABLE 16 TO PART 226—HYDROLOGIC UNITS ter, if endangered. For regulations per- AND COUNTIES CONTAINING CRITICAL HABI- taining to the designation of critical TAT FOR SOUTHERN CALIFORNIA habitat, see part 424 of this title, and STEELHEAD, AND DAMS/RESERVOIRS REP- for regulations pertaining to prohibi- RESENTING THE UPSTREAM EXTENT OF tions against the adverse modification CRITICAL HABITAT. or destruction of critical habitat, see TABLE 17 TO PART 226.—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABI- part 402 of this title. Maps and charts TAT FOR SOUTH-CENTRAL CALIFORNIA identifying designated critical habitat COAST STEELHEAD, AND DAMS/RESERVOIRS that are not provided in this section REPRESENTING THE UPSTREAM EXTENT OF may be obtained upon request to the CRITICAL HABITAT. Office of Protected Resources (see TABLE 18 TO PART 226—HYDROLOGIC UNITS § 222.102, definition of ‘‘Office of Pro- AND COUNTIES CONTAINING CRITICAL HABI- tected Resources’’). TAT FOR CENTRAL CALIFORNIA COAST STEELHEAD, AND DAMS/RESERVOIRS REP- [64 FR 14067, Mar. 23, 1999] RESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT. § 226.201 Critical habitat for Hawaiian TABLE 19 TO PART 226—HYDROLOGIC UNITS monk seals. AND COUNTIES CONTAINING CRITICAL HABI- TAT FOR CENTRAL VALLEY STEELHEAD, HAWAIIAN MONK SEAL AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT. (Monachus schauinslandi) TABLE 20 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABI- All beach areas, sand spits and islets, TAT FOR UPPER COLUMBIA RIVER including all beach crest vegetation to STEELHEAD, AND DAMS/RESERVOIRS REP- its deepest extent inland, lagoon wa- RESENTING THE UPSTREAM EXTENT OF ters, inner reef waters, and ocean wa- CRITICAL HABITAT. ters out to a depth of 20 fathoms TABLE 21 TO PART 226—HYDROLOGIC UNITS around the following: AND COUNTIES CONTAINING CRITICAL HABI- TAT FOR SNAKE RIVER BASIN STEELHEAD, Kure Atoll (28°24′ N, 178°20′ W)
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Midway Islands, except Sand Island and its Maro Reef (25°25′ N, 170°35′ W) harbor (28°14′ N, 177°22′ W) Gardner Pinnacles (25°00′ N, 168°00′ W) Pearl and Hermes Reef (27°55′ N, 175° W) French Frigate Shoals (23°45′ N, 166°00′ W) Lisianski Island (26°46′ N, 173°58′ W) Necker Island (23°34′ N, 164°42′ W) Laysan Island (25°46′ N, 171°44′ W) Nihoa Island (23°03.5′ N, 161°55.5′ W).
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[53 FR 18990, May 26, 1988. Redesignated 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 Canyon Dam; the Palouse River from Perce. its confluence with the Snake River (b) Snake River Spring/Summer Chinook upstream to Palouse Falls; the Clear- Salmon (Oncorhynchus tshawytscha). Ge- water River from its confluence with ographic Boundaries. Critical habitat the Snake River upstream to its con- is designated to include the Columbia fluence with Lolo Creek; the North River from a straight line connecting Fork Clearwater River from its con- the west end of the Clatsop jetty (south fluence with the Clearwater River up- jetty, Oregon side) and the west end of stream to Dworshak Dam. Critical the Peacock jetty (north jetty, Wash- habitat also includes river reaches ington side) and including all Columbia presently or historically accessible (ex- River estuarine areas and river reaches cept reaches above impassable natural proceeding upstream to the confluence falls, and Dworshak and Hells Canyon of the Columbia and Snake Rivers; all Dams) to Snake River fall chinook Snake River reaches from the con- salmon in the following hydrologic fluence of the Columbia River up- units; Clearwater, Hells Canyon, stream to Hells Canyon Dam. Critical Imnaha, Lower Grande Ronde, Lower habitat also includes river reaches North Fork Clearwater, Lower Salmon, presently or historically accessible (ex- Lower Snake, Lower Snake-Asotin, cept reaches above impassable natural Lower Snake-Tucannon, and Palouse. falls (including Napias Creek Falls) and Critical habitat borders on or passes Dworshak and Hells Canyon Dams) to through the following counties in Or- Snake River spring/summer chinook egon: Baker, Clatsop, Columbia, salmon in the following hydrologic Gillium, Hood River, Morrow, Mult- units: Hells Canyon, Imnaha, Lemhi, nomah, Sherman, Umatilla, Wallowa, Little Salmon, Lower Grande Ronde, Wasco; the following counties in Wash- Lower Middle Fork Salmon, Lower ington: Adams, Asotin, Benton, Clark, Salmon, Lower Snake-Asotin, Lower Columbia, Cowlitz, Franklin, Garfield, Snake-Tucannon, Middle Salmon- Klickitat, Lincoln, Pacific, Skamania, Chamberlain, Middle Salmon-Panther, Spokane, Wahkiakum, Walla, Whit- Pahsimeroi, South Fork Salmon, Upper man; and the following counties in Middle Fork Salmon, Upper Grande Idaho: Adams, Benewah, Clearwater, Ronde, Upper Salmon, Wallowa. Crit- Idaho, Latah, Lewis, Nez Perce, Sho- ical habitat borders on or passes shone, Valley. through the following counties in Or- [58 FR 68551, Dec. 28, 1993, as amended at 63 egon: Baker, Clatsop, Columbia, FR 1393, Jan. 9, 1998. Redesignated and Gillium, Hood River, Morrow, Mult- amended at 64 FR 14067, Mar. 23, 1999; 64 FR nomah, Sherman, Umatilla, Union, 57403, Oct. 25, 1999] Wallowa, Wasco; the following counties in Washington: Asotin, Benton, Clark, § 226.206 [Reserved] Columbia, Cowlitz, Franklin, Garfield, Klickitat, Pacific, Skamania, § 226.207 Critical habitat for leatherback turtle. Wahkiakum, Walla, Whitman; and the following counties in Idaho: Adams, LEATHERBACK SEA TURTLE Blaine, Custer, Idaho, Lemhi, Lewis, (DERMOCHELYS CORIACEA) Nez Perce, Valley. (c) Snake River Fall Chinook Salmon The waters adjacent to Sandy Point, (Oncorhynchus tshawytscha). The Co- St. Croix, U.S. Virgin Islands, up to lumbia River from a straight line con- and inclusive of the waters from the necting the west end of the Clatsop hundred fathom curve shoreward to the jetty (south jetty, Oregon side) and the level of mean high tide with boundaries west end of the Peacock jetty (north at 17°42′12″ North and 64°50′00″ West. jetty, Washington side) and including [44 FR 17711, Mar. 23, 1979. Redesignated and all Columbia River estuarine areas and amended at 64 FR 14067, Mar. 23, 1999] river reaches proceeding upstream to the confluence of the Columbia and § 226.208 Critical habitat for green tur- Snake Rivers; the Snake River, all tle. river reaches from the confluence of (a) Culebra Island, Puerto Rico—Wa- the Columbia River, upstream to Hells ters surrounding the island of Culebra
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from the mean high water line seaward erence. This incorporation by reference to 3 nautical miles (5.6 km). These wa- was approved by the Director of the ters include Culebra’s outlying Keys Federal Register in accordance with 5 including Cayo Norte, Cayo Ballena, U.S.C. 552(a) and 1 CFR part 51. Copies Cayos Geniquı´, Isla Culebrita, Arrecife of the USGS publication and maps may Culebrita, Cayo de Luis Pen˜ a, Las be obtained from the USGS, Map Sales, Hermanas, El Mono, Cayo Lobo, Cayo Box 25286, Denver, CO 80225. Copies may Lobito, Cayo Botijuela, Alcarraza, Los be inspected at NMFS, Protected Re- Gemelos, and Piedra Steven. sources Division, 525 NE Oregon (b) [Reserved] Street—Suite 500, Portland, OR 97232– [63 FR 46701, Sept. 2, 1998. Redesignated and 2737, or NMFS, Office of Protected Re- amended at 64 FR 14067, Mar. 23, 1999] sources, 1315 East-West Highway, Sil- ver Spring, MD 20910, or at the Office of § 226.209 Critical habitat for hawksbill the Federal Register, 800 North Capitol turtle. Street, NW., Suite 700, Washington, (a) Mona and Monito Islands, Puerto DC. Rico—Waters surrounding the islands (a) Central California Coast Coho Salm- of Mona and Monito, from the mean on (Oncorhynchus kisutch). Critical high water line seaward to 3 nautical habitat is designated to include all miles (5.6 km). river reaches accessible to listed coho (b) [Reserved] salmon from Punta Gorda in northern [63 FR 46701, Sept. 2, 1998. Redesignated and California south to the San Lorenzo amended at 64 FR 14067, Mar. 23, 1999] River in central California, including Arroyo Corte Madera Del Presidio and § 226.210 Central California Coast Corte Madera Creek, tributaries to San Coho Salmon (Oncorhynchus kisutch), Southern Oregon/North- Francisco Bay. Critical habitat con- ern California Coasts Coho Salmon sists of the water, substrate, and adja- (Oncorhynchus kisutch). cent riparian zone of estuarine and Critical habitat is designated to in- riverine reaches (including off-channel clude all river reaches accessible to habitats) in hydrologic units and coun- listed coho within the range of the ties identified in Table 5 of this part. ESUs listed, except for reaches on In- Accessible reaches are those within the dian lands defined in Tables 5 and 6 to historical range of the ESU that can this part. Critical habitat consists of still be occupied by any life stage of the water, substrate, and adjacent ri- coho salmon. Inaccessible reaches are parian zone of estuarine and riverine those above specific dams identified in reaches in hydrologic units and coun- Table 5 of this part or above long- ties identified in Tables 5 and 6 to this standing, naturally impassable barriers part for all of the coho ESUs listed in (i.e., natural waterfalls in existence for this section. Accessible reaches are at least several hundred years). those within the historical range of the (b) Southern Oregon/Northern Cali- ESUs that can still be occupied by any fornia Coasts Coho Salmon life stage of coho salmon. Inaccessible (Oncorhynchus kisutch). Critical habitat reaches are those above longstanding, is designated to include all river naturally impassable barriers (i.e., nat- reaches accessible to listed coho salm- ural waterfalls in existence for at least on between Cape Blanco, Oregon, and several hundred years) and specific Punta Gorda, California. Critical habi- dams within the historical range of tat consists of the water, substrate, each ESU identified in Tables 5 and 6 and adjacent riparian zone of estuarine to this part. Hydrologic units are those and riverine reaches (including off- defined by the Department of the Inte- channel habitats) in hydrologic units rior (DOI), U.S. Geological Survey and counties identified in Table 6 of (USGS) publication, ‘‘Hydrologic Unit this part. Accessible reaches are those Maps,’’ Water Supply Paper 2294, 1987, within the historical range of the ESU and the following DOI, USGS, 1:500,000 that can still be occupied by any life scale hydrologic unit maps: State of stage of coho salmon. Inaccessible Oregon, 1974 and State of California, reaches are those above specific dams 1978 which are incorporated by ref- identified in Table 6 of this part or
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above longstanding, naturally impass- (a) Puget Sound Chinook Salmon able barriers (i.e., natural waterfalls in (Oncorhynchus tshawytscha) geographic existence for at least several hundred boundaries. Critical habitat is des- years). ignated to include all marine, estua- rine and river reaches accessible to [64 FR 24061, May 5, 1999] listed chinook salmon in Puget Sound. Puget Sound marine areas include § 226.212 Critical habitat designation for 19 evolutionary significant units South Sound, Hood Canal, and North of salmon and steelhead in Wash- Sound to the international boundary at ington, Oregon, Idaho, and Cali- the outer extent of the Strait of Geor- fornia. gia, Haro Strait, and the Strait of Juan De Fuca to a straight line extending Critical habitat is designated to in- north from the west end of Freshwater clude all river reaches accessible to Bay, inclusive. Excluded are areas listed salmon or steelhead within the above specific dams identified in Table range of the ESUs listed, except for 7 to this part or above longstanding, reaches on Indian lands. Critical habi- naturally impassable barriers (i.e., nat- tat consists of the water, substrate, ural waterfalls in existence for at least and adjacent riparian zone of estuarine several hundred years). and riverine reaches in hydrologic (b) Lower Columbia River Chinook units and counties identified in Tables Salmon (Oncorhynchus tshawytscha) geo- 7 through 24 to this part for all of the graphic boundaries. Critical habitat is salmon and steelhead ESUs listed in designated to include all river reaches this section. Accessible reaches are accessible to listed chinook salmon in those within the historical range of the Columbia River tributaries between ESUs that can still be occupied by any the Grays and White Salmon Rivers in life stage of salmon or steelhead. Inac- Washington and the Willamette and cessible reaches are those above long- Hood Rivers in Oregon, inclusive. Also standing, naturally impassable barriers included are river reaches and estua- (i.e., natural waterfalls in existence for rine areas in the Columbia River from at least several hundred years) and spe- a straight line connecting the west end cific dams within the historical range of the Clatsop jetty (south jetty, Or- of each ESU identified in Tables 7 egon side) and the west end of the Pea- through 24 to this part. Hydrologic cock jetty (north jetty, Washington units are those defined by the Depart- side) upstream to the Dalles Dam. Ex- ment of the Interior (DOI), U.S. Geo- cluded are areas above specific dams logical Survey (USGS) publication, identified in Table 8 to this part or ‘‘Hydrologic Unit Maps,’’ Water Supply above longstanding, naturally impass- Paper 2294, 1987, and the following DOI, able barriers (i.e., natural waterfalls in USGS, 1:500,000 Scale Hydrologic Unit existence for at least several hundred Maps: State of Oregon (1974), State of years). Washington (1974), State of California (c) Upper Willamette River chinook (1978), and State of Idaho (1981), which salmon (Oncorhynchus tshawytscha) geo- are incorporated by reference. This in- graphic boundaries. Critical habitat is corporation by reference was approved designated to include all river reaches by the Director of the Federal Register accessible to listed chinook salmon in in accordance with 5 U.S.C. 552(a) and 1 the Clackamas River and the Willam- CFR part 51. Copies of the USGS ette River and its tributaries above publicaion and maps may be obtained Willamette Falls. Also included are from the USGS, Map Sales, Box 25286, river reaches and estuarine areas in the Denver, CO 80225. Copies may be in- Columbia River from a straight line spected at NMFS, Protected Resources connecting the west end of the Clatsop Division, 525 NE Oregon Street-Suite jetty (south jetty, Oregon side) and the 500, Portland, OR 97232-2737, or NMFS, west end of the Peacock jetty (north Office of Protected Resources, 1315 jetty, Washington side) upstream to, East-West Highway, Silver Spring, MD and including, the Willamette River in 20910, or at the Office of the Federal Oregon. Excluded are areas above spe- Register, 800 North Capitol Street, cific dams identified in Table 9 to this NW., Suite 700, Washington, DC. part or above longstanding, naturally
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impassable barriers (i.e., natural wa- 12 to this part or above longstanding, terfalls in existence for at least several naturally impassable barriers (i.e., nat- hundred years). ural waterfalls in existence for at least (d) Upper Columbia River Spring-run several hundred years). Chinook salmon (Oncorhynchus (g) Hood Canal Summer-run Chum tshawytscha) geographic boundaries. Salmon (Oncorhynchus keta) geographic Critical habitat is designated to in- boundaries. Critical habitat is des- clude all river reaches accessible to ignated to include all river reaches ac- listed chinook salmon in Columbia cessible to listed chum salmon (includ- River tributaries upstream of the Rock ing estuarine areas and tributaries) Island Dam and downstream of Chief draining into Hood Canal as well as Joseph Dam in Washington, excluding Olympic Peninsula rivers between and the Okanogan River. Also included are including Hood Canal and Dungeness river reaches and estuarine areas in the Bay, Washington. Also included are es- Columbia River from a straight line tuarine/marine areas of Hood Canal, connecting the west end of the Clatsop Admiralty Inlet, and the Straits of jetty (south jetty, Oregon side) and the Juan De Fuca to the international west end of the Peacock jetty (north boundary and as far west as a straight jetty, Washington side) upstream to line extending north from Dungeness Chief Joseph Dam in Washington. Ex- Bay. Excluded are areas above specific cluded are areas above specific dams dams identified in Table 13 to this part identified in Table 10 to this part or or above longstanding, naturally im- above longstanding, naturally impass- passable barriers (i.e., natural water- able barriers (i.e., natural waterfalls in falls in existence for at least several existence for at least several hundred hundred years). years). (h) Columbia River Chum Salmon (e) Central Valley Spring-run chinook (Oncorhynchus keta) geographic bound- salmon (Oncorhynchus tshawytscha) geo- aries. Critical habitat is designated to graphic boundaries. Critical habitat is include all river reaches accessible to designated to include all river reaches listed chum salmon (including estua- accessible to listed chinook salmon in rine areas and tributaries) in the Co- the Sacramento River and its tribu- lumbia River downstream from Bonne- taries in California. Also included are ville Dam, excluding Oregon tribu- river reaches and estuarine areas of the taries upstream of Milton Creek at Sacramento-San Joaquin Delta, all wa- river km 144 near the town of St. Hel- ters from Chipps Island westward to ens. Excluded are areas above specific Carquinez Bridge, including Honker dams identified in Table 14 to this part Bay, Grizzly Bay, Suisun Bay, and or above longstanding, naturally im- Carquinez Strait, all waters of San passable barriers (i.e., natural water- Pablo Bay westward of the Carquinez falls in existence for at least several Bridge, and all waters of San Francisco hundred years). Bay (north of the San Francisco/Oak- (i) Ozette Lake Sockeye Salmon land Bay Bridge) from San Pablo Bay (Oncorhynchus nerka) geographic bound- to the Golden Gate Bridge. Excluded aries. Critical habitat is designated to are areas above specific dams identified include all lake areas and river reaches in Table 11 to this part or above long- accessible to listed sockeye salmon in standing, naturally impassable barriers Ozette Lake, located in Clallam Coun- (i.e., natural waterfalls in existence for ty, Washington. Excluded are areas at least several hundred years). above longstanding, naturally impass- (f) California Coastal Chinook Salmon able barriers (i.e., natural waterfalls in (Oncorhynchus tshawytscha) geographic existence for at least several hundred boundaries. Critical habitat is des- years). ignated to include all river reaches and (j) Oregon Coast coho salmon estuarine areas accessible to listed chi- (Oncorhynchus kisutch) geographic nook salmon from Redwood Creek boundaries. Critical habitat is des- (Humboldt County, California) to the ignated to include all river reaches and Russian River (Sonoma County, Cali- estuarine areas accessible to listed fornia), inclusive. Excluded are areas coho salmon from coastal streams above specific dams identified in Table south of the Columbia River and north
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of Cape Blanco, Oregon. Excluded are ramento and San Joaquin Rivers and areas above specific dams identified in their tributaries in California. Also in- Table 15 to this part or above long- cluded are river reaches and estuarine standing, naturally impassable barriers areas of the Sacramento-San Joaquin (i.e., natural waterfalls in existence for Delta, all waters from Chipps Island at least several hundred years). westward to Carquinez Bridge, includ- (k) Southern California steelhead ing Honker Bay, Grizzly Bay, Suisun (Oncorhynchus mykiss) geographic Bay, and Carquinez Strait, all waters boundaries. Critical habitat is des- of San Pablo Bay westward of the ignated to include all river reaches and Carquinez Bridge, and all waters of San estuarine areas accessible to listed Francisco Bay (north of the San Fran- steelhead in coastal river basins from cisco/Oakland Bay Bridge) from San the Santa Maria River to Malibu Pablo Bay to the Golden Gate Bridge. Creek, California (inclusive). Excluded Excluded are areas of the San Joaquin are areas above specific dams identified River upstream of the Merced River in Table 16 to this part or above long- confluence and areas above specific standing, naturally impassable barriers dams identified in Table 19 to this part (i.e., natural waterfalls in existence for or above longstanding, naturally im- at least several hundred years). passable barriers (i.e., natural water- (l) South-Central California Coast falls in existence for at least several steelhead (Oncorhynchus mykiss) geo- hundred years). graphic boundaries. Critical habitat is (o) Upper Columbia River steelhead designated to include all river reaches (Oncorhynchus mykiss) geographic and estuarine areas accessible to listed boundaries. Critical habitat is des- steelhead in coastal river basins from ignated to include all river reaches ac- the Pajaro River (inclusive) to, but not cessible to listed steelhead in Columbia including, the Santa Maria River, Cali- River tributaries upstream of the fornia. Excluded are areas above spe- Yakima River, Washington, and down- cific dams identified in Table 17 to this stream of Chief Joseph Dam. Also in- part or above longstanding, naturally cluded are river reaches and estuarine impassable barriers (i.e., natural wa- areas in the Columbia River from a terfalls in existence for at least several straight line connecting the west end hundred years). of the Clatsop jetty (south jetty, Or- (m) Central California Coast steelhead egon side) and the west end of the Pea- (Oncorhynchus mykiss) geographic cock jetty (north jetty, Washington boundaries. Critical habitat is des- side) upstream to Chief Joseph Dam in ignated to include all river reaches and Washington. Excluded are areas above estuarine areas accessible to listed specific dams identified in Table 20 to steelhead in coastal river basins from this part or above longstanding, natu- the Russian River to Aptos Creek, Cali- rally impassable barriers (i.e., natural fornia (inclusive), and the drainages of waterfalls in existence for at least sev- San Francisco and San Pablo Bays. eral hundred years). Also included are all waters of San (p) Snake River Basin steelhead Pablo Bay westward of the Carquinez (Oncorhynchus mykiss) geographic Bridge and all waters of San Francisco boundaries. Critical habitat is des- Bay from San Pablo Bay to the Golden ignated to include all river reaches ac- Gate Bridge. Excluded is the Sac- cessible to listed steelhead in the ramento-San Joaquin River Basin of Snake River and its tributaries in the California Central Valley as well as Idaho, Oregon, and Washington. Also areas above specific dams identified in included are river reaches and estua- Table 18 to this part or above long- rine areas in the Columbia River from standing, naturally impassable barriers a straight line connecting the west end (i.e., natural waterfalls in existence for of the Clatsop jetty (south jetty, Or- at least several hundred years). egon side) and the west end of the Pea- (n) Central Valley steelhead cock jetty (north jetty, Washington (Oncorhynchus mykiss) geographic side) upstream to the confluence with boundaries. Critical habitat is des- the Snake River. Excluded are areas ignated to include all river reaches ac- above specific dams identified in Table cessible to listed steelhead in the Sac- 21 to this part or above longstanding,
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naturally impassable barriers (i.e., west end of the Peacock jetty (north Napias Creek Falls and other natural jetty, Washington side) upstream to waterfalls in existence for at least sev- the Yakima River in Washington. Ex- eral hundred years). cluded are areas above specific dams (q) Lower Columbia River steelhead identified in Table 24 to this part or (Oncorhynchus mykiss) geographic above longstanding, naturally impass- boundaries. Critical habitat is des- able barriers (i.e., natural waterfalls in ignated to include all river reaches ac- existence for at least several hundred cessible to listed steelhead in Columbia years). River tributaries between the Cowlitz [65 FR 7777, Feb. 16, 2000] and Wind Rivers in Washington and the Willamette and Hood Rivers in Oregon, § 226.213 Critical habitat for Johnson’s inclusive. Also included are river seagrass. reaches and estuarine areas in the Co- Critical habitat is designated to in- lumbia River from a straight line con- clude substrate and water in the fol- necting the west end of the Clatsop lowing ten portions of the Indian River jetty (south jetty, Oregon side) and the Lagoon and Biscayne Bay within the west end of the Peacock jetty (north current range of Johnson’s seagrass. jetty, Washington side) upstream to (a) A portion of the Indian River, the Hood River in Oregon. Excluded are Florida, north of Sebastian Inlet Chan- areas above specific dams identified in nel, defined by the following coordi- Table 22 to this part or above long- nates: standing, naturally impassable barriers (i.e., natural waterfalls in existence for Northwest corner: 27°51′15.03″N, 80°27′55.49″W at least several hundred years). Northeast corner: 27°51′16.57″N, 80°27′53.05″W (r) Upper Willamette River steelhead Southwest corner: 27°51′08.85″N, (Oncorhynchus mykiss) geographic 80°27′50.48″W boundaries. Critical habitat is des- Southeast corner: 27°51′11.58″N, ignated to include all river reaches ac- 80°27′47.35″W cessible to listed steelhead in the Wil- lamette River and its tributaries above (b) A portion of the Indian River, Willamette Falls upstream to, and in- Florida, south of the Sebastian Inlet cluding, the Calapooia River. Also in- Channel, defined by the following co- cluded are river reaches and estuarine ordinates: areas in the Columbia River from a Northwest corner: 27°51′01.32″N, straight line connecting the west end 80°27′46.10″W of the Clatsop jetty (south jetty, Or- Northeast corner: 27°51′02.69″N, 80°27′45.27″W egon side) and the west end of the Pea- Southwest corner: 27°50′59.08″N, cock jetty (north jetty, Washington 80°27′41.84″W ° ′ ″ side) upstream to, and including, the Southeast corner: 27 51 01.07 N, 80°27′40.50″W Willamette River in Oregon. Excluded are areas above specific dams identified (c) A portion of the Indian River La- in Table 23 to this part or above long- goon in the vicinity of the Fort Pierce standing, naturally impassable barriers Inlet. This site is located on the north (i.e., natural waterfalls in existence for side of the entrance channel just west at least several hundred years). of a small mangrove vegetated island (s) Middle Columbia River steelhead where the main entrance channel bifur- (Oncorhynchus mykiss) geographic cates to the north. The area is defined boundaries. Critical habitat is des- by the following coordinates: ignated to include all river reaches ac- Northwest corner: 27°28′06.00″N, cessible to listed steelhead in Columbia 80°18′48.89″W River tributaries (except the Snake Northeast corner: 27°28′04.43″N, 80°18′42.25″W River) between Mosier Creek in Oregon Southwest corner: 27°28′02.86″N, and the Yakima River in Washington 80°18′49.06″W (inclusive). Also included are river Southeast corner: 27°28′01.46″N, ° ′ ″ reaches and estuarine areas in the Co- 80 18 42.42 W lumbia River from a straight line con- (d) A portion of the Indian River La- necting the west end of the Clatsop goon, Florida, north of the St. Lucie jetty (south jetty, Oregon side) and the Inlet, from South Nettles Island to the
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Florida Oceanographic Institute, de- Southeast corner: 26°40′33.00″N, fined by the following coordinates and 80°02′35.00″W excluding the Federally-marked navi- (h) A portion of Lake Worth Lagoon, gation channel of the Intracoastal Wa- Florida, located just north of the Boyn- terway (ICW): ton Inlet, on the west side of the ICW, Northwest corner: 27°16′44.04″N, defined by the following coordinates 80°14′00.00″W and excluding the Federally-marked Northeast corner: 27°16′44.04″N, 80°12′51.33″W navigation channel of the ICW: Southwest corner: 27°12′49.70″N, Northwest corner: 26°33′28.00″N, 80°11′46.80″W 80°02′54.00″W Southeast corner: 27°12′49.70″N, Northeast corner: 26°33′30.00″N, 80°03′04.00″W 80°11′02.50″W Southwest corner: 26°32′50.00″N, (e) Hobe Sound beginning at State 80°03′11.00″W Road 708 (27°03′49.90″N, 80°07′20.57″W) Southeast corner: 26°32′50.00″N, ° ′ ″ and extending south to 27°00′00.00″N, 80 02 58.00 W 80°05′32.54″W and excluding the feder- (i) A portion of northeast Lake ally-marked navigation channel of the Wyman, Boca Raton, Florida, defined ICW. by the following coordinates and ex- (f) Jupiter Inlet at a site located just cluding the Federally-marked naviga- west of the entrance to Zeek’s Marina tion channel of the ICW: on the south side of Jupiter Inlet and Northwest corner: 26°22′27.00″N, defined by the following coordinates 80°04′23.00″W (note a south central point was in- Northeast corner: 26°22′27.00″N, 80°04′18.00″W cluded to better define the shape of the Southwest corner: 26°22′05.00″N, southern boundary): 80°04′16.00″W Southeast corner: 26°22′05.00″N, ° ′ ″ Northwest corner: 26 56 43.34 N, 80°04′18.00″W 80°04′47.84″W Northeast corner: 26°56′40.93″N, 80°04′42.61″W (j) A portion of Northern Biscayne Southwest corner: 26°56′40.73″N, Bay, Florida, defined by the following: 80°04′48.65″W The northern boundary of Biscayne South central point: 26°56′38.11″N, Bay Aquatic Preserve, NE 163rd Street, 80°04′45.83″W and including all parts of the Biscayne ° ′ ″ Southeast corner: 26 56 38.31 N, Bay Aquatics Preserve as defined in 18- 80°04′42.41″W 18.002 of the Florida Administrative (g) A portion of Lake Worth, Florida, Code (F.A.C.) excluding the Oleta just north of Bingham Island defined River, Miami River and Little River by the following coordinates and ex- beyond their mouths, the federally- cluding the Federally-marked naviga- marked navigation channel of the ICW, tion channel of the ICW: and all existing federally authorized Northwest corner: 26°40′44.00″N, navigation channels, basins, and berths 80°02′39.00″W at the Port of Miami to the currently Northeast corner: 26°40′40.00″N, 80°02′34.00″W documented southernmost range of Southwest corner: 26°40′32.00″N, Johnson’s seagrass, Central Key Bis- 80°02′44.00″W cayne (25°45′N).
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[65 FR 17795, Apr. 5, 2000] given, the baseline extends in a clock- wise direction from the first set of geo- TABLE 1 TO PART 226—MAJOR STELLAR graphic coordinates along the shoreline SEA LION ROOKERY SITES at mean lower-low water to the second Major Steller sea lion rookery sites set of coordinates. Where only one set are identified in the following table. of coordinates is listed, that location is Where two sets of coordinates are the base point.
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Boundaries to— 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 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]
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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 shoreline at mean lower-low water to Major Steller sea lion haulout sites 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.
Boundaries to— 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 ......
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Boundaries to— State/region/site Latitude Longitude Latitude Longitude
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 ...... 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 TO PART 226—HYDROLOGIC UNITS CONTAINING CRITICAL HABITAT FOR SNAKE RIVER SOCKEYE SALMON AND SNAKE RIVER SPRING/SUMMER AND FALL CHINOOK SALMON
Hydrologic unit number Hydrologic unit name Spring/summer chinook Sockeye salmon salmon Fall chinook salmon
Hells Canyon ...... 17060101 17060101
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TABLE 3 TO PART 226—HYDROLOGIC UNITS CONTAINING CRITICAL HABITAT FOR SNAKE RIVER SOCKEYE SALMON AND SNAKE RIVER SPRING/SUMMER AND FALL CHINOOK SALMON—Continued
Hydrologic unit number Hydrologic unit name Spring/summer chinook Sockeye salmon salmon Fall chinook salmon
Imnaha ...... 17060102 17060102 Lower Snake—Asotin ...... 17060103 17060103 17060103 Upper Grande Ronde ...... 17060104 ...... Wallowa ...... 17060105 ...... Lower Grande Ronde ...... 17060106 17060106 Lower Snake—Tucannon ...... 17060107 17060107 17060107 Palouse ...... 17060108 Lower Snake ...... 17060110 17060110 17060110 Upper Salmon ...... 17060201 17060201 ...... Pahsimeroi ...... 17060202 ...... Middle Salmon—Panther ...... 17060203 17060203 ...... Lemhi ...... 17060204 ...... Upper Middle Fork Salmon ...... 17060205 ...... Lower Middle Fork Salmon ...... 17060206 ...... Middle Salmon—Chamberlain ...... 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[RESERVED]
TABLE 5 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR CENTRAL CALIFORNIA COAST COHO SALMON, TRIBAL LANDS WITHIN THE RANGEOFTHEESU, 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)— 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). Big-Navarro-Garcia .... 18010108 Mendocino (CA)—Manchester/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]
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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 CRITICAL 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)— 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)—Round Valley Reservation. Upper Eel ...... 18010103 Mendocino (CA), Glenn (CA), Lake (CA) ... Scott Dam (Lake Pillsbury). Mad-Redwood ...... 18010102 Humboldt (CA), Trinity (CA)—Big Lagoon Rancheria; Blue Lake Rancheria. Smith ...... 18010101 Del Norte (CA), Curry (OR)—Elk Valley Rancheria; Smith River Rancheria. South Fork Trinity ...... 18010212 Humboldt (CA), Trinity (CA). Trinity ...... 18010211 Humboldt (CA), Trinity (CA)—Hoopa Valley Lewiston Dam (Lewiston Reservoir). Reservation. Salmon ...... 18010210 Siskiyou (CA). Lower Klamath ...... 18010209 Del Norte (CA), Humboldt (CA), Siskiyou (CA)—Karuk Reservation; Resighini Rancheria; Yurok Reservation. Scott ...... 18010208 Siskiyou (CA)—Quartz 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]
TABLE 7 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR PUGET SOUND CHINOOK SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Strait of Georgia ...... 17110002 Skagit (WA), Whatcom (WA) ...... Sand Juan Islands ...... 17110003 San Juan (WA) ...... Nooksack ...... 17110004 Skagit (WA), Whatcom (WA) ...... Upper Skagit ...... 17110005 Skagit (WA), Whatcom (WA) ...... Sauk ...... 17110006 Snohomish (WA), Skagit (WA) ...... Lower Skagit ...... 17110007 Skagit (WA), Snohomish (WA) ...... Stillaguamish ...... 17110008 Snohomish (WA), Skagit (WA) ...... Skykomish ...... 17110009 King (WA), Snohomish (WA) ...... Snoqualmie ...... 17110010 King (WA), Snohomish (WA) ...... Tolt Dam Snohomish ...... 17110011 Snohomish (WA) ...... Lake Washington ...... 17110012 King (WA), Snohomish (WA) ...... Landsburg Diversion Duwamish ...... 17110013 King (WA) ...... Puyallup ...... 17110014 King (WA), Pierce (WA) ...... Nisqually ...... 17110015 Pierce (WA), Thurston (WA) ...... Alder Dam Deschutes ...... 17110016 Lewis (WA), Thurston (WA) ......
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TABLE 7 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR PUGET SOUND CHINOOK SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT.—Continued
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Skokomish ...... 17110017 Grays Harbor (WA), Jefferson (WA), Mason (WA). Hood Canal...... 17110018 Clallam (WA), Jefferson (WA), Kitsap (WA), Mason (WA). Puget Sound ...... 17110019 Island (WA), Jefferson (WA), King (WA), Kitsap (WA), Mason (WA), Pierce (WA), Skagit (WA), Sno- homish (WA), Thurston (WA). Dungeness-Elwha ...... 17110020 Clallam (WA), Jefferson (WA) ...... Elwha Dam 1 Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7779, Feb. 16, 2000]
TABLE 8 TO PART 226 —HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR LOWER COLUMBIA RIVER CHINOOK SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UP- STREAM EXTENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Middle Columbia-Hood ...... 17070105 Hood River (OR), Klickitat (WA), Condit Dam, The Dalles Dam Skamania (WA), Wasco (OR). Lower Columbia-Sandy ...... 17080001 Clackamas (OR), Clark (WA), Mult- Bull Run Dam 2 nomah (OR), Skamania (WA). Lewis ...... 17080002 Clark (WA), Cowlitz (WA), Merwin Dam Skamania (WA). Lower Columbia-Clatskanie ...... 17080003 Clatsop (OR), Columbia (OR), Cow- litz (WA), Lewis (WA), Skamania (WA), Wahkiakum (WA). Upper Cowlitz...... 17080004 Lewis (WA), Pierce (WA), Skamania (WA), Yakima (WA). Lower Cowlitz...... 17080005 Cowlitz (WA), Lewis (WA), Skamania (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Clackamas ...... 17090011 Clackamas (OR), Marion (OR) ...... Lower Willamette ...... 17090012 Clackamas (OR), Columbia (OR), Multnomah (OR), Washington (OR). 1 Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7780, Feb. 16, 2000]
TABLE 9 TO PART 226 —HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR UPPER WILLAMETTE RIVER CHINOOK SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UP- STREAM EXTENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Lower Columbia-Sandy ...... 17080001 Clark (WA) ...... Lower Columbia-Clatskanie ...... 17080003 Clatsop (OR), Columbia (OR), Cow- litz (WA), Wahkiakum (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Middle Fork Willamette ...... 17090001 Douglas (OR), Lane (OR) ...... Coast Fork Willamette ...... 17090002 Douglas (OR), Lane (OR) ...... Cottage Grove Dam, Dorena Dam Upper Willamette ...... 17090003 Benton (OR), Lane (OR), Lincoln Fern Ridge Dam (OR), Linn (OR), Polk (OR). McKenzie ...... 17090004 Lane (OR), Linn (OR) ...... Blue River Dam
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TABLE 9 TO PART 226 —HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR UPPER WILLAMETTE RIVER CHINOOK SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UP- STREAM EXTENT OF CRITICAL HABITAT.—Continued
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
North Santiam ...... 17090005 Clackamas (OR), Linn (OR) Marion Big Cliff Dam (OR). South Santiam ...... 17090006 Linn (OR) ...... Green Peter Dam Middle Willamette ...... 17090007 Clackamas (OR), Marion (OR), Polk (OR), Washington (OR), Yamhill (OR). Yamhill ...... 17090008 Lincoln (OR), Polk (OR), Tillamook (OR), Yamhill (OR). Molalla-Pudding ...... 17090009 Clackamas (OR), Marion (OR) ...... Tualatin ...... 17090010 Clackamas (OR), Columbia (OR), Multnomah (OR), Tillamook (OR), Washington (OR), Yamhill (OR). Clackamas ...... 17090011 Clackamas (OR), Marion (OR) ...... Lower Willamette ...... 17090012 Clackamas (OR), Columbia (OR), Multnomah (OR). 1 Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7780, Feb. 16, 2000]
TABLE 10 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR UPPER COLUMBIA RIVER SPRING-RUN CHINOOK SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Chief Joseph...... 17020005 Chelan (WA), Douglas (WA), Chief Joseph Okanogan (WA). Similkameen ...... 17020007 Okanogan (WA) ...... Methow ...... 17020008 Okanogan (WA) ...... Upper Columbia-Entiat ...... 17020010 Chelan (WA), Douglas (WA), Grant (WA), Kittitas (WA). Wenatchee ...... 17020011 Chelan (WA) ...... Upper Columbia-Priest Rapids ...... 17020016 Benton (WA), Grant (WA), Franklin (WA), Kittitas (WA), Yakima (WA). Middle Columbia-Lake Wallula ...... 17070101 Benton (WA), Gilliam (OR), Klickitat (WA), Morrow (OR), Sherman (OR), Umatilla (OR), Walla Walla (WA). Middle Columbia-Hood ...... 17070105 Hood River (OR), Klickitat (WA), Sherman (OR), Skamania (WA), Wasco (OR). Lower Columbia-Sandy...... 17080001 Clark (WA), Multnomah (OR), Skamania (WA). Lower Columbia-Clatskanie ...... 17080003 Clatsop (OR), Columbia (OR), Cow- litz (WA), Wahkiakum (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Lower Willamette ...... 17090012 Columbia (OR), Multnomah (OR) .... 1 Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7781, Feb. 16, 2000]
TABLE 11 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR CENTRAL VALLEY CALIFORNIA SPRING-RUN CHINOOK SALMON, AND DAMS/RESERVOIRS REP- RESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Sacramento-Lower Cow-Lower Clear 18020101 Shasta (CA), Tehama (CA) ......
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TABLE 11 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR CENTRAL VALLEY CALIFORNIA SPRING-RUN CHINOOK SALMON, AND DAMS/RESERVOIRS REP- RESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT.—Continued
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Lower Cottonwood ...... 18020102 Shasta (CA), Tehama (CA) ...... Sacramento-Lower Thomes...... 18020103 Butte (CA), Glenn (CA), Tehama Black Butte Dam (CA). Sacramento-Stone Corral...... 18020104 Butte (CA), Colusa (CA), Glenn (CA), Sutter (CA), Yolo (CA). Lower Butte...... 18020105 Butte (CA), Colusa (CA), Glenn Centerville Dam (CA), Sutter (CA). Lower Feather ...... 18020106 Butte (CA), Sutter (CA), Yuba (CA) Oroville Dam Lower Yuba ...... 18020107 Yuba (CA) ...... Lower Bear ...... 18020108 Placer (CA), Sutter (CA), Yuba (CA) Camp Far West Dam Lower Sacramento...... 18020109 Sacramento (CA), Solano (CA), Sutter (CA), Placer (CA), Yolo (CA). Sacramento-Upper Clear ...... 18020112 Shasta (CA) ...... Keswick Dam, Whiskeytown Dam Upper Elder-Upper Thomes ...... 18020114 Tehama (CA) ...... Upper Cow-Battle ...... 18020118 Shasta (CA), Tehama (CA) ...... Mill-Big Chico ...... 18020119 Butte (CA), Shasta (CA), Tehama (CA). Upper Butte ...... 18020120 Butte (CA), Tehama (CA) ...... Upper Yuba ...... 18020125 Nevada (CA), Yuba (CA) ...... Englebright Dam Suisun Bay ...... 18050001 Contra Costa (CA), Napa (CA), So- lano (CA). San Pablo Bay ...... 18050002 Alameda (CA), Contra Costa (CA), Marin (CA), Napa (CA), San Mateo (CA), Solano (CA), Sonoma (CA). San Francisco Bay ...... 18050004 Alameda (CA), Contra Costa (CA), Marin (CA), San Francisco (CA), San Mateo (CA). 1 Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7781, Feb. 16, 2000]
TABLE 12 TO PART 226 —HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR CALIFORNIA COASTAL CHINOOK SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Mad-Redwood ...... 18010102 Humboldt (CA), Trinity (CA) ...... Upper Eel ...... 18010103 Glenn (CA), Lake (CA), Mendocino Scott Dam (CA), Trinity (CA). Middle Fork Eel...... 18010104 Humboldt (CA), Mendocino (CA), Trinity (CA). Lower Eel ...... 18010105 Humboldt (CA), Mendocino (CA) .... South Fork Eel ...... 18010106 Humboldt (CA), Mendocino (CA) .... Mattole ...... 18010107 Humboldt (CA), Mendocino (CA) .... Big-Navarro-Garcia ...... 18010108 Mendocino (CA) ...... Gualala-Salmon ...... 18010109 Mendocino (CA), Sonoma (CA) ...... Russian ...... 18010110 Mendocino (CA), Sonoma (CA) ...... Coyote Dam, Warm Springs Dam Bodega Bay ...... 18010111 Marin (CA), Sonoma (CA) ...... 1 Some counties have very limited overlap with estuarine, riverine, and riparian habitats identified as critical habitat for this ESU. Consult USGS hydrologic unit maps (available from USGS) to determine specific county and basin boundaries. [65 FR 7782, Feb. 16, 2000]
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TABLE 13 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR HOOD CANAL SUMMER-RUN CHUM SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UP- STREAM EXTENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Skokomish ...... 17110017 Mason (WA) ...... Cushman Dam Hood Canal...... 17110018 Clallam (WA), Jefferson (WA), Kitsap (WA), Mason (WA). Puget Sound ...... 17110019 Island (WA), Jefferson (WA), Kitsap (WA). Dungeness-Elwha ...... 17110020 Clallam (WA), Jefferson (WA) ...... 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. [65 FR 7782, Feb. 16, 2000]
TABLE 14 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR COLUMBIA RIVER CHUM SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Lower Columbia - Sandy ...... 17080001 Clark (WA), Skamania (WA), Mult- Bonneville Dam nomah (OR). Lewis ...... 17080002 Cowlitz (WA), Clark (WA), Merwin Dam Skamania (WA). Lower Columbia - Clatskanie ...... 17080003 Wahkiakum (WA), Lewis (WA), Cowlitz (WA), Skamania (WA), Clatsop (OR), Columbia (OR). Lower Cowlitz...... 17080005 Cowlitz (WA), Lewis (WA), Skamania (WA). Lower Columbia...... 17080006 Pacific (WA), Wahkiakum (WA), Lewis (WA), Clatsop (OR). Lower Willamette ...... 17090012 Columbia (OR), Multnomah (OR), Washington (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. [65 FR 7782, Feb. 16, 2000]
TABLE 15 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR OREGON COAST COHO SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT.
1 Hydrologic Unit name Hydrologic Counties within Hydrologic Unit Dams/Reservoirs Unit number and within the range of ESUX
Necanicum ...... 17100201 Clatsop (OR), Tillamook (OR) ...... Nehalem ...... 17100202 Clatsop (OR), Columbia (OR), Tillamook (OR), Washington (OR). Wilson-Trask-Nestucca ...... 17100203 Lincoln (OR), Polk (OR), Tillamook McGuire Dam (OR), Washington (OR), Yamhill (OR). Siletz-Yaquina ...... 17100204 Benton (OR), Lincoln (OR), Polk (OR), Tillamook (OR). Alsea ...... 17100205 Benton (OR), Lane (OR), Lincoln (OR). Siuslaw ...... 17100206 Benton (OR), Douglas (OR), Lane (OR). Siltcoos ...... 17100207 Douglas (OR), Lane (OR) ...... North Umpqua ...... 17100301 Douglas (OR), Lane (OR) ...... Cooper Creek Dam, Soda Springs Dam South Umpqua ...... 17100302 Coos (OR), Douglas (OR), Jose- Ben Irving Dam, Galesville Dam, phine (OR). Win Walker Reservoir Umpqua ...... 17100303 Coos (OR), Douglas (OR), Lane (OR). Coos ...... 17100304 Coos (OR), Douglas (OR) ...... Lower Pony Creek Dam
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TABLE 15 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR OREGON COAST COHO SALMON, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT.—Continued
1 Hydrologic Unit name Hydrologic Counties within Hydrologic Unit Dams/Reservoirs Unit number and within the range of ESUX
Coquille ...... 17100305 Coos (OR), Curry (OR), Douglas (OR). Sixes ...... 17100306 Coos (OR), 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. [65 FR 7782, Feb. 16, 2000]
TABLE 16 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR SOUTHERN CALIFORNIA STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EX- TENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Cuyama ...... 18060007 San Luis Obispo (CA), Santa Bar- bara (CA). Santa Maria ...... 18060008 San Luis Obispo (CA), Santa Bar- Vaquero Dam bara (CA). San Antonio ...... 18060009 Santa Barbara (CA) ...... Santa Ynez ...... 18060010 Santa Barbara (CA) ...... Bradbury Dam Santa Barbara Coastal ...... 18060013 Santa Barbara (CA), Ventura (CA) Ventura ...... 18070101 Santa Barbara (CA), Ventura (CA) Casitas Dam, Robles Dam Santa Clara ...... 18070102 Los Angeles (CA), Santa Barbara Santa Felicia Dam (CA), Ventura (CA). Santa Monica Bay ...... 18070104 Los Angeles (CA), Ventura (CA) ..... Rindge Dam 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. [65 FR 7783, Feb. 16, 2000]
TABLE 17 TO PART 226.—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR SOUTH-CENTRAL CALIFORNIA COAST STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UP- STREAM EXTENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Pajaro ...... 18060002 Monterey (CA), San Benito (CA), Chesbro Reservoir, North Fork Santa Clara (CA), Santa Cruz Pacheco Reservoir (CA). Estrella ...... 18060004 Monterey (CA), San Luis Obispo (CA). Salinas ...... 18060005 Monterey (CA), San Benito (CA), Nacimiento Reservoir, Salinas Dam, San Luis Obispo (CA). San Antonio Reservoir Central Coastal ...... 18060006 Monterey (CA), San Luis Obispo Lopez Dam, Whale Rock Reservoir (CA). Alisal-Elkhorn Sloughs ...... 18060011 Monterey (CA), San Benito (CA) ..... Carmel ...... 18060012 Monterey (CA) ...... 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. [65 FR 7783, Feb. 16, 2000]
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TABLE 18 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR CENTRAL CALIFORNIA COAST STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Russian ...... 18010110 Mendocino (CA), Sonoma (CA) ...... Coyote Dam, Warm Springs Dam Bodega Bay ...... 18010111 Marin (CA), Sonoma (CA) ...... Suisun Bay ...... 18050001 Contra Costa (CA), Napa (CA), So- lano (CA). San Pablo Bay ...... 18050002 Alameda (CA), Contra Costa (CA), Phoenix Dam, San Pablo Dam Marin (CA), Napa (CA), San Francisco (CA), Solano (CA), Sonoma (CA). Coyote ...... 18050003 Alameda (CA), San Mateo (CA), Almaden Reservoir, Anderson Res- Santa Clara (CA). ervoir, Calero Reservoir, Guada- lupe Reservoir, Searsville Lake, Stevens Creek Reservoir, Vasona Reservoir San Francisco Bay ...... 18050004 Alameda (CA), Contra Costa (CA), Calaveras Reservoir, Chabot Dam, San Francisco (CA), San Mateo Crystal Springs Reservoir, Del (CA), Santa Clara (CA). Valle Reservoir, San Antonio Reservoir Tomales-Drake Bays ...... 18050005 Marin (CA), Sonoma (CA) ...... Peters Dam, Seeger Dam, Soulejule Dam San Francisco Coastal South ...... 18050006 San Mateo (CA) ...... Pilarcitos Dam San Lorenzo-Soquel ...... 18060001 San Mateo (CA), Santa Cruz (CA) .. Newell Dam 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. [65 FR 7783, Feb. 16, 2000]
TABLE 19 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR CENTRAL VALLEY STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Sacramento-Lower Cow-Lower Clear 18020101 Shasta (CA), Tehama (CA) ...... Lower Cottonwood ...... 18020102 Shasta (CA), Tehama (CA) ...... Sacramento-Lower Thomes...... 18020103 Butte (CA), Glenn (CA), Tehama Black Butte Dam (CA). Sacramento-Stone Corral...... 18020104 Butte (CA), Colusa (CA), Glenn (CA), Sutter (CA), Yolo (CA). Lower Butte...... 18020105 Butte (CA), Colusa (CA), Glenn Centerville Dam (CA), Sutter (CA). Lower Feather ...... 18020106 Butte (CA), Sutter (CA), Yuba (CA) Oroville Dam Lower Yuba ...... 18020107 Yuba (CA) ...... Lower Bear ...... 18020108 Placer (CA), Sutter (CA), Yuba (CA) Camp Far West Dam Lower Sacramento ...... 18020109 Placer (CA), Sacramento (CA), So- Monticello Dam lano (CA), Sutter (CA), Yolo (CA). Lower Cache ...... 18020110 Yolo (CA) ...... Lower American ...... 18020111 Placer (CA), Sacramento (CA), Sut- Nimbus Dam ter (CA). Sacramento-Upper Clear ...... 18020112 Shasta (CA) ...... Keswick Dam, Whiskeytown Dam Cottonwood Headwaters ...... 18020113 Shasta (CA), Tehama (CA) ...... Upper Elder-Upper Thomes ...... 18020114 Tehama (CA) ...... Upper Cow-Battle ...... 18020118 Shasta (CA), Tehama (CA) ...... Mill-Big Chico ...... 18020119 Butte (CA), Shasta (CA), Tehama (CA). Upper Butte ...... 18020120 Butte (CA), Tehama (CA) ...... Honcut Headwaters ...... 18020124 Butte (CA), Yuba (CA) ...... Upper Yuba ...... 18020125 Yuba (CA), Nevada (CA) ...... Englebright Dam Upper Coon-Upper Auburn ...... 18020127 Placer (CA) ...... Middle San Joaquin-Lower Merced- 18040002 Calaveras (CA), Merced (CA), San Crocker Diversion Dam, La Grange Lower Stanislaus. Joaquin (CA), Stanislaus (CA). Dam San Joaquin Delta ...... 18040003 Alameda (CA), Contra Costa (CA), Sacramento (CA), San Joaquin (CA). Lower Calaveras-Mormon Slough .... 18040004 Calaveras (CA), San Joaquin (CA), Stanislaus (CA).
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TABLE 19 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR CENTRAL VALLEY STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT.—Continued
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Lower Consumnes-Lower 18040005 Amador (CA), Sacramento (CA), Comanche Dam Mokelumne. San Joaquin (CA). Upper Stanislaus ...... 18040010 Calaveras (CA), San Joaquin (CA), Goodwin Dam Tuolumne (CA). Upper Calaveras ...... 18040011 Calaveras (CA) ...... New Hogan Dam Panoche-San Luis Reservoir ...... 18040014 San Joaquin (CA), Stanislaus (CA) Suisun Bay ...... 18050001 Contra Costa (CA), Solano (CA) ..... San Pablo Bay ...... 18050002 Contra Costa (CA), Marin (CA), San Francisco (CA), Solano (CA), Sonoma (CA). San Francisco Bay ...... 18050004 Alameda (CA), Contra Costa (CA), San Francisco (CA), San Mateo (CA). 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. [65 FR 7784, Feb. 16, 2000]
TABLE 20 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR UPPER COLUMBIA RIVER STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EX- TENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Chief Joseph...... 17020005 Chelan (WA), Douglas (WA), Chief Joseph Dam Okanogan (WA). Okanogan ...... 17020006 Okanogan (WA) ...... Similkameen ...... 17020007 Okanogan (WA) ...... Methow ...... 17020008 Okanogan (WA) ...... Upper Columbia-Entiat ...... 17020010 Chelan (WA), Douglas (WA), Grant (WA), Kittitas (WA). Wenatchee ...... 17020011 Chelan (WA) ...... Moses Coulee ...... 17020012 Douglas (WA), Grant (WA) ...... Upper Columbia-Priest Rapids ...... 17020016 Benton (WA), Franklin (WA), Grant (WA), Kittitas (WA), Yakima (WA). Middle Columbia-Lake Wallula ...... 17070101 Benton (WA), Gilliam (OR), Klickitat (WA), Morrow (OR), Sherman (OR), Umatilla (OR), Walla Walla (WA). Middle Columbia-Hood ...... 17070105 Hood River (OR), Klickitat (WA), Sherman (OR), Skamania (WA), Wasco (OR). Lower Columbia-Sandy...... 17080001 Clark (WA), Multnomah (OR), Skamania (WA). Lower Columbia-Clatskanie...... 17080003 Clatsop (OR), Columbia (WA), Cowlitz (WA), Wahkiakum (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Lower Willamette ...... 17090012 Columbia (OR), Multnomah (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. [65 FR 7784, Feb. 16, 2000]
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TABLE 21 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR SNAKE RIVER BASIN STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Hells Canyon...... 17060101 Adams (ID), Idaho (ID), Wallowa Hells Canyon Dam (OR). Imnaha ...... 17060102 Baker (OR), Union (OR), Wallowa (OR). Lower Snake-Asotin...... 17060103 Asotin (WA), Garfield (WA), Nez Perce (ID), Wallowa (OR). Upper Grande Ronde ...... 17060104 Umatilla (OR), Union (OR), Wallowa (OR). Wallowa ...... 17060105 Union (OR), Wallowa (OR) ...... Lower Grande Ronde ...... 17060106 Asotin (WA), Columbia (WA), Gar- field (WA), Union (OR), Wallowa (OR). Lower Snake-Tucannon ...... 17060107 Asotin (WA), Columbia (WA), Gar- field (WA), Whitman (WA). Palouse ...... 17060108 Franklin (WA), Whitman (WA) ...... Lower Snake...... 17060110 Columbia (WA), Franklin (WA), Walla Walla (WA). Upper Salmon ...... 17060201 Blaine (ID), Custer (ID), Lemhi (ID) Pahsimeroi ...... 17060202 Custer (ID), Lemhi (ID) ...... Middle Salmon-Panther ...... 17060203 Custer (ID), Lemhi (ID) ...... Lemhi ...... 17060204 Lemhi (ID) ...... Upper Middle Fork Salmon ...... 17060205 Boise (ID), Custer (ID), Lemhi (ID), Valley (ID). Lower Middle Fork Salmon ...... 17060206 Idaho (ID), Lemhi (ID), Valley (ID) .. Middle Salmon-Chamberlain ...... 17060207 Idaho (ID), Lemhi (ID), Valley (ID) .. South Fork Salmon ...... 17060208 Idaho (ID), Valley (ID) ...... Lower Salmon ...... 17060209 Idaho (ID), Lewis (ID), Nez Perce (ID). Little Salmon ...... 17060210 Adams (ID), Idaho (ID) ...... Upper Selway ...... 17060301 Idaho (ID) ...... Lower Selway ...... 17060302 Idaho (ID) ...... Lochsa ...... 17060303 Clearwater (ID), Idaho (ID) ...... Middle Fork Clearwater ...... 17060304 Idaho (ID) ...... South Fork Clearwater ...... 17060305 Idaho (ID) ...... Clearwater ...... 17060306 Clearwater (ID), Idaho (ID), Latah (ID), Lewis (ID), Nez Perce (ID), Whitman (WA). Lower North Fork Clearwater ...... 17060308 Clearwater (ID) ...... Dworshak Dam Middle Columbia-Lake Wallula ...... 17070101 Benton (WA), Gilliam (OR), Klickitat (WA), Morrow (OR), Sherman (OR), Umatilla (OR), Walla Walla (WA). Middle Columbia-Hood ...... 17070105 Hood River (OR), Klickitat (WA), Sherman (OR), Skamania (WA), Wasco (OR). Lower Columbia-Sandy...... 17080001 Clark (WA), Multnomah (OR), Skamania (WA). Lower Columbia-Clatskanie...... 17080003 Clatsop (OR), Columbia (WA), Cowlitz (WA), Wahkiakum (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Lower Willamette ...... 17090012 Columbia (OR), Multnomah (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. [65 FR 7785, Feb. 16, 2000]
TABLE 22 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR LOWER COLUMBIA RIVER STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EX- TENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Middle Columbia-Hood ...... 17070105 Hood River (OR), Skamania (WA) ..
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TABLE 22 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR LOWER COLUMBIA RIVER STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EX- TENT OF CRITICAL HABITAT.—Continued
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Lower Columbia-Sandy ...... 17080001 Clackamas (OR), Clark (WA), Mult- Bull Run Dam 2 nomah (OR), Skamania (WA). Lewis ...... 17080002 Clark (WA), Cowlitz (WA), Merwin Dam Skamania (WA). Lower Columbia-Clatskanie ...... 17080003 Clatsop (OR), Columbia (OR), Cow- litz (WA), Skamania (WA), Wahkiakum (WA). Lower Cowlitz...... 17080005 Cowlitz (WA), Lewis (WA), Skamania (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Clackamas ...... 17090011 Clackamas (OR), Marion (OR) ...... Lower Willamette ...... 17090012 Clackamas (OR), Columbia (OR), Multnomah (OR), Washington (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. [65 FR 7786, Feb. 16, 2000]
TABLE 23 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR UPPER WILLAMETTE RIVER STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EXTENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Lower Columbia-Sandy ...... 17080001 Clark (WA) ...... Lower Columbia-Clatskanie...... 17080003 Clatsop (OR), Columbia (WA), Cowlitz (WA), Wahkiakum (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Upper Willamette ...... 17090003 Benton (OR), Linn (OR), Polk (OR) North Santiam ...... 17090005 Clackamas (OR), Linn (OR), Marion Big Cliff Dam (OR). South Santiam ...... 17090006 Linn (OR) ...... Green Peter Dam Middle Willamette ...... 17090007 Clackamas (OR), Marion (OR), Polk (OR), Washington (OR), Yamhill (OR). Yamhill ...... 17090008 Lincoln (OR), Polk (OR), Tillamook (OR), Yamhill (OR). Molalla-Pudding ...... 17090009 Clackamas (OR), Marion (OR) ...... Tualatin ...... 17090010 Clackamas (OR), Columbia (OR), Multnomah (OR), Tillamook (OR), Washington (OR), Yamhill (OR). Lower Willamette ...... 17090012 Clackamas (OR), Columbia (OR), Multnomah (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. [65 FR 7786, Feb. 16, 2000]
TABLE 24 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR MIDDLE COLUMBIA RIVER STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EX- TENT OF CRITICAL HABITAT.
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Upper Columbia-Priest Rapids ...... 17020016 Benton (WA), Franklin (WA) ...... Upper Yakima ...... 17030001 Kittitas (WA), Yakima (WA) ...... Naches ...... 17030002 Kittitas (WA), Yakima (WA) ......
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TABLE 24 TO PART 226—HYDROLOGIC UNITS AND COUNTIES CONTAINING CRITICAL HABITAT FOR MIDDLE COLUMBIA RIVER STEELHEAD, AND DAMS/RESERVOIRS REPRESENTING THE UPSTREAM EX- TENT OF CRITICAL HABITAT.—Continued
Hydrologic Counties1 within Hydrologic Unit Hydrologic Unit name Unit number and within range of ESU Dams/Reservoirs
Lower Yakima...... 17030003 Benton (WA), Klickitat (WA), Yakima (WA). Middle Columbia-Lake Wallula ...... 17070101 Gilliam (OR), Morrow (OR), Umatilla (OR), Benton (WA), Klickitat (WA), Sherman (OR), Walla Walla (WA), Yakima (WA). Walla Walla ...... 17070102 Umatilla (OR), Wallowa (OR), Co- lumbia (WA), Walla Walla (WA). Umatilla ...... 17070103 Morrow (OR), Umatilla (OR), Union (OR). Willow ...... 17070104 Morrow (OR), Gilliam (OR) ...... Middle Columbia-Hood ...... 17070105 Hood River (OR), Sherman (OR), Condit Dam Wasco (OR), Klickitat (WA), Skamania (WA). Klickitat ...... 17070106 Klickitat (WA), Yakima (WA) ...... Upper John Day...... 17070201 Crook (OR), Grant (OR), Harney (OR), Wheeler (OR),. North Fork John Day ...... 17070202 Grant (OR), Morrow (OR), Umatilla (OR), Union (OR), Wheeler (OR). Middle Fork John Day ...... 17070203 Grant (OR) ...... Lower John Day...... 17070204 Crook (OR), Gilliam (OR), Grant (OR), Jefferson (OR), Morrow (OR), Sherman (OR), Wasco (OR), Wheeler (OR). Lower Deschutes ...... 17070306 Hood River (OR), Jefferson (OR), Pelton Dam Sherman (OR), Wasco (OR). Trout ...... 17070307 Crook (OR), Jefferson (OR), Wasco (OR). Lower Columbia-Sandy...... 17080001 Multnomah (OR), Clark (WA), Skamania (WA). Lower Columbia-Clatskanie...... 17080003 Clatsop (OR), Columbia (WA), Cowlitz (WA), Wahkiakum (WA). Lower Columbia...... 17080006 Clatsop (OR), Pacific (WA), Wahkiakum (WA). Lower Willamette ...... 17090012 Columbia (OR), Multnomah (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. [65 FR 7786, Feb. 16, 2000]
PART 228—NOTICE AND HEARING 228.17 Direct testimony. ON SECTION 103(d) REGULATIONS 228.18 Cross-examination. 228.19 Oral and written arguments. 228.20 Recommended decision, certification Sec. of the transcript and submission of com- 228.1 Basis and purpose. ments on the recommended decision. 228.2 Definitions. 228.21 Assistant Administrator’s decision. 228.3 Scope of regulations. 228.4 Notice of hearing. AUTHORITY: 16 U.S.C. 1361 et seq. 228.5 Notification by interested persons. 228.6 Presiding officer. SOURCE: 65 FR 39560, June 27, 2000, unless 228.7 Direct testimony submitted as written otherwise noted. documents. 228.8 Mailing address. § 228.1 Basis and purpose. 228.9 Inspection and copying of documents. (a) Sections 101(a)(2), 101(a)(3)(A), and 228.10 Ex parte communications. 101(b) of the Marine Mammal Protec- 228.11 Prehearing conference. 228.12 Final agenda of the hearing. tion Act of 1972 (16 U.S.C. 1371(a)(2), 228.13 Determination to cancel the hearing. 1371(a)(3)(A), and 1371(b)) and these reg- 228.14 Rebuttal testimony and new issues of ulations authorize the Assistant Ad- fact in final agenda. ministrator of the National Marine 228.15 Waiver of right to participate. Fisheries Service, to: 228.16 Conduct of the hearing.
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(1) Impose regulations governing the section 103(d) of the Act with full pro- taking of marine mammals incidental tection for the rights of all persons af- to commercial fishing operations; fected thereby. (2) Waive the moratorium and to adopt regulations with respect to the § 228.4 Notice of hearing. taking and importing of animals from (a) A notice of hearing on any pro- each species of marine mammals under posed regulations shall be published in the Assistant Administrator’s jurisdic- the FEDERAL REGISTER, together with tion; the Assistant Administrator’s proposed (3) Prescribe regulations governing determination to waive the morato- the taking of depleted marine mam- rium pursuant to section 101(a)(3)(A) of mals by any Indian, Aleut or Eskimo, the Act (16 U.S.C. 1371(a)(3)(A)), where respectively. In prescribing regulations applicable. to carry out the provisions of said sec- (b) The notice shall state: tions, the Act refers the Assistant Ad- (1) The nature of the hearing; ministrator to section 103 (16 U.S.C. (2) The place and date of the hearing. 1373). In accordance with section 103(d), The date shall not be less than 60 days regulations must be made on the after publication of notice of the hear- record after opportunity for an agency ing; hearing on such regulations and, in the (3) The legal authority under which case of a waiver, on the determination the hearing is to be held; by the Assistant Administrator to (4) The proposed regulations and waive the moratorium pursuant to sec- waiver, where applicable, and a sum- tion 101(a)(3)(A) of the Act (16 U.S.C. mary of the statements required by 1371(a)(3)(A)). (b) The purpose of this part is to es- section 103(d) of the Act (16 U.S.C. tablish rules of practice and procedure 1373(d)); for all hearings conducted pursuant to (5) Issues of fact which may be in- section 103(d) of the Act. volved in the hearing; (6) If a draft Environmental Impact § 228.2 Definitions. Statement is required, the date of pub- (a) Party means, for the purposes of lication of the draft and the place(s) this subpart: where the draft and comments thereon (1) The Assistant Administrator or may be viewed and copied; the Assistant Administrator’s rep- (7) Any written advice received from resentative; the Marine Mammal Commission; (2) A person who has notified the As- (8) The place(s) where records and sistant Administrator by specified submitted direct testimony will be dates of his or her intent to participate kept for public inspection; in the hearing pursuant to §§ 228.5 and (9) The final date for filing with the 228.14(b). Assistant Administrator a notice of in- (b) Witness means, for the purpose of tent to participate in the hearing pur- this part, any person who submits writ- suant to § 228.5; ten direct testimony on the proposed (10) The final date for submission of regulations. A person may be both a direct testimony on the proposed regu- party and a witness. lations and waiver, if applicable, and the number of copies required; § 228.3 Scope of regulations. (11) The docket number assigned to The procedural regulations in this the case which shall be used in all sub- part govern the practice and procedure sequent proceedings; and in hearings held under section 103(d) of (12) The place and date of the pre- the Act. These hearings will be gov- hearing conference. erned by the provisions of 5 U.S.C. 556 and section 557 of the Administrative § 228.5 Notification by interested per- Procedure Act. The regulations shall sons. be construed to secure the just, speedy Any person desiring to participate as and inexpensive determination of all a party shall notify the Assistant Ad- issues raised with respect to any waiv- ministrator, by certified mail, on or be- er or regulation proposed pursuant to fore the date specified in the notice.
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§ 228.6 Presiding officer. davit alleging the presiding officer’s (a) Upon publication of the notice of personal bias, malice, conflict of inter- hearing pursuant to § 228.4, the Assist- est or other basis which might result in ant Administrator shall appoint a pre- prejudice to a party, the hearing shall siding officer pursuant to 5 U.S.C. 3105. recess. The Assistant Administrator No individual who has any conflict of shall immediately determine the mat- interest, financial or otherwise, shall ter as a part of the record and decision serve as presiding officer in such pro- in the proceeding, after making such ceeding. investigation or holding such hearings, (b) The presiding officer, in any pro- or both, as the Assistant Administrator ceeding under this subpart, shall have may deem appropriate in the cir- power to: cumstances. (1) Change the time and place of the hearing and adjourn the hearing; § 228.7 Direct testimony submitted as (2) Evaluate direct testimony sub- written documents. mitted pursuant to these regulations, (a) Unless otherwise specified, all di- make a preliminary determination of rect testimony, including accom- the issues, conduct a prehearing con- panying exhibits, must be submitted to ference to determine the issues for the the presiding officer in writing no later hearing agenda, and cause to be pub- than the dates specified in the notice of lished in the FEDERAL REGISTER a final the hearing (§ 228.4), the final hearing hearing agenda; agenda (§ 228.12), or within 15 days after (3) Rule upon motions, requests and the conclusion of the prehearing con- admissibility of direct testimony; ference (§ 228.14) as the case may be. All (4) Administer oaths and affirma- direct testimony shall be in affidavit tions, question witnesses and direct form and exhibits constituting part of witnesses to testify; such testimony, referred to in the affi- (5) Modify or waive any rule (after davit and made a part thereof, must be notice) when determining that no attached to the affidavit. Direct testi- party will be prejudiced; mony submitted with exhibits must (6) Receive written comments and state the issue to which the exhibit re- hear oral arguments; lates; if no such statement is made, the (7) Render a recommended decision; presiding officer shall determine the and relevance of the exhibit to the issues (8) Do all acts and take all measures, published in the FEDERAL REGISTER. including regulation of media cov- (b) The direct testimony submitted erage, for the maintenance of order at shall contain: and the efficient conduct of the pro- ceeding. (1) A concise statement of the wit- (c) In case of the absence of the origi- ness’ interest in the proceeding and his nal presiding officer or the original position regarding the issues presented. presiding officer’s inability to act, the If the direct testimony is presented by powers and duties to be performed by a witness who is not a party, the wit- the original presiding officer under this ness shall state the witness’ relation- subpart in connection with a pro- ship to the party; and ceeding may, without abatement of the (2) Facts that are relevant and mate- proceeding, be assigned to any other rial. presiding officer unless otherwise or- (c) The direct testimony may propose dered by the Assistant Administrator. issues of fact not defined in the notice (d) The presiding officer may upon of the hearing and the reason(s) why the presiding officer’s own motion such issues should be considered at the withdraw as presiding officer in a pro- hearing. ceeding if the presiding officer deems (d) Ten copies of all direct testimony himself or herself to be disqualified. must be submitted unless the notice of (e) A presiding officer may be re- the hearing specifies otherwise. quested to withdraw at any time prior (e) Upon receipt, direct testimony to the recommended decision. Upon the shall be assigned a number and filing by an interested person in good stamped with that number and the faith of a timely and sufficient affi- docket number.
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(f) Contemporaneous with the publi- place(s) specified in the notice of hear- cation of the notice of hearing, the As- ing. sistant Administrator’s direct testi- (c) The presiding office shall not con- mony in support of the proposed regu- sult any person or party on any fact in lations and waiver, where applicable, issue or on the merits of the matter shall be available for public inspection unless notice and opportunity is given as specified in the notice of hearing. for all parties to participate. The Assistant Administrator may sub- mit additional direct testimony during § 228.11 Prehearing conference. the time periods allowed for submis- (a) After an examination of all the di- sion of such testimony by witnesses. rect testimony submitted pursuant to § 228.7, the presiding officer shall make § 228.8 Mailing address. a preliminary determination of issues Unless otherwise specified in the no- of fact which may be addressed at the tice of hearing, all direct testimony hearing. shall be addressed to the Presiding Of- (b) The presiding officer’s prelimi- ficer, c/o Assistant Administrator, Na- nary determination shall be made tional Marine Fisheries Service, 1315 available at the place or places pro- East-West Highway, Silver Spring, MD vided in the notice of the hearing 20910. All affidavits and exhibits shall (§ 228.4(b)(8)) at least 5 days before the be clearly marked with the docket prehearing conference. number of the proceedings. (c) The purpose of the prehearing conference shall be to enable the pre- § 228.9 Inspection and copying of doc- siding officer to determine, on the uments. basis of the direct testimony submitted Any document in a file pertaining to and prehearing discussions: any hearing authorized by this subpart (1) Whether the presiding officer’s or any document forming part of the preliminary determination of issues of record of such a hearing may be in- fact for the hearing has omitted any spected and/or copied in the Office of significant issues; the Assistant Administrator, National (2) What facts are not in dispute; Marine Fisheries Service, 1315 East- (3) Which witnesses may appear at West Highway, Silver Spring, MD the hearing; and 20910–unless the file is in the care and (4) The nature of the interest of each custody of the presiding officer, in party and which parties’ interests are which case the presiding officer shall adverse. notify the parties as to where and when (d) Only parties may participate in the record may be inspected. the hearing conference and a party may appear in person or be represented § 228.10 Ex parte communications. by counsel. (a) After notice of a hearing is pub- (e) Parties who do not appear at the lished in the FEDERAL REGISTER, all prehearing conference shall be bound communications, whether oral or writ- by the conference’s determinations. ten, involving any substantive or pro- cedural issue and directed either to the § 228.12 Final agenda of the hearing. presiding officer or to the Assistant (a) After the prehearing conference, Administrator, Deputy Assistant Ad- the presiding officer shall prepare a ministrator, or Chief of the Marine final agenda which shall be published Mammal Division, National Marine in the FEDERAL REGISTER within 10 Fisheries Service, without reference to days after the conclusion of the con- these rules of procedure, shall be ference. A copy of the final agenda deemed ex parte communications and shall be mailed to all parties. are not to be considered part of the (b) The final agenda shall list: record for decision. (1) All the issues which the hearing (b) A record of oral conversations shall address, the order in which those shall be made by the persons who are issues shall be presented, and the di- contacted. All communications shall rect testimony submitted which bears be available for public viewing at the on the issues; and
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(2) A final date for submission of di- (b) If the final agenda presents issues rect testimony on issues of fact not in- not included in the notice of the hear- cluded in the notice of hearing if such ing published pursuant to § 228.4: issues are presented. The final agenda (1) Any person interested in partici- may also specify a final date for sub- pating at the hearing on such issues mission of direct testimony to rebut presented shall notify the Assistant testimony previously submitted during Administrator by certified mail of an the time specified in the notice of the intent to participate not later than 10 hearing. days after publication of the final (c) The presiding officer shall publish agenda. Such person may present di- with the final agenda a list of wit- rect testimony or cross-examine wit- nesses who may appear at the hearing, nesses only on such issues presented a list of parties, the nature of the in- unless that person previously notified terest of each party, and which parties’ the Assistant Administrator pursuant interests are adverse on the issues pre- to § 228.5; and sented. (2) Additional written direct testi- mony concerning such issues may be § 228.13 Determination to cancel the submitted within the time provided in hearing. the final agenda. Such direct testi- mony will comply with the require- (a) If the presiding officer concludes ments of § 228.7. that no issues of fact are presented by the direct testimony submitted, the § 228.15 Waiver of right to participate. presiding officer shall publish such Persons who fail to notify the Assist- conclusion and notice in the FEDERAL ant Administrator pursuant to §§ 228.5 REGISTER that a hearing shall not be and 228.14 shall be deemed to have held and shall also publish a date for waived their right to participate as filing written comments on the pro- parties in any part of the hearing. posed regulations. Written comments may include proposed findings and con- § 228.16 Conduct of the hearing. clusions, arguments or briefs. (a) The hearing shall be held at the (b) A person need not be a party to time and place fixed in the notice of submit any written comments. the hearing, unless the presiding offi- (c) Promptly after expiration of the cer changes the time or place. If a period for receiving written comments, change occurs, the presiding officer the presiding officer shall make a rec- shall publish the change in the FED- ommended decision based on the ERAL REGISTER and shall expeditiously record, which in this case shall consist notify all parties by telephone or by of the direct testimony and written mail: Provided, that if that change in comments submitted. He shall transfer time or place of hearing is made less to the Assistant Administrator his rec- than 5 days before the date previously ommended decision, the record and a fixed for the hearing, the presiding offi- certificate stating that the record con- cer shall also announce, or cause to be tains all the written direct testimony announced, the change at the time and and comments submitted. The Assist- place previously fixed for the hearing. ant Administrator shall then make a (b) The presiding officer shall, at the final decision in accordance with these commencement of the hearing, intro- regulations (§ 228.21). duce into the record: the notice of hearing as published in the FEDERAL § 228.14 Rebuttal testimony and new REGISTER; all subsequent documents issues of fact in final agenda. published in the FEDERAL REGISTER; (a) Direct testimony to rebut testi- the draft Environmental Impact State- mony offered during the time period ment if it is required and the com- specified in the notice of hearing may ments thereon and agency responses to be submitted pursuant to these regula- the comments; and a list of all parties. tions within fifteen days after the con- Direct testimony shall then be received clusion of the prehearing conference with respect to the matters specified in unless the presiding officer otherwise the final agenda in such order as the specifies in the final agenda. presiding officer shall announce. With
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respect to direct testimony submitted shall be by a party whose interests are as rebuttal testimony or in response to adverse on the issue presented, to the new issues presented by the prehearing witness’, if the witness is a party, or to conference, the presiding officer shall the interests of the party who pre- determine the relevancy of such testi- sented the witness. mony. (c) A party shall be deemed to have (c) The hearing shall be publicly con- waived the right to introduce direct ducted and reported verbatim by an of- testimony if such party fails to present ficial reporter. a witness to introduce the direct testi- (d) If a party objects to the admission mony. or rejection of any direct testimony or (d) Official notice may be taken of to any other ruling of the presiding of- such matters as are judicially noticed ficer during the hearing, he or she shall by the courts of the United States: state briefly the grounds of such objec- Provided, that parties shall be given tion, whereupon an automatic excep- adequate notice, by the presiding offi- tion will follow if the objection is over- cer, at the hearing, of matters so no- ruled by the presiding officer. The ticed and shall be given adequate op- transcript shall not include argument portunity to show that such facts are or debate thereon except as ordered by inaccurate or are erroneously noticed. the presiding officer. The ruling by the presiding officer on any objection shall § 228.18 Cross-examination. be a part of the transcript and shall be (a) The presiding officer may: subject to review at the same time and (1) Require the cross-examiner to in the same manner as the Assistant outline the intended scope of the cross- Administrator’s final decision. Only examination; objections made before the presiding (2) Prohibit parties from cross-exam- officer may subsequently be relied ining witnesses unless the presiding of- upon in the proceedings. ficer has determined that the cross-ex- (e) All motions and requests shall be aminer has an adverse interest on the addressed to, and ruled on by, the pre- facts at issue to the party-witness or siding officer, if made prior to his cer- the party presenting the witness. For tification of the transcript or by the the purposes of this subsection, the As- Assistant Administrator if made there- sistant Administrator’s or his or her after. representative’s interest shall be con- sidered adverse to all parties; § 228.17 Direct testimony. (3) Limit the number of times any (a) Only direct testimony submitted party or parties having a common in- by affidavit as provided in these regu- terest may cross-examine an ‘‘adverse’’ lations and introduced at the hearing witness on the same matter; and by a witness shall be considered part of (4) Exclude cross-examination ques- the record. Such direct testimony shall tions that are immaterial, irrelevant not be read into evidence but shall be- or unduly repetitious. come a part of the record subject to ex- (b) Any party shall be given an op- clusion of irrelevant and immaterial portunity to appear, either in person or parts thereof; through an authorized counsel or rep- (b) The witness introducing direct resentative, to cross-examine wit- testimony shall: nesses. Before cross-examining a wit- (1) State his or her name, address and ness, the party or counsel shall state occupation; his or her name, address and occupa- (2) State qualifications for intro- tion. If counsel cross-examines the wit- ducing the direct testimony. If an ex- ness, counsel shall state for the record pert, the witness shall briefly state the the authority to act as counsel. Cross- scientific or technical training which examiners shall be assumed to be fa- qualifies the witness as an expert; miliar with the direct testimony. (3) Identify the direct testimony pre- (c) Any party or party’s counsel who viously submitted in accordance with fails to appear at the hearing to cross- these regulations; and examine an ‘‘adverse’’ witness shall be (4) Submit to appropriate cross and deemed to have waived the right to direct examination. Cross-examination cross-examine that witness.
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(d) Scientific, technical or commer- testimony, and written comments. The cial publications may only be utilized presiding officer shall attach to the for the limited purposes of impeaching original transcript of the hearing a cer- witnesses under cross-examination un- tificate stating that, to the best of his less previously submitted and intro- knowledge and belief, the transcript is duced in accordance with these regula- a true transcript of the testimony tions. given at the hearing except in such particulars as are specified. § 228.19 Oral and written arguments. (c) Immediately after receipt of the (a) The presiding officer may, in his recommended decision, the Assistant or her discretion, provide for oral argu- Administrator shall give notice thereof ment at the end of the hearing. Such in the FEDERAL REGISTER, send copies argument, when permitted, may be of the recommended decision to all par- limited by the presiding officer to the ties, and provide opportunity for the extent necessary for the expeditious submission of comments. The rec- disposition of the proceeding. ommended decision may be reviewed (b) The presiding officer shall an- and/or copied in the office of the As- nounce at the hearing a reasonable pe- sistant Administrator, National Ma- riod of time within which any inter- rine Fisheries Service, 1315 East-West ested person may file with the pre- Highway, Silver Spring, MD 20910. siding officer any written comments on (d) Within 20 days after the notice of the proposed regulations and waiver, receipt of the recommended decision including proposed findings and conclu- has been published in the FEDERAL sions and written arguments or briefs, REGISTER, any interested person may which are based upon the record and file with the Assistant Administrator citing where practicable the relevant any written comments on the rec- page or pages of the transcript. If a ommended decision. All comments, in- party filing a brief desires the pre- cluding recommendations from or con- siding officer to reconsider any objec- sultation with the Marine Mammal tion made by such party to a ruling of Commission, must be submitted during the presiding officer, the party shall the 20-day period to the Assistant Ad- specifically identify such rulings by ministrator at the previously men- reference to the pertinent pages of the tioned address. transcript and shall state their argu- ments thereon as a part of the brief. § 228.21 Assistant Administrator’s deci- (c) Oral or written arguments shall sion. be limited to issues arising from direct (a) Upon receipt of the recommended testimony on the record. decision and transcript and after the 20-day period for receiving written § 228.20 Recommended decision, cer- comments on the recommended deci- tification of the transcript and sub- sion has passed, the Assistant Adminis- mission of comments on the rec- trator shall make a final decision on ommended decision. the proposed regulations and waiver, (a) Promptly after expiration of the where applicable. The Assistant Ad- period for receiving written briefs, the ministrator’s decision may affirm, presiding officer shall make a rec- modify, or set aside, in whole or in ommended decision based on the record part, the recommended findings, con- and transmit the decision to the As- clusions and decision of the presiding sistant Administrator. The rec- officer. The Assistant Administrator ommended decision shall include: may also remand the hearing record to (1) A statement containing a descrip- the presiding officer for a fuller devel- tion of the history of the proceedings; opment of the record. (2) Findings on the issues of fact with (b) The Assistant Administrator’s de- the reasons therefor; and cision shall include: (3) Rulings on issues of law. (1) A statement containing a descrip- (b) The presiding officer shall also tion of the history of the proceeding; transmit to the Assistant Adminis- (2) Findings on the issues of fact with trator the transcript of the hearing, the reasons therefor; and the original and all copies of the direct (3) Rulings on issues of law.
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(4) The Assistant Administrator’s de- and 1387) that provide for exceptions cision shall be published in the FED- for the taking of marine mammals in- ERAL REGISTER. If the waiver is ap- cidental to certain commercial fishing proved, the final adopted regulations operations from the Act’s general mor- shall be promulgated with the decision. atorium on the taking of marine mam- mals. 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 TION ACT OF 1972 in the course of commercial fishing op- 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 fisheries. Conservation and Management Act (16 229.5 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. 229.9 Emergency regulations. under the Act as depleted on the basis 229.10 Penalties. of their listing as threatened species or 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 229.20 Issuance of permits. treaty Indian tribal members exer- 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. 229.31 Pacific Offshore Cetacean Take Re- not those under the Endangered Spe- duction Plan. cies Act of 1973. To be exempt from the 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 Plan—Mid-Atlantic. not apply to the intentional lethal tak- ing of marine mammals in the course FIGURE 1 TO PART 229—DRIFT GILLNET PINGER CONFIGURATION AND EXTENDER REQUIRE- of commercial fishing operations ex- MENTS cept as provided for under §§ 229.4(k) 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
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fishing operations to insignificant lev- tality or serious injury of marine mam- els approaching a zero mortality and mals is one that, collectively with serious injury rate by the statutory other fisheries, is responsible for the deadline of April 30, 2001. annual removal of more than 10 per- [60 FR 45100, Aug. 30, 1995, as amended at 64 cent of any marine mammal stock’s po- FR 9086, Feb. 24, 1999] tential biological removal level and that is by itself responsible for the an- § 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
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used to deter marine mammals, target cludes gillnets of all types, including species, seasons and areas fished, quali- but not limited to sink gillnets, other tative data from logbooks or fisher re- anchored gillnets (e.g. stab and set ports, stranding data, and the species nets), and drift gillnets. Gillnets may and distribution of marine mammals in or may not be attached to a vessel. the area or at the discretion of the As- Groundline, with reference to lobster sistant Administrator. trap gear, means a line connecting lob- 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 Interaction means coming in contact U.S.C. 1802). with fishing gear or catch. An inter- Fishing trip means any time spent action may be characterized by a ma- away from port actively engaged in rine mammal entangled, hooked, or commercial fishing operations. The end otherwise trapped in fishing gear, re- of a fishing trip will be the time of a gardless of whether injury or mortality fishing vessel’s return to port or the re- occurs, or situations where marine turn of a fisher from tending gear in a mammals are preying on catch. Catch nonvessel fishery. means fish or shellfish that has been Fishing vessel or vessel means any ves- hooked, entangled, snagged, trapped or sel, boat, ship, or other craft that is otherwise captured by commercial fish- used for, equipped to be used for, or of ing gear. a type normally used for, fishing. Large mesh gillnet means a gillnet Float-line means the rope at the top constructed with a mesh size of 7 of a gillnet from which the mesh por- inches (17.78 cm) to 18 inches (45.72 cm). tion of the net is hung. Lead-line means the rope, weighted or Gillnet means fishing gear consisting otherwise, to which the bottom edge of of a wall of webbing (meshes) or nets, a gillnet is attached. designed or configured so that the web- List of Fisheries means the most re- bing (meshes) or nets are placed in the cent final list of commercial fisheries water column, usually held approxi- published in the FEDERAL REGISTER by mately vertically, and are designed to the Assistant Administrator, cat- capture fish by entanglement, gilling, egorized according to the likelihood of or wedging. The term ‘‘gillnet’’ in- incidental mortality and serious injury
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of marine mammals during commercial gear used in set gillnet, trap, beach fishing operations. seine, weir, ranch, and pen fisheries. Lobster trap means any trap, pot or Observer means an individual author- other similar type of enclosure that is ized by NMFS, or a designated con- placed on the ocean bottom and is de- tractor, to record information on ma- signed to or is capable of catching lob- rine mammal interactions, fishing op- sters. This definition includes but is erations, marine mammal life history not limited to lobster pots, black sea information, and other scientific data, bass pots and scup pots. and collect biological specimens during Lobster trap trawl means two or more commercial fishing activities. lobster traps attached to a single Operator, with respect to any vessel, groundline. means the master, captain, or other in- Mesh size means the distance between dividual in charge of that vessel. inside knot to inside knot. Mesh size is Potential biological removal level means measured as described in § 648.80(f)(1) of the maximum number of animals, not this title. including natural mortalities, that Mid-Atlantic coastal waters means wa- may be removed from a marine mam- ters bounded by the line defined by the mal stock while allowing that stock to following points: The southern shore- reach or maintain its optimum sustain- line of Long Island, New York at able population. The potential biologi- 72°30′W, then due south to 33°51′N lat., cal removal level is the product of the thence west to the North Carolina/ following factors: South Carolina border. (1) The minimum population esti- Minimum population estimate means mate of the stock; an estimate of the number of animals (2) One-half the maximum theo- in a stock that: retical or estimated net productivity rate of the stock at a small population (1) Is based on the best available sci- size; and entific information on abundance, in- (3) A recovery factor of between 0.1 corporating the precision and varia- and 1.0. bility associated with such informa- Regional Fishery Management Council tion; and means a regional fishery management (2) Provides reasonable assurance council established under section 302 of that the stock size is equal to or great- the Magnuson Fishery Conservation er than the estimate. and Management Act. Mudhole means waters off New Jersey Serious injury means any injury that bounded as follows: From the point will likely result in mortality. ° ′ 40 30 N. latitude where it intersects Shark gillnetting means to fish a with the shoreline of New Jersey east gillnet in waters south of the South ° ′ to its intersection with 73 20 W. lon- Carolina/Georgia border with webbing gitude, then south to its intersection of 5 inches or greater stretched mesh. ° ′ with 40 05 N. latitude, then west to its Sink gillnet or stab net means any intersection with the shoreline of New gillnet, anchored or otherwise, that is Jersey. designed to be, or is fished on or near Negligible impact has the same mean- the bottom in the lower third of the ing as in § 228.3 of this chapter. water column. Net productivity rate means the an- Sinking line means rope that sinks nual per capita rate of increase in a and does not float at any point in the stock resulting from additions due to water column. Polypropylene rope is reproduction, less losses due to mor- not sinking line unless it contains a tality. lead core. Night means any time between one Small mesh gillnet means a gillnet half hour before sunset and one half constructed with a mesh size of greater hour after sunrise. than 5 inches (12.7 cm) to less than 7 NMFS means the National Marine inches (17.78 cm). Fisheries Service. Southern Mid-Atlantic waters means Nonvessel fishery means a commercial all state and Federal waters off the fishing operation that uses fixed or States of Delaware, Maryland, Vir- other gear without a vessel, such as ginia, and North Carolina, bounded on
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the north by a line extending eastward Tended gear or tend means fishing from the northern shoreline of Dela- gear that is physically attached to a ware at 38°47′ N. latitude (the latitude vessel in a way that is capable of har- that corresponds with Cape Henlopen, vesting fish, or to fish with gear at- DE), east to its intersection with 72°30′ tached to the vessel. W. longitude, south to the 33°51′ N. lati- Tie-down refers to twine used be- tude (the latitude that corresponds tween the floatline and the lead line as with the North Carolina/South Caro- a way to create a pocket or bag of net- lina border), and then west to its inter- ting to trap fish alive. section with the shoreline of the North To strikenet for sharks means to fish Carolina/South Carolina border. with strikenet gear in waters south of Spotter plane means a plane that is the South Carolina/Georgia border with deployed for the purpose of locating webbing of 5 inches or greater schools of target fish for a fishing ves- stretched mesh. sel that intends to set fishing gear on U.S. waters means both state and them. Federal waters to the outer boundaries Stowed means nets that are unavail- of the U.S. exclusive economic zone able for use and that are stored in ac- along the east coast of the United cordance with the regulations found in States from the Canadian/U.S. border § 648.81(e) of this title. southward to a line extending eastward Strategic stock means a marine mam- from the southernmost tip of Florida mal stock: on the Florida shore. (1) For which the level of direct Vessel owner or operator means the human-caused mortality exceeds the owner or operator of: potential biological removal level; (1) A fishing vessel that engages in a (2) Which, based on the best available commercial fishing operation; or scientific information, is declining and (2) Fixed or other commercial fishing is likely to be listed as a threatened gear that is used in a nonvessel fishery. species under the Endangered Species Vessel of the United States has the Act of 1973 within the foreseeable fu- same meaning as in section 3 of the ture; Magnuson Fishery Conservation and (3) Which is listed as a threatened Management Act (16 U.S.C. 1802). species or endangered species under the Waters off New Jersey means all state Endangered Species Act of 1973; or and Federal waters off New Jersey, (4) Which is designated as depleted bounded on the north by a line extend- under the Marine Mammal Protection ing eastward from the southern shore- Act of 1972, as amended. line of Long Island, NY at 40°40′ N. lati- Strikenet or to fish with strikenet gear tude, on the south by a line extending means a gillnet that is designed so eastward from the northern shoreline that, when it is deployed, it encircles of Delaware at 38°47′ N. latitude (the or encloses an area of water either with latitude that corresponds with Cape the net or by utilizing the shoreline to Henlopen, DE), and on the east by the complete encirclement, or to fish with 72°30′ W. longitude. This area includes such a net and method. the Mudhole. Take Reduction Plan means a plan de- veloped to reduce the incidental mor- Weak link means a breakable compo- tality and serious injury of marine nent of gear that will part when sub- mammals during commercial fishing ject to a certain tension load. operations in accordance with section [60 FR 45100, Aug. 30, 1995, as amended at 62 118 of the Marine Mammal Protection FR 39183, July 22, 1997; 63 FR 66487, Dec. 2, Act of 1972, as amended. 1998; 64 FR 7551, Feb. 16, 1999; 64 FR 9086, Feb. Take Reduction Team means a team 24, 1999; 65 FR 80377, Dec. 21, 2000] established to recommend methods of reducing the incidental mortality and § 229.3 Prohibitions. serious injury of marine mammals due (a) It is prohibited to take any ma- to commercial fishing operations, in rine mammal incidental to commercial accordance with section 118 of the Ma- fishing operations except as otherwise rine Mammal Protection Act of 1972, as provided in part 216 of this chapter or amended. in this part 229.
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(b) It is prohibited to assault, harm, (e)(1) unless the drift gillnet gear com- harass (including sexually harass), op- plies with the restrictions specified in pose, impede, intimidate, impair, or in § 229.32 (e)(1). any way influence or interfere with an (k) It is prohibited to fish with shark observer, or attempt the same. This gillnet gear in the areas and for the prohibition includes, but is not limited times specified in § 229.32(b)(2), (f)(1)(i), to, any action that interferes with an and (f)(1)(ii) unless the gear complies observer’s responsibilities, or that cre- with the closures, marking require- ates an intimidating, hostile, or offen- ments, modifications, and other re- sive environment. strictions specified in § 229.32(b)(3)(i), (c) It is prohibited to provide false in- (b)(3)(ii), and (f)(2) through (f)(3)(iii)(D). formation when registering for an Au- (l) It is prohibited to fish with, set, thorization Certificate, applying for re- haul back, possess on board a vessel newal of the Authorization Certificate, unless stowed, or fail to remove sink reporting the injury or mortality of gillnet gear or gillnet gear capable of any marine mammal, or providing in- catching multispecies, from the areas formation to any observer. and for the times specified in § 229.33 (d) It is prohibited to tamper with or (a)(1) through (a)(6), except with the destroy observer equipment in any use of pingers as provided in § 229.33 way. (d)(1) through (d)(4). This prohibition (e) It is prohibited to retain any ma- does not apply to the use of a single pe- rine mammal incidentally taken in lagic gillnet (as described and used as commercial fishing operations unless set forth in § 648.81(f)(2)(ii) of this title). authorized by NMFS personnel, by des- (m) It is prohibited to fish with, set, ignated contractors or an official ob- haul back, possess on board a vessel server, or by a scientific research per- unless stowed, or fail to remove any mit that is in the possession of the ves- gillnet gear from the areas and for the sel operator. times as specified in § 229.34 (b)(1) (ii) or (f) It is prohibited to intentionally (iii) or (b)(2)(ii). lethally take any marine mammal in the course of commercial fishing oper- (n) It is prohibited to fish with, set, ations unless imminently necessary in haul back, possess on board a vessel self-defense or to save the life of a per- unless stowed, or fail to remove any son in immediate danger, and such tak- large mesh or small mesh gillnet gear ing is reported in accordance with the from the areas and for the times speci- requirements of § 229.6. fied in § 229.34 (c)(1) through (c)(4) un- (g) It is prohibited to violate any reg- less the gear complies with the speci- ulation in this part or any provision of fied gear restrictions set forth in those section 118 of the Act. provisions. (h) It is prohibited to fish with lob- (o) Beginning on January 1, 1999, it is ster trap gear in the areas and for the prohibited to fish with, set, or haul times specified in § 229.32 (b)(2) and back sink gillnets or gillnet gear, or (c)(2) through (c)(8) unless the lobster leave such gear in closed areas where trap gear complies with the closures, pingers are required, as specified under marking requirements, modifications, § 229.33 (c)(1) through (c)(4), unless a and restrictions specified in § 229.32 person on board the vessel during fish- (b)(3)(i), (b)(3)(ii), and (c)(1) through ing operations possesses a valid pinger (c)(9). certification training certificate issued (i) It is prohibited to fish with an- by NMFS. chored gillnet gear in the areas and for (p) Beginning on January 1, 2000, it is the times specified in § 229.32(b)(2) and prohibited to fish with, set, haul back, (d)(2) through(d)(7) unless that gillnet or possess any large mesh or small gear complies with the closures, mark- mesh gillnet gear in Mid-Atlantic wa- ing requirements, modifications, and ters in the areas and during the times restrictions specified in § 229.32(b)(3)(i), specified under § 229.34(d), unless the (b)(3)(ii), and (d)(1) through (d)(8). gear is properly tagged in compliance (j) It is prohibited to fish with drift with that provision and unless a net gillnet gear in the areas and for the tag certificate is on board the vessel. It times specified in § 229.32 (d)(7) and is prohibited to refuse to produce a net
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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 questing up to the maximum number of be registered for a Certificate of Au- nets allowed in those paragraphs and thorization. must include a check for the cost of (2) Unless a notice is published in the the tags. Vessel owners and operators FEDERAL REGISTER announcing an inte- will be given notice with instructions grated registration program, the owner informing them of the costs associated of a vessel, or for nonvessel fishery, the with this tagging requirement and di- owner of the gear must register for and rections for obtaining tags. Tag num- receive an Authorization Certificate. bers will be unique for each vessel and To register, owners must submit the recorded on a certificate. The vessel following information using the format operator must produce the certificate specified by NMFS: and all net tags upon request by an au- thorized officer. (i) Name, address, and phone number of owner. [60 FR 45100, Aug. 30, 1995, as amended at 62 (ii) Name, address, and phone number FR 39184, July 22, 1997; 63 FR 66487, Dec. 2, of operator, if different from owner, un- 1998; 64 FR 7552, Feb. 16, 1999; 64 FR 9086, Feb. less the name of the operator is not 24, 1999; 65 FR 80377, Dec. 21, 2000] known or has not been established at § 229.4 Requirements for Category I the time the registration is submitted. and II fisheries. (iii) For a vessel fishery, vessel name, (a) General. (1) For a vessel owner or length, home port; U.S. Coast Guard crew members to lawfully incidentally documentation number or state reg- take marine mammals in the course of istration number, and if applicable; a commercial fishing operation in a state commercial vessel license num- Category I or II fishery, the owner or ber and for a nonvessel fishery, a de- authorized representative of a fishing scription of the gear and state commer- vessel or nonvessel fishing gear must cial license number, if applicable. have in possession a valid Certificate of (iv) A list of all Category I and II Authorization. The owner of a fishing fisheries in which the fisher may ac- vessel or nonvessel fishing gear is re- tively engage during the calendar year. sponsible for obtaining a Certificate of (v) A certification signed and dated Authorization. by the owner of an authorized rep- (2) The granting and administration resentative of the owner as follows: ‘‘I of Authorization Certificates under hereby certify that I am the owner of this part will be integrated and coordi- the vessel, that I have reviewed all in- nated with existing fishery license, reg- formation contained on this document, istration, or permit systems and re- and that it is true and complete to the lated programs wherever possible. best of my knowledge.’’ These programs may include, but are (vi) A check or money order made not limited to, state or interjurisdic- payable to NMFS in the amount speci- tional fisheries programs. If the admin- fied in the notice of the final List of
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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 an Authorization Certificate and, if Regional Director. 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- (i) Submits a completed registration grated registration program, the owner form and the required fee. of a vessel, or for nonvessel fishery, the (ii) Has complied with the require- owner of the gear may register by fol- ments of this section and §§ 229.6 and lowing the directions provided in that 229.7 notice. If a person receives a registra- (iii) Has submitted updated registra- tion to which he or she is not entitled tion or renewal registration which in- or if the registration contains incor- cludes a statement (yes/no) whether rect, inaccurate or incomplete infor- any marine mammals were killed or in- mation, the person shall notify NMFS jured during the current or previous within 10 days following receipt. If a calender year. fisher participating in a Category I or (3) If a person receives a renewed Au- II fishery who expects to receive auto- thorization Certificate or a decal to matic registration does not receive which he or she is not entitled, the per- that registration within the time speci- son shall notify NMFS within 10 days fied in the notice announcing the inte- following receipt. grated registration program, the per- (e) Authorization Certificate and decal son shall notify NMFS as directed in requirements. (1) If a decal has been the notice or may apply for registra- issued under the conditions specified in tion by submitting the information re- paragraph (e)(2) of this section, the quired under paragraph (b)(1)(i) decal must be attached to the vessel on through (b)(1)(vi) of this section. the port side of the cabin or, in the ab- (c) Address. Unless the granting and sence of a cabin, on the forward port administration of authorizations under side of the hull, and must be free of ob- this part 229 is integrated and coordi- struction and in good condition. The nated with existing fishery licenses, decal must be attached to the Author- registrations, or related programs pur- ization Certificate for nonvessel fish- suant to paragraph (a) of this section, eries. requests for registration forms and (2) The Authorization Certificate, or completed registration and renewal a copy, must be on board the vessel forms should be sent to the NMFS Re- while it is operating in a Category I or gional Offices as follows: II fishery, or, in the case of nonvessel (1) Alaska Region, NMFS, P.O. Box fisheries, the Authorization Certificate 21668, 709 West 9th Street, Juneau, AK with decal attached, or copy must be in 99802; telephone: 907–586-7235; the possession of the person in charge (2) Northwest Region, NMFS, 7600 of the fishing operation. The Author- Sand Point Way NE., Seattle, WA ization Certificate, or copy, must be 98115-0070; telephone: 206–526-4353; made available upon request to any (3) Southwest Region, NMFS, 501 state or Federal enforcement agent au- West Ocean Blvd., Suite 4200, Long thorized to enforce the Act, any des- Beach, CA 90802–4213; telephone: 562– ignated agent of NMFS, or any con- 980–4001; tractor providing observer services to (4) Northeast Region, NMFS, 1 NMFS. Blackburn Drive, Gloucester, MA 01930; (3) Authorization Certificates and de- telephone: 978–281–9254; or cals are not transferable. In the event (5) Southeast Region, NMFS, 9721 Ex- of the sale or change in ownership of ecutive Center Drive North, St. Peters- the vessel, the Authorization Certifi- burg, FL 33702; telephone: 727–570–5312. cate is void and the new owner must
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register for an Authorization Certifi- § 229.5 Requirements for Category III cate and decal. fisheries. (4) An Authorization Certificate hold- (a) General. Vessel owners and crew er must notify the issuing office in members of such vessels engaged only writing: in Category III fisheries may inciden- (i) If the vessel or nonvessel fishing tally take marine mammals without gear will engage in any Category I or II registering for or receiving an Author- fishery not listed on the initial reg- ization Certificate. istration form at least 30 days prior to (b) Reporting. Vessel owners engaged engaging in that fishery; and, in a Category III fishery must comply (ii) If there are any changes in the with the reporting requirements speci- mailing address or vessel ownership fied in § 229.6. within 30 days of such change. (c) Disposition of marine mammals. Any (f) Reporting. Any Authorization Cer- marine mammal incidentally taken tificate holders must comply with the must be immediately returned to the reporting requirements specified under sea with a minimum of further injury § 229.6. unless directed otherwise by NMFS (g) Disposition of marine mammals. Any personnel, a designated contractor, or marine mammal incidentally taken an official observer, or authorized oth- must be immediately returned to the erwise by a scientific research permit sea with a minimum of further injury, in the possession of the operator. unless directed otherwise by NMFS (d) Monitoring. Vessel owners engaged personnel, a designated contractor or in a Category III fishery must comply an official observer, or authorized oth- with the observer requirements speci- erwise by a scientific research permit fied under § 229.7(d). that is in the possession of the oper- (e) Deterrence. When necessary to ator. deter a marine mammal from dam- (h) Monitoring. Authorization Certifi- aging fishing gear, catch, or other pri- cate holders must comply with the ob- vate property, or from endangering server or other monitoring require- personal safety, vessel owners and crew ments specified under § 229.7. members engaged in commercial fish- (i) Deterrence. When necessary to ing operations must comply with all deter a marine mammal from dam- deterrence provisions set forth in the aging fishing gear, catch, or other pri- Act and all guidelines and prohibitions vate property, or from endangering published thereunder. personal safety, vessel owners and crew (f) Self-defense. When imminently members engaged in a Category I or II necessary in self-defense or to save the fishery must comply with all deter- life of a person in immediate danger, a rence provisions set forth in the Act marine mammal may be lethally taken and all guidelines and prohibitions pub- if such taking is reported to NMFS in lished thereunder. accordance with the requirements of (j) Self defense. When imminently nec- § 229.6. essary in self-defense or to save the life (g) Emergency regulations. Vessel own- of a person in immediate danger, a ma- ers engaged in a Category III fishery rine mammal may be lethally taken if must comply with any applicable emer- such taking is reported to NMFS in ac- gency regulations. cordance with the requirements of [60 FR 45100, Aug. 30, 1995, as amended at 64 § 229.6. FR 9087, Feb. 24, 1999] (k) Take reduction plans and emer- gency regulations. Authorization Cer- § 229.6 Reporting requirements. tificate holders must comply with any (a) Vessel owners or operators en- applicable take reduction plans and gaged in any commercial fishery must emergency regulations. report all incidental mortality and in- (l) Expiration. Authorization Certifi- jury of marine mammals in the course cates expire at the end of each calendar of commercial fishing operations to the year. Assistant Administrator, or appro- [60 FR 45100, Aug. 30, 1995, as amended at 62 priate Regional Office, by mail or other FR 46, Jan. 2, 1997; 64 FR 9086, Feb. 24, 1999] means, such as fax or overnight mail
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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 (3) The name and description of the take aboard an observer to accompany fishery, including gear type and target the vessel on fishing trips. species; and (2) After being notified by NMFS, or (4) The species and number of each by a designated contractor providing marine mammal incidentally killed or observer services to NMFS, that the injured, and the date, time, and ap- vessel is required to carry an observer, proximate geographic location of such the vessel owner/operator must comply occurrence. A description of the ani- with the notification by providing in- mal(s) killed or injured must be pro- formation requested within the speci- vided if the species is unknown. fied time on scheduled or anticipated (b) Participants in nonvessel fisheries fishing trips. must provide all of the information in (3) NMFS, or a designated contractor paragraphs (a)(1) through (a)(4) of this providing observer services to NMFS, section except, instead of providing the may waive the observer requirement vessel name and vessel registration based on a finding that the facilities number, participants in nonvessel fish- for housing the observer or for carrying eries must provide the gear permit out observer functions are so inad- number. equate or unsafe that the health or [60 FR 45100, Aug. 30, 1995, as amended at 64 safety of the observer or the safe oper- FR 9087, Feb. 24, 1999] ation of the vessel would be jeopard- ized. § 229.7 Monitoring of incidental mor- (4) The vessel owner/operator and talities and serious injuries. crew must cooperate with the observer (a) Purpose. The Assistant Adminis- in the performance of the observer’s trator will establish a program to mon- duties including: itor incidental mortality and serious (i) Providing, at no cost to the ob- injury of marine mammals during the server, the United States government, course of commercial fishing oper- or the designated observer provider, ations in order to: food, toilet, bathing, sleeping accom- (1) Obtain statistically reliable esti- modations, and other amenities that mates of incidental mortality and seri- are equivalent to those provided to the ous injury; crew, unless other arrangements are (2) Determine the reliability of re- approved in advance by the Regional ports of incidental mortality and in- Administrator; jury under § 229.6; and (ii) Allowing for the embarking and (3) Identify changes in fishing meth- debarking of the observer as specified ods or technology that may increase or by NMFS personnel or designated con- decrease incidental mortality and seri- tractors. The operator of a vessel must ous injury. ensure that transfers of observers at (b) Observer program. Pursuant to sea are accomplished in a safe manner, paragraph (a) of this section, the As- via small boat or raft, during daylight sistant Administrator may observe hours if feasible, as weather and sea
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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). or non-target catch specimens, upon (e) Alternative observer program. The request by NMFS personnel, designated Assistant Administrator may establish contractors, or the observer, if ade- an alternative observer program to quate facilities are available and if fea- provide statistically reliable informa- sible; tion on the species and number of ma- (vii) Notifying the observer in a rine mammals incidentally taken in timely fashion of when all commercial the course of commercial fishing oper- fishing operations are to begin and end; ations. The alternative observer pro- (viii) Not impairing or in any way gram may include direct observation of interfering with the research or obser- fishing activities from vessels, air- vations being carried out; and planes, or points on shore. (ix) Complying with other guidelines or regulations that NMFS may develop [60 FR 45100, Aug. 30, 1995, as amended at 64 to ensure the effective deployment and FR 9087, Feb. 24, 1999] use of observers. § 229.8 Publication of List of Fisheries. (5) Marine mammals or other speci- mens identified in paragraph (c)(4)(vi) (a) The Assistant Administrator will of this section, which are readily acces- publish in the FEDERAL REGISTER a pro- sible to crew members, must be posed revised List of Fisheries on or brought on board the vessel and re- about July 1 of each year for the pur- tained for the purposes of scientific re- pose of receiving public comment. Each search if feasible and requested by year, on or about October 1, the Assist- NMFS personnel, designated contrac- ant Administrator will publish a final tors, or the observer. Specimens so col- revised List of Fisheries, which will be- lected and retained must, upon request come effective January 1 of the next by NMFS personnel, designated con- calendar year. tractors, or the observer, be retained in (b) The proposed and final revised cold storage on board the vessel, if fea- List of Fisheries will: sible, until removed at the request of (1) Categorize each commercial fish- NMFS personnel, designated contrac- ery based on the definitions of Cat- tors, or the observer, retrieved by au- egory I, II, and III fisheries set forth in thorized personnel of NMFS, or re- § 229.2; and leased by the observer for return to the (2) List the marine mammals that ocean. These biological specimens may have been incidentally injured or killed be transported on board the vessel dur- by commercial fishing operations and ing the fishing trip and back to port the estimated number of vessels or per- under this authorization. sons involved in each commercial fish- (d) Observer requirements for partici- ery. pants in Category III fisheries. (1) The (c) The Assistant Administrator may Assistant Administrator may place ob- publish a revised List of Fisheries at servers on Category III vessels if the other times, after notification and op- Assistant Administrator: portunity for public comment.
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(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- § 229.9 Emergency regulations. ministrator has reason to believe such 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, (1) In the case of a stock or species and the appropriate take reduction for which a take reduction plan is in ef- team, if established. fect— (c) Any emergency regulations issued (i) Prescribe emergency regulations under this section: that, consistent with such plan to the (1) Shall be published in the FEDERAL maximum extent practicable, reduce REGISTER and will remain in effect for incidental mortality and serious injury no more than 180 days or until the end in that fishery; and of the applicable commercial fishing (ii) Approve and implement on an ex- season, whichever is earlier, except as pedited basis, any amendments to such provided in paragraph (d) of this sec- plan that are recommended by the tion; and Take Reduction Team to address such (2) May be terminated by notification adverse impact; in the FEDERAL REGISTER at an earlier (2) In the case of a stock or species date if the Assistant Administrator de- for which a take reduction plan is termines that the reasons for the emer- being developed— gency regulations no longer exist. (i) Prescribe emergency regulations (d) If the Assistant Administrator to reduce such incidental mortality finds that incidental mortality and se- and serious injury in that fishery; and rious injury of marine mammals in a (ii) Approve and implement, on an ex- commercial fishery is continuing to pedited basis, such plan, which will have an immediate and significant ad- provide methods to address such ad- verse impact on a stock or species, the verse impact if still necessary; Assistant Administrator may extend (3) In the case of a stock or species the emergency regulations for an addi- for which a take reduction plan does tional period of not more than 90 days not exist and is not being developed, or or until reasons for the emergency reg- in the case of a Category III fishery ulations no longer exist, whichever is that the Assistant Administrator be- earlier. lieves may be contributing to such ad- [60 FR 45100, Aug. 30, 1995, as amended at 64 verse impact, FR 9087, Feb. 24, 1999] (i) Prescribe emergency regulations to reduce such incidental mortality § 229.10 Penalties. and serious injury in that fishery, to (a) Except as provided for in para- the extent necessary to mitigate such graphs (b) and (c) of this section, any adverse impact; person who violates any regulation (ii) Immediately review the stock as- under this part or any provision of sec- sessment for such stock or species and tion 118 of the MMPA shall be subject the classification of such commercial to all penalties set forth in the Act. fishery under this section to determine (b) The owner or master of a vessel if a take reduction team should be es- that fails to comply with a take reduc- tablished and if recategorization of the tion plan shall be subject to the pen- fishery is warranted; and alties of sections 105 and 107 of the Act,
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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 penalties of sections 105 and 107 of the apply or corrective actions have been Act, and may be subject to the pen- taken. alties of section 106 of the Act. (e) For fishers operating in Category [60 FR 45100, Aug. 30, 1995, as amended at 64 I or II fisheries, failure to report all in- FR 9088, Feb. 24, 1999] cidental injuries and mortalities with- in 48 hours of the end of each fishing § 229.11 Confidential fisheries data. trip, or failure to comply with require- (a) Proprietary information collected ments to carry an observer, will sub- under this part is confidential and in- ject such persons to the penalties of cludes information, the unauthorized sections 105 and 107 and may subject disclosure of which could be prejudicial them to the penalties of section 106 of or harmful, such as information or the Act, which will result in suspen- data that are identifiable with an indi- sion, revocation, or denial of an Au- vidual fisher. Proprietary information thorization Certificate until such re- obtained under part 229 will not be dis- quirements have been fulfilled. closed, in accordance with NOAA Ad- (f) For fishers operating in Category ministrative Order 216–100, except: III fisheries, failure to report all inci- (1) To Federal employees whose du- dental injuries and mortalities within ties require access to such information; 48 hours of the end of each fishing trip (2) To state employees under an will subject such persons to the pen- agreement with NMFS that prevents alties of sections 105 and 107, and may public disclosure of the identity or subject them to section 106, of the Act. business of any person; (g) Suspension, revocation or denial of Authorization Certificates. (1) Until the (3) When required by court order; or Authorization Certificate holder com- (4) In the case of scientific informa- plies with the regulations under this tion involving fisheries, to employees part, the Assistant Administrator shall of Regional Fishery Management Coun- suspend or revoke an Authorization cils who are responsible for fishery Certificate or deny an annual renewal management plan development and of an Authorization Certificate in ac- monitoring. cordance with the provisions in 15 CFR (5) To other individuals or organiza- part 904 if the Authorization Certifi- tions authorized by the Assistant Ad- cate holder fails to report all inci- ministrator to analyze this informa- dental mortality and injury of marine tion, so long as the confidentiality of mammals as required under § 229.6; or individual fishers is not revealed. fails to take aboard an observer if re- (b) Information will be made avail- quested by NMFS or its designated able to the public in aggregate, sum- contractors. mary, or other such form that does not (2) The Assistant Administrator may disclose the identity or business of any suspend or revoke an Authorization person in accordance with NOAA Ad- Certificate or deny an annual renewal ministrative Order 216–100. Aggregate
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or summary form means data struc- such species or stock in accordance tured so that the identity of the sub- with regulations at subpart C of this mitter cannot be determined either part. from the present release of the data or (b) Procedures for making determina- in combination with other releases. tions. In making any of the determina- [60 FR 45100, Aug. 30, 1995, as amended at 64 tions listed in paragraph (a) of this sec- FR 9088, Feb. 24, 1999] tion, the Assistant Administrator will publish an announcement in the FED- § 229.12 Consultation with the Sec- ERAL REGISTER of fisheries having retary of the Interior. takes of marine mammals listed under The Assistant Administrator will the Endangered Species Act, including consult with the Secretary of the Inte- a summary of available information re- rior prior to taking actions or making garding the fisheries interactions with determinations under this part that af- listed species. Any interested party fect or relate to species or population may, within 45 days of such publica- stocks of marine mammals for which tion, submit to the Assistant Adminis- the Secretary of the Interior is respon- trator written data or views with re- sible under the Act. spect to the listed fisheries. As soon as practicable after the end of the 45 days Subpart B—Takes of Endangered following publication, NMFS will pub- and Threatened Marine Mammals lish in the FEDERAL REGISTER a list of the fisheries for which the determina- § 229.20 Issuance of permits. tions listed in paragraph (a) of this sec- (a) Determinations. During a period of tion have been made. This publication up to 3 consecutive years, NMFS will will set forth a summary of the infor- allow the incidental, but not the inten- mation used to make the determina- tional, taking by persons using vessels tions. of the United States or foreign vessels (c) Issuance of authorization. The As- that have valid fishing permits issued sistant Administrator will issue appro- by the Assistant Administrator in ac- priate permits for vessels in fisheries cordance with section 204(b) of the that are required to register under Magnuson Fishery Conservation and § 229.4 and for which determinations Management Act (16 U.S.C. 1824(b)), under the procedures of paragraph (b) while engaging in commercial fishing of this section can be made. operations, of marine mammals from a (d) Category III fisheries. Vessel own- species or stock designated as depleted ers engaged only in Category III fish- because of its listing as an endangered eries for which determinations are species or threatened species under the made under the procedures of para- Endangered Species Act of 1973 if the graph (b) of this section will not be Assistant Administrator determines that: subject to the penalties of this Act for (1) The incidental mortality and seri- the incidental taking of marine mam- ous injury from commercial fisheries mals to which this subpart applies, as will have a negligible impact on such long as the vessel owner or operator of species or stock; such vessel reports any incidental mor- (2) A recovery plan has been devel- tality or injury of such marine mam- oped or is being developed for such spe- mals in accordance with the require- cies or stock pursuant to the Endan- ments of § 229.6. gered Species Act of 1973; and (e) Emergency authority. During the (3) Where required under regulations course of the commercial fishing sea- in subpart A of this part: son, if the Assistant Administrator de- (i) A monitoring program has been termines that the level of incidental established under § 229.7; mortality or serious injury from com- (ii) Vessels engaged in such fisheries mercial fisheries for which such a de- are registered in accordance with termination was made under this sec- § 229.4; and tion has resulted or is likely to result (iii) A take reduction plan has been in an impact that is more than neg- developed or is being developed for ligible on the endangered or threatened
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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). there has been a significant change in (2) While at sea, operators of drift the information or conditions used to gillnet vessels with gillnets onboard determine such a list. must carry enough pingers on the ves- (g) Southern sea otters. This subpart sel to meet the requirements set forth does not apply to the taking of South- under paragraphs (c)(3) through(6) of ern (California) sea otters. this section. [60 FR 45100, Aug. 30, 1995, as amended at 64 (3) Floatline. Pingers shall be at- FR 9088, Feb. 24, 1999] tached within 30 ft (9.14 m) of the floatline and spaced no more than 300 Subpart C—Take Reduction Plan ft (91.44 m) apart. Regulations and Emergency (4) Leadline. Pingers shall be attached within 36 ft (10.97 m) of the leadline and Regulations spaced no more than 300 ft (91.44 m) § 229.30 Basis. apart. (5) Staggered Configuration. Pingers Section 118(f)(9) of the Act authorizes attached within 30 ft (9.14 m) of the the Director, NMFS, to impose regula- floatline and within 36 ft (10.97 m) of tions governing commercial fishing op- the leadline shall be staggered such erations, when necessary, to imple- that the horizontal distance between ment a take reduction plan in order to them is no more than 150 ft (45.5 m). protect or restore a marine mammal (6) Any materials used to weight stock or species covered by such a plan. pingers must not change its specifica- [64 FR 9088, Feb. 24, 1999] tions set forth under paragraph (c)(1) of this section. § 229.31 Pacific Offshore Cetacean (7) The pingers must be operational Take Reduction Plan. and functioning at all times during de- (a) Purpose and scope. The purpose of ployment. this section is to implement the Pa- (8) If requested, NMFS may authorize cific Offshore Cetacean Take Reduction the use of pingers with specifications Plan. Paragraphs (b) through (d) of this or pinger configurations differing from section apply to all U.S. drift gillnet those set forth in paragraphs (c)(1) and fishing vessels operating in waters sea- (c)(3) of this section for limited, experi- ward of the coast of California or Or- mental purposes within a single fishing egon, including adjacent high seas wa- season. ters. For purposes of this section, the (d) Skipper education workshops. After fishing season is defined as beginning notification from NMFS, vessel opera- May 1 and ending on January 31 of the tors must attend a skipper education following year. workshop before commencing fishing
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each fishing season. For the 1997/1998 Maryland/Virginia fishing season, all vessel operators 38° 19.48′ N 75° 05.10′ W TO 38° 19.35′ N 75° 05.25′ must have attended one skipper edu- W (Ocean City Inlet) cation workshop by October 30, 1997. 37° 52.50′ N 75° 24.30′ W TO 37° 11.90′ N 75° 48.30′ NMFS may waive the requirement to W (Chincoteague to Ship Shoal Inlet) attend these workshops by notice to all 37° 11.10′ N 75° 49.30′ W TO 37° 10.65′ N 75° 49.60′ vessel operators. W (Little Inlet) 37° 07.00′ N 75° 53.75′ W TO 37° 05.30′ N 75° 56.50′ [62 FR 51813, Oct. 3, 1997, as amended at 63 FR W (Smith Island Inlet) 27861, May 21, 1998; 64 FR 3432, Jan. 22, 1999] North Carolina to Florida § 229.32 Atlantic large whale take re- All marine and tidal waters landward of duction plan regulations. the 72 COLREGS demarcation line (Inter- (a)(1) Regulated waters. The regula- national Regulations for Preventing Colli- tions in this section apply to all U.S. sions at Sea, 1972), as depicted or noted on waters in the Atlantic except for the nautical charts published by the National Oceanic and Atmospheric Administration areas exempted in paragraph (a)(2) of (Coast Charts 1:80,000 scale), and as described this section. in 33 CFR part 80. (2) Exempted waters. The regulations in this section do not apply to waters (b) Gear marking requirements. (1) landward of the first bridge over any Specified gear consists of lobster trap embayment, harbor, or inlet and to wa- gear and gillnet gear set in specified ters landward of the following lines: areas. (2) Specified areas. The following Rhode Island areas are specified for gear marking 41° 27.99′ N 71° 11.75′ W TO 41° 28.49′ N 71° 14.63′ purposes: CCB Restricted Area, W (Sakonnet River) Stellwagen Bank/Jeffreys Ledge Re- 41° 26.96′ N 71° 21.34′ W TO 41° 26.96′ 71° 25.92″ stricted Area, Northern Nearshore Lob- W (Narragansett Bay) ster Waters Area, GSC Restricted Lob- 41° 22.41′ N 71° 30.80′ W TO 41° 22.41′ N 71° 30.85′ ster Area, GSC Restricted Gillnet Area, W (Pt. Judith Pond Inlet) GSC Sliver Restricted Area, Southern 41° 21.31′ 71° 38.30′ W TO 41° 21.30′ N 71° 38.33′ Nearshore Lobster Waters Area, Off- W (Ninigret Pond Inlet) shore Lobster Waters Area, Other 41° 19.90′ N 71° 43.08′ W TO 41° 19.90′ N 71° 43.10′ W (Quonochontaug Pond Inlet) Northeast Gillnet Waters Area, and 41° 19.66′ N 71° 45.75′ W TO 41° 19.66′ N 71° 45.78′ Southeast U.S. Observer Area. W (Weekapaug Pond Inlet) (3) Requirements for Southeast U.S. Ob- server Area. Any person who owns or New York fishes with specified fishing gear in the West of the line from the Northern fork of Southeast U.S. Observer Area must the eastern end of Long Island, NY (Orient mark that gear in accordance with Pt.) to Plum Island to Fisher’s Island to (b)(3)(i) and (b)(3)(ii) of this section, un- Watch Hill, RI. (Long Island Sound) less otherwise required by the Assist- 41° 11.40′ N 72° 09.70′ W TO 41° 04.50′ N 71° ant Administrator under paragraph (g) 51.60;min; W (Gardiners Bay) of this section. ° ′ ° ′ ° ′ ° ′ 40 50.30 72 28.50 W TO 40 50.36 N 72 28.67 (i) Color code. Specified gear in the W (Shinnecock Bay Inlet) 40° 45.70′ N 72° 45.15′ W TO 40° 45.72′ N 72° 45.30′ Southeast U.S. Observer Area must be W (Moriches Bay Inlet) marked with the appropriate color code 40° 37.32′ N 73° 18.40′ W TO 40° 38.00′ N 73° 18.56′ to designate gear types and areas as W (Fire Island Inlet) follows: 40° 34.40′ N 73° 34.55′ W TO 40° 35.08′ N 73° 35.22′ (A) Gear type code—Gillnet gear. W (Jones Inlet) Gillnet gear must be marked with a green marking. New Jersey (B) Area code. Gear set in the South- 39° 45.90′ N 74° 05.90′ W TO 39° 45.15′ N 74° 06.20′ east U.S. Observer Area must be W (Barnegat Inlet) marked with a blue marking. ° ′ ° ′ ° ′ ° ′ 39 30.70 N 74 16.70 W TO 39 26.30 N 74 19.75 (ii) Markings. All specified gear in W (Beach Haven to Brigantine Inlet) 38° 56.20′ N 74° 51.70′ W TO 38° 56.20′ N 74° 51.90′ specified areas must be marked with W (Cape May Inlet) two color codes, one designating the 39° 16.70′ N 75° 14.60′ W TO 39° 11.25′ N 75° 23.90′ gear type, the other indicating the area W (Delaware Bay) where the gear is set. Each color of the
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two-color code must be permanently (B) Lobster trap gear in the Southern marked on or along the line or lines Nearshore Lobster Waters Area must specified under (f)(2) of this section. be marked with an orange marking. Each color mark of the color codes (C) Lobster trap gear in the Offshore must be clearly visible when the gear is Lobster Waters Area must be marked hauled or removed from the water. with a black marking. Each mark must be at least 4 inches (D) Gillnet gear in the Other North- (10.2 cm) long. The two color marks east Gillnet Waters Area must be must be placed within 6 inches (15.2 marked with a green marking. cm) of each other. If the color of the (ii) Markings. All specified gear in specified areas must be marked with rope is the same as or similar to a one color code (see paragraph (4)(i) of color code, a white mark may be sub- this section) which indicates the gear stituted for that color code. In mark- type and general area where the gear is ing or affixing the color code, the line set. Each color code must be perma- may be dyed, painted, or marked with nently affixed on or along the line or thin colored whipping line, thin colored lines. Each color code must be clearly plastic, or heat-shrink tubing, or other visible when the gear is hauled or re- material; or a thin line may be woven moved from the water. Each mark into or through the line; or the line must be at least 4 inches (10.2 cm) long. may be marked as approved in writing The mark must be placed along the by the Assistant Administrator (AA). buoy line midway in the water column. (4) Requirements for other specified (5) Changes to requirements. If the As- areas. Any person who owns or fishes sistant Administrator revises the gear with specified gear in the other speci- marking requirements in accordance fied areas must mark that gear in ac- with paragraph (g) of this section, the cordance with (b)(4)(i) and (b)(4)(ii) of gear must be marked in compliance this section, unless otherwise required with those requirements. by the Assistant Administrator under (c) Restrictions applicable to lobster paragraph (g) of this section. For the trap gear in regulated waters—(1) Uni- purposes of the following gear marking versal lobster trap gear requirements. In addition to the area-specific meas- requirements only, lobster trap gear ures listed in (c)(2) through (c)(8) of set in the CCB Restricted Area during this section, all lobster trap gear in the winter restricted period, the Fed- regulated waters, including the North- eral-water portion of the CCB Re- ern Inshore State Lobster Waters Area, stricted Area during the off-peak pe- must comply with the universal gear riod, and the Stellwagen Bank/Jeffreys requirements listed here1. The Assist- Ledge Restricted Area shall comply ant Administrator may revise these re- with the requirements for the Northern quirements in accordance with para- Nearshore Lobster Waters Area. Lob- graph (g) of this section. ster gear set in the GSC Restricted (i) No line floating at the surface. No Lobster Area shall comply with the re- person may fish with lobster trap gear quirements for the Offshore Lobster that has any portion of the buoy line Waters Area. Similarly, anchored that is directly connected to the gear gillnet gear set in the CCB Restricted at the ocean bottom floating at the area, Stellwagen Bank/Jeffreys Ledge surface at any time. If more than one Restricted Area, GSC Restricted buoy is attached to a single buoy line Gillnet Area, and GSC Silver Re- or if a high flyer and a buoy are used stricted Area shall comply with the re- together on a single buoy line, floating quirements for gillnet gear in the line may be used between these objects. Other Northeast Gillnet Waters Area. (ii) No wet storage of gear. Lobster (i) Color code. Specified gear must be traps must be hauled out of the water at least once every 30 days. marked with the appropriate colors to designate gear-types and areas as fol- 1 lows: Fishers are also encouraged to maintain their buoy lines to be as knot-free as pos- (A) Lobster trap gear in the Northern sible. Splices are not considered to be an en- Nearshore Lobster Waters Area must tanglement threat and are thus preferable to be marked with a red marking. knots.
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(2) Cape Cod Bay Restricted Area—(i) (E) Sinking ground line. All ground Area. The CCB restricted area consists lines must be comprised entirely of of the CCB right whale critical habitat sinking line. area specified under 50 CFR 226.203(b) (iii) Area-specific gear requirements unless the Assistant Administrator during the other restricted period. No per- changes that area in accordance with son may fish with lobster trap gear in paragraph (g) of this section. the CCB Restricted Area during the (ii) Area-specific gear requirements dur- other restricted period unless that per- ing the winter restricted period. No per- son’s gear complies with the gear son may fish with lobster trap gear in marking requirements in paragraph (b) the CCB Restricted Area during the of this section and the universal lob- winter restricted period unless that ster trap gear requirements in (c)(1) of this section as well as the area-specific person’s gear complies with the gear requirements listed below for the other marking requirements in paragraph (b) restricted period. The Assistant Ad- of this section, the universal lobster ministrator may revise these require- trap gear requirements in (c)(1) of this ments in accordance with paragraph (g) section, and the area-specific require- of this section. ments listed below for the winter re- (A) Other restricted period. The other stricted period. The Assistant Adminis- restricted period for the CCB Re- trator may revise these requirements stricted Area is from May 16 through in accordance with paragraph (g) of December 31 of each year unless the this section. Assistant Administrator revises that (A) Winter restricted period. The win- period in accordance with paragraph ter restricted period for the CCB Re- (g) of this section. stricted Area is from January 1 (B) Gear requirements—(1) State-water through May 15 of each year unless the portion. No person may fish with lob- Assistant Administrator changes that ster trap gear in the state-water por- area in accordance with paragraph (g) tion of the CCB Restricted Area during of this section. the other restricted period unless that (B) Weak links. All buoy lines shall be person’s gear complies with the re- attached to the main buoy with a weak quirements for the Northern Inshore link meeting the following specifica- State Lobster Waters Area listed in tions: (c)(6) of this section. The Assistant Ad- (1) The breaking strength of the weak ministrator may revise these require- link must not exceed 500 lb (226.7 kg). ments in accordance with paragraph (g) (2) The weak link must be chosen of this section. from the following list of combinations (2) Federal-water portion. No person may fish with lobster trap gear in the approved by the NMFS gear research federal-water portion of the CCB Re- program: swivels, plastic weak links, stricted Area during the other re- rope of appropriate diameter, hog stricted period unless that person’s rings, rope stapled to a buoy stick, or gear complies with the requirements other materials or devices approved in for the Northern Nearshore Lobster writing by the Assistant Adminis- Waters Area in (c)(7) of this section. trator. The Assistant Administrator may re- (C) Single traps and multiple-trap vise these requirements in accordance trawls. Single traps and three-trap with paragraph (g) of this section. trawls are prohibited. All traps must (3) Great South Channel Restricted Lob- be set in either a two-trap string or in ster Area—(i) Area. The GSC Restricted a trawl of four or more traps. A two- Lobster Area consists of the GSC right trap string must have no more than whale critical habitat area specified one buoy line. under 50 CFR 226.203(a) unless the As- (D) Sinking buoy lines. All buoy lines sistant Administrator changes that must be comprised of sinking line ex- area in accordance with paragraph (g) cept the bottom portion of the line, of this section. which may be a section of floating line (ii) Closure during the spring restricted not to exceed one-third the overall period—(A) Spring restricted period. The length of the buoy line. spring restricted period for the GSC
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Restricted Lobster Area is from April 1 Northern Nearshore Lobster Waters through June 30 of each year unless the Area in (c)(7) of this section. The As- Assistant Administrator revises this sistant Administrator may revise these period in accordance with paragraph requirements in accordance with para- (g) of this section. graph (g) of this section. (B) Closure. During the spring re- (5) Offshore Lobster Waters Area—(i) stricted period, no person may fish Area. The Offshore Lobster Waters with or set lobster trap gear in this Area includes all waters bounded by Area unless the Assistant Adminis- straight lines connecting the following trator specifies gear modifications or points in the order stated (including alternative fishing practices in accord- the area known as the Area 2/3 Overlap ance with paragraph (g) of this section in the American Lobster Fishery regu- and the gear or practices comply with lations at 50 CFR 697.18 but not includ- those specifications. ing the GSC Restricted Lobster Area): (iii) Area-specific gear requirements for Latitude Longitude the other restricted period. No person Point (°N) (°W) may fish with lobster trap gear in the A ...... 43° 58′ 67° 22′ GSC Restricted Lobster Area unless B ...... 43° 41′ 68° 00′ that person’s gear complies with the C ...... 43° 12′ 69° 00′ gear marking requirements in para- D ...... 42° 49′ 69° 40′ E ...... 42° 15.5′ 69° 40′ graph (b) of this section, the universal F ...... 42° 10′ 69° 56′ lobster trap gear requirements in (c)(1) K ...... 41° 10′ 69° 6.5′ of this section, and the area-specific re- N ...... 40° 45.5′ 71° 34′ M ...... 40° 27.5′ 72° 14′ quirements listed here for the other re- U ...... 40° 12.5′ 72° 48.5′ stricted period. The Assistant Adminis- V ...... 39° 50′ 73° 01′ trator may revise these requirements X ...... 38° 39.5′ 73° 40′ ° ′ ° ′ in accordance with paragraph (g) of Y ...... 38 12 73 55 Z ...... 37° 12′ 74° 44′ this section. ZA ...... 35° 34′ 74° 51′ (A) Other restricted period. The other ZB ...... 35° 14.5′ 75° 31′1 restricted period for the GSC Re- 1 From Point ZB east to the EEZ boundary, thence along stricted Lobster Area is July 1 through the seaward EEZ boundary to Point A. March 31, unless the Assistant Admin- (ii) Area-specific gear requirements. No istrator revises the timing in accord- person may fish with lobster trap gear ance with paragraph (g) of this section. in the Offshore Lobster Waters Area (B) Weak links. All buoy lines must be unless that person’s gear complies with attached to the main buoy with a weak the gear marking requirements in link meeting the specifications listed paragraph (b) of this section, the uni- in subparagraph (c)(5)(ii)(A) below for versal lobster trap gear requirements the Offshore Lobster Waters Area. in (c)(1) of this section, and the gear re- (4) Stellwagen Bank/Jeffreys Ledge Re- quirements listed here. The Assistant stricted Area—(i) Area. The Stellwagen Administrator may revise these re- Bank/Jeffreys Ledge Restricted Area quirements in accordance with para- includes all federal waters of the Gulf graph (g) of this section. of Maine, except those designated as (A) Weak Links. All buoy lines must right whale critical habitat under 50 be attached to the main buoy with a CFR 226.203(b), that lie south of 43°15’ weak link meeting the following speci- N. lat. and west of 70° W long. The As- fications: sistant Administrator may change that (1) The weak link must be chosen area in accordance with paragraph (g) from the following list of combinations of this section. approved by the NMFS gear research (ii) Area-specific gear requirements. No program: swivels, plastic weak links, person may fish with lobster trap gear rope of appropriate diameter, hog in the Stellwagen Bank/Jeffreys Ledge rings, rope stapled to a buoy stick, or Restricted Area unless that person’s other materials or devices approved in gear complies with the gear marking writing by the Assistant Adminis- requirements in paragraph (b) of this trator. section, the universal lobster trap gear (2) The breaking strength of these requirements in (c)(1) of this section, weak links must not exceed 3780 lb and the requirements listed for the (1714.3 kg).
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(3) Weak links must be designed such rings, rope stapled to a buoy stick, or that the bitter end of the buoy line is other materials or devices approved in clean and free of any knots when the writing by the Assistant Adminis- link breaks. Splices are not considered trator. to be knots for the purposes of this pro- (2) The breaking strength of these vision. weak links must not exceed 600 lb (272.4 (B) [Reserved] kg). (6) Northern Inshore State Lobster Wa- (3) Weak links must be designed such ters Area—(i) Area. The Northern that the bitter end of the buoy line is Inshore State Lobster Waters Area in- clean and free of any knots when the cludes the state waters of Rhode Is- link breaks. Splices are not considered land, Massachusetts, New Hampshire, to be knots for the purposes of this pro- and Maine but does not include waters vision. exempted under (a)(2) of this section. (B) Single traps and multiple-trap (ii) Area-specific gear requirements. No trawls. Single traps are prohibited. All person may fish with lobster trap gear traps must be set in trawls of two or in the Northern Inshore State Lobster more traps. All trawls up to and in- Waters Area unless that person’s gear cluding five traps must have no more complies with the universal lobster than one buoy line. trap gear requirements in (c)(1) of this (8) Southern Nearshore Lobster Waters section and at least one of the options Area—(i) Area. The Southern Nearshore on the Lobster Take Reduction Tech- Lobster Waters Area includes all state nology List in (c)(9) of this section. The and federal waters which fall within Assistant Administrator may revise EEZ Nearshore Management Area 4 this requirement in accordance with and EEZ Nearshore Management Area paragraph (g) of this section. 5 as described in the American Lobster (7) Northern Nearshore Lobster Waters Fishery regulations in 50 CFR 697.18. Area—(i) Area. The Northern Nearshore (ii) Area-specific gear requirements for Lobster Waters Area includes all Fed- the restricted period—(A) Restricted pe- eral waters of EEZ Nearshore Manage- riod. The restricted period for Southern ment Area 1, Area 2, and the Outer Nearshore Lobster Waters is from Oc- Cape Lobster Management Area as de- tober 1 through April 30 unless the AA fined in the American Lobster Fishery revises this period in accordance with regulations at 50 CFR 697.18, with the paragraph (g) of this section. exception of the CCB Restricted Area (B) Gear requirements. No person may and the Stellwagen Bank/Jeffreys fish with lobster trap gear in the Ledge Restricted Area. Southern Nearshore Lobster Waters (ii) Area-specific gear requirements. No Area during the restricted period un- person may fish with lobster trap gear less that person’s gear complies with in the Northern Nearshore Lobster Wa- the gear marking requirements speci- ters Area unless that person’s gear fied in paragraph (b) of this section, complies with the gear marking re- the universal lobster trap gear require- quirements in paragraph (b) of this sec- ments in (c)(1) of this section, and at tion, the universal lobster trap gear re- least one of the options on the Lobster quirements in (c)(1) of this section, and Take Reduction Technology List in the gear requirements listed below for (c)(9) of this section. The AA may re- this area. The Assistant Administrator vise these requirements in accordance may revise these requirements in ac- with paragraph (g) of this section. cordance with paragraph (g) of this sec- (9) Lobster Take Reduction Technology tion. List. The following gear modification (A) Weak Links. All buoy lines must options comprise the Lobster Take Re- be attached to the main buoy with a duction Technology List: weak link meeting the following speci- (i) All buoy lines must be 7/16 inches fications: (1.11 cm) or less in diameter. (1) The weak link must be chosen (ii) All buoys must be attached to the from the following list of combinations buoy line with a weak link meeting the approved by the NMFS gear research following specifications: program: swivels, plastic weak links, (A) The weak link must be chosen rope of appropriate diameter, hog from the following list of combinations
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approved by the NMFS gear research winter restricted period for this area is program: swivels, plastic weak links, from January 1 through May 15 of each rope of appropriate diameter, hog year, unless the AA revises the timing rings, rope stapled to a buoy stick, or in accordance with paragraph (g) of other materials or devices approved in this section. writing by the Assistant Adminis- (B) Closure. During the winter re- trator. stricted period, no person may fish (B) The breaking strength of these with anchored gillnet gear in the CCB weak links must not exceed 600 lb (272.4 Restricted Area unless the AA specifies kg). gear restrictions or alternative fishing (C) Weak links must be designed such practices in accordance with paragraph that the bitter end of the buoy line is (g) of this section and the gear or prac- clean and free of any knots when the tices comply with those specifications. link breaks. Splices are not considered The AA may waive this closure for the to be knots for the purposes of this pro- remaining portion of the winter re- vision. stricted period in any year through a (iii) All buoy lines must be comprised notification in the Federal Register if entirely of sinking line. NMFS determines that right whales (iv) All ground lines must be com- have left the critical habitat and are prised entirely of sinking line. unlikely to return for the remainder of (d) Restrictions applicable to anchored the season. gillnet gear—(1) Universal anchored (iii) Area-specific gear requirements for gillnet gear requirements. In addition to the other restricted period—(A) Other re- the area-specific measures listed in stricted period. The other restricted pe- (d)(2) through (d)(7) of this section, all riod for the CCB Restricted Area is anchored gillnet gear in regulated wa- from May 16 through December 31 of ters must comply with the universal each year unless the AA revises that 2 gear requirements listed here . The AA period in accordance with paragraph may revise these requirements in ac- (g) of this section. cordance with paragraph (g) of this sec- (B) No person may fish with anchored tion. gillnet gear in the CCB Restricted Area (i) No line floating at the surface. No during the other restricted period un- person may fish with anchored gillnet less that person’s gear complies with gear that has any portion of the buoy the gear marking requirements speci- line that is directly connected to the fied in paragraph (b) of this section, gear on the ocean bottom floating at the universal anchored gillnet gear re- the surface at any time. If more than quirements specified in (d)(1) of this one buoy is attached to a single buoy section, and the area-specific require- line or if a high flyer and a buoy are ments listed in (d)(6)(ii) of this section used together on a single buoy line, for the Other Northeast Gillnet Waters floating line may be used between Area. The AA may revise these require- these objects. ments in accordance with paragraph (g) (ii) No wet storage of gear. Anchored gillnet gear must be hauled out of the of this section. water at least once every 30 days. (3) Great South Channel Restricted (2) Cape Cod Bay Restricted Area—(i) Gillnet Area—(i) Area. The GSC Re- Area. The CCB Restricted Area consists stricted Gillnet Area consists of the of the CCB right whale critical habitat area bounded by lines connecting the ° ′ ° ′ area specified under 50 CFR 226.203(b), following four points: 41 02.2 N/69 02 W, ° ′ ° ′ ° ′ ° ′ unless the AA changes the boundaries 41 43.5 N/69 36.3 W, 42 10 N/68 31 W, ° ′ ° ′ in accordance with paragraph (g) of and 41 38 N/68 13 W. This area includes this section. most of the GSC right whale critical (ii) Closure during the winter restricted habitat area specified under 50 CFR period—(A) Winter restricted period. The 226.203(a), with the exception of the sliver along the western boundary de- scribed in (d)(4)(i) here. The AA may 2 Fishers are also encouraged to maintain their buoy lines to be as knot-free as pos- revise these boundaries in accordance sible. Splices are not considered to be an en- with paragraph (g) of this section. tanglement threat and are thus preferable to (ii) Closure during the spring restricted knots. period—(A) Spring restricted period. The
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spring restricted period for the GSC (5) Stellwagen Bank/Jeffreys Ledge Re- Restricted Gillnet Area is from April 1 stricted Area—(i) Area. The Stellwagen through June 30 of each year unless the Bank/Jeffreys Ledge Restricted Area AA revises that period in accordance includes all Federal waters of the Gulf with paragraph (g) of this section. of Maine, except those designated as (B) Closure. During the spring re- right whale critical habitat under 50 stricted period, no person may set or CFR 226.203(b), that lie south of 43°15′ fish with anchored gillnet gear in the N. lat. and west of 70° W long. The AA GSC Restricted Gillnet Area unless the may change these boundaries in ac- AA specifies gear restrictions or alter- cordance with paragraph (g) of this sec- native fishing practices in accordance tion. with paragraph (g) of this section and (ii) Area-specific gear requirements. No the gear or practices comply with person may fish with anchored gillnet those specifications. gear in the Stellwagen Bank/Jeffreys (iii) Area-specific gear requirements for Ledge Restricted Area unless that gear the other restricted period—(A) Other re- complies with the gear marking re- stricted period. The other restricted pe- quirements specified in paragraph (b) riod for the GSC Restricted Gillnet of this section, the universal anchored Area is from July 1 though March 31 of gillnet gear requirements specified in each year unless the AA revises that (d)(1) of this section, and the area-spe- period in accordance with paragraph cific requirements listed in (d)(6)(ii) of (g) of this section. this section for the Other Northeast (B) During the other restricted pe- Gillnet Waters Area. The AA may re- riod, no person may fish with anchored vise these requirements in accordance gillnet gear in the GSC Restricted with paragraph (g) of this section. Gillnet Area unless that person’s gear (6) Other Northeast Gillnet Waters complies with the gear marking re- Area—(i) Area. The Other Northeast quirements specified in paragraph (b) Gillnet Waters Area consists of all U.S. of this section, the universal anchored waters west of the U.S./Canada border gillnet gear requirements specified in and north of a line extending due east (d)(1) of this section, and the area-spe- from the Virginia/North Carolina bor- cific requirements listed in (d)(6)(ii) of der with the exception of the CCB Re- this section for the Other Northeast stricted Area, Stellwagen Bank/Jef- Gillnet Waters Area. The AA may re- freys Ledge Restricted Area, GSC Re- vise these requirements in accordance stricted Gillnet Area, GSC Sliver Re- with paragraph (g) of this section. stricted Area, Mid-Atlantic Coastal (4) Great South Channel Sliver Re- Waters Area, and exempted waters list- stricted Area—(i) Area. The GSC Sliver ed in (a)(2) of this section. Restricted Area consists of the area (ii) Area-specific gear requirements. No bounded by lines connecting the fol- person may fish with anchored gillnet lowing points: 41°02.2′ N/69°02′ W, 41°43.5′ gear in the Other Northeast Gillnet N/69°36.3′ W, 41°40′ N/69°45′ W, and 41°00′ Waters Area unless that person’s gear N/69°05′ W. The AA may revise these complies with the gear marking re- boundaries in accordance with para- quirements specified in paragraph (b) graph (g) of this section. of this section, the universal anchored (ii) Area-specific gear requirements. No gillnet gear requirements specified in person may fish with anchored gillnet (d)(1) of this section, and the area-spe- gear in the GSC Sliver Restricted Area cific requirements listed below. The unless that gear complies with the gear AA may revise these requirements in marking requirements specified in accordance with paragraph (g) of this paragraph (b) of this section, the uni- section. versal anchored gillnet gear require- (A) Buoy line weak links. All buoy ments specified in (d)(1) of this section, lines must be attached to the main and the area-specific requirements list- buoy with a weak link meeting the fol- ed in subparagraph (d)(6)(ii) of this sec- lowing specifications: tion for the Other Northeast Gillnet (1) The weak link must be chosen Waters Area. The AA may revise these from the following list of combinations requirements in accordance with para- approved by the NMFS gear research graph (g) of this section. program: swivels, plastic weak links,
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rope of appropriate diameter, hog 1100 lb (498.8 kg). Weak links may in- rings, rope stapled to a buoy stick, or clude swivels, plastic weak links, rope other materials or devices approved in of appropriate diameter, hog rings, writing by the AA. rope stapled to a buoy stick, or other (2) The breaking strength of these materials or devices approved in writ- weak links must not exceed 1100 lb ing by the Assistant Administrator. (498.8 kg). (iii) Weak links with a breaking (3) Weak links must be designed such strength of up to 1100 lb (498.8 kg) are that the bitter end of the buoy line is installed in the float rope between net clean and free of any knots when the panels. link breaks. Splices are not considered (iv) All buoy lines are composed en- to be knots for the purposes of this pro- tirely of sinking line. vision. (e) Restrictions applicable to mid-Atlan- (B) Net panel weak links. All net pan- tic driftnet gear—(1) Restrictions. From els must contain weak links meeting December 1 through March 31 of the the following specifications: following year, no person may fish with (1) Weak links must be inserted in driftnet gear at night in the mid-Atlan- the center of the floatline (headrope) of tic coastal waters area unless that gear each net panel in a net string. is tended. During that time, all (2) The breaking strength of these driftnet gear set by that vessel in the weak links must not exceed 1100 lb mid-Atlantic coastal waters area must (498.8 kg). be removed from the water and stowed (C) Anchoring System. All anchored on board the vessel before a vessel re- gillnet strings containing 20 or fewer turns to port. The Assistant Adminis- net panels must be securely anchored trator may revise these requirements with one of the following anchoring in accordance with paragraph (g) of systems: this section. (1) Anchors with the holding power of (f) Restrictions applicable to shark at least a 22 lb (10.0 kg) Danforth-style gillnet gear—(1) Management areas—(i) anchor at each end of the net string, Southeast U.S. restricted area. The (2) Dead weights weighing at least 50 southeast U.S. restricted area consists lb (22.7 kg) at each end of the net of the area from 32°00′ N lat. (near Sa- string, or vannah, GA) south to 27°51′ N lat. (near (3) A lead line weighing at least 100 lb Sebastian Inlet, FL), extending from (45.4 kg) per 300 ft (91.4 m) for each net the shore eastward to 80°00′ W long., panel in the net string. unless the Assistant Administrator (7) Mid-Atlantic Coastal Waters Area— changes that area in accordance with (i) Area. The mid-Atlantic Coastal Wa- paragraph (g) of this section. ters Area is defined in § 229.2. (ii) Southeast U.S. observer area. The (ii) Gear requirements. From December southeast U.S. observer area consists 1 through March 31, no person may fish of the southeast U.S. restricted area with anchored gillnets in the Mid-At- and an additional area along the coast lantic Coastal Waters Area unless that south to 26°46.5′ N lat. (near West Palm person’s gear complies with at least Beach, FL) and extending from the one of the characteristics of the Gillnet shore eastward out to 80°00′ W long., Take Reduction Technology List in unless the Assistant Administrator paragraph (d)(8) of this section. The As- changes that area in accordance with sistant Administrator may revise these paragraph (g) of this section. requirements in accordance with para- (2) Gear marking requirements. From graph (g) of this section. November 15 through March 31 of the (8) Gillnet Take Reduction Technology following year, no person may fish with List. The following gear characteristics gillnet gear in the southeast U.S. ob- comprise the Gillnet Take Reduction server area unless that gear is marked Technology List: according to the gear marking code (i) All buoy lines are 7⁄16 inches (1.11 specified under paragraph (b) of this cm) in diameter or less. section. All buoy lines must be marked (ii) All buoys are attached to the within 2 ft (0.6 m) of the top of the buoy line with a weak link having a buoy line and midway along the length maximum breaking strength of up to of the buoy line. From November 15,
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1999, each net panel must be marked whale occurs in the Cape Cod Bay crit- along both the float line and the lead ical habitat from January 1 through line at least once every 100 yards (92.4 May 15, in the Great South Channel m). Restricted Area from April 1 through (3) Restrictions—(i) Observer require- June 30, or in the Southeast U.S. Re- ment. No person may fish with shark stricted Area from November 15 gillnet gear in the southeast U.S. ob- through March 31 as a result of an en- server area from November 15 through tanglement by lobster or gillnet gear March 31 of the following year unless allowed to be used in those areas and the operator of the vessel calls the SE times, the Assistant Administrator Regional Office in St. Petersburg, FL, shall close that area to that gear type not less than 48 hours prior to depart- for the rest of that time period and for ing on any fishing trip in order to ar- that same time period in each subse- range for observer coverage. If the Re- quent year, unless the Assistant Ad- gional Office requests that an observer ministrator revises the restricted pe- be taken on board a vessel during a riod in accordance with paragraph fishing trip at any time from November (g)(2) of this section or unless other 15 through March 31 of the following measures are implemented under para- year, no person may fish with shark graph (g)(2). gillnet gear aboard that vessel in the (2) Other special measures. The Assist- southeast U.S. observer area unless an ant Administrator may revise the re- observer is on board that vessel during quirements of this section through a the trip. publication in the FEDERAL REGISTER (ii) Closure. Except as provided under if: paragraph (f)(3)(iii) of this section, no (i) NMFS verifies that certain gear person may fish with shark gillnet gear characteristics are both operationally in the southeast U.S. restricted area effective and reduce serious injuries during the closed period. The closed pe- and mortalities of endangered whales; riod for this area is from November 15 (ii) New gear technology is developed through March 31 of the following year, and determined to be appropriate; unless the Assistant Administrator (iii) Revised breaking strengths are changes that closed period in accord- determined to be appropriate; ance with paragraph (g) of this section. (iv) New marking systems are devel- (iii) Special provision for strikenets. oped and determined to be appropriate; Fishing for sharks with strikenet gear (v) NMFS determines that right is exempt from the restriction under whales are remaining longer than ex- paragraph (f)(3)(ii) of this section if: pected in a closed area or have left ear- (A) No nets are set at night or when lier than expected; visibility is less than 500 yards (460 m). (vi) NMFS determines that the (B) Each set is made under the obser- boundaries of a closed area are not ap- vation of a spotter plane. propriate; (C) No net is set within 3 nautical (vii) Gear testing operations are con- miles of a right, humpback, fin or sidered appropriate; or minke whale. (viii) Similar situations occur. (D) If a right, humpback, fin or [64 FR 7552, Feb. 16, 1999, as amended at 65 minke whale moves within 3 nautical FR 70317, Nov. 22, 2000; 65 FR 80377, Dec. 21, miles of the set gear, the gear is re- 2000] moved immediately from the water. (g) Other provisions. In addition to § 229.33 Harbor Porpoise Take Reduc- any other emergency authority under tion Plan Implementing Regula- the Marine Mammal Protection Act, tions—Gulf of Maine. the Endangered Species Act, the Mag- (a) Restrictions—(1) Northeast Closure nuson-Stevens Fishery Conservation Area. From August 15 through Sep- and Management Act, or other appro- tember 13 of each fishing year, it is priate authority, the Assistant admin- prohibited to fish with, set, haul back, istrator may take action under this possess on board a vessel unless section in the following situations: stowed, or fail to remove sink gillnet (1) Entanglements in critical habitat. If gear or gillnet gear capable of catching a serious injury or mortality of a right multispecies, from Northeast Closure
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Area. This prohibition does not apply MASSACHUSETTS BAY CLOSURE AREA to a single pelagic gillnet (as described and used as set forth in § 648.81(f)(2)(ii) Point N. Lat. W. Long. of this title). The Northeast Closure MB1 42°30′ (1) Area is the area bounded by straight MB2 42°30′ 70°30′ MB3 42°12′ 70°30′ lines connecting the following points in MB4 42°12′ 70°00′ the order stated: MB5 (2)70°00′ MB6 42°00′ (2) NORTHEAST CLOSURE AREA MC7 42°00′ (1) 1 Massachusetts shoreline. Point N. Lat. W. Long. 2 Cape Cod shoreline. NE1 (1)68°55.0′ (4) Cape Cod South Closure Area. From NE2 43°29.6′ 68°55.0′ December 1 through May 31, it is pro- NE3 44°04.4′ 67°48.7′ NE4 44°06.9′ 67°52.8′ hibited to fish with, set, haul back, NE5 44°31.2′ 67°02.7′ possess on board a vessel unless NE6 (1)67°02.7′ stowed, or fail to remove sink gillnet 1 Maine shoreline. gear or gillnet gear capable of catching (2) Mid-coast Closure Area. From Sep- multispecies from Cape Cod South Clo- tember 15 through May 31, it is prohib- sure Area, except with the use of ited to fish with, set, haul back, pos- pingers as provided in paragraph (d)(3) sess on board a vessel unless stowed, or of this section. This prohibition does fail to remove sink gillnet gear or not apply to a single pelagic gillnet (as gillnet gear capable of catching multi- described in § 648.81(f)(2)(ii) of this species. This prohibition does not apply title). The Cape Cod South Closure to a single pelagic gillnet (as described Area is the area bounded by straight and used as set forth in § 648.81(f)(2)(ii) lines connecting the following points in of this title). The Mid-Coast Closure the order stated: Area is the area bounded by straight lines connecting the following points in CAPE COD SOUTH CLOSURE AREA the order stated: Point N. Lat. W. Long.
MID-COAST CLOSURE AREA CCS1 (1)71°45′ CCS2 40°40′ 71°45′ Point N. Lat. W. Long. CCS3 40°40′ 70°30′ CCS4 (2)70°30′ ° ′ 1 MC1 42 30 ( ) 1 ° ′ ° ′ Rhode Island shoreline. MC2 42 30 70 15 2 Massachusetts shoreline. MC3 42°40′ 70°15′ MC4 42°40′ 70°00′ (5) Offshore Closure Area. From No- MC5 43°00′ 70°00′ vember 1 through May 31, it is prohib- MC6 43°00′ 69°30′ MC7 43°30′ 69°30′ ited to fish with, set, haul back, pos- MC8 43°30′ 69°00′ sess on board a vessel unless stowed, or MC9 (2)69°00′ fail to remove sink gillnet gear or 1 Massachusetts shoreline. gillnet gear capable of catching multi- 2 Maine shoreline. species from Offshore Closure Area, ex- (3) Massachusetts Bay Closure Area. cept for the use of pingers as provided From December 1 through May 31, it is in § 229.33(d)(4). This prohibition does prohibited to fish with, set, haul back, not apply to a single pelagic gillnet (as possess on board a vessel unless described in § 648.81(f)(2)(ii) of this stowed, or fail to remove sink gillnet title). The Offshore Closure Area is the gear or gillnet gear capable of catching area bounded by straight lines con- multispecies from the Massachusetts necting the following points in the Bay Closure Area, except with the use order stated: of pingers as provided in paragraph (d)(2) of this section. This prohibition OFFSHORE CLOSURE AREA does not apply to a single pelagic gillnet (as described in § 648.81(f)(2)(ii) Point N. Lat. W. Long. of this title). The Massachusetts Bay OFS1 42°50′ 69°30′ Closure Area is the area bounded by OFS2 43°10′ 69°10′ OFS3 43°10′ 67°40′ straight lines connecting the following OFS4 42°10′ 67°40′ points in the order stated: OFS5 42°10′ 69°30′
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OFFSHORE CLOSURE AREA—Continued (a)(2) of this section, may fish in the Mid-coast Closure Area from Sep- Point N. Lat. W. Long. tember 15 through May 31 of each fish- OFS6 42°50′ 69°30′ ing year, provided that pingers are used in accordance with the require- (6) Cashes Ledge Closure Area. For the ments of paragraphs (b) (1) and (2) of month of February of each fishing this section. year, it is prohibited to fish with, set, (2) Vessels, subject to the restrictions haul back, possess on board a vessel and regulations specified in paragraph unless stowed, or fail to remove sink (a)(3) of this section, may fish in the gillnet gear or gillnet gear capable of Massachusetts Bay Closure Area from catching multispecies from the Cashes December 1 through the last day of Ledge Closure Area. This prohibition February and from April 1 through does not apply to a single pelagic May 31 of each fishing year, provided gillnet (as described in § 648.81(f)(2)(ii) that pingers are used in accordance of this title). The Cashes Ledge Closure Area is the area bounded by straight with the requirements of paragraphs lines connecting the following points in (b) (1) and (2) of this section. the order stated: (3) Vessels, subject to the restrictions and regulations specified in paragraph CASHES LEDGE CLOSURE AREA (a)(4) of this section, may fish in the Cape Cod South Closure Area from De- Point N. Lat. W. Long. cember 1 through the last day of Feb- CL1 42°30′ 69°00′ ruary and from April 1 through May 31 CL2 42°30′ 68°30′ of each fishing year, provided that CL3 43°00′ 68°30′ CL4 43°00′ 69°00′ pingers are used in accordance with the CL5 42°30′ 69°00′ requirements of paragraphs (b) (1) and (2) of this section. (b) Pingers—(1) Pinger specifications. (4) Vessels, subject to the restrictions For the purposes of this subpart, a and regulations specified in paragraph pinger is an acoustic deterrent device (a)(5) of this section, may fish in the which, when immersed in water, broad- Offshore Closure Area from November 1 casts a 10 kHz (±2 kHz) sound at 132 dB through May 31 of each fishing year, (±4 dB) re 1 micropascal at 1 m, lasting with the exception of the Cashes Ledge ± 300 milliseconds ( 15 milliseconds), and Closure Area. From February 1 ± repeating every 4 seconds ( .2 seconds). through the end of February, the area (2) Pinger attachment. An operating within the Offshore Closure Area de- and functional pinger must be attached fined as ‘‘Cashes Ledge’’ is closed to all at the end of each string of the gillnets fishing with sink gillnets. Vessels sub- and at the bridle of every net within a ject to the restrictions and regulation string of nets. specified in paragraph (a)(5) of this sec- (c) Pinger training and certification. Beginning on January 1, 1999, the oper- tion may fish in the Offshore Closure ator of a vessel may not fish with, set Area outside the Cashes Ledge Area or haul back sink gillnets or gillnet from February 1 through the end of gear, or allow such gear to be in closed February provided that pingers are areas where pingers are required as used in accordance with the require- specified under paragraph (b) of this ments of paragraphs (b) (1) and (2) of section, unless the operator has satis- this section. factorily completed the pinger certifi- (e) Other special measures. The Assist- cation training program and possesses ant Administrator may revise the re- on board the vessel a valid pinger quirements of this section through no- training certificate issued by NMFS. tification published in the FEDERAL Notice will be given announcing the REGISTER if: times and locations of pinger certifi- (1) After plan implementation, NMFS cation training programs. determines that pinger operating effec- (d) Use of pingers in closed areas—(1) tiveness in the commercial fishery is Vessels, subject to the restrictions and inadequate to reduce bycatch to the regulations specified in paragraph PBR level with the current plan.
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(2) NMFS determines that the bound- Charts 1:80,000 scale), and as described in 33 ary or timing of a closed area is inap- CFR part 80. propriate, or that gear modifications (b) Closures—(1) New Jersey waters. (including pingers) are not reducing by- From April 1 through April 20, it is catch to below the PBR level. prohibited to fish with, set, haul back, [63 FR 66487, Dec. 2, 1998; 63 FR 71042, Dec. 23, possess on board a vessel unless 1998] stowed, or fail to remove any large mesh gillnet gear from the waters off § 229.34 Harbor Porpoise Take Reduc- New Jersey. tion Plan—Mid-Atlantic. (2) Mudhole. From February 15 (a)(1) Regulated waters. The regula- through March 15, it is prohibited to tions in this section apply to all waters fish with, set, haul back, possess on in the Mid-Atlantic bounded on the board a vessel unless stowed, or fail to east by 72°30′ W. longitude and on the remove any large mesh or small mesh south by the North Carolina/South gillnet gear from the waters off New Carolina border (33°51′ N. latitude), ex- Jersey known as the Mudhole. cept for the areas exempted in para- (3) Southern Mid-Atlantic waters. From graph (a)(2) of this section. February 15 through March 15, it is (2) Exempted waters. All waters land- prohibited to fish with, set, haul back, ward of the first bridge over any possess on board a vessel unless embayment, harbor, or inlet will be ex- stowed, or fail to remove any large empted. The regulations in this section mesh gillnet gear from the southern do not apply to waters landward of the Mid-Atlantic waters. following lines: (c) Gear requirements and limita- tions—(1) Waters off New Jersey—large New York mesh gear requirements and limitations. 40° 45.70′ N 72° 45.15′ W TO 40° 45.72′ N 72° 45.30′ From January 1 through April 30 of W (Moriches Bay Inlet) each year, no person may fish with, 40° 37.32′ N 73° 18.40′ W TO 40° 38.00′ N 73° 18.56′ set, haul back, possess on board a ves- W (Fire Island Inlet) sel unless stowed, or fail to remove any 40° 34.40′ N 73° 34.55′ W TO 40° 35.08′ N 73° 35.22′ large mesh gillnet gear in waters off W (Jones Inlet) New Jersey, unless the gear complies New Jersey/Delaware with the specified gear characteristics. During this period, no person who owns 39° 45.90′ N 74° 05.90′ W TO 39° 45.15′ N 74° 06.20′ W (Barnegat Inlet) or operates the vessel may allow the 39° 30.70′ N 74° 16.70′ W TO 39° 26.30′ N 74° 19.75′ vessel to enter or remain in waters off W (Beach Haven to Brigantine Inlet) New Jersey with large mesh gillnet 38° 56.20′ N 74° 51.70′ W TO 38° 56.20′ N 74° 51.90′ gear on board, unless the gear complies W (Cape May Inlet) with the specified gear characteristics All marine and tidal waters landward of or unless the gear is stowed. In order to the 72 COLREGS demarcation line (Inter- comply with these specified gear char- national Regulations for Preventing Colli- acteristics, the gear must have all the sions at Sea, 1972), as depicted or noted on following characteristics: nautical charts published by NOAA (Coast (i) Floatline length. The floatline is no Charts 1:80,000 scale), and as described in 33 longer than 4,800 ft (1,463.0 m), and, if CFR part 80. (Delaware Bay) the gear is used in the Mudhole, the Maryland/Virginia floatline is no longer than 3,900 ft 38° 19.48′ N 75° 05.10′ W TO 38° 19.35′ N 75° 05.25′ (1,188.7 m). W (Ocean City Inlet) (ii) Twine size. The twine is at least 37° 52.′ N 75° 24.30′ W TO 37° 11.90′ N 75° 48.30′ 0.04 inches (0.090 cm) in diameter. W (Chincoteague to Ship Shoal Inlet) (iii) Size of nets. Individual nets or 37° 11.10′ N 75° 49.30′ W TO 37° 10.65′ N 75° 49.60′ net panels are not more than 300 ft W (Little Inlet) (91.44 m, or 50 fathoms), in length. 37° 07.00′ N 75° 53.75′ W TO 37° 05.30′ N 75° 56.′ (iv) Number of nets. The total number W (Smith Island Inlet) of individual nets or net panels for a North Carolina vessel, including all nets on board the All marine and tidal waters landward of vessel, hauled by the vessel or deployed the 72 COLREGS demarcation line (Inter- by the vessel, does not exceed 80. national Regulations for Preventing Colli- (v) Tie-down system. The gillnet is sions at Sea, 1972), as depicted or noted on equipped with tie-downs spaced not nautical charts published by NOAA (Coast more than 15 ft (4.6 m) apart along the
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floatline, and each tie-down is not may allow the vessel to enter or re- more than 48 inches (18.90 cm) in length main in Southern Mid-Atlantic waters from the point where it connects to the with large mesh sink gillnet gear on floatline to the point where it connects board, unless the gear complies with to the lead line. the specified gear characteristics or (vi) Tagging requirements. Beginning unless the gear is stowed. In order to January 1, 2000, the gillnet is equipped comply with these specified gear char- with one tag per net, with one tag se- acteristics, the gear must have all the cured to each bridle of every net within following characteristics: a string of nets. (i) Floatline length. The floatline is no (2) Waters off New Jersey—small mesh longer than 3,900 ft (1,188.7 m). gillnet gear requirements and limitations. (ii) Twine size. The twine is at least From January 1 through April 30 of 0.04 inches (0.090 cm) in diameter. each year, no person may fish with, (iii) Size of nets. Individual nets or set, haul back, possess on board a ves- net panels are not more than 300 ft (91.4 sel unless stowed, or fail to remove any m or 50 fathoms) in length. small mesh gillnet gear in waters off (iv) Number of nets. The total number New Jersey, unless the gear complies of individual nets or net panels for a with the specified gear characteristics. vessel, including all nets on board the During this period, no person who owns vessel, hauled by the vessel or deployed or operates the vessel may allow the by the vessel, does not exceed 80. vessel to enter or remain in waters off New Jersey with small mesh gillnet (v) Tie-down system. The gillnet is gear on board, unless the gear complies equipped with tie-downs spaced not with the specified gear characteristics more than 15 ft (4.6 m) apart along the or unless the gear is stowed. In order to floatline, and each tie-down is not comply with these specified gear char- more than 48 inches (18.90 cm) in length acteristics, the gear must have all the from the point where it connects to the following characteristics: floatline to the point where it connects (i) Floatline length. The floatline is to the lead line. less than 3,000 ft (914.4 m). (vi) Tagging requirements. Beginning (ii) Twine size. The twine is at least January 1, 2000, the gillnet is equipped 0.031 inches (0.081 cm) in diameter. with one tag per net, with one tag se- (iii) Size of nets. Individual nets or cured to each bridle of every net within net panels are not more than 300 ft (91.4 a string of nets. m or 50 fathoms) in length. (4) Southern Mid-Atlantic waters—small (iv) Number of nets. The total number mesh gillnet gear requirements and limita- of individual nets or net panels for a tions. From February 1 through April vessel, including all nets on board the 30 of each year, no person may fish vessel, hauled by the vessel or deployed with, set, haul back, possess on board a by the vessel, does not exceed 45. vessel unless stowed, or fail to remove (v) Tie-down system. Tie-downs are any small mesh gillnet gear in waters prohibited. off New Jersey, unless the gear com- (vi) Tagging requirements. Beginning plies with the specified gear character- January 1, 2000, the gillnet is equipped istics. During this period, no person with one tag per net, with one tag se- who owns or operates the vessel may cured to each bridle of every net within allow the vessel to enter or remain in a string of nets. Southern Mid-Atlantic waters with (3) Southern Mid-Atlantic waters—large small mesh gillnet gear on board, un- mesh gear requirements and limitations. less the gear complies with the speci- From February 1 through April 30 of fied gear characteristics or unless the each year, no person may fish with, gear is stowed. In order to comply with set, haul back, possess on board a ves- these specified gear characteristics, sel unless stowed, or fail to remove any the gear must have all the following large mesh gillnet gear in Southern characteristics: Mid-Atlantic waters, unless the gear (i) Floatline length. The floatline is no complies with the specified gear char- longer than 2118 ft (645.6 m). acteristics. During this period, no per- (ii) Twine size. The twine is at least son who owns or operates the vessel 0.03 inches (0.080 cm) in diameter.
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(iii) Size of nets. Individual nets or quirements of this section through no- net panels are not more than 300 ft (91.4 tification published in the FEDERAL m or 50 fathoms) in length. REGISTER if: (iv) Number of nets. The total number (1) After plan implementation, NMFS of individual nets or net panels for a determines that pinger operating effec- vessel, including all nets on board the tiveness in the commercial fishery is vessel, hauled by the vessel or deployed inadequate to reduce bycatch to the by the vessel, does not exceed 45. PBR level with the current plan. (v) Tie-down system. Tie-downs are (2) NMFS determines that the bound- prohibited. ary or timing of a closed area is inap- (vi) Tagging requirements. Beginning January 1, 2000, the gillnet is equipped propriate, or that gear modifications with one tag per net, with one tag se- (including pingers) are not reducing by- cured to each bridle of every net within catch to below the PBR level. a string of nets. [63 FR 66489, Dec. 2, 1998, as amended at 66 (d) Other special measures. The Assist- FR 2338, Jan. 11, 2001] ant Administrator may revise the re-
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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 products, Federal, Military, Veterans An application for inspection service 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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§ 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 Signature llllllll 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 needed to pay Fund claims and ex- from the coast of Texas or Florida). 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; (ii) The name of the commercial fish- (2) If the damage or loss occurred 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 ...... 321
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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. westward from the mainland of the 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 1950 (Act) and the Atlantic Tunas Con- Fish aggregating device (FAD) means a vention Act of 1975. The regulations manmade raft or other floating object provide a mechanism to carry out the used to attract tuna and make them recommendations of the Inter-Amer- available to fishing vessels. ican Tropical Tuna Commission Fishing trip means a period of time (IATTC) for the conservation and man- between landings when fishing is con- agement of highly migratory fish re- ducted. sources in the Eastern Tropical Pacific Fishing vessel means any vessel, boat, Ocean so far as they affect vessels and ship, or other craft that is used for, persons subject to the jurisdiction of equipped to be used for, or of a type the United States. They also carry out that is normally used for fishing or for the recommendations of the Inter- assisting or supporting a vessel en- national Commission for the Conserva- gaged in fishing, except purse seine tion of Atlantic Tunas for the con- skiffs. servation of bluefin tuna, so far as they Floating object means any natural ob- affect vessels and persons subject to ject or FAD around which fishing ves- the jurisdiction of the United States. sels may catch tuna. Incidental catch or incidental species [64 FR 44430, Aug. 16, 1999] means species caught while fishing § 300.21 Definitions. with the primary purpose of catching a 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 means the sub- Thunnus thynnus that is found in any Pacific bluefin tuna ocean area. species of bluefin tuna Thunnus thynnus orientalis that is found in the Commission’s Yellowfin Regulatory Pacific Ocean. Area (CYRA) means the waters bounded by a line extending westward from the Regional Administrator means the Ad- mainland of North America along the ministrator, Southwest Region, NMFS, 40° N. latitude parallel, and connecting or his designee. the following coordinates: Tag means the dealer tag, a flexible self-locking ribbon issued by NMFS for 40° N. lat., 125° W. long.; the identification of bluefin tuna under 20° N. lat., 125° W. long.; § 300.26, or the BSD tag specified under ° ° 20 N. lat., 120 W. long.; § 635.42 (a)(2) of this title. 5° N. lat., 120° W. long.; 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 ing operations. along the 30° S. latitude parallel to the Transship means to unload fish from coast of South America. a vessel that caught fish to another Convention Area means the waters vessel. within the area bounded by the main- Transshipment receiving vessel means land of the Americas, lines extending any vessel, boat, ship, or other craft
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that is used to receive fish from a fish- States to engage in fishing for research ing vessel. purposes. [61 FR 35550, July 5, 1996, as amended at 64 (b) Any person or vessel engaged in FR 29133, May 28, 1999; 64 FR 44430, Aug. 16, sport fishing for personal use. 1999] § 300.24 Pacific bluefin tuna—Dealer § 300.22 Yellowfin tuna—Record- permits. keeping and written reports. (a) General. A dealer importing Pa- The master or other person in charge cific bluefin tuna, or purchasing or re- of a fishing vessel, or a person author- ceiving for export Pacific bluefin tuna ized in writing to serve as the agent for first landed in the United States, must either person, must keep an accurate have a valid permit issued under this log of all operations conducted from section. the fishing vessel, entering for each (b) Application. A dealer must apply day the date, noon position (stated in for a permit in writing on an appro- latitude and longitude or in relation to known physical features), and the ton- priate form obtained from NMFS. The nage of fish on board, by species. The application must be signed by the deal- record and bridge log maintained at er and be submitted to NMFS at least the request of the IATTC shall be suffi- 30 days before the date upon which the cient to comply with this paragraph, dealer desires to have the permit made provided the items of information spec- effective. The application must contain ified are accurately entered in the log. the following information: Company name, principal place of business, own- EFFECTIVE DATE NOTE: At 66 FR 49320, Sept. 27, 2001, § 300.22 was amended by revis- er’s or owners’ names, applicant’s ing the section heading, designating the ex- name (if different from owner or own- isting paragraph as (a) and adding new para- ers) and mailing address and telephone graph (b), effective Oct. 29, 2001. For the con- number, and any other information re- venience of the user, the revised and added quired by NMFS. text is set forth as follows: (c) Issuance. (1) Except as provided in § 300.22 Recordkeeping and reporting. subpart D of 15 CFR part 904, NMFS will issue a permit within 30 days of re- * * * * * ceipt of a completed application. (2) NMFS will notify the applicant of (b) The owner of any fishing vessel that uses purse seine, longline, drift gillnet, har- any deficiency in the application. If poon, or troll fishing gear to harvest tuna in the applicant fails to correct the defi- the Convention Area for sale or a person au- ciency within 15 days following the thorized in writing to serve as agent for the date of notification, the application owner must provide such information about will be considered abandoned. the vessel and its characteristics as the Re- gional Administrator requests to conform to (d) Duration. Any permit issued under IATTC actions to establish a regional reg- this section is valid until December 31 ister of all vessels used to fish for species of the year for which it is issued, un- under IATTC purview in the Convention less suspended or revoked. Area. This initially includes, but is not lim- (e) Alteration. Any permit that is sub- ited to, vessel name and registration num- stantially altered, erased, or mutilated ber; a photograph of the vessel with the reg- istration number showing; vessel length, is invalid. beam and moulded depth; gross tonnage and (f) Replacement. NMFS may issue re- hold capacity in cubic meters and tonnage; placement permits. An application for engine horsepower; date and place where a replacement permit is not considered built; and type of fishing method or methods a new application. used. (g) Transfer. A permit issued under § 300.23 Yellowfin tuna—Persons and this section is not transferable or as- vessels exempted. signable; it is valid only for the dealer This subpart does not apply to: to whom it is issued. (a) Any person or vessel authorized (h) Inspection. The dealer must keep by the IATTC, the Assistant Adminis- the permit issued under this section at trator, or any state of the United his/her principal place of business. The
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permit must be displayed for inspec- kilograms (specify if round or dressed); tion upon request of any authorized of- and any other information required by ficer, or any employee of NMFS des- NMFS. At the top of each form, the ignated by NMFS for such purpose. company’s name, license number, and (i) Sanctions. The Assistant Adminis- the name of the person filling out the trator may suspend, revoke, modify, or report must be specified. In addition, deny a permit issued or sought under the beginning and ending dates of the this section. Procedures governing per- 2-week reporting period must be speci- mit sanctions and denials are found at fied by the dealer and noted at the top subpart D of 15 CFR part 904. of the form. (j) Fees. NMFS may charge a fee to (b) Must allow an authorized officer, recover the administrative expenses of or any employee of NMFS designated permit issuance. The amount of the fee by NMFS for this purpose, to inspect is calculated, at least annually, in ac- and copy any records of transfers, pur- cordance with the procedures of the chases, or receipts of Pacific bluefin NOAA Finance Handbook, available from NMFS, for determining adminis- tuna. trative costs of each special product or (c) Must retain at his/her principal service. The fee may not exceed such place of business a copy of each bi- costs and is specified on each applica- weekly report for a period of 2 years tion form. The appropriate fee must ac- from the date on which it was sub- company each application. Failure to mitted to NMFS. pay the fee will preclude issuance of [61 FR 35550, July 5, 1996, as amended at 64 the permit. Payment by a commercial FR 29133, May 28, 1999] instrument later determined to be in- sufficiently funded shall invalidate any § 300.26 Pacific bluefin tuna—Tags. permit. (a) Issuance. NMFS will issue num- (k) Change in application information. bered tags to each person receiving a Within 15 days after any change in the dealer’s permit under § 300.24. information contained in an applica- tion submitted under this section, the (b) Transfer. Tail tags issued under dealer issued a permit must report the this section are not transferable and change to NMFS in writing. The per- are usable only by the permitted dealer mit is void if any change in informa- to whom they are issued. tion is not reported within 15 days. (c) Affixing tags. At the discretion of 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 § 300.25 Pacific bluefin tuna—Dealer bluefin tuna purchased or received by recordkeeping and reporting. the dealer. If so tagged, the tag must Any person issued a dealer permit be affixed to the tuna between the fifth under § 300.24: dorsal finlet and the keel and tag num- (a) Must submit to NMFS a biweekly bers must be recorded on NMFS reports report on bluefin imports and exports required by § 300.25(a) and any docu- on forms supplied by NMFS. ments accompanying the shipment of (1) The report required to be sub- Pacific bluefin tuna for domestic com- mitted under this paragraph (a) must mercial use or export. be postmarked within 10 days after the (d) Removal. A NMFS-issued num- end of each 2-week reporting period in bered tag affixed to any Pacific bluefin which Pacific bluefin tuna were ex- tuna at the option of any permitted ported. The bi-weekly reporting periods dealer under paragraph (c) of this sec- are defined as the first day to the 15th tion or any tag affixed to any Pacific day of each month and the 16th day to bluefin tuna to meet the requirements the last day of the month. of § 635.42(a)(2) of this title must remain (2) Each report must specify accu- on the tuna until the tuna is cut into rately and completely for each tuna or portions. If the tuna or tuna parts sub- each shipment of bulk-frozen tuna ex- sequently are packaged for transport ported: Date of landing or import; any for domestic commercial use or for ex- tag number (if so tagged); weight in port, the number on each tag attached
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to each tuna or its parts must be writ- (g) Reuse any NMFS-issued numbered ten legibly and indelibly on the outside tag affixed to a Pacific bluefin tuna at of any package or container. the option of a permitted dealer or any (e) Reuse. Tags issued under this sec- tag affixed to a Pacific bluefin tuna to tion are separately numbered and may meet the requirements of § 635.42(a)(2) be used only once, one tail tag per fish, of this title or reuse any tag number to distinguish the purchase of one Pa- previously written on a shipping pack- cific bluefin tuna. Once affixed to a age or container as prescribed by tuna or recorded on any package, con- § 300.26. tainer or report, a tail tag and associ- [61 FR 35550, July 5, 1996, as amended at 64 ated number may not be reused. FR 29133, May 28, 1999; 64 FR 44430, Aug. 16, [61 FR 35550, July 5, 1996, as amended at 64 1999] FR 29133, May 28, 1999] EFFECTIVE DATE NOTE: At 66 FR 49320, Sept. 27, 2001, § 300.28 was amended by adding § 300.27 Pacific bluefin tuna—Docu- paragraphs (h) through (l), effective Oct. 29, mentation requirements. 2001. For the convenience of the user, the Bluefin tuna imported into, or ex- added text is set forth as follows: ported or re-exported from the customs § 300.28 Prohibitions. territory of the United States is sub- ject to the documentation require- * * * * * ments specified in §§ 635.41 through 635.44 of this title. (h) Fail to retain any bigeye, skipjack, or yellowfin tuna brought on board a purse [64 FR 29133, May 28, 1999] seine vessel in the Convention Area, except fish unfit for human consumption due to § 300.28 Prohibitions. spoilage, and except on the last set of the trip if the well capacity is filled; In addition to the prohibitions in (i) When using purse seine gear to fish for § 300.4, it is unlawful for any person or tuna in the Convention Area, fail to release vessel subject to the jurisdiction of the any non-tuna species as soon as practicable United States to: after being identified on board the vessel (a) Land any species of tuna during during the brailing operation; the closed season for that species in ex- (j) Land any non-tuna fish species taken in cess of the amount allowed by the Re- a purse seine set in the Convention Area; gional Administrator. (k) Fail to use the sea turtle handling, re- lease, and resuscitation procedures in § (b) Fish on floating objects in the 300.29(e); or Convention Area using any gear type (l) Fail to report information when re- specified by the Regional Administra- quested by the Regional Administrator tor’s notification of closure issued under § 300.21. under § 300.29. (c) Use tender vessels in the Conven- § 300.29 Eastern Pacific fisheries man- tion Area. agement. (d) Transship purse seine-caught tuna (a) Notification of IATTC recommenda- at sea within the Convention Area. tions. The Regional Administrator will (e) Import Pacific bluefin tuna or directly notify owners or agents of U.S. purchase or receive for export Pacific tuna vessels of any fishery manage- bluefin tuna first landed in the United ment recommendations made by the States without a valid dealer permit IATTC and approved by the Depart- issued under § 300.24. ment of State that will affect fishing (f) Remove any NMFS-issued num- or other activities by U.S. parties with bered tag affixed to any Pacific bluefin fishery interests in the Convention tuna at the option of any permitted Area. As soon as practicable after such dealer or any tag affixed to a Pacific notification, the Regional Adminis- bluefin tuna to meet the requirements trator will announce approved IATTC of § 635.42(a)(2) of this title, before re- recommendations in the FEDERAL REG- moval is allowed under § 300.26, or fail ISTER. to write the tag number on the ship- (b) Tuna quotas. (1) Fishing seasons ping package or container as specified for all tuna species begin on January 1 in § 300.26. and end either on December 31 or when
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NMFS closes the fishery for a specific (e) Bycatch reduction measures. (1) Through species. December 31, 2001, all purse seine vessels (2) The Regional Administrator may must retain on board and land all bigeye, close the U.S. fishery for yellowfin, skipjack, and yellowfin tuna brought on board the vessel after a set, except fish bigeye, or skipjack tuna or any other deemed unfit for human consumption for tuna species in the Convention Area or other than reason of size. This requirement portion of the Convention Area when shall not apply to the last set of a trip if the advised by the Director of Investiga- available well capacity is insufficient to ac- tions of the IATTC that the associated commodate the entire fish catch brought on quota has been or is projected to be board. reached. Any such closure may include: (2) All purse seine vessels must release all (i) An allowance for an incidental sharks, billfishes, rays, mahimahi (dorado), and other non-tuna fish species, except those catch that may be landed while fishing being retained for consumption aboard the for other tuna species; vessel, as soon as practicable after being (ii) A prohibition on the further set- identified on board the vessel during the ting of specified gear types on floating brailing operation. objects by U.S. vessels in the Conven- (3) All purse seine vessels must apply spe- tion Area; cial sea turtle handling and release proce- (iii) Provisions for vessels that are at dures, as follows: sea during an announced closure to fish (i) Whenever a sea turtle is sighted in the unrestricted until the fishing trip is net, a speedboat shall be stationed close to completed; the point where the net is lifted out of the water to assist in release of the turtle; (iv) Provisions for vessels at sea with (ii) If a turtle is entangled in the net, net an observer on board during any clo- roll shall stop as soon as the turtle comes sure to land fish unrestricted if the out of the water and shall not resume until landing occurs after December 31; or the turtle has been disentangled and re- (v) Other measures to ensure that the leased; conservation and management meas- (iii) If, in spite of the measures taken ures of the IATTC are achieved. under paragraphs (e)(3)(i) and (ii) of this sec- (3) The Regional Administrator will tion, a turtle is accidentally brought on- announce any such closures directly to board the vessel alive and active, the vessel’s engine shall be disengaged and the turtle the owners or agents of U.S. vessels shall be released as quickly as practicable; who are fishing in or are eligible to fish (iv) If a turtle brought on board under in the Convention Area. paragraph (e)(3)(iii) of this section is alive (4) As soon as practicable after being but comatose or inactive, the resuscitation advised of the quota attainment or pro- procedures described in § 223.206(d)(1)(i)(B) of jection under paragraph (b)(2) of this this title shall be used before release of the section, the Regional Administrator turtle. will publish an announcement of the closure in the FEDERAL REGISTER. Subpart D—South Pacific Tuna (c) Use of tender vessels. No person Fisheries subject to these regulations may use a tender vessel in the Convention Area. AUTHORITY: 16 U.S.C. 973–973r. (d) Transshipments at sea. No person subject to these regulations may trans- § 300.30 Purpose and scope. ship purse seine-caught tuna from one vessel to another vessel at sea within This subpart implements the South the Convention Area. Pacific Tuna Act of 1988 (Act) and the Treaty on Fisheries Between the Gov- [64 FR 44431, Aug. 16, 1999] ernments of Certain Pacific Island EFFECTIVE DATE NOTE: At 66 FR 49320, States and the Government of the Sept. 27, 2001, § 300.29 was amended by adding United States of America (Treaty) and paragraph (e), effective Oct. 29, 2001. For the applies to persons and vessels subject convenience of the user, the added text is set to the jurisdiction of the United forth as follows: States. § 300.29 Eastern Pacific fisheries manage- ment. § 300.31 Definitions. In addition to the terms defined in * * * * * § 300.2, in the Act, and in the Treaty,
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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 scribed in this paragraph; or aircraft vessel when in the Licensing Area or use, relating to the activities described Closed Areas and must be produced at in this definition, except for flights in the request of authorized officers, au- emergencies involving the health or thorized party officers, or authorized safety of crew members or the safety of inspectors. Prior to receipt of the li- a vessel. cense, but after issuance, a vessel may Fishing arrangement means an ar- be used to fish, provided the number of rangement between a Pacific Island the issued license is available on board. Party and the owner of a U.S. fishing (c) Application forms for licenses to vessel that complies with section 6(b) use a vessel to fish in the Licensing of the Act. Area may be requested from, and upon
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completion, must be returned to, the all risks and liabilities normally cov- Regional Administrator. All of the in- ered by maritime liability insurance; formation requested on the form and or the following must be supplied before (4) The owner or charterer has not the application will be considered com- paid any final penalty assessed by the plete: Secretary in accordance with the Act. (1) The licensing period for which the (g) An applicant will be promptly no- license is requested. tified if that applicant’s license appli- (2) The name of an agent, located in cation will not be forwarded to the Ad- Port Moresby, Papua New Guinea, who, ministrator, and of the reasons there- on behalf of the license holder, will re- for. Within 15 days of notification by ceive and respond to any legal process 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 ply with each of the applicable na- charterer will be financially able to tional laws, and the operator of the fulfill any and all responsibilities vessel shall be responsible for the com- under the Treaty, Act, and regulations, pliance by the vessel and its crew with including the payment of any penalties each of the applicable national laws, or fines. and the vessel shall be operated in ac- (5) A copy of the vessel’s USCG Cer- cordance with those laws. tificate of Documentation. (d) The number of available licenses § 300.34 Reporting requirements. are set forth in Schedule 2 of Annex II 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 (c) Information provided by license Administrator if: holders under Schedule 6 of Annex I of (1) The application is not in accord the Treaty shall be provided on the with the Treaty, Act, or regulations; designated Forum Fisheries Agency (2) The owner or charterer is the sub- form(s) to the Regional Administrator ject of proceedings under the bank- within 2 days of completing unloading. ruptcy laws of the United States, and (d) Any information required to be reasonable financial assurances have recorded, or to be notified, commu- not been provided to the Secretary nicated or reported pursuant to a re- that the owner or charterer will be fi- quirement of these regulations, the nancially able to fulfill any and all re- sponsibilities under the Treaty, Act, Act, or the Treaty shall be true, com- and regulations, including the payment plete and correct. Any change in cir- of any penalties or fines; cumstances that has the effect of ren- (3) The owner or charterer has not es- dering any of the information provided tablished to the satisfaction of the Sec- false, incomplete or misleading shall be retary that the vessel will be fully in- communicated immediately to the Re- sured for the licensing period against gional Administrator.
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§ 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 number being at least 1 m high and tions of any fishing arrangement to having a stroke width of 16.7 cm, with which that person is a party. the background extending to provide a (4) To use a vessel for fishing in a border around the mark of not less Limited Area in violation of the re- than 16.7 cm. quirements set forth in Schedule 3 of (b) On the vessel’s deck, on the body Annex I of the Treaty on ‘‘Limited of any helicopter and on the hull of any Areas’’. skiff, with each letter and number (5) To use a vessel for fishing in any being at least 30 cm high, and having a Closed Area. stroke width of 5 cm with the back- (6) To refuse to permit any author- ground extending to provide a border ized officer or authorized party officer around the mark of not less than 5 cm. to board a fishing vessel for purpose of (c) On any other equipment being conducting a search or inspection in carried by and intended to be separated connection with the enforcement of the from the vessel during normal fishing Act or the Treaty. operations, with each letter and num- (7) To refuse to comply with the in- ber being at least 10 cm high and hav- structions of an authorized officer or ing a stroke width of 1.7 cm, with the authorized party officer relating to background extending to provide a bor- fishing activities under the Treaty. der around the mark of not less than (8) To refuse to permit an authorized 1.7 cm. inspector full access to any place where § 300.36 Closed area stowage require- fish taken in the Licensing Area is un- ments. loaded. At all times while a vessel is in a (9) To refuse to allow an authorized Closed Area, the fishing gear of the inspector to remove samples of fish vessel shall be stowed in a manner as from a vessel that fished in the Licens- not to be readily available for fishing. ing Area. In particular, the boom shall be low- (10) To forcibly assault, resist, op- ered as far as possible so that the ves- pose, impede, intimidate, or interfere sel cannot be used for fishing, but so with: that the skiff is accessible for use in (i) Any authorized officer, authorized emergency situations; the helicopter, if party officer or authorized inspector in any shall be tied down; and launches the conduct of a search or inspection in shall be secured. connection with the enforcement of these regulations, the Act or the Trea- § 300.37 Radio monitoring. ty; or The international distress frequency, (ii) An observer in the conduct of ob- 2.182 mHz, and 156.8 mHz (Channel 16, server duties under the Treaty. VHF) shall be monitored continuously (11) To transship fish on board a ves- from the vessel for the purpose of fa- sel that fished in the Licensing Area,
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except in accordance with the condi- § 300.41 Investigation notification. tions set out in parts 3 and 4 of Annex Upon commencement of an investiga- I to the Treaty. tion under section 10(b)(1) of the Act, (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 (a) Following an investigation con- fishing after the revocation of its li- ducted under section 10(b) of the Act, cense, or during the period of suspen- the Secretary, with the concurrence of sion of an applicable license. the Secretary of State, and upon the (5) To operate a vessel in such a way request of the Pacific Island Party con- as to disrupt or in any other way ad- cerned, may order a fishing vessel that versely affect the activities of tradi- has not submitted to the jurisdiction of tional and locally based fishermen and that Pacific Island Party to leave im- fishing vessels. mediately the Licensing Area, all Lim- (6) To use a vessel to fish in a manner ited Areas, and all Closed Areas upon inconsistent with an order issued by making a finding that: the Secretary under § 300.42 (section 11 (1) The fishing vessel— of the Act). (i) While fishing in the Licensing (7) Except for circumstances involv- Area did not have a license under the ing force majeure and other emer- Treaty to fish in the Licensing Area, gencies involving the health or safety and that under paragraph 2 of Article 3 of crew members or the safety of the of the Treaty, the fishing is not au- vessel, to use aircraft in association thorized to be conducted in the Licens- with fishing activities of a vessel, un- ing Area without a license; less it is identified on the license appli- (ii) Was involved in any incident in cation for the vessel, or any amend- which an authorized officer, authorized ment thereto. party officer, or observer was allegedly assaulted with resultant bodily harm, § 300.39 Exceptions. physically threatened, forcibly re- (a) The prohibitions of § 300.38 and the sisted, refused boarding or subjected to licensing requirements of § 300.32 do not physical intimidation or physical in- apply to fishing for albacore tuna by terference in the performance of duties as authorized by the Act or the Treaty; vessels using the trolling method out- (iii) Has not made full payment with- side of the 200 nautical mile fisheries in 60 days of any amount due as a re- zones of the Pacific Island Parties. sult of a final judgement or other final (b) The prohibitions of § 300.38(a)(4), determination deriving from a viola- (a)(5), and (b)(3) do not apply to fishing tion in waters within the Treaty Area under the terms and conditions of a of a Pacific Island Party; or fishing arrangement. (iv) Was not represented by an agent for service of process in accordance § 300.40 Civil penalties. with the Treaty; or The procedures of 15 CFR part 904 (2) There is probable cause to believe apply to the assessment of civil pen- that the fishing vessel— alties, except as modified by the re- (i) Was used in violation of section quirements of section 8 of the Act. 5(a)(4), (a)(5), (b)(2), or (b)(3) of the Act;
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(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. expense to the Pacific Island Parties, (b) Upon being advised by the Sec- with food, accommodation and medical retary of State that proper notification facilities of reasonable standard as to Parties has been made under para- may be acceptable to the Pacific Island graph 7 of Article 5 of the Treaty that Party whose representative is serving a Pacific Island Party is investigating as the observer. an alleged infringement of the Treaty by a vessel in waters under the juris- § 300.44 Other inspections. diction of that Pacific Island Party, 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- Subpart E—Pacific Halibut server under the Treaty by the Pacific 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- fied by the Pacific Island Parties to the § 300.60 Purpose and scope. 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- sel’s records, including its log and doc- Sea (Convention). umentation for the purpose of inspec- § 300.61 Definitions. tion and copying; have reasonable ac- cess to navigation equipment, charts, In addition to the terms defined in and radios, and gather any other infor- § 300.2 and those in the Act and the mation relating to fisheries in the Li- Convention, the terms used in this sub- censing Area. part have the following meanings. If a (3) To disembark at the point and term is defined differently in § 300.2, the time notified by the Pacific Island Par- Act, or the Convention, the definition ties to the Secretary. in this section shall apply.
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Area 2A includes all waters off the Skokomish, Suquamish, Swinomish, States of California, Oregon, and Wash- and Tulalip tribes. ington. [61 FR 35550, July 5, 1996, as amended at 64 Charter vessel means a vessel used for FR 52469, Sept. 29, 1999] hire in sport fishing for halibut, but not including a vessel without a hired § 300.62 Annual management meas- operator. ures. Commercial fishing means fishing, the Annual management measures may resulting catch of which either is, or is be added and modified through adop- intended to be, sold or bartered. tion by the Commission and publica- Fishing means the taking, harvesting, tion in the FEDERAL REGISTER by the or catching of fish, or any activity that Assistant Administrator, with imme- can reasonably be expected to result in diate regulatory effect. Such measures the taking, harvesting, or catching of may include, inter alia, provisions gov- fish, including specifically the deploy- erning: Licensing of vessels, inseason ment of any amount or component part actions, regulatory areas, fishing peri- of setline gear anywhere in the mari- ods, closed periods, closed areas, catch time area. limits (quotas), fishing period limits, size limits, careful release of halibut, Individual Fishing Quota (IFQ), for vessel clearances, logs, receipt and pos- purposes of this subpart, means the an- session of halibut, fishing gear, reten- nual catch limit of halibut that may be tion of tagged halibut, supervision of harvested by a person who is lawfully unloading and weighing, and sport fish- allocated a harvest privilege for a spe- ing for halibut. The Assistant Adminis- cific portion of the TAC of halibut. trator will publish the Commission’s IFQ fishing trip, for purposes of the regulations setting forth annual man- subpart, means the period beginning agement measures in the FEDERAL when a vessel operator commences har- REGISTER by March 15 each year. An- vesting IFQ halibut and ending when nual management measures may be ad- the vessel operator lands any species. justed inseason by the Commission. IFQ halibut means any halibut that is harvested with fixed gear in any IFQ § 300.63 Catch sharing plans, local regulatory area. area management plans, and do- Overall length of a vessel means the mestic management measures. horizontal distance, rounded to the Catch sharing plans (CSP) and local nearest ft/meter, between the foremost area management plans (LAMP) may part of the stem and the aftermost part be developed by the appropriate re- of the stern (excluding bowsprits, rud- gional fishery management council, ders, outboard motor brackets, and and approved by NMFS, for portions of similar fittings or attachments). the fishery. Any approved CSP or Person includes an individual, cor- LAMP may be obtained from the Ad- poration, firm, or association. ministrator, Northwest Region, or the Administrator, Alaska Region. Setline gear means one or more sta- (a) The catch sharing plan for area tionary, buoyed, and anchored lines 2A provides a framework that shall be with hooks attached. applied to the annual Area 2A total al- Sport fishing means all fishing other lowable catch (TAC) adopted by the than commercial fishing and treaty In- Commission, and shall be implemented dian ceremonial and subsistence fish- through domestic and Commission reg- ing. ulations, which will be published in the Subarea 2A–1 includes all U.S. waters FEDERAL REGISTER each year before off the coast of Washington that are March 15. The Area 2A CSP allocates north of 46°53′18″ N. lat. and east of halibut among the treaty Indian fish- 125°44′00″ W. long., and all inland ma- ery, segments of the non-Indian com- rine waters of Washington. mercial fishery, and segments of the Treaty Indian tribes means the Hoh, recreational fishery. Jamestown S’Klallam, Lower Elwha (1) Each year, before January 1, S’Klallam, Lummi, Makah, Port Gam- NMFS will publish a proposal to govern ble S’Klallam, Quileute, Quinault, the recreational fishery under the CSP
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for the following year and will seek to groundfish limited entry permits public comment. The comment period with sablefish endorsements and that will extend until after the Commis- possess the appropriate incidental hal- sion’s annual meeting, so the public ibut harvest license issued by the Com- will have the opportunity to consider mission. the final area 2A total allowable catch (ii) It is unlawful for any person to (TAC) before submitting comments. possess or land halibut south of 46°53′18′ After the Commission’s annual meet- N. lat that were taken and retained ing and review of public comments, north of 46°53′18′ N. lat. as incidental NMFS will publish in the FEDERAL catch authorized by this section in the REGISTER the final rule governing sport directed longline sablefish fishery. fishing in area 2A. Annual management (4) The commercial longline fishery measures may be adjusted inseason by in area 2A is governed by the annual NMFS. management measures published pur- (2) A portion of the commercial TAC suant to §§ 300.62 and 300.63. is allocated as incidental catch in the (5) The treaty Indian fishery is gov- salmon troll fishery in Area 2A. Each erned by § 300.64 and tribal regulations. year the landing restrictions necessary The annual quota for the fishery will to keep the fishery within its alloca- be announced with the Commission tion will be recommended by the Pa- regulations under § 300.62 cific Fishery Management Council at (b) The catch sharing plan for area 4 its spring meetings, and will be pub- allocates the annual TAC among Areas lished in the FEDERAL REGISTER along with the annual salmon management 4C, 4D, and 4E, and will be imple- measures. mented by the Commission in annual (3) A portion of the Area 2A Wash- management measures published pur- ington recreational TAC is allocated as suant to § 300.62. incidental catch in the primary di- (c) (Applicable through December 31, rected longline sablefish fishery north 1999). A person may retain halibut of 46°53′18′ N. lat, (Pt. Chehalis, WA), taken with setline gear in Area 4E that which is regulated under 50 CFR are smaller than the size limit speci- 660.323(a)(2). This fishing opportunity is fied in the annual management meas- only available in years in which the ures published pursuant to § 300.62, pro- Area 2A TAC is greater than 900,000 lb vided that no person may sell or barter (408.2 mt,) provided that a minimum of such halibut. 10,000 lb (4.5 mt) is available above a (d) The LAMP for Sitka Sound pro- Washington recreational TAC of 214,100 vides guidelines for participation in lb (97.1 mt). Each year that this har- the halibut fishery in Sitka Sound. vest is available, the landing restric- (1) For purposes of § 300.63(d), Sitka tions necessary to keep this fishery Sound means (See Figure 1) to subpart within its allocation will be rec- E of the part: ommended by the Pacific Fishery Man- (i) With respect to § 300.63(d)(2), that agement Council at its spring meet- part of the Commission regulatory area ings, and will be published in the FED- 2C that is enclosed on the north and ERAL REGISTER. These restrictions will east by a line from Kruzof Island at be designed to ensure the halibut har- 57°20’30’’ N. lat., 135°45’10’’ W. long. to vest is incidental to the sablefish har- Chichagof Island at 57°22’03’’ N. lat., vest and will be based on the amounts 135°43’00’’ W. long., and a line from of halibut and sablefish available to Chichagof Island at 57°22’35’’ N. lat., this fishery, and other pertinent fac- 135°41’18’’ W. long. to Baranof Island at tors. The restrictions may include 57°22’17’’ N. lat., 135°40’57’’ W. long.; and catch or landing ratios, landing limits, is enclosed on the south and west by a or other means to control the rate of line from Cape Edgecumbe at 56°59’54’’ halibut landings. N. lat., 135°51’27’’ W. long. to Vasilief (i) In years when this incidental har- Rock at 56°48’56’’ N. lat., 135°32’30’’ W. vest of halibut in the directed sablefish long. to the green day marker in Doro- fishery north of 46°53′18′ N. lat. is al- thy Narrows at 56°49’17’’ N. lat., lowed, it is allowed only for vessels 135°22’45’’ W. long. to Baranof Island at using longline gear that are registered 56°49’17’’ N. lat., 135°22’36’’ W. long.
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(ii) With respect to § 300.63(d)(3) and CFR 300.61, for other species within (4), that part of the Commission regu- Sitka Sound, as defined in paragraph latory area 2C that is enclosed on the (d)(1)(ii) of this section, from June 1 north and east by a line from Kruzof Is- through August 31. land at 57°20’30’’ N. lat., 135°45’10’’ W. (e) Prohibition on halibut fishing and long. to Chichagof Island at 57°22’03’’ N. anchoring in the Sitka Pinnacles Marine lat., 135°43’00’’ W. long., and a line from Reserve. (1) For purposes of this para- Chichagof Island at 57°22’35’’ N. lat., graph (e), the Sitka Pinnacles Marine 135°41’18’’ W. long. to Baranof Island at Reserve means an area totaling 2.5 57°22’17’’ N. lat., 135°40’57’’ W. lat.; and square nm off Cape Edgecumbe, defined is enclosed on the south and west by a by straight lines connecting the fol- line running from Sitka Point at lowing points in a counterclockwise 56°59’23’’ N. lat., 135°49’34’’ W. long., to manner: Hanus Point at 56°51’55’’ N. lat., 56°55.5′N lat., 135°54.0′W long; 135°30’30’’ W. long., to the green day 56°57.0′N lat., 135°54.0′W long; ° 56°57.0′N lat., 135°57.0′W long; marker in Dorothy Narrows at 56 49’17’’ ° ′ ° ′ ° 56 55.5 N lat., 135 57.0 W long. N. lat., 135 22’45’’ W. long. to Baranof (2) No person shall engage in sport ° ° Island at 56 49’17’’ N. lat., 135 22’36’’ W. fishing, as defined in § 300.61, for hal- long. ibut within the Sitka Pinnacles Marine (2) A person using a vessel greater Reserve. than 35 ft (10.7 m) in overall length, as (3) No person shall anchor a vessel defined in § 300.61, is prohibited from within the Sitka Pinnacles Marine Re- fishing for IFQ halibut with setline serve if halibut is on board. gear, as defined in § 300.61, within Sitka Sound as defined in paragraph (d)(1)(i) [61 FR 35550, July 5, 1996, as amended at 63 of this section. FR 13009, Mar. 17, 1998; 63 FR 24752, May 5, 1998; 64 FR 52469, Sept. 29, 1999; 65 FR 67308, (3) A person using a vessel less than Nov. 9, 2000; 65 FR 8373, Jan. 31, 2001; 66 FR or equal to 35 ft (10.7 m) in overall 36208, July 11, 2001; 66 FR 42156, Aug. 10, 2001] length, as defined in § 300.61: (i) Is prohibited from fishing for IFQ § 300.64 Fishing by U.S. treaty Indian halibut with setline gear within Sitka tribes. Sound, as defined in paragraph (d)(1)(ii) (a) Halibut fishing in subarea 2A–1 by of this section, from June 1 through members of U.S. treaty Indian tribes August 31; and located in the State of Washington is (ii) Is prohibited, during the remain- governed by this section. der of the designated IFQ season, from (b) Commercial fishing for halibut by retaining more than 2,000 lbs. (0.91 mt) treaty Indians is permitted only in sub- of IFQ halibut within Sitka Sound, as area 2A–1 with hook-and-line gear in defined in paragraph (d)(1)(ii) of this conformance with the season and quota section, per IFQ fishing trip, as defined established annually by the Commis- in 50 CFR 300.61. sion. (4) No charter vessel, as defined in (c) Commercial fishing periods and § 300.61, shall engage in sport fishing, as management measures to implement defined in § 300.61, for halibut within paragraph (b) of this section will be es- Sitka Sound, as defined in paragraph tablished by treaty Indian tribal regu- (d)(1)(ii) of this section, from June 1 lations. through August 31. (d) Commercial fishing for halibut by (i) No charter vessel shall retain hal- treaty Indians shall comply with the ibut caught while engaged in sport Commission’s management measures fishing, as defined in § 300.61, for other governing size limits, careful release of species, within Sitka Sound, as defined halibut, logs, and fishing gear (pub- in paragraph (d)(1)(ii) of this section, lished pursuant to § 300.62), except that from June 1 through August 31. the 72-hour fishing restriction pre- (ii) Notwithstanding paragraphs ceding the opening of a halibut fishing (d)(4) and (4)(i) of this section, halibut period shall not apply to treaty Indian harvested outside Sitka Sound, as de- fishing. fined in (d)(1)(ii) of this section, may be (e) Ceremonial and subsistence fish- retained onboard a charter vessel en- ing for halibut by treaty Indians in gaged in sport fishing, as defined in 50 subarea 2A–1 is permitted with hook-
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and-line gear from January 1 to De- ing under this section must have on his cember 31. or her person a valid treaty Indian (f) No size or bag limits shall apply to identification card issued pursuant to the ceremonial and subsistence fishery, 25 CFR part 249, subpart A, and must except that when commercial halibut comply with the treaty Indian vessel fishing is prohibited pursuant to para- and gear identification requirements of graph (b) of this section, treaty Indians Final Decision No. 1 and subsequent or- may take and retain not more than ders in United States v. Washington 384 two halibut per person per day. F. Supp. 312 (W.D. Wash., 1974). (g) Halibut taken for ceremonial and (i) The following table sets forth the subsistence purposes shall not be of- fishing areas of each of the 12 treaty fered for sale or sold. Indian tribes fishing pursuant to this (h) Any member of a U.S. treaty In- section. Within subarea 2A–1, bound- dian tribe who is engaged in commer- aries of a tribe’s fishing area may be cial or ceremonial and subsistence fish- revised as ordered by a Federal Court.
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.
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§ 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; 66 FR 36208, July 11, 2001]
Subpart F—Fraser River Sockeye All-citizen means any person who is and Pink Salmon Fisheries not a treaty Indian fishing in that treaty Indian’s tribal treaty fishing places pursuant to treaty Indian tribal AUTHORITY: Pacific Salmon Treaty Act, 16 fishing regulations (whether in compli- U.S.C. 3636(b). ance with such regulations or not). § 300.90 Purpose and scope. Authorized officer means, in addition to those individuals identified under This subpart implements the Pacific authorized officer at § 300.2, any state, Salmon Treaty Act of 1985 (16 U.S.C. Federal, or other officer as may be au- 3631–3644) (Act) and is intended to sup- thorized by the Secretary in writing, plement, not conflict with, the fishery including any treaty Indian tribal en- regimes and Fraser River Panel regula- forcement officer authorized to enforce tions adopted under the Treaty be- tribal fishing regulations. tween the Government of the United Commission means the Pacific Salmon States of America and the Government Commission established by the Pacific of Canada Concerning Pacific Salmon, Salmon Treaty. signed at Ottawa, January 28, 1985 Consistent regulation or consistent (Treaty). order means any Federal, state, or trea- ty Indian tribal regulation or order § 300.91 Definitions. that is in addition to and not in con- In addition to the terms defined in flict with (at least as restrictive as) § 300.2 and those in the Act and the any regime of the Commission, Fraser Treaty, the terms used in this subpart River Panel regulation, inseason order have the following meanings. If a term of the Secretary, or these regulations. is defined differently in § 300.2, the Act, Fishing gear— or the Treaty, the definition in this (1) Gill net means a fishing net of sin- section shall apply. gle web construction, not anchored,
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tied, staked, placed, or weighted in to the nearest point of Cape Flattery, such a manner that it cannot drift. thence following the southerly shore of (2) Purse seine means all types of fish- Juan de Fuca Strait to Point Wilson, ing gear consisting of a lead line, cork on Whidbey Island, thence following line, auxiliary lines, purse line and the western shore of the said Whidbey purse rings and of mesh net webbing Island, to the entrance to Deception fashioned in such a manner that it is Pass, thence across said entrance to used to encircle fish, and in addition the southern side of Reservation Bay, prevent their escape under the bottom on Fidalgo Island, thence following the or lead line of the net by drawing in western and northern shore line of the the bottom of the net by means of the said Fidalgo Island to Swinomish purse line so that it forms a closed bag. 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 (2) The waters included within the 7E as defined in the Washington State following boundaries: Beginning at Administrative Code at Chapter 220–22 Bonilla Point, Vancouver Island, as of June 27, 1986. thence along the aforesaid direct line Fraser River Panel regulations means drawn from Bonilla Point to Tatoosh regulations applicable to the Fraser Lighthouse, Washington, described in River Panel Area that are rec- paragraph (1) of this definition, thence ommended by the Commission (on the
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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- the FEDERAL REGISTER. ing place is in the Fraser River Panel (d) Except as otherwise provided in Area (U.S.) or any assistant to a treaty this subpart, general provisions gov- Indian authorized to assist in accord- erning off-reservation fishing by treaty ance with § 300.95(d). Indians are found at 25 CFR part 249, Treaty Indian tribe means any of the subpart A. Additional general and spe- federally recognized Indian tribes of cific provisions governing treaty In- the State of Washington having fishing dian fisheries are found in regulations rights secured by treaty with the and laws promulgated by each treaty United States to fish for salmon stocks Indian tribe for fishermen fishing pur- subject to the Pacific Salmon Treaty suant to tribal authorization. in treaty fishing places within the Fra- (e) Nothing in this subpart relieves a ser River Panel Area (U.S.). Currently person from any other applicable re- these tribes are the Makah, Tribe, quirements lawfully imposed by the Lower Elwha Klallam Tribe, Port Gam- United States, the State of Wash- ble Klallam Tribe, Jamestown Klallam ington, or a treaty Indian tribe. Tribe, Suquamish Tribe, Lummi Tribe, Nooksack Tribe, the Swinomish Indian § 300.93 Reporting requirements. Tribal Community, and the Tulalip Any person fishing for sockeye or Tribe. pink salmon within the Fraser River Panel Area (U.S.) and any person re- § 300.92 Relation to other laws. ceiving or purchasing fish caught by (a) Insofar as they are consistent such persons are subject to State of with this part, any other applicable Washington reporting requirements at Federal law or regulation, or any appli- Washington Administrative Code, cable law and regulations of the State Chapter 220–69. Treaty Indian fisher- of Washington or of a treaty Indian men are subject also to tribal reporting tribe with treaty fishing rights in the requirements. No separate Federal re- Fraser River Panel Area (U.S.) will ports are required. continue to have force and effect in the Fraser River Panel Area (U.S.) with re- § 300.94 Prohibitions and restrictions. spect to fishing activities addressed In addition to the prohibitions in herein. § 300.4, the following prohibitions and (b) Any person fishing subject to this restrictions apply. subpart is bound by the international (a) In addition to the prohibited acts boundaries now recognized by the set forth in the Act at 16 U.S.C. 3637(a), United States within the Fraser River the following restrictions apply to
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sockeye and pink salmon fishing in the nial purposes pursuant to treaty Indian Fraser River Panel Area (U.S.): tribal regulations, for recreational pur- (1) The Fraser River Panel Area poses pursuant to recreational fishing (U.S.) is closed to sockeye and pink regulations promulgated by the State salmon fishing, unless opened by Fra- of Washington, or as otherwise author- ser River Panel regulations or by ized by treaty Indian tribal or State of inseason orders of the Secretary issued Washington law or regulation, provided under § 300.97 that give effect to orders that such treaty Indian tribal or State of the Fraser River Panel, unless such regulation is consistent with U.S.-ap- orders are determined not to be con- proved Commission fishery regimes, sistent with domestic legal obligations. Fraser River Panel regulations, or Such regulations and inseason orders inseason orders of the Secretary appli- may be further implemented by regula- cable to fishing in the Fraser River tions promulgated by the United Panel Area (U.S.). States, the State of Washington, or (d) The following types of fishing any treaty Indian tribe, which are also gear are authorized, subject to the re- consistent with domestic legal obliga- strictions set forth in this subpart and tions. according to the times and areas estab- (2) It is unlawful for any person or lished by Fraser River Panel regula- fishing vessel subject to the jurisdic- tions or inseason orders of the Sec- tion of the United States to fish for, or retary: take and retain, any sockeye or pink (1) All citizens: Gill net, purse seine, salmon: reef net, and troll fishing gear. Specific (i) Except during times or in areas restrictions on all citizens gear are that are opened by Fraser River Panel contained in the Washington State Ad- regulations or by inseason order, ex- ministrative Code of Chapter 220–47. cept that this provision will not pro- (2) Treaty Indians: Treaty Indian hibit the direct transport of legally fishing gear. caught sockeye or pink salmon to off- (e) Geographic descriptions of Puget loading areas. Sound Salmon Management and Catch (ii) By means of gear or methods not Reporting Areas, which are referenced authorized by Fraser River Panel regu- in the Commission’s regimes, Fraser lations, inseason orders, or other appli- River Panel regulations, and in cable Federal, state, or treaty Indian inseason orders of the Secretary, are tribal law. found in the Washington State Admin- (iii) In violation of any applicable istrative Code at Chapter 220–22. area, season, species, zone, gear, or mesh size restriction. § 300.95 Treaty Indian fisheries. (b) It is unlawful for any person or (a) Any treaty Indian must comply fishing vessel subject to the jurisdic- with this section when fishing for sock- tion of the United States to— eye and pink salmon at the treaty In- (1) Remove the head of any sockeye dian tribe’s treaty fishing places in the or pink salmon caught in the Fraser Fraser River Panel Area (U.S.) during River Panel Area (U.S.), or possess a the time the Commission or the Sec- salmon with the head removed, if that retary exercises jurisdiction over these salmon has been marked by removal of fisheries. Fishing by a treaty Indian the adipose fin to indicate that a coded outside the applicable Indian tribe’s wire tag has been implanted in the treaty fishing places will be subject to head of the fish. the Fraser River Panel regulations and (2) Fail to permit an authorized offi- inseason orders applicable to all citi- cer to inspect a record or report re- zens, as well as to the restrictions set quired by the State of Washington or forth in this section. treaty Indian tribal authority. (b) Nothing in this section will re- (c) Notwithstanding paragraph (a) of lieve a treaty Indian from any applica- this section, nothing in this subpart ble law or regulation imposed by a will be construed to prohibit the reten- treaty Indian tribe, or from require- tion of sockeye or pink salmon caught ments lawfully imposed by the United by any person while lawfully engaged States or the State of Washington in in a fishery for subsistence or ceremo- accordance with the requirements of
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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- Any treaty Indian who commits any graph (c) (1) or (2) of this section must act that is unlawful under this subpart be shown on demand to an authorized normally will be referred to the appli- officer by the treaty Indian or author- cable tribe for prosecution and punish- ized assistant. ment. If such tribe fails to prosecute (4) Any treaty Indian fishing under such persons in a diligent manner for this subpart must comply with the the offense(s) referred to the tribe, or if treaty Indian vessel and gear identi- other good cause exists, such treaty In- fication requirements of Final Decision dian may be subject to the penalties No. 1 and subsequent orders in United and procedures described in the Magnu- States v. Washington, 384 F. Supp. 312 son Act. (W.D. Wash., 1974). (d) Fishing assistance. (1) Any member § 300.97 Inseason orders. of a treaty Indian tribe fishing under (a) During the fishing season, the this subpart may, if authorized by the Secretary may issue orders that estab- treaty Indian’s tribe, receive fishing lish fishing times and areas consistent assistance from, and only from, the with the annual Commission regime treaty Indian tribal member’s spouse, and inseason orders of the Fraser River forebears, children, grandchildren, and Panel. Inseason orders will be con- siblings, as authorized by the U.S. Dis- sistent with domestic legal obligations. trict Court for the Western District of Violation of such inseason orders is Washington in United States v. Wash- violation of this subpart. ington, 384 F. Supp. 312 (W.D. Wash., (b) Notice of inseason orders. (1) Offi- 1974). For purposes of this section, the cial notice of such inseason orders is treaty Indian tribal member whom the available from NMFS (for orders appli- assistant is authorized to assist must cable to all-citizen fisheries) and from be present aboard the fishing vessel at the Northwest Indian Fisheries Com- all times while engaged in the exercise mission (for orders applicable to treaty of treaty Indian fishing rights subject Indian fisheries) through the following to this subpart. Area Code 206 toll-free telephone hot- (2) No treaty Indian may, while fish- lines: All-citizen fisheries: 1–800–562– ing at a treaty fishing place in accord- 6513; Treaty Indian fisheries: 1–800–562– ance with treaty-secured fishing rights, 6142.
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(2) Notice of inseason orders of the 45° S. 80° E. Secretary and other applicable tribal 55° S. 80° E. regulations may be published and re- 55° S. 150° E. leased according to tribal procedures in 60° S. 150° E. ° ° accordance with Final Decision No. 1 60 S. 50 W. 50° S. 50° W. and subsequent orders in United States 50° S. 0. v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974). Antarctic finfishes include the fol- (3) Inseason orders may also be com- lowing: municated through news releases to Scientific name Common name radio and television stations and news- papers in the Fraser River Panel Area Gobionotothen gibberifrons ... Humped rockcod. (U.S.). Notothenia rossii ...... Marbled rockcod. Lepidorhirus squamifrons ...... Grey rockcod. (4) Inseason orders of the Secretary Lepidonotothen kempi ...... Striped-eyed rockcod. will also be published in the FEDERAL Dissostichus eleginoides ...... Patagonian toothfish. REGISTER as soon as practicable after Dissostichus mawsoni ...... Antarctic toothfish. they are issued. Electrona carlsbergi ...... Lanternfish. Patagonothen brevicauda Patagonian rockcod. guntheri. Subpart G—Antarctic Marine Pleuragramma antarcticum ... Antarctic silverfish. Trematomus spp...... Antarctic cods. Living Resources Chaenocephalus aceratus ..... Blackfin icefish. Chaenodraco wilsoni ...... Spiny icefish. Champsocephalus gunnari .... Mackerel icefish. AUTHORITY: 16 U.S.C. 2431 et seq. Chionodraco rastrospinosus .. Ocellated icefish. Pseudochaenichthys South Georgia icefish. § 300.100 Purpose and scope. georgianus. (a) This subpart implements the Ant- arctic Marine Living Resources Con- Antarctic marine living resources or vention Act of 1984 (Act). AMLR(s) means: (b) This subpart regulates— (1) The populations of finfish, mol- (1) The harvesting of Antarctic ma- lusks, crustaceans, and all other spe- rine living resources or other associ- cies of living organisms, including ated activities by any person subject to birds, found south of the Antarctic the jurisdiction of the United States or Convergence; by any vessel of the United States. (2) All species of Dissostichus, wher- (2) The importation into the United ever found; and States of any Antarctic marine living (3) All parts or products of those pop- resource. ulations and species set forth in para- graphs (1) and (2) of this definition. § 300.101 Definitions. Commission means the Commission In addition to the terms defined in for the Conservation of Antarctic Ma- § 300.2, in the Act, and in the Conven- rine Living Resources established tion on the Conservation of Antarctic under Article VII of the Convention. Marine Living Resources, done at Can- Convention waters means all waters berra, Australia, May 7, 1980 (Conven- south of the Antarctic Convergence. tion). Convention, the terms used in Dealer means the person who first re- this subpart have the following mean- ceives AMLRs from a harvesting vessel ings. If a term is defined differently in or transshipment vessel or who imports § 300.2, such Act, or such Convention, AMLRs into, or re-exports AMLRs the definition in this section shall from, the United States. apply. Directed fishing, with respect to any ACA means the Antarctic Conserva- species or stock of fish, means any fish- tion Act of 1978 (16 U.S.C. 2401 et seq.). ing that results in such fish comprising Antarctic convergence means a line more than 1 percent by weight, at any joining the following points along the time, of the catch on board the vessel. parallels of latitude and meridians of Dissostichus catch document (DCD) longitude: means the uniquely numbered catch Lat. Long. documentation form approved by the 50° S. 0. Commission and issued by a flag state 50° S. 30° E. to its vessels authorized to harvest 45° S. 30° E. Dissostichus species. 350
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Dissostichus species means Patagonian § 300.102 Relationship to other trea- toothfish and/or Antarctic toothfish ties, conventions, laws, and regula- and their parts or products. tions. Fish means finfish, mollusks, and (a) Other conventions and treaties to crustaceans. which the United States is a party and Fishery means: other Federal statutes and imple- (1) One or more stocks of fish that menting regulations may impose addi- can be treated as a unit for purposes of tional restrictions on the harvesting conservation and management and and importation into the United States that are identified on the basis of geo- of AMLRs. graphical, scientific, technical, rec- reational, and economic characteris- (b) The ACA implements the Ant- tics. arctic Treaty Agreed Measures for the (2) Any fishing for such stocks. Conservation of Antarctic Fauna and Harvesting vessel means any vessel of Flora (12 U.S.T. 794). The ACA and its the United States (this includes any implementing regulations (45 CFR part boat, ship, or other craft), that is used 670) apply to certain defined activities for, equipped to be used for, or of a of U.S. citizens south of 60° S. lat. type that is normally used for har- (c) The Marine Mammal Protection vesting. Act of 1972 (16 U.S.C. 1361 et seq.), the Individual permit means an NSF per- Endangered Species Act of 1973 (16 mit issued under 45 CFR part 670; or an U.S.C. 1531 et seq.), the Migratory Bird NSF award letter (demonstrating that Treaty Act (16 U.S.C. 701 et seq.), and the individual has received an award their implementing regulations also from NSF to do research in the Ant- apply to the harvesting and importa- arctic); or a marine mammal permit tion of AMLRs. issued under § 216.31 of this chapter; or an endangered species permit issued § 300.103 Procedure for according pro- under § 222.21 of this chapter. tection to CCAMLR Ecosystem Mon- Inspection vessel means a vessel car- itoring Program Sites. rying a CCAMLR inspector and dis- (a) General. (1) Any person subject to playing the pennant approved by the the jurisdiction of the United States Commission to identify such vessel. must apply for and be granted an entry Land or landing means to begin off- permit authorizing specific activities loading any fish, to arrive in port with prior to entering a CCAMLR Eco- the intention of offloading any fish, or system Monitoring Program (CEMP) to cause any fish to be offloaded. Protected Site designated in accord- NSF means National Science Founda- ance with the CCAMLR Conservation tion, 4201 Wilson Boulevard, Arlington, Measure describing the Procedures for VA 22230. According Protection for CEMP Sites. Recreational fishing means fishing (2) If a CEMP Protected Site is also a with hook and line for personal use and site specially protected under the Ant- not for sale. arctic Treaty (or the Protocol on Envi- Scientific research activity means any ronmental Protection to the Antarctic activity for which a person has a per- Treaty and its Annexes, when it enters mit from NMFS under § 216.31 of this into force), an applicant seeking to title or an award letter from NSF or a enter such a Protected Site must apply permit from the NSF under 45 CFR to the Director of the NSF for a permit part 670. Scientific research activities under applicable provisions of the ACA may also include harvesting or other or any superseding legislation. The per- associated activities if such activities mit granted by NSF shall constitute a are designated as scientific research joint CEMP/ACA Protected Site permit activities by the Assistant Adminis- and any person holding such a permit trator. must comply with the appropriate Transship means the transfer of fish CEMP Protected Site Management or fish products from one vessel to an- Plan. In all other cases, an applicant other. seeking a permit to enter a CEMP Pro- [61 FR 35550, July 5, 1996, as amended at 65 tected Site must apply to the Assistant FR 30015, May 10, 2000] Administrator for a CEMP permit in
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accordance with the provisions of this the scientific purpose for the intended section. entry cannot be served elsewhere. (b) Responsibility of CEMP permit hold- (3) The actions permitted will not ers and persons designated as agents violate any provisions or prohibitions under a CEMP permit. (1) The CEMP of the Protected Site’s Management permit holder and person designated as Plan submitted in compliance with the agents under a CEMP permit are joint- CCAMLR Conservation Measure de- ly and severally responsible for compli- scribing the Procedures for According ance with the Act, this subpart, and Protection to CEMP Sites. any permit issued under this subpart. (f) Application process. An applicant (2) The CEMP permit holder and seeking a CEMP permit from the As- agents designated under a CEMP per- sistant Administrator to enter a CEMP mit are responsible for the acts of their Protected Site shall include the fol- employees and agents constituting vio- lowing in the application. lations, regardless of whether the spe- (1) A detailed justification that the cific acts were authorized or forbidden scientific objectives of the applicant by the CEMP permit holder or agents, cannot be accomplished elsewhere and and regardless of knowledge concerning a description of how said objectives their occurrence. will be accomplished within the terms (c) Prohibitions regarding the Antarctic of the Protected Site’s Management Treaty System and other applicable trea- Plan. ties and statutes. Holders of permits to (2) A statement signed by the appli- enter CEMP Protected Sites are not cant that the applicant has read and permitted to undertake any activities fully understands the provisions and within a CEMP Protected Site that are prohibitions of the Protected Site’s not in compliance with the provisions Management Plan. Prospective appli- of: cants may obtain copies of the relevant 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.
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(ii) The steps that the permit holder subject to the regulatory authority of may take to demonstrate or achieve the Act: compliance with all lawful require- (i) Seal Islands, South Shetland Is- ments. lands—The Seal Islands are composed (2) If a requested modification is not of islands and skerries located approxi- in compliance with the terms of the mately 7 km north of the northwest Protected Site’s Management Plan, the corner of Elephant Island, South Shet- Assistant Administrator will treat the land Islands. The Seal Islands CEMP requested modification as an applica- Protected Site includes the entire Seal tion for a new CEMP permit and so no- Islands group, which is defined as Seal tify the holder. Modifications will be Island plus any land or rocks exposed acted upon within 30 days of receipt. at mean low tide within a distance of The CEMP permit holder must report 5.5 km of the point of highest elevation to the Assistant Administrator any on Seal Island. Seal Island is situated change in previously submitted infor- at 60°59′14″ S. lat., 55°23′04″ W. long. mation within 10 days of the change. (ii) Cape Shirreff and the San Telmo Is- (3) Additional conditions and restric- lands. This designation takes effect on tions. The Assistant Administrator May 1, 1995. Cape Shirreff is a low, ice- may revise the CEMP permit effective free peninsula towards the western end upon notification of the permit holder, of the north coast of Livingston Island, to impose additional conditions and re- South Shetland Islands, situated at strictions as necessary to achieve the 62°29′ S. lat., 60°47′ W. long., between purposes of the Convention, the Act Barclay Bay and Hero Bay. San Telmo and the CEMP Management Plan. The Island is the largest of a small group of CEMP permit holder must, as soon as ice-free rock islets, approximately 2 possible, notify any and all agents op- km west of Cape Shirreff. The bound- erating under the permit of any and all aries of the Cape Shirreff CEMP Pro- revisions or modifications to the per- tected Site are identical to the bound- mit. aries of the Site of Special Scientific (k) Revocation or suspension. CEMP Interest No. 32, as specified by ATCM permits may be revoked or suspended Recommendation XV–7. No manmade based upon information received by the boundary markers indicate the limits Assistant Administrator and such rev- of the SSSI or protected site. The ocation or suspension shall be effective boundaries are defined by natural fea- upon notification to the permit holder. tures and include the entire area of the (1) A CEMP permit may be revoked Cape Shirreff peninsula north of the or suspended based on a violation of glacier ice tongue margin, and most of the permit, the Act, or this subpart. the San Telmo Island group. For the (2) Failure to report a change in the purposes of the protected site, the en- information submitted in a CEMP per- tire area of Cape Shirreff and the San mit application within 10 days of the Telmo Island group is defined as any change is a violation of this subpart land or rocks exposed at mean low tide and voids the application or permit, as within the area delimited by the map applicable. Title 15 CFR part 904 gov- of SSSI No. 32 and available from the erns permit sanctions under this sub- Assistant Administrator. part. (l) Exceptions. Entry into a Protected § 300.104 Scientific research. Site described in this section is lawful (a) The management measures issued if committed under emergency condi- pursuant to the procedures at § 300.111 tions to prevent the loss of human life, do not apply to catches of less than 5 compromise human safety, prevent the tons taken by any vessel for research loss of vessels or aircraft, or to prevent purposes, unless otherwise indicated. environmental damage. (b) Catches taken by any vessel for (m) Protected sites. (1) Sites protected research purposes will be considered as by the Antarctic Treaty and regulated part of any catch limit. under the ACA are listed at 45 CFR (c) The catch reporting procedure part 670 subparts G and H. identified in management measures (2) The following sites have been issued pursuant to the procedures at identified as CEMP Protected Sites § 300.111 applies whenever the catch
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within any 5-day reporting period ex- ported to the Assistant Administrator ceeds 5 tons, unless more specific re- using the CCAMLR C4 haul-by-haul re- porting requirements apply to the spe- porting format for research vessels. cies being fished. (d) Any person, organization or insti- § 300.105 Initiating a new fishery. tution planning to use a vessel for re- (a) A new fishery, for purposes of this search purposes, when the estimated section, is a fishery on a species using catch is expected to be less than 50 a particular method in a statistical tons, must provide the following vessel subarea for which: and research notification to the Assist- (1) Information on distribution, abun- ant Administrator at least 2 months in dance, demography, potential yield and advance of the planned research: stock identity from comprehensive re- (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: the fishery pending CCAMLR review. (1) The person must use the CCAMLR (c) The notification shall be accom- Format for Reporting Plans for Finfish panied by information on: Surveys in the Convention Area when (1) The nature of the proposed fish- the Total Catch is Expected to be More ery, including target species, methods Than 50 Tons to report the details of of fishing, proposed region and any the research plan to the Assistant Ad- minimum level of catches that would ministrator at least 7 months in ad- be required to develop a viable fishery. vance of the planned starting date for (2) Biological information from com- the research. A copy of the format is prehensive research/survey cruises, available from the Assistant Adminis- such as distribution, abundance, demo- trator. graphic data and information on stock (2) The format requires: identity. (i) The name of the CCAMLR Mem- (3) Details of dependent and associ- ber. ated species and the likelihood of them (ii) Survey details. being affected by the proposed fishery. (iii) Description of the vessel. (4) Information from other fisheries (iv) Description of the fishing gear to in the region or similar fisheries else- be used. where that may assist in the valuation (v) Description of acoustic gear to be of potential yield. used. (vi) Survey design and methods of § 300.106 Exploratory fisheries. data analyses. (a) An exploratory fishery, for pur- (vii) Data to be collected. poses of this section, is a fishery that (3) A summary of the results of any was previously defined as a new fishery research fishing subject to these provi- under § 300.105. sions must be provided to the Assistant (b) A fishery will continue to be clas- Administrator within 150 days of the sified as an exploratory fishery until completion of the research fishing and sufficient information is available to: a full report must be provided within 11 (1) Evaluate the distribution, abun- months. dance, and demography of the target (4) Catch and effort data resulting species, leading to an estimate of the from the research fishing must be re- fishery’s potential yield.
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(2) Review the fishery’s potential im- (3) Within the time specified in the pacts on dependent and related species. permit, submit a copy of such reports (3) Allow the CCAMLR Scientific and records to NMFS at an address des- Committee to formulate and provide ignated by NMFS. advice to the Commission on appro- (c) Catch documentation–-(1) General. priate harvest catch levels and fishing (i) The CCAMLR DCD must accompany gear. all shipments of Dissostichus species as (c) Each vessel participating in an required in this subsection. exploratory fishery must carry a sci- (ii) No shipment of Dissostichus spe- entific observer. cies shall be released for entry into the (d) The operator of any vessel engag- United States unless accompanied by a ing in an exploratory fishery must sub- complete and validated CCAMLR DCD, mit, by the date specified in the opera- except as provided in paragraph (c)(7) tor’s harvesting permit, catch, effort, of this section. and related biological, ecological, and (2) Harvesting vessels. (i) In addition environmental data as required by a to any harvesting permit or authoriza- data collection plan for the fishery for- tion previously issued, a U.S. vessel mulated by the CCAMLR Scientific harvesting or attempting to harvest Committee. Dissostichus species must possess a DCD (e) In addition to the requirements in issued by NMFS which is non- § 300.112, any individual planning to transferrable. The master of the har- enter an exploratory fishery must no- vesting vessel must ensure that the tify the Assistant Administrator no catch information specified on the DCD later than 4 months in advance of the is accurately recorded. annual meeting of CCAMLR. The As- (ii) Prior to offloading of Dissostichus sistant Administrator will not issue a species, the master of the harvesting permit to enter an exploratory fishery vessel must: until after the requirements of § 300.112 (A) electronically convey by the most have been met and the meeting of rapid means possible catch information CCAMLR, which receives and considers to NMFS and record on the DCD a con- the notice made to the Assistant Ad- firmation number received from ministrator, has been concluded. NMFS; (B) Obtain on the DCD (or copies § 300.107 Reporting and recordkeeping thereof) the signature(s) of the fol- requirements. lowing persons: if catch is offloaded for (a) Vessels. The operator of any vessel transshipment, the master of the ves- required to have a permit under this sel(s) to which the catch is transferred; subpart must: or if catch is offloaded for landing, the (1) Accurately maintain on board the signature of both the responsible offi- vessel a fishing logbook and all other cial(s) designated by NMFS in the har- reports and records required by its per- vesting permit, and the dealer(s) that mit; receives the catch at the port(s) of (2) Make such reports and records landing; and available for inspection upon the re- (C) Sign the DCD (or copies thereof), quest of an authorized officer or electronically convey by the most CCAMLR inspector; and rapid means possible each copy to (3) Within the time specified in the NMFS, and provide a copy to each re- permit, submit a copy of such reports cipient of the catch. and records to NMFS at an address des- (iii) The master of the harvesting ignated by NMFS. vessel must submit the original DCD (b) Dealers. Dealers of AMLRs re- (or all copies thereof with original sig- quired to have a permit under this sub- natures) to NMFS no later than 30 days part must: after the end of the fishing season as (1) Accurately maintain all reports authorized for that vessel on its har- and records required by their permits; vesting permit. (2) Make such reports and records (3) Transshipment vessels. (i) The mas- available for inspection upon the re- ter of a U.S. vessel issued a permit to quest of an authorized officer or transship Dissostichus species must, CCAMLR inspector; and upon receipt of Dissostichus species,
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sign each DCD provided by the master (iii) The original validated of the harvesting vessel. Dissostichus re-export document and (ii) Prior to landing Dissostichus spe- copies of the original DCD(s) must ac- cies, the master of the transshipping company the export shipment. vessel must: (iv) The dealer must retain a copy of (A) Obtain on each DCD (or copies the re-export document and copies of thereof) the signature(s) of both the re- the DCD(s)at his/her place of business sponsible official(s) designated by for a period of 2 years from the date on NMFS in the permit, and the dealer(s) the DCD. that receives the catch at the port(s) of (7) Exception. Dissostichus species har- landing and vested prior to the effective date of (B) Sign each DCD (or copies there- this rule may be imported during the of), and electronically convey by the first 60 days following the effective most rapid means possible each copy to date of this rule, provided that the date NMFS and to the flag state(s) of the of the harvest(s) are corroborated on harvesting vessel(s) and provide a copy the dealer permit. to each dealer receiving Dissostichus species. [65 FR 30016, May 10, 2000] (iii) The master of the transshipping § 300.108 Vessel and gear identifica- vessel must submit all DCDs with tion. original signatures to NMFS no later than 30 days after offloading and retain (a) Vessel identification. (1) The oper- copies for a period of 2 years. ator of each harvesting vessel assigned (4) Receivers upon landing. Any dealer an IRCS must display that call sign who receives Dissostichus species from a amidships on both the port and star- harvesting vessel or from a trans- board sides of the deckhouse or hull, so shipment vessel must sign the DCD(s) that it is visible from an enforcement provided by the master of the vessel. or inspection vessel, and on an appro- (5) Import. (i) Any dealer who imports priate weather deck so that it is visible Dissostichus species must: from the air. (A) Obtain the DCD(s) that accom- (2) The operator of each harvesting pany the import shipment; vessel not assigned an IRCS, such as a (B) Mail or fax the DCD(s) to NMFS small trawler associated with a within 24 hours of the release from cus- mothership or one of a pair of trawlers, toms custody, and must display the IRCS of the associ- (C) Retain a copy for his/her records ated vessel, followed by a numerical and provide copies to exporters as suffix specific for the non-assigned ves- needed. sel. (ii) Dealers must retain at their place (3) The vessel identification must be of business a copy of the DCD for a pe- in a color in contrast to the back- riod of 2 years from the date on the ground and must be permanently af- DCD. fixed to the harvesting vessel in block (6) Re-export. (i) Any dealer who re- roman alphabet letters and arabic nu- exports Dissostichus species must com- merals at least 1 m in height for har- plete a Dissostichus re-export document vesting vessels over 20 m in length, and by indicating: at least 0.5 m in height for all other (A) The amount from the original harvesting vessels. DCD(s) that is exported in the par- (b) Navigational lights and shapes. ticular export shipment; Each harvesting vessel must display (B) The number of the original the lights and shapes prescribed by the DCD(s); International Regulations for Pre- (C) The name of the importer and venting Collisions at Sea, 1972 (TIAS point of import; and 8587, and 1981 amendment TIAS 10672), (D) The exporter’s name, address and for the activity in which the har- permit number. vesting vessel is engaged (as described (ii) The dealer must then sign the re- at 33 CFR part 81). export document and obtain validation (c) Gear identification. (1) The oper- by a responsible official(s) designated ator of each harvesting vessel must en- by NMFS. sure that all deployed fishing gear that
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is not physically and continuously at- bags, oil drums, petroleum containers, tached to a harvesting vessel is clearly oil, toxic chemicals or any manmade marked at the surface with a buoy dis- items retrieved in a harvesting vessel’s playing the vessel identification of the gear. harvesting vessel (see paragraph (a) of (b) The operator of a harvesting ves- this section) to which the gear belongs, sel may not abandon fishing gear in a light visible for 2 miles at night in Convention waters. good visibility, and a radio buoy. Trawl (c) The operator of a harvesting ves- codends passed from one vessel to an- sel must provide a copy of the other are considered continuously at- CCAMLR information brochure ‘‘Ma- tached gear and do not have to be rine Debris—A Potential Threat to marked. Antarctic Marine Mammals’’ to each (2) The operator of each harvesting member of the crew of the harvesting vessel must ensure that deployed vessel and must display copies of the longlines, strings of traps or pots, and CCAMLR placard ‘‘Avoidance of Inci- gillnets are marked at the surface at dental Mortality of Antarctic Marine each terminal end with a buoy dis- Mammals’’ in the wheelhouse and crew playing the vessel identification of the quarters of the harvesting vessels. Cop- harvesting vessel to which the gear be- ies of the brochure and placard will be longs (see paragraph (a) of this sec- provided to each holder of a harvesting tion), a light visible for 2 miles at permit by NMFS when issuing the per- night in good visibility, and a radio mit. buoy. (3) Unmarked or incorrectly identi- § 300.110 Mesh size. fied fishing gear may be considered (a) The use of pelagic and bottom abandoned and may be disposed of in trawls having the mesh size in any part accordance with applicable Federal of a trawl less than indicated is prohib- regulations by any authorized officer ited for any directed fishing for the fol- or CCAMLR inspector. lowing Antarctic finfishes: (d) Maintenance. The operator of each harvesting vessel must: (1) Notothenia rossii and Dissostichus (1) Keep the vessel and gear identi- eleginoides—120 mm. fication clearly legible and in good re- (2) Champsocephalus gunnari—90 mm. pair. (3) Gobionotothen gibberifrons, (2) Ensure that nothing on the har- Notothenia kempi and Lepidorhirus vesting vessel obstructs the view of the squamifrons—80 mm. 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
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indication of the width may appear at selected in accordance with paragraph regular intervals other than 1 mm. (c)(3) of this section will be measured. (2) Use of the gauge. (i) The net will be The mesh size will then be recalculated stretched in the direction of the long in accordance with paragraph (c)(5) of diagonal of the meshes. this section, taking into account the 60 (ii) A gauge as described in paragraph meshes already measured; this recal- (c)(1) of this section will be inserted by culation will be the mesh size of the its narrowest extremity into the mesh net. opening in a direction perpendicular to (ii) If the captain of the vessel con- the plane of the net. tests the mesh size determined in ac- (iii) The gauge may be inserted into cordance with paragraph (c)(6)(i) of the mesh opening either with a manual this section, such measurement will force or using a weight or dynamom- not be considered for the determina- eter, until it is stopped at the tapering tion of the mesh size and the net will edges by the resistance of the mesh. be remeasured. (3) Selection of meshes to be measured. (A) A weight or dynamometer at- (i) Meshes to be measured will form a tached to the gauge will be used for re- series of 20 consecutive meshes chosen measurement. The choice of weight or in the direction of the long axis of the dynamometer is at the discretion of net, except that the meshes to be meas- the inspectors. The weight will be fixed ured need not be consecutive if the ap- to the hole in the narrowest extremity plication of paragraph (c)(3)(ii) of this of the gauge using a hook. The dyna- section prevents it. mometer may either be fixed to the (ii) Meshes less than 50 cm from hole in the narrowest extremity of the lacings, ropes, or codline will not be gauge or be applied at the largest ex- measured. This distance will be meas- tremity of the gauge. ured perpendicular to the lacings, ropes (B) The accuracy of the weight or dy- or codline with the net stretched in the namometer must be certified by the ap- direction of that measurement. No propriate national authority. mesh will be measured which has been (C) For nets of a mesh size of 35 mm mended or broken or has attachments or less as determined in accordance to the net fixed at that mesh. with paragraph (c)(6)(i) of this section, (iii) Nets will be measured only when a force of 19.61 newtons (equivalent to wet and unfrozen. a mass of 2 kg) will be applied, and for (4) The measurement of each mesh other nets, a force of 49.03 newtons will be the width of the gauge at the (equivalent to a mass of 5 kg). 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.
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(c) Procedure. At its annual meeting, pursuant to an exemption or permit usually in October or November, the granted by the appropriate agency. Commission may recommend new (b) Responsibility of owners and opera- measures and that established meas- tors. (1) The owners and operators of ures be modified, removed, or re-insti- each harvesting vessel are jointly and tuted. After public notice of those rec- severally responsible for compliance ommendations by the Secretary of with the Act, this subpart, and any per- State and opportunity for public com- mit issued under the Act and this sub- ment, and after considering the impact part. of instituting the measures and any (2) The owners and operators of each public comment received by the Sec- such vessel are responsible for the acts retary of State, the Assistant Adminis- of their employees and agents consti- trator may implement the manage- tuting violations, regardless of whether ment measures by notice in the FED- the specific acts were authorized or for- ERAL REGISTER, with immediate force bidden by the owners or operators, and and effect. The notification in the FED- regardless of knowledge concerning ERAL REGISTER will summarize new their occurrence. management measures, and respond to (3) The owner of such vessel must re- any public comments received by the port any sale, change in ownership, or Secretary of State on the preliminary other disposition of the vessel to the notice. Assistant Administrator within 15 days (d) Types of management measures to be of the occurrence. frameworked. Management measures (c) Application. Application forms for that may be implemented by regu- harvesting permits are available from latory notice rather than by codified the Assistant Administrator (Attn: regulation are those that generally will CCAMLR permits). A separate fully not remain in effect for more than 12 completed and accurate application months and include catch restrictions, must be submitted for each vessel for time and area closures, and gear re- which a harvesting permit is requested strictions. at least 90 days before the date antici- pated for the beginning of harvesting. § 300.112 Harvesting permits. (d) Issuance. The Assistant Adminis- trator may issue a harvesting permit (a) General. (1) Every vessel subject to a vessel if the Assistant Adminis- to the jurisdiction of the United States trator determines that the harvesting that attempts to reduce or reduces any described in the application will meet 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
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species, the effects of associated activi- days of the change. Based on such re- ties on the marine ecosystem and of ported information, the Assistant Ad- the effects of environmental changes, ministrator may revise the permit ef- with the aim of making possible the fective upon notification to the permit sustained conservation of AMLRs. holder. As soon as possible, the vessel (4) Violate the management measures owner or operator must revise any har- issued pursuant to § 300.111 of this sub- vesting vessel certificate evidencing part. the permit, accordingly. (5) Violate any other conservation (ii) Requested changes in the location, measures in force with respect to the manner, or amount of harvesting. Any United States under the Convention or changes in the manner or amount of the Act. harvesting must be proposed in writing (e) Duration. A harvesting permit is to the Assistant Administrator and valid from its date of issuance to its may not be undertaken unless author- date of expiration unless it is revoked ized by the Assistant Administrator or suspended. through a permit revision or issuance (f) Transfer. Permits are not transfer- of a new permit. If a requested change able or assignable. A permit is valid in the location, manner, or amount of only for the vessel to which it is issued. harvesting could significantly affect (g) Display. Each harvesting vessel the status of any Antarctic marine liv- when engaged in harvesting must ei- ing resource, the Assistant Adminis- ther have on board an up-to-date copy trator will treat the requested change of its harvesting permit or a fully com- as an application for a new permit and pleted and up-to-date harvesting vessel so notify the holder. certificate and the vessel operator (i) Additional conditions and restric- must produce it for inspection upon the tions. The Assistant Administrator request of an authorized officer or may revise the harvesting permit, ef- CCAMLR inspector. In order for the fective upon notification to the permit certificate to be considered complete, holder, to impose additional conditions the vessel owner or operator must and restrictions on the harvesting ves- enter on it the name and IRCS of the sel as necessary to achieve the pur- vessel issued the harvesting permit, the number of the harvesting permit poses of the Convention or the Act. The and its date of issuance and expiration, permit holder must, as soon as pos- the harvesting authorized by the per- sible, direct the vessel operator to re- mit, and all conditions and restrictions vise the harvesting vessel certificate, if contained in the permit. Blank certifi- any, accordingly. cates are available from the Assistant (j) Revision, suspension, or revocation Administrator. for violations. A harvesting permit may (h) Changes in information submitted be revised, suspended, or revoked if the by permit applicants or holders—(1) harvesting vessel is involved in the Changes in pending applications. Appli- commission of any violation of its per- cants for a harvesting permit must re- mit, the Act, or this subpart. Failure port to the Assistant Administrator in to report a change in the information writing any change in the information contained in an application within 15 contained in the application. The proc- days of the change is a violation of this essing period for the application will be subpart and voids the application or extended as necessary to review the permit, as applicable. If a change in change. vessel ownership is not reported, the (2) Changes occurring after permit violation is chargeable to the previous issuance—(i) Changes other than in the owner. Title 15 CFR part 904 governs manner and amount of harvesting. The permit sanctions under this subpart. owner or operator of a vessel that has (k) Transshipment vessels. Any U.S. been issued a harvesting permit must flagged vessel that receives or at- report to the Assistant Administrator tempts to receive Dissostichus species in writing any change in previously from a harvesting vessel at sea, regard- submitted information other than a less of whether such transshipment oc- proposed change in the location, man- curs in waters under the jurisdiction of ner, or amount of harvesting within 15 CCAMLR, must obtain from NMFS a
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harvesting permit authorizing trans- United States or in violation of any shipment. Transshipment vessels must regulation in this subpart. comply with the permitting provisions (d) Duration. A permit issued under of this section with respect to har- this section is valid from its date of vesting vessels. issuance to its date of expiration un- less it is revoked or suspended. [61 FR 35550, July 5, 1996, as amended at 65 FR 30017, May 10, 2000] (e) Transfer. A permit issued under this section is not transferable or as- § 300.113 Dealer permits. signable. (f) –(1) (a) General. (1) A dealer must obtain Changes in information Pending an AMLRs dealer permit from NMFS. applications. Applicants for permits Only those specific activities stipu- under this section must report in writ- lated by the permit are authorized for ing to NMFS any change in the infor- the permit holder. mation submitted in their permit ap- plications. The processing period for (2) An AMLR may be imported into the application will be extended as nec- the United States if its harvest has essary to review and consider the been authorized by a U.S.-issued indi- change. vidual permit or a harvesting permit issued under § 300.112 (a)(1) or its impor- (2) Issued permits. Any entity issued a tation has been authorized by a NMFS- permit under this section must report issued dealer permit issued under para- in writing to NMFS any changes in graph (a) of this section. AMLR’s may previously submitted information. Any not be released for entry into the changes that would not result in a United States unless accompanied by change in the receipt or importation the harvesting permit, the individual authorized by the permit must be re- permit, a NMFS-issued dealer permit, ported on the import ticket required to or a copy thereof. be submitted to NMFS no later than 24 hours after the date of receipt or im- (3) In addition to any applicable portation. Any changes that would re- catch documentation required under sult in a change in the receipt or im- § 300.107 (c)(1), the dealer is required to portation authorized by the permit, complete and return to NMFS, no later i.e., harvesting vessel or country of ori- than 24 hours after the date of the im- gin, type and quantity of the resource portation, an import ticket reporting to be received or imported, and Con- the importation. In no event may a vention statistical subarea from which marine mammal be imported into the the resource was harvested must be United States unless authorized and proposed in writing to NMFS and may accompanied by an import permit not be undertaken unless authorized by issued under the Marine Mammal Pro- NMFS through issuance of a revised or tection Act and/or the Endangered Spe- new permit. cies Act. (g) Revision, suspension, or revocation. (4) A dealer permit issued under this A permit issued under this section may section does not authorize the harvest be revised, suspended, or revoked, or transshipment of any AMLR by or based upon a violation of the permit, to a vessel of the United States. the Act, or this subpart. Failure to re- (b) Application. Application forms for port a change in the information con- AMLR dealer permits are available tained in a permit application voids from NMFS. A complete and accurate the application or permit, as applica- application must be submitted for each ble. Title 15 CFR part 904 governs per- permit at least 30 days before the an- mit sanctions under this subpart. ticipated date of the first receipt, im- portation, or re-export. [65 FR 30017, May 10, 2000] (c) Issuance. NMFS may issue a deal- er permit if it determines that the ac- § 300.114 Appointment of a designated tivity proposed by the dealer meets the representative. requirements of the Act and that the (a) All holders of permits authorizing resources were not or will not be har- fishing in subarea 48.3 must appoint a vested in violation of any conservation designated representative in the United measure in force with respect to the States.
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(b) The designated representative sion measures in effect prepared by a will be notified of closures under CCAMLR inspector. § 300.111 and must transmit this infor- (h) Assault, resist, oppose, impede, mation to the vessel on the grounds. intimidate, or interfere with a (c) The designated representative CCAMLR inspector in the conduct of may receive catch reports from the any boarding or inspection authorized vessel and transmit the reports to by the Act, this subpart, or any permit NMFS in writing. issued under the Act. (i) Use any vessel to engage in har- § 300.115 Prohibitions. vesting after the revocation, or during In addition to the prohibitions in the period of suspension, of an applica- § 300.4, it is unlawful for any person to: ble permit issued under the Act. (a) Reduce to possession or attempt (j) Fail to identify, falsely identify, to reduce to possession any AMLRs fail to properly maintain, or obscure without a permit for such activity as the identification of a harvesting ves- required by § 300.112. sel or its gear as required by this sub- (b) Import into or export from the part. United States any AMLRs taken by (k) Fish in a closed area. vessels without a permit to harvest (l) Trawl with a mesh size in any part those resources as required by § 300.112 of the trawl net smaller than that al- (a)(1), or without applicable catch doc- lowed for any directed fishing for Ant- umentation as required by § 300.107 arctic finfishes as specified in manage- (c)(1), or without a dealer permit as re- ment measures issued pursuant to quired by § 300.113 (a)(1), or in violation § 300.111. of the terms and conditions for such (m) Use any means or device that import or export as specified on the would reduce the size or obstruct the permit. 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- (q) Provide incomplete or inaccurate tion or in violation of any regulation information about the harvest, trans- promulgated under this subpart, with- shipment, landing, import or re-export out regard to the citizenship of the per- of applicable species on any document son that harvested, or vessel that was required under this subpart. used in the harvesting of, the AMLR. (r) Receive AMLRs from a vessel (e) Refuse to allow any CCAMLR in- without a dealer or harvesting permit spector to board a vessel of the United issued under this subpart. States or a vessel subject to the juris- [61 FR 35550, July 5, 1996, as amended at 65 diction of the United States for the FR 30017, May 10, 2000] purpose of conducting an inspection authorized by the Act, this subpart, or § 300.116 Facilitation of enforcement any permit issued under the Act. and inspection. (f) Refuse to provide appropriate as- In addition to the facilitation of en- sistance, including access as necessary forcement provisions of § 300.5, the fol- to communications equipment, to lowing requirements apply to this sub- CCAMLR inspectors. part. (g) Refuse to sign a written notifica- (a) Access and records. (1) The owners tion of alleged violations of Commis- and operator of each harvesting vessel
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must provide authorized officers and spectors present in the Convention CCAMLR inspectors access to all area and subject to the jurisdiction of spaces where work is conducted or the United States are encouraged to re- business papers and records are pre- port any violation of Commission con- pared or stored, including but not lim- servation and management measures ited to personal quarters and areas observed in the Convention area to the within personal quarters. If inspection Office of Ocean Affairs (CCAMLR Vio- of a particular area would interfere lations), Department of State, Room with specific on-going scientific re- 5801, Washington, DC 20520. search, and if the operator of the har- (c) Storage of AMLRs. The operator of vesting vessel makes such assertion each harvesting vessel storing AMLRs and produces an individual permit that in a storage space on board the vessel covers that specific research, the au- must ensure that non-resource items thorized officer or CCAMLR inspector are neither stowed beneath nor covered will not disturb the area, but will by resource items, unless required to record the information pertaining to maintain the stability and safety of the denial of access. the vessel. Non-resource items include, (2) The owner and operator of each but are not limited to, portable con- harvesting vessel must provide to au- veyors, exhaust fans, ladders, nets, fuel thorized officers and CCAMLR inspec- bladders, extra bin boards, or other tors all records and documents per- moveable non-resource items. These taining to the harvesting activities of non-resource items may be in a re- the vessel, including but not limited to source storage space when necessary production records, fishing logs, navi- for the safety of the vessel or crew or gation logs, transfer records, product for the storage of the items. Lumber, receipts, cargo stowage plans or bin boards, or other dunnage may be records, draft or displacement calcula- used for shoring or bracing of product tions, customs documents or records, to ensure the safety of crew and to pre- and an accurate hold plan reflecting vent shifting of cargo within the space. the current structure of the vessel’s (d) Disposition of resources denied storage and factory spaces. entry. [Reserved] (3) Before leaving vessels that have been inspected, the CCAMLR inspector [61 FR 35550, July 5, 1996, as amended at 65 will give the master of the vessel a Cer- FR 30017, May 10, 2000] tificate of Inspection and a written no- tification of any alleged violations of § 300.117 Penalties. Commission measures in effect and will Any person or harvesting vessel afford the master the opportunity to found to be in violation of the Act, this comment on it. The ship’s master must subpart, or any permit issued under sign the notification to acknowledge this subpart will be subject to the civil receipt and the opportunity to com- and criminal penalty provisions and ment on it. forfeiture provisions prescribed in the (b) Reports by non-inspectors. All sci- Act, 15 CFR part 904, and other applica- entists, fishermen, and other non-in- 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 ...... 381 402 Interagency cooperation—Endangered Species Act of 1973, as amended ...... 384 403 Transfer of marine mammal management author- ity to States ...... 395 424 Listing endangered and threatened species and des- ignating critical habitat ...... 403
SUBCHAPTER B [RESERVED]
SUBCHAPTER C—ENDANGERED SPECIES EXEMPTION PROCESS 450 General provisions ...... 412 451 Application procedure ...... 413 452 Consideration of application by the Secretary ...... 415 453 Endangered Species Committee ...... 418
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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- the state management program is en- ments of the Act, this part and the 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 a species, or the designation or revision under paragraph (a)(1)(iii) of this sec- 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 ...... 423 510 Implementation of the Federal Advisory Com- mittee Act ...... 427 520 Public availability of agency materials ...... 429 530 Compliance with the National Environmental Pol- icy Act...... 431 540 Information security ...... 432 550 Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by Marine Mammal Commission ...... 434 560 Implementation of the Government in the Sun- shine Act ...... 440
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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 ington, DC 20006 between the hours of of lll, 19l, 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 viewed, and a determination on the re- denial shall then be deemed final for 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, 1978.
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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)
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) XXIII Department of Energy (Part 3301) XXIV Federal Energy Regulatory Commission (Part 3401)
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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) LXXIII Department of Agriculture (Part 8301) 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]
Title 7—Agriculture
SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS 0—26) SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE
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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) XXXII Office of Procurement and Property Management, Department of Agriculture (Parts 3200—3299)
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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) XVIII Northeast Interstate Low-Level Radioactive Waste Commission (Part 1800)
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) IV Emergency Steel Guarantee Loan Board (Parts 400—499) V Emergency Oil and Gas Guaranteed Loan Board (Parts 500—599)
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)
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IV Foreign-Trade Zones Board, Department of Commerce (Parts 400—499) 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 Broadcasting Board of Governors (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) 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 Housing and Office of Multifamily Housing Assistance Restructuring, Department of Housing and Urban Develop- ment (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 (Parts 1000—1199) 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— 899)
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) VIII Court Services and Offender Supervision Agency for the District of Columbia (Parts 800—899) IX National Crime Prevention and Privacy Compact Council (Parts 900—999) XI Department of Justice and Department of State (Parts 1100— 1199)
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)
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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) 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) IX Federal Claims Collection Standards (Department of the Treas- ury—Department of Justice) (Parts 900—999)
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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) 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)
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) XV Oklahoma City National Memorial Trust (Part 1501) XVI Morris K. Udall Scholarship and Excellence in National Environ- mental Policy Foundation (Parts 1600—1699)
Title 37—Patents, Trademarks, and Copyrights
I United States 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) IV Environmental Protection Agency and Department of Justice (Parts 1400—1499) V Council on Environmental Quality (Parts 1500—1599) VI Chemical Safety and Hazard Investigation Board (Parts 1600— 1699)
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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 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) 102 Federal Management Regulation (Parts 102–1—102–299) 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 Centers for Medicare & Medicaid Services, 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)
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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) 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)
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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)
Title 46—Shipping
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 Broadcasting Board of Governors (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099)
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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) 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 Motor Carrier Safety 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)
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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) 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 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 5, LXXIII 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 Architectural and Transportation Barriers Compliance Board 36, XI
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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 215 Harvest levels ...... 30919 282 Added; interim (effective date 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 50 CFR 64 FR Page 226 Critical habitat designa- tion...... 9967 Chapter II 226.22 Introductory text amend- 216 Hearing...... 37690 ed...... 1393 216.3 Amended; eff. 7–1–99 through 226.23 Added ...... 1393 6–30–04 ...... 28120 226.72 Added; eff. 10–2–98 ...... 46701 Regulation at 63 FR 66076 eff. 1– 226.73 Added; eff. 10–2–98 ...... 46701 1–99 through 9–30–04 ...... 28121 216.23 (e) added; interim ...... 27927 226 Table 4 added ...... 1394 Regulation at 64 FR 29727 con- Figure 9 added...... 1395 firmed...... 53269 227 Authority citation revised ...... 13371 216.120—216.128 (Subpart K) Technical correction ...... 23226 Added; eff. 3–1–99 through 12– Heading revised; eff. 10–14–98 ...... 49041 31–03...... 9930 Workshop...... 52984, 56094, 67624 216.130—216.137 (Subpart L) Temporary regulations .....55053, 62959, Added; eff. 7–1–99 through 6–30– 66766 04...... 28120 Exemption...... 57620 216.161—216.166 (Subpart O) Regu- 227.4 (m) and (n) added...... 13371 lation at 63 FR 66076 eff. 1–1–99 (o) added; eff. 10–9–98...... 42591 through 9–30–04 ...... 28121 (p) added; eff. 10–14–98 ...... 49041 217 Removed...... 14054 227.72 (e)(2)(iv)(B) and (4)(iv) 220 Removed...... 14054 amended; (e)(4)(iii) revised; in- 221 Removed...... 14054 terim...... 17956 222 Revised ...... 14054 Figures 6, 7, 8a, 8b, 9a and 9b re- Temporary regulations .....25460, 27206, moved; Figure 5 revised ...... 17958 28761, 29805, 55858, 57397, 69416, 229 Fishery list...... 5748 70196 229 Figure 1 added ...... 27861 222.102 Amended ...... 60731 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 in part) ...... 14062 229.33 Added ...... 66487 223 Redesignated from 227; head- (a)(2) and (5) corrected ...... 71042 ing and authority citation re- 229.34 Added ...... 66489 vised...... 14068 230 Quotas ...... 16701, 65129 Temporary regulations .....25460, 27206, 260 Inspection fees ...... 69021 28761, 29805, 55858, 57397, 69416, 285 Temporary regulations ...... 35161, 70196 37506, 38340, 43116, 44173, 48641, 49296, Authority citation revised ...... 50415 49668, 49873, 54078, 55339 223.1 Removed ...... 14068 Inseason adjustments...... 51855 223.2 Removed ...... 14068 Catch limit adjustment ...... 71792 223.3 Removed ...... 14068 285.2 Amended; interim ...... 669 223.4 Removed ...... 14068 285.3 (a) revised; interim ...... 669 223.11 Redesignated as 223.201...... 14068 285.9 Added; interim ...... 669 223.12 Redesignated as 223.202...... 14068 285.22 (a)(3) revised ...... 27865 223.21—223.22 (Subpart C) Head- 285.31 (a)(22) revised; interim ...... 669 ing removed...... 14068 (a)(40) removed ...... 36612 223.21 Redesignated as 223.203...... 14068 285.33 (b) removed ...... 36612 223.22 Redesignated as 223.204...... 14068 223.71—223.72 (Subpart D) Head- Chapter III ing removed...... 14068 300 Technical correction...... 15324 223.71 Redesignated as 223.205...... 14068 Notice...... 30145 223.72 Redesignated as 223.206...... 14068 Inseason adjustment ...... 35541, 64005 223.101 Added ...... 14068 300.63 (b) revised ...... 13009 223.102 Added ...... 14068 (c) added ...... 24752 (a)(16), (17) and (18) added...... 14328 (b) corrected ...... 31938 (a)(12) and (13) added...... 14517
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50 CFR—Continued 64 FR 50 CFR—Continued 64 FR Page Page Chapter II—Continued Chapter II—Continued (a)(14) and (15) added...... 14528 226.203 Redesignated from 226.13; (a)(19) added...... 14536 heading revised; (a) and (b) (a)(20) and (21) added;eff. 11–15– amended...... 14067 99 ...... 50415 226.204 Redesignated from 226.21; 223.201—223.206 (Subpart B) Head- heading revised ...... 14067 ing revised ...... 14068 226.205 Redesignated from 226.22; 223.201 Redesignated from 223.11; heading revised; introductory (b)(1) and (2)(iv) amended ...... 14068 text amended...... 14067 223.202 Redesignated from (b) revised...... 57403 223.12 ...... 14068 226.206 Redesignated from 226.23; (b)(1) and Table amended ...... 14069 heading revised ...... 14067 223.203 Redesignated from 223.21; (a) amended...... 14068, 24061 heading revised ...... 14068 226.207 Redesignated from 226.71; (a), (b)(1), (2) and (3) amended ...... 14069 heading revised ...... 14067 223.204 Redesignated from 223.22; 226.208 Redesignated from 226.72; heading revised ...... 14068 heading revised ...... 14067 Revised...... 14069 226.209 Redesignated from 226.73; 223.205 Redesignated from 223.71; heading revised ...... 14067 heading revised ...... 14068 226.210 Added ...... 24061 Revised...... 14069 226 Figures 1 through 9 removed; 223.206 Redesignated from Tables 1 through 4 amended...... 14067 223.72 ...... 14068 Tables 5 and 6 added...... 24061 Revised (effective date pending in part) ...... 14070 227 Redesignated as 223 ...... 14068 (d)(2)(iii)(A) revised; interim ...... 55863 229.1 (f) revised...... 9086 223.207 Added (effective date 229.2 Amended ...... 7551, 9086 pending in part) ...... 14073 229.3 (g) through (j) revised ...... 7552 (c) introductory text amended; (c) amended; (e) through (p) re- interim ...... 55438 designated as (f) through (q); 223 Figure 6 added; interim ...... 55864 new (e) added...... 9086 224 Added ...... 14066 229.4 (b)(2)(v) removed; (b)(2)(vi), 224.101 (a) revised...... 14328 (c) and (d) through (m) redesig- 225 Removed...... 14054 nated as (b)(2)(v), (vi) and (c) 226.1—226.2 (Subpart A) Re- through (l); new (b)(2)(vi), moved ...... 14067 (d)(3), (e)(1), (3), (g) and (l) 226.11—226.13 (Subpart B) Head- amended; new (c) introductory ing removed...... 14067 text, (3), (4), (5), (d)(1) and (2) 226.11 Redesignated as 226.201...... 14067 amended ...... 9086 226.12 Redesignated as 226.202...... 14067 229.5 (c) and (e) amended; (d) re- 226.13 Redesignated as 226.203...... 14067 vised ...... 9087 226.21—226.23 (Subpart C) Head- 229.6 (a) amended; (b) revised ...... 9087 ing removed...... 14067 229.7 (c)(4)(vi) and (6) removed; 226.21 Redesignated as 226.204...... 14067 (c)(4)(vii) through (x) redesig- 226.22 Redesignated as 226.205...... 14067 nated as (c)(4)(vi) through (ix); 226.23 Redesignated as 226.206...... 14067 (b) introductory text, (c) head- 226.71—226.73 (Subpart D) Head- ing, (1), (2), (4) introductory ing removed...... 14067 text, (i), new (v), (5) and (d)(4) 226.71 Redesignated as 226.207...... 14067 revised ...... 9087 226.72 Redesignated as 226.208...... 14067 229.8 (b)(2) revised; (c) redesig- 226.73 Redesignated as 226.209...... 14067 nated in part as (d)...... 9087 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
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50 CFR—Continued 64 FR 2000 Page Chapter II—Continued 50 CFR 65 FR Page 229.31 (c)(2) and (3) revised; (c)(4) and (5) redesignated as (c)(7) Chapter II and (8); new (c)(4), (5) and (6) 216 Determination...... 38778 added; interim...... 3432 216.3 Amended; interim ...... 48 229.32 Revised ...... 7552 216.15 (g) added ...... 34597 (b), (c)(3)(ii), (4)(ii), (5)(ii), 216.24 Revised; interim...... 48 (d)(2)(ii), (3)(ii), (4)(ii), (5)(ii) 216.46 Added; interim ...... 56 and (f)(2) stayed...... 17292 216.90 Revised; interim...... 56 216.91 Revised; interim...... 57 (b), (c)(3)(ii), (4)(ii), (5)(ii), 216.92 Revised; interim...... 57 (d)(2)(ii), (3)(ii), (4)(ii) and 216.93 Revised; interim...... 57 (5)(ii) suspended; eff. 12–30–99 216.94 Revised; interim...... 57 through 11–1–00 ...... 73434 216.96 Added ...... 34410 229 Figure 1 revised; interim...... 3434 216.200—216.210 (Subpart R) 230 Quotas ...... 28413, 31037 Added; eff. 5–25–00 through 5– 249.501 Form BD revised...... 37594 25–05 ...... 34030 285 Catch limit adjustment...... 10576 222 Temporary regulations ...... 24132, Removed...... 29133 25670, 31500, 33779, 52348 Specifications ...... 29806 223 Temporary regulations ...... 24132, Retention limit adjustment ...... 31992 25670, 31500, 33779, 52348 Temporary regulations ...... 34138 Determination...... 38778 285.21 (b)(7) revised; interim...... 27208 223 Policy statement ...... 70514 (b)(7) revised...... 30926 223.102 (a)(22) added...... 36094 Chapter III (c) revised ...... 60383 223.203 Revised ...... 42475 300 Fisheries management meas- 223.209 Added ...... 42485 ures ...... 13519 224 Determination...... 38778 Inseason adjustment ...... 26890 Policy statement...... 70514 Nomenclature change...... 44431 224.101 (a) amended ...... 20918 Quotas...... 69672, 72035 (a) revised...... 69481 Fishing restrictions ...... 72961, 72962 226.206 Removed ...... 20918 300.13 (a)(1) introductory text re- 226.212 Added ...... 7777 vised ...... 15 226.213 Added ...... 17795 300.14 Added ...... 15 226 Tables 7 through 24 added ...... 7779 300.15 (c) added ...... 15 Table 4 removed...... 20918 300.16 Revised ...... 15 228 Added ...... 39560 300.17 Added ...... 15 229.2 Amended; interim ...... 80377 300.20 Revised ...... 44430 229.3 (h) through (k) revised; in- 300.21 Amended...... 29133 terim...... 80377 Amended ...... 44430 229.32 (b), (c)(3)(ii), (4)(ii), (5)(ii), 300.24 Amended...... 29133 (d)(2)(ii), (3)(ii), (4)(ii) and 300.25 Amended; (a)(1) revised ...... 29133 (5)(ii) removed ...... 70317 300.26 Amended; (d) revised ...... 29133 (b)(1) through (d)(6)(ii) revised; 300.27 Revised ...... 29133 interim ...... 80377 300.28 (b) and (c) revised ...... 29133 230 Quota...... 49509, 75186 Heading revised; (a), (b), and (c) Chapter III redesignated as (e), (f), and 300 Inseason adjustments...... 59, 54969 (g); new (a) through (d) added Fisheries management meas- ...... 44430 ures ...... 14909 300.29 Added ...... 44431 Technical corrections...... 17805 300.61 Amended; eff. 10–29–99...... 52469 Fishing restrictions...... 52672 300.63 Heading and introductory Quotas...... 58231, 71270 text revised; (d) added; eff. 10– Inseason adjustment ...... 75867 29–99 ...... 52469 Policy statement...... 46740 300.60—300.65 (Subpart E) Figure 1 300.63 (e) added...... 67308 added; eff. 10–29–99...... 52470 300.101 Amended ...... 30015
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50 CFR—Continued 65 FR 50 CFR—Continued 66 FR Page Page Chapter III—Continued Chapter II—Continued 300.107 Revised ...... 30016 224.103 (b) and (c) redesignated as 300.112 (k) added...... 30017 (c) and (d); (b) added ...... 29509 300.113 Revised ...... 30017 224.104 Heading and (c) revised; 300.115 (b) revised; (q) and (r) interim...... 44552 added...... 30017 229 Temporary regulations ...... 15045, 27042 2001 Regulation at 66 FR 27042 eff. date corrected ...... 29213 (Regulations published from January 1, Fisheries List ...... 42780 2001, through October 1, 2001) 229.2 Regulation at 65 FR 80377 eff. 50 CFR 66 FR date delayed...... 5489 Page 229.3 Regulation at 65 FR 80377 eff. Chapter II date delayed...... 5489 216 Harvest estimates...... 33209 229.32 Regulation at 65 FR 80377 216.151—216.157 (Subpart N) Cor- eff. date delayed ...... 5489 rectly removed; CFR correc- 229.34 (a)(2) revised...... 2338 tion ...... 22133 230 Quotas ...... 14862 Added ...... 22466 300 Fishery management meas- 216.170—216.178 (Subpart P) ures ...... 15801, 18409 Added; eff. 9–17–01 through 9– Policy statement...... 46740 17–06 ...... 43458 300.22 Heading revised; existing 222 Temporary regulations ...... 15045, text designated as (a); (b) 28842, 33489 added; eff. 10–29–01...... 49320 223 Temporary regulations ...... 15045, 300.28 (h) through (l) added; eff. 28842, 33489 10–29–01...... 49320 Exemption...... 37599 300.29 (e) added; eff. 10–29–01 ...... 49320 223.206 (d)(2)(iv)(B) amended ...... 1603 300.63 (e) corrected ...... 8373 (d)(6) added; interim ...... 44551 (d)(1)(i) amended...... 36208 223.207 (c) introductory text re- (a)(3) and (4) redesignated as vised ...... 1603 (a)(4) and (5); new (a)(3) added (a)(7)(ii)(B) revised; interim ...... 24288 ...... 42156 223 Figure 16 added; interim ...... 24289 300.60—300.65 9 (Subpart E) Figure 224.101 (d) added ...... 29055 1 amended...... 36208 Æ
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